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MATTER ESTATE A. LARUE VELOTT (08/13/87)

filed: August 13, 1987.

IN THE MATTER OF THE ESTATE OF A. LARUE VELOTT, DECEASED. APPEAL OF LARUE H. VELOTT


Appeal from the Order Entered May 16, 1986, in the Court of Common Pleas of Lycoming County, Orphans' No. 41-79-0162.

COUNSEL

Robert B. Hoffman, Harrisburg, for appellant.

Peter Burchanowski, Williamsport, for appellee.

Wieand, Olszewski and Tamilia, JJ.

Author: Olszewski

[ 365 Pa. Super. Page 314]

Appellant, LaRue H. Velott, appeals from the order entered in the Court of Common Pleas of Lycoming County, Orphans' Court Division, denying appellant's motion to remove co-executors and for surcharge. On appeal, appellant contends that the trial court erred in denying his motion to remove co-executors and for surcharge without a hearing pursuant to 20 Pa.C.S.A. Sec. 3183. We agree with appellant's contention. We, therefore, vacate the order denying appellant's motion to remove co-executors and for surcharge and remand the case to the trial court for a hearing

[ 365 Pa. Super. Page 315]

    to consider appellant's motion to remove co-executors and for surcharge.

Before addressing the merits of appellant's contentions, a brief recital of the relevant facts is necessary. The decedent, A. LaRue Velott, died in March of 1979, and his will was subsequently probated with his wife, Esther Velott, and the Commonwealth Bank and Trust Company being given letters testamentary as co-executors of the estate. In August of 1981, the co-executors filed a first and partial accounting regarding the handling of decedent's estate; but exceptions to the first and partial account were subsequently filed by Suzanne Stroble, Dona Staccone, Michael S. Velott and appellant, the children of the decedent and beneficiaries under his will. In September of 1982, following protracted negotiations regarding the issues raised by the exceptions to the first and partial accounting, the co-executors and the beneficiaries of the estate joined in a stipulation resolving the different objections to the first and partial accounting and agreeing on the contents and confirmation of the supplemental first and partial accounting. The co-executors, in September of 1983, filed a second and final accounting, to which the beneficiaries again filed various exceptions.

In May of 1984, Michael S. Velott, Dona Staccone, and appellant filed a petition to set aside stipulation, which sought to have the stipulation of September 1982 set aside and to reopen various issues settled by the confirmation of the supplemental first and partial accounting. Following the filing of a motion for summary judgment by Suzanne Stroble and the executors of the estate, the trial court in April 1985 entered an order, with an accompanying opinion, granting Ms. Stroble's motion for summary judgment and denying appellant's and the other beneficiaries' petition to set aside the stipulation. Appellant then filed a motion to reconsider the order denying the petition to set aside stipulation, which the trial court summarily denied.

In July 1985, appellant also filed a motion to remove co-executors and surcharge that alleged numerous improprieties in the administration of decedent's estate. On July

[ 365 Pa. Super. Page 31630]

, 1985, the trial court entered the order denying appellant's motion to reconsider. The order also made the following statement ...


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