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ESTATE ALPHONSE K. ROART (11/16/89)

filed: November 16, 1989.

IN RE ESTATE OF ALPHONSE K. ROART, DECEASED. APPEAL OF HELENA T. GAYDOS, EXECUTRIX OF THE ESTATE OF LUCIE BERTE ROART


Appeal from the Decree Docketed December 22, 1988 in the Court of Common Pleas of Philadelphia County Orphans' Division, No. 1156 of 1974.

COUNSEL

John K. Weston, Philadelphia, for appellant.

Mark A. Lublin, Philadelphia, for First Pennsylvania Bank, participating party.

Cirillo, President Judge, and Kelly and Cercone, JJ.

Author: Cercone

[ 390 Pa. Super. Page 41]

This is an appeal from a decree of the Court of Common Pleas of Philadelphia County, orphans' court division, dismissing appellant's exceptions and affirming the denial of her petition for review of a 1975 adjudication of the orphans' court. We affirm.

The instant action relates to the estate of Alphonse K. Roart, who died in March, 1974. Probate of Mr. Roart's will resulted in the granting of letters testamentary to the First Pennsylvania Banking and Trust Company (the bank), appellee. The will provided annuities for Roart's widow, Lucie B. Roart, as well as gifts to several charitable organizations. Mrs. Roart elected against the will.

In April, 1975, the bank filed its first and final account which was confirmed nisi by the lower court on October 8, 1975. No exceptions were filed to the adjudication. On June 24, 1976, the lower court approved and filed a schedule of distribution. Objections to the schedule of distribution were filed by Helena T. Gaydos, appellant. Mrs. Gaydos had been granted letters testamentary for the estate of Mrs. Roart, who died in July, 1975.

On September 3, 1976, Mrs. Gaydos filed a petition for review of the lower court's adjudication of October 8, 1975. The petition alleged that the bank was negligent in failing to sell at an earlier date shares of stock in the bank holding company (First Pennsylvania Corporation) which were part of Mr. Roart's original estate. In the petition, Mrs. Gaydos requested that the bank be surcharged the amount of $76,930.39 as a result of its alleged negligence. Joining in Mrs. Gaydos' petition were the Overbrook School for the Blind and St. Edmond's Home for Crippled Children, two of the beneficiaries under Mr. Roart's will. The Attorney General of the Commonwealth of Pennsylvania also joined as parens patriae.*fn1

[ 390 Pa. Super. Page 42]

On November 17, 1976, the bank filed an answer and new matter in response to appellant's petition. A period of discovery ensued. Then, on February 11, 1982, appellant filed an amended petition for review. The bank responded to this petition with preliminary objections, which were sustained by the lower court in June, 1984, because the amended petition was filed more than five years after the final confirmation of the account and did not allege fraud.

In December, 1984, the lower court granted the bank leave to file requests for admissions which were answered by all parties. Mrs. Gaydos then requested and received leave to file admissions. The bank opposed this request and the lower court modified its order granting Mrs. Gaydos' request. The bank was then required to answer only certain of the requested admissions.

A hearing on appellant's petition was held on April 4, 1986. The lower court determined, in an opinion rendered March 31, 1988, that appellant had failed to sustain her burden of proof on the petition to review, and denied the petition. Appellant filed exceptions to the lower court's determination and the exceptions were argued before the court en banc. On December 22, 1988, the court en banc dismissed appellant's exceptions and affirmed the denial of the petition for review. Appellant then filed the instant timely appeal.

Appellant makes the following arguments on appeal: (1) the lower court erred in failing to find that the bank and the holding company had admitted the allegations in certain paragraphs of the original petition for review; (2) the lower court erred in failing to require the bank and the holding company to file answers to all of the requests for admissions which appellant submitted; (3) the lower court erred in failing to find that appellant had demonstrated after-discovered evidence which would justify the granting of the petition for review; (4) the lower court erred in failing to find that the bank violated its own internal policies regarding the sale of holding company stock held in an estate

[ 390 Pa. Super. Page 43]

    account; and (5) appellant met her burden of proving that the adjudication of October 8, 1975 should be opened.

Before addressing appellant's contentions, we note that our scope of review in an action challenging an account filed on behalf of an estate is limited to a determination of whether the findings of fact of the lower court are supported by sufficient, competent evidence and whether the court below committed an error of law or abused its discretion. In re Gramm's Estate, 437 Pa. 381, 263 A.2d 445 (1970). Review of an account is granted as of right only (1) when there are errors of law appearing on the face of the record; (2) where new matter has arisen since confirmation of the account or decree; or (3) where justice and equity require a review. In re Cipriotti Estate, 451 Pa. 91, 301 A.2d 358 (1973); Pincus' Estate, 378 Pa. 102, 105 A.2d 82 (1954). On a bill of review, the burden is on the person questioning the correctness of the accounts. In re Bailey's Estate, 208 Pa. 594, 57 A. 1095 (1904).

Appellant first contends that the answers filed by the bank to four of the paragraphs in the original petition for review were actually admissions because they lacked sufficient specificity to constitute denials. The lower court erred, appellant argues, in failing to find that the bank had admitted these allegations. The paragraphs to which appellant refers and the corresponding answers of appellee are as follows:

15. The asset-quality problems referred to in paragraph 14 hereof were caused, inter alia, by the Bank's excessive and imprudent loans to real estate investment trusts.

The answer:

15. It is denied that the Bank or Holding Company had asset quality problems and denied that the Bank made excessive or imprudent loans to real estate investment trusts.

[ 390 Pa. Super. Page ...


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