IN RE: ESTATE OF MARY L. BECHTEL, DECEASED LARRY E. BECHTEL, PETITIONER DONALD R. BECHTEL AND MICHAEL T. BECHTEL, RESPONDENTS APPEAL OF: DONALD R. BECHTEL AND MICHAEL T. BECHTEL
Argued: December 11, 2013.
Appeal from the Order of the Court of Common Pleas, Dauphin County, Orphans' Court Division, No(s): 2209-1033. Before BRATTON, J.
Christian S. Daghir, Harrisburg, for appellants.
Thomas P. Gacki, Harrisburg, for appellee.
BEFORE: DONOHUE, J., OTT, J., and PLATT, J.[*] OPINION BY OTT, J.
Donald R. Bechtel and Michael T. Bechtel bring this appeal from the order entered in the Orphans' Court Division of the Court of Common Pleas of Dauphin County on April 15, 2013, that (1) amended a surcharge imposed against Donald to $17,230.40, and (2) dismissed the motion filed by Donald and Michael for witness fees, cost of suit, and reasonable attorneys' fees. Donald and Michael challenge both rulings in this appeal. Based upon the following, we reverse and remand for proceedings consistent with this opinion.
The orphans' court summarized the underlying facts of this case as follows:
On April 9, 1996, as a result of injuries she had sustained in a serious automobile accident, the Decedent [Mary L. Bechtel] executed a Power of Attorney (hereinafter, " POA" ) naming her son, Donald, as her attorney-in-fact, a designation which remained in effect until the day of her death. Pursuant to the authority granted by the POA, Donald managed the Decedent's finances, paying her bills and depositing any income into her bank account(s). Donald and his wife, Donna, to whom Donald had apparently delegated some of his duties, were responsible for writing hundreds of checks on behalf of the Decedent and at the Decedent's request.
On October 27, 2006, apparently to protect against possible transfers of tracts of the family farm to third parties, the Decedent executed a Fee Simple Deed (the " Deed" ) which purported to transfer an undivided ninety-five percent (95%) interest in the Bechtel family farm located in Elizabethville, Dauphin County, Pennsylvania (the " Homestead" )
to herself and an undivided five percent (5%) interest of the same to Donald, as joint tenants with the right of survivorship. On the same day, the Decedent and Donald entered into a written agreement (the " Agreement" ) whereby, inter alia, Donald agreed, upon the death of the Decedent, to sell the Homestead and distribute the net proceeds from the sale in accordance with the terms of the Decedent's Last Will and Testament.
On October 23, 2009, the Decedent died testate and was survived by Donald, Michael and Larry. Shortly thereafter, on November 5, 2009, Donald and Michael were appointed co-executors of the Decedent's Estate as provided in the Decedent's Last Will and Testament dated January 4, 2008. The Homestead was sold on January 5, 2011.
Orphans' Court Opinion, 12/21/2012, at 2-3.
Following the death of Mary L. Bechtel (the Decedent), Larry, a residuary beneficiary under her Will, filed: (1) a civil action against Donald, alleging breach of the Agreement to sell the Homestead, and demanding one-third of the proceeds from the sale of the decedent's farm without any deduction for inheritance tax, administrative expenses, funeral expenses, or any other expenses of the estate; (2) a petition to have Donald and Michael removed as co-executors of Decedent's estate, and to have Larry appointed as Administrator d.b.n.c.t.a.; and, (3) objections to the Account filed by Donald, as attorney-in-fact for Decedent. On March 26, 2012, the civil action instituted by Larry was transferred from the civil court division to the orphans' court division. By order dated May 14, 2012, the three matters filed by Larry were consolidated, and the orphans' court held hearings on May 29, 2012, and July 30, 2012.
Following these hearings, the court, on December 21, 2012, (1) dismissed Larry's civil complaint against Donald; (2) sustained Larry's objections to the Account, and surcharged Donald $17,245.40; and (3) denied Larry's petition for removal of Donald and Michael as co-executors, and (4) ordered Donald and Michael to file a First and Final Account and Petition for Distribution of the Estate of Mary L. Bechtel within thirty days of the date of the receipt of the Notice of Appraisement of the Inheritance Tax return by the Pennsylvania Department of Revenue or from the date of service of the Order, whichever was later. See Order, 12/21/2012. Specifically, the orphans' court judge found:
1. Donald had not breached the terms of the Agreement at that time, since
[t]he evidence presented demonstrates that after the Decedent's death and Donald's appointment as co-executor of the Estate, the Homestead was sold in
accordance with the Decedent's wishes, as explained in the Agreement, and Donald deposited the full amount of the net proceeds of the sale, $369,276.89, into the Mary L. Bechtel Estate account with Mid Penn Bank;
2. Donald " breached his fiduciary duty as the Decedent's attorney-in-fact in that he failed to '[k]eep full and accurate record of all actions, receipts and disbursements on behalf of the principal.' 20 Pa.C.S. § 5601(e)(4)" ; and,
3. Larry had not " clearly proven the reason(s) for which Donald and Michael should be removed," and there was no evidence " that the conduct of Donald or Michael has endangered (or will endanger) the administration of the Estate to a degree which would require intervention by this Court." Orphans' Court Opinion, supra, at 3-5.
On December 31, 2012, Donald and Michael filed a Motion for Post Trial Relief, requesting, inter alia, that the orphans' court modify and change the December 21, 2012 Order to remove the surcharge against Donald. On January 22, 2013, Donald and Michael filed a Post-Trial Motion for Witness Fees, Costs of Suit and Reasonable Attorneys' Fees.
On April 15, 2013, the orphans' court entered an order, granting relief in part and amending the amount of the surcharge against Donald to $17,230.40 to correct a mathematical error, and dismissing the motion for witness fees, cost of suit and ...