ESTATE OF ALBERT MIKESKA, DECEASED APPEAL OF: KAZIMIRA MIKESKAITE DILKEVICIENE (ESTATE) AND TEOFILE MIKESKAITE STRIGUNIENE, PATERNAL COUSINS; KAZIMIERA ANGLICKIENE (HEIR- REGINA SAMOSKIENE), MATERNAL AUNT; AND PETRAS PUKELIS (HEIRS - REMIGIJA URBIETIENE, GINTAUTAS PUKELIS, PETRAS PUKELIS, & TOMAS PUKELIS), ALEKSANDRA STUMBRIENE, ZIGMUNTAS MATUTIS, MARIJA GANDRAMAVICIENE, FELIKSAS PUKELIS, JUOZAPAS PUKELIS, STASE PUKELYTE GRISKEVICIENE, JONAS PUKELIS, STEPONAS PUKELIS, ANTANAS PUKELIS (ESTATE), JUZEFAANTANAITYTE JAKUBAUSKIENE, JANINA VAITKEVICIENE (HEIRS - JADVYGA VAITKEVICIENE AND BENEDIKTAS VAITKEVICIUS), EUGENIJAALISAUSKIENE, VYTAUTAS BAURA (HEIRS - IRENA BAURIENE & EVALDAS BAURA), ALGINA ALIUTE POTRIENE, DANUTE MARIJA PALIOKIENE, IRMA VALAITIENE, ALDONA TIMOFEJEVA, PETRAS PUKELIS, MATERNAL COUSINS, THE LITHUANIAN HEIRS
from the Order Entered November 1, 2017 In the Court of
Common Pleas of Allegheny County Orphans' Court at No.:
BEFORE: BOWES, SHOGAN, and STABILE, JJ.
twenty-two alleged heirs of the estate of Albert R. Mikeska,
deceased, appeal from an order denying their exceptions to
the first and final account of the co-administrators of
Mikeska's estate ("estate"). Appellants, who
all reside in Lithuania, contend they have an interest in
Mikeska's estate. We affirm.
Mikeska and his brother, Juozapas Mikeska, moved from
Lithuania to America when they were young. Jonas married
another Lithuanian immigrant, and Albert Mikeska, born in
America, was their only son. Juozapas had two children in
America, and he died in 1974.
January 8, 2015, Albert died intestate. On March 23, 2015,
the Allegheny County Register of Wills granted letters of
administration to Juozapas's two children (and
Albert's first cousins), Delores Mikeska Morante and
Stanley Mikeska, to serve as co-administrators of
Albert's estate. The estate filed a certification that
the co-administrators were the only persons entitled to share
in the estate.
this time, the estate became the target of heir hunters,
individuals or entities who attempt to locate heirs of
estates in return for compensation. A reporter retained by
Kemp & Associates ("Kemp"), a Utah firm that
identifies and locates missing heirs, notified Kemp about
Albert's estate. Kemp contacted Hoerner Bank, a German
bank that locates heirs internationally, and the bank
retained Rolandas Brazauskas, a Lithuanian attorney and
genealogist, to identify any Mikeska heirs in Lithuania.
Brazauskas graduated from Vilnius University in 1981 and has
worked extensively in the genealogical field. He reads,
writes and speaks English and has testified as a genealogy
expert in four United States cases. Brazauskas provided his
research to Hoerner Bank, which provided it to Kemp. Kemp
hired Jeffrey McCamic, Esquire, an attorney licensed to
practice law in Pennsylvania, to represent Appellants in
Allegheny County Orphans' Court.
partner, Lithuanian attorney Danute Morkuniene, contracted
with Appellants to represent them in documenting and proving
their relationship to Albert Mikeska. Each Appellant entered
into a fee agreement with "Danute Morkuniere, Attorney
at Law of D. Morkuniene and R. Brazauskas Law Office."
Each fee agreement provided: "The client shall pay
overall fee of [Kemp firm employees] Brian O. Kraus and
Barbara S. Williams,  Hoerner Bank AG and the Attorney
[Morkuniere] of 25%, which is calculated from the total share
to which the Client is entitled in the above captioned
estate." Further, each agreement provided:
1. The fee fixed in accordance to this agreement shall be
paid after the estate is concluded. The fee is calculated
[out] of [the] total share that the Client is entitled to.
2.Once it would appear that it is not possible to claim the
estate in favor of the Client or it would appear that the
Client is not, entitled to the estate, the Client shall not
bear responsibility for paying fee fixed in accordance to
this agreement . . .
bears emphasis that McCamic was not a signatory to any
agreement with Brazauskas. Instead, Kemp retained Hoerner
Bank, which in turn retained Brazauskas. Neither was McCamic
a signatory to any agreement with Appellants. Instead, Kemp
hired McCamic to represent Appellants, and Appellants entered
into fee agreements with Brazauskas's law partner.
14, 2015, McCamic entered his appearance for Appellants,
listing each Appellant "c/o" (in care of) Kraus and
Williams of the Kemp firm.
8, 2016, the estate filed a motion for distribution asserting
that the co-administrators were Albert's sole and
rightful heirs under a family settlement agreement.
Appellants filed an objection to this motion and their own
petition to acknowledge themselves as heirs. The estate
subsequently filed a first and final account. In response,
Appellants withdrew their petition to acknowledge themselves
as heirs, withdrew their objection to the estate's motion
for distribution, and filed an objection to the first and
case proceeded to a hearing in Orphans' Court. On
February 8, 2017, McCamic called Brazauskas to testify as an
expert relating to the acquisition of the genealogical
records necessary to document Appellants' relationship to
Albert Mikeska. The court declined to recognize Brazauskas as
an expert but permitted him to testify about how he obtained
the documents submitted as exhibits at the hearing.
Brazauskas testified that he established Appellants'
relationship to Albert by obtaining 136 genealogical
documents from Lithuania's central historical archives.
According to Brazauskas, most of these documents were
"certified copies" bearing apostilles,
i.e., confirmation by Lithuania's Historical
Archives that the documents were authentic. N.T., 2/8/17, at
33-34. McCamic presented these documents to the court during
cross-examination, counsel for the estate asked Brazauskas
who was paying his fee. Brazauskas answered, "The fees,
after I'm able to prove the kinship of my client to here,
we are receiving the funds from the estate administrator, and
then they are paying my fee." Id. at 37. The
court asked, "Out of the estate, or at least your
client's share of the estate?" Id.
Brazauskas answered, "If the estate administrator
releases the funds for my clients." Id. at 38.
Counsel for the estate asked, "So if the 22 purported
Lithuanian heirs don't recover anything, you don't
get paid, is that correct?" Brazauskas answered,
"Yes." Id. Thus, Brazauskas agreed that he
was testifying on a contingent fee basis. The record does not
indicate whether McCamic was aware of Brazauskas's
contingent fee agreement prior to this testimony.
estate moved to strike Brazauskas's testimony on the
ground that he was testifying on a contingency fee basis in
violation of Rule 3.4 of the Pennsylvania Rules of
Professional Conduct. The court held this motion under
21 and 22, 2017, Appellants testified about their family
history, their relationship with Albert, and their
correspondence with Albert's mother. On July 13, 2017,
Kemp employee Williams testified about, inter alia,
the nature of Kemp's business, its dealings with Hoerner
Bank, and its retention of McCamic in these proceedings.
close of evidence, the court granted the estate's motion
to strike Brazauskas's testimony in its entirety and
dismissed Appellants' objections to the first and final
account. Appellants filed a timely appeal, and both
Appellants and the court complied with Pa.R.A.P. 1925.
Appellants raise the following issues in this appeal:
1. Did the trial court err as a matter of law in granting the
Estate's Motion to Strike the Testimony of ...