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Estate of Mikeska

Superior Court of Pennsylvania

August 20, 2019

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

          Appeal from the Order Entered November 1, 2017 In the Court of Common Pleas of Allegheny County Orphans' Court at No.: 02-15-01826

          BEFORE: BOWES, SHOGAN, and STABILE, JJ.

          OPINION

          STABILE, J.

         Appellants, 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.

         Jonas 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.

         On 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.

         Around 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.

         Brazauskas's 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, [1] 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 . . .

         It 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.

         On July 14, 2015, McCamic entered his appearance for Appellants, listing each Appellant "c/o" (in care of) Kraus and Williams of the Kemp firm.

         On June 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 final account.

         The 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 Brazauskas's testimony.

         On 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.

         The 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 advisement.

         On June 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.

         At the 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 ...

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