J-A24014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF ESTATE OF SARAH P. IN THE SUPERIOR COURT OF
DELIBERTY, DECEASED PENNSYLVANIA
APPEAL OF: PAMELA D’ALESSANDRO
No. 2636 EDA 2014
Appeal from the Order Entered August 11, 2014
In the Court of Common Pleas of Delaware County
Orphans' Court at No(s): 608-2009
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 13, 2015
Appellant, Pamela D’Alessandro,1 appeals from the order entered in
the Delaware County Orphans’ Court confirming administrative costs and
fees to the court-appointed administrator of the estate of Sarah P.
DeLiberty, William A. Pietrangelo, Esquire. D’Alessandro argues that
Attorney Pietrangelo’s failure to pursue a debt owed to the estate, as well as
failing to treat beneficiaries equitably during preliminary distribution, render
the award of costs and fees an abuse of discretion. We conclude that the
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*
Retired Senior Judge assigned to the Superior Court.
1
Formerly Palma D’Alessandro, and is referenced as such in many filings in
the certified record.
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orphans’ courts findings are well supported by the record and its order does
not constitute an abuse of discretion. We therefore affirm.
Sarah P. DeLiberty died on May 8, 2006. Under her Will, Peter
DeLiberty, Pamela D’Alessandro, and Mario DeLiberty were appointed as co-
executors of Sarah’s estate. Although there was clearly hostility between
them during this time, they administered the estate jointly until Peter’s
death in June, 2008. In 2009, Mario DeLiberty approved advance
distributions of $100,000 to himself and to Peter’s widow, Stephanie
DeLiberty.
In 2010, the conflict between Mario and Pamela came to a head over
Mario’s desire to collect a debt owed to the estate by Pamela’s son, Stephen
D’Alessandro. Mario filed a petition to remove Pamela as a co-executor,
alleging that Pamela was failing to perform her fiduciary duty by refusing to
pursue this debt. Pamela filed an answer asserting that there was no
evidence of the debt, and that her refusal to pursue the debt was therefore
reasonable.
After a hearing on the petition, the orphans’ court entered an order
removing both Pamela and Mario as co-executors. In their stead, the
orphans’ court appointed Attorney Pietrangelo as Administrator CTA of the
estate. Attorney Pietrangelo proceeded to collect the debt from Stephen,
ultimately obtaining a judgment against Stephen in the amount of
$153,963.29.
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Mario subsequently filed an account of his actions as co-executor of
the estate, which included acknowledgement of the advance distributions to
himself and Stephanie. This accounting was approved by the orphans’ court
as Mario’s final accounting as co-executor of the estate.
Approximately 2 years later, in 2013, Attorney Pietrangelo filed a
petition for administrative costs and fees. Attorney Pietrangelo filed a
supplemental petition for fees and costs in 2014, and on August 12, 2014,
the orphans’ court entered an order awarding Attorney Pietrangelo
$59,983.19 in fees and costs. This timely appeal followed.2
On appeal, Pamela does not challenge the reasonableness or
appropriateness of any of the listed fees claimed by Attorney Pietrangelo.
Rather, Pamela asserts that since Attorney Pietrangelo has (a) failed to
collect an alleged debt owed to the estate by Peter and (b) refused to
provide her with an advance distribution of $100,000 from the estate, he
has violated his fiduciary duty and should not receive payment at all.
Therefore, for purposes of this appeal, we need not assess the
reasonableness or appropriateness of the fees claimed, but rather only
whether Attorney Pietrangelo has breached his fiduciary duty.
Our standard of review is as follows:
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2
We conclude that Pamela correctly invokes our jurisdiction under Pa.R.A.P.
342(a)(1), as Attorney Pietrangelo’s petitions constituted partial accountings
of the estate. See Rule 342, Note.
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The findings of a judge of the orphans’ court division, sitting
without a jury, must be accorded the same weight and effect as
the verdict of a jury, and will not be reversed by an appellate
court in the absence of an abuse of discretion or a lack of
evidentiary support.
The rule is particularly applicable to the findings of fact which are
predicated upon the credibility of the witnesses, whom the judge
has had the opportunity to hear and observe, and upon the
weight given to their testimony. In reviewing the Orphans’
Court’s findings, our task is to ensure that the record is free
from legal error and to determine if the Orphans’ Court’s findings
are supported by competent and adequate evidence and are not
predicated upon capricious disbelief of competent and credible
evidence. However, we are not limited when we review the legal
conclusions that [an] Orphans’ Court has derived from those
facts.
In re Wilton, 921 A.2d 509, 513 (Pa. Super. 2007) (brackets in original;
citation omitted).
As noted above, Pamela does not challenge the reasonableness of any
of the fees claimed by Attorney Pietrangelo; rather, she asserts breaches of
fiduciary duty. However, Pamela did not file a petition seeking to remove
Attorney Pietrangelo as administrator. Instead, she raised these issues in an
answer to Attorney Pietrangelo’s request for payment of costs and fees.
As a purely technical matter, neither of the arguments presented by
Pamela on appeal constitute grounds for disallowing the fees and costs
claimed by Attorney Pietrangelo. If established, they are grounds for
removing Attorney Pietrangelo as administrator, and then possibly, at least
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with respect to the first argument,3 a basis for surcharging Attorney
Pietrangelo due to the breach of fiduciary duty. As Pamela did not request
either the orphans’ court or this court to (a) remove Attorney Pietrangelo as
administrator, or (b) surcharge Attorney Pietrangelo, we can divine no
reason to reverse the orphans’ court’s order approving the petition filed by
Attorney Pietrangelo.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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3
Pamela’s first argument, that Attorney Pietrangelo failed to pursue and
collect an alleged asset of the estate, would justify a surcharge against
Attorney Pietrangelo if established. With respect to Pamela’s second
argument, that Attorney Pietrangelo has refused an advance distribution to
her commensurate with the advance distributions given to Peter and Mario
before Attorney Pietrangelo’s involvement, we conclude that this would not
justify a surcharge even if established.
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Estate of DeLiberty, S.
Combined Opinion