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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF : IN THE SUPERIOR COURT OF
FRANKLIN A. HAWK : PENNSYLVANIA
:
APPEAL OF: CAROL CALLANAN, : No. 1954 EDA 2015
CO-EXECUTRIX, A CLAIMANT AND :
A RESPONDENT :
Appeal from the Order Dated May 22, 2015,
in the Court of Common Pleas of Northhampton County
Orphans’ Court Division at No. 2012-0392
BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 09, 2016
Carol Callanan appeals the order of the Court of Common Pleas of
Northhampton County that denied appellant’s exceptions from the trial
court’s order that granted in part and denied in part appellant’s claims
against the Estate of Franklin A. Hawk (“Estate”).
Franklin A. Hawk (“decedent”), whose wife, Patricia A. Hawk,
predeceased him, died intestate on February 28, 2012. His two daughters,
Annette M. Harka (“Harka”) and appellant, were the only survivors. On
March 22, 2012, Letters of Administration were issued to Harka and
appellant. Appellant lived in decedent’s home, located at 2074 Fourth
Street, Bethlehem, Pennsylvania (“Property”), from 2008 until March 5,
2014, when the Property was sold.
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On June 14, 2013, Harka filed a petition to compel action and payment
by co-administrator. In the petition, Harka sought to compel the sale of the
Property, to receive payment for the fair rental value of the Property plus
interest, and to direct payment to Harka in an amount equal to the value of
any damage for waste committed on the Property, plus interest.
By order dated August 2, 2013, the trial court granted the motion in
part and directed that appellant and Harka hire a realtor to facilitate the sale
of the Property. In the event that appellant and Harka could not agree on a
realtor, the trial court would appoint one. The remaining claims in the
petition were held in abeyance. Appellant and Harka could not reach an
agreement, and the trial court appointed David A. Lichtenwalner
(“Lichtenwalner”) of Prudential Choice Properties by order dated September
10, 2013. The trial court directed Lichtenwalner to arrive at a listing price
for sale and to also advise the trial court and the parties of the fair rental
value of the property. In a letter report dated September 26, 2013,
Lichtenwalner determined the fair market value of the property as $75,000,
the listing price for sale as $80,000, and the fair rental value of the property
as $800 per month.
In December 2013, the Estate received an offer on the Property in the
amount of $95,000 with $5,000 earnest money, no mortgage, and no
inspections. In order to bring the matter to a prompt conclusion, Harka
petitioned to cooperate with sale and fix the fair rental value. By order of
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court dated January 17, 2014, the trial court ordered Harka and appellant to
cooperate and sign all documents related to the sale of the Property.
Appellant was ordered to vacate the property seven days prior to closing.
The parties were further ordered to cooperate with one another to remove
all items of personal property from the Property and prepare the Property for
closing.
On March 5, 2014, the closing was held. The net proceeds of the sale
which originally totaled $84,779.49 plus a subsequent deposit of $1,852.35
was made, bringing the total amount in escrow to $86,631.84.
Harka petitioned to compel action and payment by co-administrator
and brought claims for fair rental value and waste against appellant on the
basis that appellant lived at the Property from 2008 through the closing.
The trial court conducted a hearing on the petition on May 13, 2014.
Prior to trial, appellant moved for the trial court judge to recuse
himself on the basis that the trial court judge allegedly engaged in ex parte
communications with Lichtenwalner. The trial court judge and Lichtenwalner
knew each other and occasionally encountered each other in the community.
On November 2, 2013, the trial court judge and Lichtenwalner had such an
encounter. At that time, Lichtenwalner informed the trial court that he had
contacted counsel for both parties but had not heard back from appellant’s
counsel, Ronald L. Clever, Esq. (“Attorney Clever”). On November 5, 2013,
the trial court’s law clerk telephoned Lichtenwalner and left a voice mail
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message in which he inquired as to whether Lichtenwalner required the
assistance of the trial court to contact Attorney Clever. On November 6,
2013, Lichtenwalner returned the telephone call and informed the trial court
that he had heard from Attorney Clever and did not need any help from the
trial court.
On December 3, 2013, the trial court received a telephone call from
Lichtenwalner in which Lichtenwalner informed the trial court that he had
been unable to obtain contact information for appellant from Attorney Clever
who provided his own contact information rather than appellant’s. The trial
court then wrote a letter to Attorney Clever and relayed the substance of
Lichtenwalner’s letter to Attorney Clever that Attorney Clever purportedly
provided appellant’s contact information but it was actually Attorney Clever’s
and requested that Attorney Clever give the requested information to
Lichtenwalner by a certain date. In response, Attorney Clever wrote a letter
to the trial court and accused the trial court of one-to-one communication
with Lichtenwalner and Harka’s counsel. At the May 13, 2014 hearing,
Attorney Clever moved for recusal which the trial court denied.
By order dated June 3, 2014, the trial court denied the claim for waste
but granted Harka’s claim for fair rental value and ordered that $9,810.88 be
subtracted from appellant’s share of the Estate. The trial court found that
appellant lived at the Property from February 28, 2012 through March 5,
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2014, for a total of 736 days at a rate of $13.33 per day which represented
half of the fair rental value of $26.66 per day or $800 per month.
Appellant filed exceptions to the June 4, 2014 order. The trial court
denied the exceptions on September 3, 2014. The trial court directed the
parties to prepare an accounting and a schedule of distribution. Harka filed
a first and final accounting with the trial court which was listed on the Audit
List of September 26, 2014. On September 26, 2014, appellant appealed
the September 3, 2014 order that denied the exceptions to this court. On
August 18, 2015, this court quashed the appeal because we lacked
jurisdiction as appellant did not appeal a final order. In Re: Estate of
Franklin A. Hawk, No. 2858 EDA 2014, unpublished memorandum
(Pa.Super. filed August 18, 2015).
On September 26, 2014, appellant filed a claim and objections to the
accounting. In her claim, appellant sought reimbursement for expenses she
paid on behalf of the Estate when she was living at the Property in the
amount of $5,653.44. Appellant also asserted a claim for the fair rental
value of the Property against the Estate in the amount of $14,716.32 for the
storage of the Estate’s personal property on the Property. The trial court
conducted a non-jury trial on the claims on December 17, 2014.
Specifically, appellant sought reimbursement for the alleged payment of real
estate taxes for the Property in 2013 in the amount of $3,054.38. The trial
court denied the claim on the basis that a tenant in common who pays more
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than his or her proportionate share of the tax obligations is not entitled to
contributions from co-tenants for the excess tax payment. (Trial court
opinion, 2/6/15 at 5-6.)
Appellant also sought reimbursement for the payment of the 2013
homeowner’s insurance, a sewer bill in 2013, and a 2012 electric bill for a
total of $799.06. The trial court determined that appellant did pay for these
bills and was entitled to reimbursement for one-half of the expenses so that
the Estate owed her $399.53. (Trial court opinion, 2/6/15 at 6-7.)
In addition, appellant sought reimbursement from the Estate for the
values of a stove, washer, and dryer that she bought when she resided at
the Property but were sold when the Property was sold. The trial court
denied this claim because appellant could not provide evidence as to the
value of these items at the time of sale. (Id. at 7-8.)
Appellant also sought reimbursement for the Estate storing personal
property which had belonged to appellant’s parents at the Property from the
time of decedent’s death until the Property was sold. Appellant asserted
that because the Estate’s tangible assets occupied approximately 80% of the
space inside the house on the Property, the Estate should be responsible for
$14,716.32 which was 75% of the fair rental value of $800 per month. The
trial court denied her claim in its opinion and order dated February 6, 2015.
Appellant filed exceptions to the February 6, 2015 order, which the
trial court denied in an opinion and order dated May 22, 2015.
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Appellant raises the following issues for this court’s review:
A. Is there any legal basis – either under Title 20
or under Title 68 – for [Harka’s] original
monetary request?
B. If there is some legal basis for [Harka’s]
original request, did [Harka] meet the legal
standards for awarding a sum of money from
one heir to the other heir?
C. Should the Judge have recused himself?
D. Because the decision . . . requires the
appellant to pay the Estate for the entire fair
rental value for the entire house, is the Estate
then liable, to her for storing its goods there?
E. Because the decision . . . requires the
appellant to pay the Estate for the entire fair
rental value for the entire house, is the Estate
then liable, to her, to reimburse her for real
estate taxes that she paid separately?
Appellant’s brief at 5.
Initially, appellant contends that there is no statutory authority for
permitting the Estate to deduct from her share of the Estate one-half the fair
rental value of the Property from the decedent’s death until the time of sale.
This court’s review of a decision of an Orphans’ Court is as follows:
Our standard of review of the findings of an
[O]rphans’ [C]ourt is deferential.
When reviewing a decree entered by the Orphans’
Court, this Court must determine whether the record
is free from legal error and the court’s factual
findings are supported by the evidence. Because the
Orphans’ Court sits as the fact-finder, it determines
the credibility of the witnesses and, on review, we
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will not reverse its credibility determinations absent
an abuse of that discretion.
However, we are not constrained to give the
same deference to any resulting legal conclusions.
In re Estate of Harrison, 745 A.2d 676, 678-679,
appeal denied, 758 A.2d 1200 (Pa. 2000).
(internal citations and quotation marks omitted).
“[T]he Orphans’ [C]ourt decision will not be reversed
unless there has been an abuse of discretion or a
fundamental error in applying the correct principles
of law.” In re Estate of Luongo, 823 A.2d 942,
951 (Pa.Super. 2003), appeal denied, 847 A.2d
1287 (Pa. 2003).
In re Estate of Whitley, 50 A.3d 203, 206-207 (Pa.Super. 2012) (internal
citations and quotation marks omitted).
Section 3311(a) of the Probate, Estates, and Fiduciaries Code,
20 Pa.C.S.A. § 3311(a), applies to this case and provides as follows:
§ 3311. Possession of real and personal estate;
exception
(a) Personal representative.--A personal
representative shall have the right to and shall
take possession of, maintain and administer all
the real and personal estate of the decedent,
except real estate occupied at the time of
death by an heir or devisee with the consent of
the decedent. He shall collect the rents and
income from each asset in his possession until
it is sold or distributed, and, during the
administration of the estate, shall have the
right to maintain any action with respect to it
and shall make all reasonable expenditures
necessary to preserve it. The court may direct
the personal representative to take possession
of, administer and maintain real estate so
occupied by an heir or a devisee if this is
necessary to protect the rights of claimants or
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other parties. Nothing in this section shall
affect the personal representative’s power to
sell real estate occupied by an heir or devisee.
20 Pa.C.S.A. § 3311(a).
The comment to Section 3311 states that it is not contemplated that
rents shall be collected by the personal representative from real estate
occupied by an heir or devisee unless needed for the payment of claims.
In In re Padezanin, 937 A.2d 475 (Pa.Super. 2007), this court
addressed the question of whether an heir is liable for rent to an estate if the
heir continues to live on property owned by the estate. Two of the heirs
resided at real property owned by the Estate of Daniel Padezanin, deceased.
The Orphans’ Court Division of the Court of Common Pleas of Beaver County
assessed Debra A. Florida (“Florida”) $22,064.73 in rent and Danielle P.
Sweesy (“Sweesy”) $29,340. Florida resided on real property owned by the
decedent at the time of the decedent’s death. She continued to reside there
until she moved to another property owned by the estate. They appealed to
this court and argued that Section 3311(a) of the Probate, Estates and
Fiduciaries Code, 20 Pa.C.S.A. §3311(a), precluded the assessment of rent.
Id. at 479, 481-482.
This court determined that Sweesy was not eligible for relief because
she was not residing on real estate owned by the decedent at the time of his
death. With respect to Florida, the court determined that she was living on
real property owned by the decedent at the time of his death and could not
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be assessed rent for the time she resided there unless the estate was
insolvent, which it was not. Florida could be assessed rent for the time she
lived at the second property owned by the estate because she was not living
there at the time of the decedent’s death. Id. at 482-483.
More recently, in In re: Estate of Bouks, 964 A.2d 4 (Pa.Super.
2008), this court again addressed the same issue. Tamara Bouks owned the
property where she lived. Her son, Oleg Bouks (“Bouks”), lived with her at
the property. Tamara Bouks died on November 25, 2001. Bouks was a
co-executor and co-beneficiary of his mother’s estate with his sister,
Ariadna Dittess Mergelkamp (“Mergelkamp”). He continued to live at the
residence where he had lived when his mother was alive. Bouks expressed
an interest in purchasing the property, which ultimately occurred four years
later. Bouks initially sought to purchase the property at the assessed value
$67,900 which was used for inheritance tax purposes. Mergelkamp rejected
the offer. Each co-executor obtained an appraisal for the property with one
at $110,000 and the other at $140,000. On October 21, 2003, two years
after his mother’s death, Bouks petitioned the orphans’ court and sought to
purchase the property at the assessed value. This request was denied.
Bouks was ordered to file an accounting and to place the property for sale.
When Bouks failed to do so, Mergelkamp filed a contempt petition. When
faced with the contempt petition, Bouks purchased the home for $176,000.
Bouks filed an account. Mergelkamp objected and argued that Bouks should
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have to pay rent to the estate for the time he occupied the estate’s property.
The Orphans’ Court Division of the Court of Common Pleas of Philadelphia
County agreed and awarded the estate rental payments from Bouks that
commenced six months after his mother’s death. Id. at 5.
This court agreed and distinguished Padezanin on the basis that
Bouks did not vacate the real estate in a timely manner and engaged in
conduct that delayed the proper administration of the estate. This court
concluded:
Thus, we affirm the orphans’ court’s conclusion that
when the occupancy of the decedent’s real estate by
an estate’s beneficiary is unnecessarily prolonged
due solely to the improper behavior of the
beneficiary occupying the real estate, 20 Pa.C.S.[A.]
§ 3311, will not be construed to prevent an award of
rental following a reasonable period. A contrary
construction of that enactment would encourage
beneficiaries to delay settling an estate in order to
take advantage of dwelling on estate property
rent-free. In light of legal precepts that require the
prudent administration of an estate and timely
distribution of estate assets, the legislature did not
intend section 3311 to prevent an award of rental
under circumstances present herein.
Bouks, 964 A.2d at 7.
What seems clear from this court’s recent case law is that a
beneficiary can be held to pay a fair rental value under Section 3311 if the
possession is prolonged and/or causes undue delay and prejudice in the
administration of the estate.
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Here, appellant lived on the Property from the time of her father’s
death until the property was sold. A review of the record reveals that while
Harka alleged that appellant had resided on the Property since their father’s
death, there was no allegation in the petition that appellant delayed the sale
of the Property for her own benefit nor did the trial court find her liable for
any waste to the Property. In the hearing before the trial court, there
similarly was no such allegation except that each sister took steps to prevent
the sale of the Property to the other. The trial court resolved this
controversy based on a partition action of the property with the two sisters
as tenants in common. The trial court did not follow or even distinguish
Section 3311 of the Probate, Estates and Fiduciaries Code or the relevant
case law. Based on Padezanin and Bouks, Harka failed to establish that
appellant was required to pay rent for the time she remained on the Estate’s
Property. Accordingly, the trial court erred when it awarded the Estate
$9,810.88 from appellant’s share of it.
Appellant next contends that the trial court should have recused itself
because the trial court had ex parte communications with Lichtenwalner in
part concerning whether Attorney Clever had provided Lichtenwalner with a
phone number that he represented was appellant’s when in fact it was
Attorney Clever’s.
We review a trial court’s decision to deny a motion to
recuse for an abuse of discretion. Vargo v.
Schwartz, 940 A.2d 459, 471 (Pa.Super. 2007).
Indeed our review of a trial court’s denial of a motion
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to recuse is exceptionally deferential. Id. . . . . [A]
trial judge should grant a motion to recuse only if a
doubt exists as to his or her ability to preside
impartially or if impartiality can be reasonably
questioned. In re Bridgeport Fire Litigation, 5
A.3d 1250, 1254 (Pa.Super. 2010).
In order to prevail . . . [a] party seeking recusal
must satisfy the burden “to produce evidence
establishing bias, prejudice or unfairness which
raises a substantial doubt as to the jurist’s ability to
preside impartially.” In re S.H., 879 A.2d 802, 808
(Pa.Super. 2005) (quoting Arnold v. Arnold, 847
A.2d 674, 680-681 (Pa.Super. 2004)).
In the Interest of A.D., 93 A.3d 888, 892 (Pa.Super. 2014).
Here, the chance encounter between the court-appointed
Lichtenwalner and the further correspondence between the court and
Lichtenwalner does not establish any sort of bias or the appearance of
impartiality. Although the trial court used the word “purported” in its letter
to Attorney Clever concerning whether Attorney Clever had provided his
phone number to Lichtenwalner instead of appellant’s, this word did not
necessarily imply that the trial court thought that Attorney Clever was lying
to Lichtenwalner. Further, appellant argues that the trial court should not
have accused Attorney Clever of padding his fees and should not have called
him “arrogant.” These comments do not create the appearance of
impropriety either.1 During the course of a trial or hearing, there may be
1
Appellant also raises the issues that the Estate should be liable to her for
storing its goods on the property and that the Estate should reimburse her
for real estate taxes for the property that she personally paid. However, she
asserts that had the issue of the rental payment been decided in her favor,
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criticism from the bench which does not mean that the trial court is biased
against a party or disposed to rule against that party. This court determines
that the trial court did not commit an abuse of discretion when it denied the
motion to recuse.
Order reversed as to the payment of rent and affirmed as to the denial
of the motion to recuse.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
these issues would not exist. Because this court has decided the rental issue
in her favor, this court need not address these arguments. Appellant also
contends that even if there were some legal basis for the assessment of rent
Harka did not meet the legal standard for awarding a sum of money from
heir to another. Because this court has determined that the trial court erred
when it awarded the rental, this court need not address this issue.
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