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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF ANGELO : IN THE SUPERIOR COURT OF
DIMATTEO : PENNSYLVANIA
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APPEAL OF: CASIMIRO DIMATTEO :
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: No. 304 WDA 2021
Appeal from the Order Entered February 19, 2021,
in the Court of Common Pleas of Allegheny County,
Orphans' Court at No(s): 02-18-06412.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: January 19, 2022
Casimiro DiMatteo appeals from the order removing him as executor of
his mother’s estate and appointing an individual other than his wife, Silvia
DiMatteo, successor executrix as provided for in his mother’s will. Upon
review, we affirm.
On September 25, 2013, Angela D'Aquilante DiMatteo signed a last will
and testament which provided:
I give all the rest and residue of my estate, wherever located
(hereafter referred to in this Article as "residue"), to my
descendants if they survive me per stirpes. If I am not survived
by any of my descendants, I give the entire residue to my heirs.
In Article I of the Will, Ms. DiMatteo stated that she was unmarried and that,
"[i]n making this Will, I have in mind my children, Amato DiMatteo, born 1949,
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* Retired Senior Judge assigned to the Superior Court.
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Casimiro DiMatteo, born 1951, Annina Radakovich DiMatteo, born 1955, and
Filomena DiMatteo, born 1960, together with any children hereafter born to
or adopted by me". In particular, Article II stated that Casimiro DiMatteo was
to serve as the executor of the Estate and that, should he "be or become
unable or unwilling to serve", then his wife, Silvia Collucio DiMatteo, should
serve in Casimiro's stead.
On October 5, 2018, Ms. DiMatteo died. Subsequently, on October 18,
2018, letters testamentary were issued to Casimiro. At that time, he was
represented by counsel, but in August 2019 counsel withdrew due to
professional considerations.
A year later, on December 12, 2019, Annina, one of the heirs, filed a
petition to compel Casimiro to file an accounting of the Estate. Therein, she
claimed that, except for a tax appraisement, which accepted the inheritance
tax return as filed, no other action had been taken to complete the
administration of the Estate. On February 21, 2020, Casimiro obtained new
counsel and filed a response to the petition to compel.
Almost a year later, during a conference with the orphans’ court, the
parties reached a consent order, dated January 20, 2021, and recorded
January 25, 2021. In relevant part, it required that Bodnar Real Estate
perform an appraisal of the real estate at 412 Pearl Street, Pittsburgh,
Pennsylvania (“Pearl Street property”) within 30 days. Additionally, Casimiro
was to file state and federal fiduciary tax returns within 30 days after he
received the last 1099 for estate income, receipt of which was to be provided
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to all counsel. Casimiro was then to file a formal first and final account within
30 days after the tax returns were filed.
On February 12, 2021, before Casimiro’s time to comply with that order,
Annina filed an emergency petition to remove Casimiro as executor. Annina
claimed that Casimiro failed to adhere to the terms of the consent order, filed
a $180,000 claim with the estate for caretaking services, transferred the Pearl
Street property from the Estate to his wife and children for one dollar, and
filed a claim for an executor’s fee. Additionally, as a result of Casimiro’s
actions and failure to adhere to legal advice, his counsel sought permission to
withdraw. Casimiro filed a pro se response to Annina’s petition.
On February 19, 2021, the orphans’ court granted counsel’s request.
Following a hearing on Annina’s emergency petition, the court also revoked
the letters testamentary issued to Casimiro and directed that Warner Mariani,
Esquire, be appointed administrator of the Estate of Angela DiMatteo upon
proper application to the Wills Division of the Allegheny County Department
of Court Records. Notably, the orphans’ court bypassed the substitute
executrix named in Ms. DiMatteo’s Will, Casimiro’s wife Sylvia, because of her
participation in transferring property from the estate to herself and children.
Casimiro filed this timely appeal.
Casimiro raises the following three issues for our review:
I. Whether Casimiro DiMatteo filed an untimely statement of
matters complained of on appeal when it was mailed via
certified mail 21 days after the order was filed by the orphans’
court when the orphans’ court failed to state the location to file
the order as required by Rule 1925?
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II. Whether the orphans’ court committed an error of law or an
abuse of discretion when it removed Casimiro DiMatteo as
executor of the estate when the court stated he was in violation
of the January 25, 2021, consent order when the expiration of
the order had not expired yet?
III. Whether the orphans’ court committed an error of law or
abused its discretion when it appointed an administrator [] of
the Estate of Angela DiMatteo [forgoing] the successor
executrix contrary to the decedent’s desire in her will; when
the successor executrix wasn’t afforded the opportunity to have
a removal hearing, there wasn’t a petition to remove her and
she never had the opportunity to serve as executrix?
See Casimiro’s Brief at 4 (excess capitalization omitted).1
Preliminarily, we note that the orphans’ court claims that Casimiro’s
issues are waived because he failed to timely file his Rule 1925(b) statement.
Trial Court Opinion, 5/24/21, at 3-4. Casimiro addresses this in his first issue
and argues that the orphans’ court is incorrect. According to Casimiro,
although his statement was not filed until May 6, 2021, he timely mailed the
concise statement by certified mail 21 days after entry of the court’s order,
and therefore, his issues are not waived. Casimiro’s Brief at 34-35.
Generally, failure to timely file a 1925(b) statement results in waiver of
issues on appeal. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
However, we have held that strict compliance with this rule requires strict
compliance with the notice rules. In particular, the prothonotary is required
to give written notice of the entry of an order to each party and note that on
the docket. Pa.R.C.P. 236. Here, upon review of the record, we observe that
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1 We have reordered these issues for ease of disposition.
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the court docket lacks a Rule 236 notice regarding the March 23, 2021, order.
In such circumstances, we have refused to find waiver, and do so here as well.
See In re L.M., 923 A.2d 505, 510 (Pa. Super. 2007).
However, we further observe that the certified record in this case does
not include the transcript from the hearing on the emergency motion to
remove Casimiro as executor. Although Casimiro provided a copy of the
transcript in his reproduced record, the Superior Court may not consider it.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (citing
Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005)).
Consequently, Casimiro’s issues are waived for this reason, and we are
precluded from considering them. Notwithstanding this, as explained below,
even if we were to consider Casimiro’s issues, we would affirm the orphans’
court’s order.
In his second issue, Casimiro claims that the trial court abused its
discretion in removing him as executor of the estate when the time for
complying with the court’s order had not yet passed. Specifically, he argues
that he had the appraisal done on February 8, 2021, prior to the court’s
deadline, and still had time to file the tax returns and comply with the court’s
order. Casimiro’s Brief at 22-23. Additionally, he claims that there was
nothing in the record to demonstrate that Casimiro set upon a course of
conduct that would grossly mismanage the estate. Id. at 23.
The fitness of a personal representative to serve is a matter within the
exclusive jurisdiction of the orphans’ court. 20 Pa. C.S.A. 711(12). The
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pertinent standard of review in such matters is as follows: “The removal of
an [executor] is a matter vested in the sound discretion of the trial court, and
thus we will disturb such a determination only upon a finding of an abuse of
that discretion.” In re Estate of Mumma, 41 A.3d 41, 49 (Pa. Super. 2012).
The orphans' court may remove a personal representative when he “is wasting
or mismanaging the estate, is or is likely to become insolvent, or has failed to
perform any duty imposed by law” as well as “when, for any other reason, the
interests of the estate are likely to be jeopardized by his continuance in office.”
20 Pa.C.S.A. § 3182(1) and (5).
Here, the orphans' court concluded that Casimiro failed to comply with
its order and “had set upon a course of conduct that would grossly mismanage
the estate in a manner if not calculated to, then, certainly likely to result in
the immediate, substantial and enduring harm of other heirs.” Trial Court
Opinion, 5/24/21, at 3.
Shortly after issuance of the consent order, Casimiro sent a family
settlement agreement to the other beneficiaries proposing to distribute the
remaining Estate assets, apparently to resolve it informally. He filed a status
report indicating that the administration of the Estate was complete. He did
this despite being directed by the orphans’ court to obtain an appraisal of the
Pearl Street property and to file a formal account.
Additionally, Casimiro created a substantial conflict of interest with his
fiduciary duties as executor of the Estate, when he claimed the Estate owed
him $180,000 for taking care of his mother prior to her death. An executor
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has a “duty to see that her purely private interests were not advanced at the
expense of the estate.” In re Pitone’s Estate, 413 A.2d 1012, 1015 Pa.
1980). Where an executor’s personal interest conflicts with the interest of the
estate, removal is proper. See In re Estate of Andrews, 92 A.3d 1226,
1230 (Pa. Super. 2014).
Furthermore, Casimiro engaged in self-dealing by paying his caretaking
claim out of the Estate and transferring the Pearl Street property to his wife
and children. We would therefore conclude that the trial court did not abuse
its discretion in removing Casimiro as executor of the Estate.
In his third issue, Casimiro claims the orphans’ court abused its
discretion when it appointed Warner Mariani, Esquire, as administrator of the
Estate. Instead of his wife, who Ms. DiMatteo designated as successor
executrix in her Will. Casimiro’s Brief at 27.
In support of its decision, the orphans’ court explained that Silvia clearly
was aligned with her husband by advancing his position that he was entitled
to payment for caretaker services and accepting the transfer of the property.
“Casimiro had conveyed a valuable parcel of real estate from the estate to his
wife and children for the nominal consideration [of] one dollar. Silvia’s
participation in that conveyance severely compromised her fitness to serve as
a successor executrix.” Orphan’s Court Opinion, 5/24/21, at 3.
Generally, we observe that:
The court on its own motion may, and on the petition of any party
in interest alleging adequate grounds for removal shall, order the
personal representative to appear and show cause why he should
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not be removed, or, when necessary to protect the rights of
creditors or parties in interest, may summarily remove him. Upon
removal, the court may direct the grant of new letters
testamentary or of administration by the register to the
person entitled [to serve as a personal representative] . . . .
20 Pa.C.S.A. § 3183; In re Est. of Andrews, 92 A.3d at 1233–34. In
Andrews, the executrix of an estate claimed that certain moneys, which
would have been estate assets, were gifts to her rather than loans. The
successor executrix named in the will testified in support of that position,
contrary to the interests of the estate. Consequently, the orphans’ court
refused to appoint the named successor executrix as representative of the
estate upon removal of the existing executrix. On appeal, we concluded that
the orphans’ court did not abuse its discretion given the continued conflict of
interest of the named successor executrix. Id. at 1233.
Here, Silvia’s alignment with Casimiro was comparable to that of the
successor executrix in Andrews. Further, Ms. DiMatteo did not identify
another individual to serve as personal representative of her estate after
Silvia, and thus the list of successor executors was exhausted. As such, the
orphans’ court was authorized to direct the appointment of a new
representative. The other beneficiaries recommended the appointment of
Attorney Mariani to serve in this role upon Silvia’s removal.
We further observe that, while the court addressed the successor
representative in its order, it did not directly appoint Attorney Mariani,
contrary to Casimiro’s claim. Instead, the orphans’ court required the
beneficiaries file a proper application with the Wills Division. According to the
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record, the Director of Wills Division issued a citation on April 14, 2021, upon
Silvia to show cause why she should not be disqualified as executrix of the
Estate and Attorney Mariani appointed administrator upon petition. This
citation has not been made absolute yet. Because the process of removing
Silvia and appointing a new administrator was not finalized by the orphans’
court, we would conclude that Casimiro’s third issue is premature and would
dismiss it as such.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2022
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