J-A23034-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ESTATE OF RICHARD C. : IN THE SUPERIOR COURT OF
KAMUS, THERESA KELLY AND : PENNSYLVANIA
CHARLES KAMUS :
:
:
v. :
:
:
KAREN MARTINELLI : No. 77 MDA 2023
:
:
APPEAL OF: THERESA KELLY AND :
CHARLES KAMUS :
Appeal from the Order Entered January 10, 2023
In the Court of Common Pleas of Luzerne County Orphans' Court at
No(s): 4021-1531
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 08, 2023
Appellants Theresa Kelly and Charles Kamus appeal from the order
entered by the Honorable Tarah Toohil of the Court of Common Pleas of
Luzerne County denying their petition to remove Appellee Karen Martinelli as
the executrix of their father’s estate. After careful review, we affirm.
Richard C. Kamus (“Decedent”) passed away on June 15, 2021, leaving
behind three children, Appellants and Appellee, as well as multiple
grandchildren. In his will, Decedent appointed his wife, Margaret Kamus, as
executrix, and provided if his wife predeceased him, Appellee would serve as
an alternate executrix. Decedent’s wife had passed away just a few months
earlier on January 28, 2021. On June 30, 2021, the trial court appointed
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* Former Justice specially assigned to the Superior Court.
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Appellee as executrix of the estate. The following day, Appellee’s counsel
received notice that Appellants had retained counsel in this matter.
Decedent’s will included specific bequests of $10,000 to each of his
seven grandchildren, to be held in individual trusts for their benefit until their
eighteenth birthdays. Decedent nominated Appellee to serve as Trustee of
these trusts. The will also directed Decedent’s personal representative to sell
his home in Swoyersville, Pennsylvania, and the contents of the home at a
private or public sale and to add the proceeds to the residuary estate.
The will provided that Decedent’s residuary estate would be divided as
follows: 40% to his daughter, Appellee, 20% to his daughter, Appellant Kelly,
20% to his son, Appellant Kamus, and 20% to his grandson, Galvin Richard
Duesler (“Duesler”), who is Appellee’s son that lived with Decedent for nine
years preceding Decedent’s death.
Thereafter, Appellee set out to clean, organize, and make repairs to
Decedent’s home to prepare to list the residence for sale. Once finished,
Appellee’s counsel contacted Appellants to schedule a walkthrough of the
residence, during which Appellants would have the opportunity to tag items
they wanted. The walkthrough took place on February 9, 2022.
On February 16, 2022, Appellants filed a petition to remove Appellee as
the personal representative of Decedent’s estate, accusing her of misconduct
including, inter alia, removing valuable items from Decedent’s home and
retaining them for her benefit without any accounting to the Estate, disposing
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of items which Appellants may have attributed sentimental value, and denying
Appellants access to the home.
Thereafter, on May 1, 2022, the trial court directed Appellee to show
cause as to why she should not be removed as personal representative and
stayed any distribution of estate assets to Appellee or her children. On May 6,
2022, the trial court entered an order staying the sale of Decedent’s residence
as well as the sale, distribution, and disposition of his personal property.
Due to continuances filed at the agreement of both parties, hearings on
the petition to remove Appellee as executrix were not held until December 20,
2022 and December 27, 2022. At the hearings, the parties agreed that
Decedent’s home and garage were filled with numerous items, the majority of
which were unusable and needed to be discarded. Appellants acknowledged
that the residence was a “mess” as they admitted that their father, Decedent,
had a hoarding problem throughout the course of their lives. N.T., 12/20/22,
at 54. Appellant Kamus testified that his “father lived in a room that you
couldn’t even walk in. There was a path to his bedside, and it was packed floor
to ceiling, closets and all.” Id. at 56. Appellee submitted photos into evidence
to demonstrate the amount of clutter in the home.
Although Appellee had contacted Diana Getz, an antique dealer, to
attempt to hold an estate sale of Decedent’s possessions, Ms. Getz indicated
that it would not be cost effective to hire her services to clean out the home
as there were too many possessions in the home. Id. at 209. Ms. Getz
recommended that Appellee clean up the estate on her own and discard
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broken, unusable, and unwanted items. Id. at 208-209. When Appellee
contacted a realtor to sell the home, she was advised that the home would
have to been cleaned and repairs would have to be done before the home was
listed for sale. Id. at 206-207.
While Appellants claimed to have offered to help Appellee clean out the
residence, Appellee explained that she did not accept the help of her family
as the siblings did not have a close relationship. Id. at 179-80. Appellee
indicated that Appellant Kamus had threatened her while Decedent was still
living and had retained counsel immediately after she had been appointed
executrix. Id. at 180; N.T., 12/27/22, at 20.
As such, Appellee hired individuals to assist her in sorting through
Decedent’s personal possessions. One of those individuals, Jared Brady, runs
a landscape business in which he performs property clean up and management
projects, but is also a mechanic and welder by trade. Brady testified that the
property was in “disarray” and contained a lot of “stuff” including lawn
mowers, snow blowers, snowplows, and various tools. N.T., 12/20/22, at 17.
However, Brady believed that the majority of the items were “not in working
order” and would be difficult to repair due to their age and unavailability of
replacement parts. Id. at 20. Brady denied taking any items from the property
and indicated that he did not observe Appellee remove any items either. Id.
at 20-21.
Appellee also hired another individual, Michael Bean, to assist her in
cleaning out the residence. Bean confirmed that there were a few lawnmowers
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that were inoperable and full of rust. Bean indicated that he worked for about
four months, helping Appellee discard anything that was not salvageable from
the property. Id. at 30-31. Bean did not witness Appellee taking anything
from the estate for her personal use. Id.
Appellee’s son, Duesler, had his own personal property at Decedent’s
residence, where he had resided for nine years. N.T., 12/27/22, at 33.
Duesler, who worked in construction, had tools and other equipment stored in
Decedent’s garage as well as his truck, motorcycle and quad. Id. at 33-34. As
Appellee was attempting to clean out the house to prepare the residence for
sale, she instructed Duesler to remove his property from the residence. N.T.,
12/20/22, at 171. Duesler testified that he removed his property, which he
had purchased on his own or had been given to him by Decedent while he was
still alive. N.T., 12/20/22, at 88-91, 104.
On January 10, 2023, the trial court denied Appellants’ petition for
removal, lifted the stay of the sale of Decedent’s residence and personal
property, and directed Appellee to complete administration of the estate.
Appellants filed a timely notice of appeal and complied with the trial
court’s direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellants raise the following questions for our
review on appeal:
A. Did the lower court err when it ruled against the manifest
weight and sufficiency of the evidence and denied the petition
to remove [Appellee] as Executrix of Decedent’s Estate?
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B. Did the lower court err when it failed to timely rule on the
motion for sanctions because the motions for sanctions
requested an adverse inference against [Appellee] at the time
of the hearing and the court did not rule on the motion for
sanction until more than two (2) weeks after the hearing?
C. Did the lower court err when it failed to timely rule on
evidentiary objections during the hearings held in December of
2022?
Appellants’ Brief at 6.
First, Appellants claim the trial court erred in denying their petition to
remove Appellee as executrix of their father’s estate. Appellants argue that
Appellee wasted and mismanaged the estate as they alleged that Appellee and
her son, Duesler, seized some of Decedent’s personal property which belonged
to the estate for their own benefit and failed to credit the value of the items
against their share of the inheritance. Appellants also contend it was a conflict
of interest for Appellee to serve as executrix as she claimed to be joint owner
of several Decedent’s bank accounts that contained thousands of dollars. 1
In reviewing a trial court’s decision on a petition to remove an executrix,
such a matter is “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 Andrews, 92 A.3d 1226, 1230 (Pa.Super. 2014)
(quoting In re Estate of Mumma, 41 A.3d 41, 49–50 (Pa.Super. 2012)).
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1 After Appellants filed theirmotion to remove Appellee as executrix of the
estate, they challenged Appellee’s assertion that she was the joint owner on
several of Decedent’s bank accounts. The trial court did not have the
opportunity to definitively determine the ownership of the disputed bank
accounts before this appeal was filed. During the pendency of this appeal, the
trial court granted a stay with respect to the bank accounts in Decedent and
Appellee’s names.
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Section 3182 of the Pennsylvania’s Probate, Estates, and Fiduciaries
Code gives trial courts “the exclusive power to remove a personal
representative” of the estate for several defined reasons, including when the
personal representative “is wasting or mismanaging the estate, …has failed to
perform any duty imposed by law, … [or] when, for any other reasons, the
interests of the estate are likely to be jeopardized by his [or her] continuance
in office.” 20 Pa.C.S.A. § 3182(1), (5).
However, “[a] testator's selection of a particular person to serve as their
personal representative ‘represents an expression of trust and confidence,’
and removal of a personally chosen individual is thus considered to be a
‘drastic remedy’ that requires clear and convincing evidence of a substantial
reason for removal.” In re Estate of Mumma, 41 A.3d at 49–50 (quoting In
re White, 484 A.2d 763, 765 (Pa. 1984); In re Estate of Pitone, 413 A.2d
1012, 1016 (Pa. 1980); In re Estate of Lux, 389 A.2d 1053, 1059–60 (Pa.
1978)).
We begin by emphasizing the Decedent selected Appellee to serve as
executrix of his will, which demonstrated that Decedent had trust and
confidence that Appellee would serve well as his personal representative upon
his death. The record also shows Decedent entrusted Appellee with the
responsibility to handle her parents’ personal finances and care while they still
were living. N.T., 12/20/22, at 225; N.T., 12/27/22, at 7, 54. In 2015,
Decedent and his wife gave Appellee power of attorney and permitted her
access to bank accounts containing thousands of dollars to pay their bills. Id.
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Appellee had served as her parents’ caretaker and assisted them with various
daily tasks, such as grocery shopping, making meals, transporting them to
doctors’ appointments, assisting Decedent with his VA paperwork, cutting the
grass, removing snow, and other related responsibilities. Id.
As such, the trial court properly deferred to Decedent’s choice of
representative and was correct to emphasize that it would be a drastic remedy
to remove Appellee as executrix unless there was clear and convincing
evidence there was substantial reason for her removal.
We also agree with the trial court’s assessment that Appellee was
presented with a “monumental task” in preparing Decedent’s residence for
sale due to the quantity of possessions that Decedent had collected over his
lifetime. Trial Court Opinion (T.C.O.), 5/2/23, at 5. Appellants conceded that
they had foreseen that the cleanup of Decedent’s home would be a large task
for their family due to Decedent’s hoarding problem, which had persisted for
decades. Although Appellants did offer to assist Appellee in cleaning out the
home, Appellee chose to decline this help as the strained relationship between
the siblings may have led to additional confrontation and animosity between
the parties.
While Appellants’ primary concern on appeal is their argument that
Appellee gave her son, Duesler, preferential treatment to remove items from
the property, they ignore the fact that Duesler lived with Decedent for nine
years and still had a lot of personal property in Decedent’s residence and
garage. The trial court found that Appellee had instructed Appellant to remove
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his items from the home because she was responsible for cleaning out the
property. Appellee testified that she understood her role as executrix in
properly administering Decedent’s real and personal property, emphasizing
that she knew she could not “just hand stuff out.” N.T., 12/20/22, at 170-71.
Duesler testified that he only removed his own property or tools given to him
by Decedent before he died.
Our review of the record provides support for the trial court’s
determination that Appellants failed to present clear and convincing evidence
that Appellant was wasting or mismanaging the estate. The trial court
determined that Appellee “acted diligently in collecting the Decedent’s assets
under the most difficult of circumstances due to Decedent’s hoarding.” T.C.O.
at 8. We also observe that the trial court emphasized that it “finds [Appellee]
and her witnesses credible, while at the same time [Appellants] did
not sustain their claims that she was guilty of stealing items which
were part of the estate.” Id. at 9 (emphasis in original).
In addition, we also reject Appellants’ contention that Appellee’s claim
to some of Decedent’s checking accounts necessarily created a conflict of
interest that warranted her removal as executrix. In In re Pitone, 413 A.2d
1012, 1017 (Pa. 1980), our Supreme Court found that the fact that an
executrix claimed ownership of a joint bank account in her brother’s estate
did not “necessitate her removal” from her position. The Supreme Court noted
that the executrix had demonstrated a willingness to comply with the trial
court’s orders. Further, the Supreme Court observed that requiring the
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executrix to be replaced would cause additional delay and expense to the
estate which was near its conclusion.
Similarly, in this case, the trial court found that Appellee had acted “in
a competent and appropriate manner” in her role as executrix. The trial court
relied on Pitone for its conclusion that the sole fact that Appellee claimed
ownership to the some of Decedent’s bank accounts did not justify her
removal.2 Further, the trial court indicated that the removal of Appellee as
executrix would only further delay the administration of the estate.
Accordingly, we conclude that the trial court correctly determined that
the trial court did not abuse its discretion in finding that Appellants did not
meet their burden to show that removal of Appellee as executrix was
warranted.
In their second claim, Appellants assert the trial court erred in failing to
award sanctions against Appellee for failing to comply with the trial court’s
discovery order requiring the production of all of Decedent’s bank statements
beginning in April 2017 as well as Decedent’s cell phone. Appellants claim that
Appellee failed to give them the requested documents until the day before the
hearings in this case. Appellants requested an adverse inference against
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2 As noted above, the trial court has not yet conclusively determined the
ownership of the disputed bank accounts. In its order denying Appellants’
petition to remove Appellee as executrix, the trial court noted that “[t]his
order does not preclude [Appellants] from litigating the issue of ownership of
the accounts which were in the names of the Decedent and [Appellee] on the
date of Decedent’s death. Order, 1/10/23, at 2.
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Appellee that Decedent did not intend that Appellee would be given the
remaining funds in his accounts.
Our rules of civil procedure allow a trial court to “make an appropriate
order” if a party “fails to make discovery or obey and order of court respecting
discovery.” Pa.R.C.P. 4019. “The decision whether to sanction a party, and if
so the severity of such sanction, is vested in the sound discretion of the trial
court.” McGovern v. Hosp. Serv. Ass'n of Ne. Pennsylvania, 785 A.2d
1012, 1015 (Pa.Super. 2001) (citing Christian v. Pennsylvania Financial
Responsibility Assigned Claims Plan, 686 A.2d 1, 4 (Pa.Super. 1996)).
The trial court found in this case that Appellee did not willfully violate its
discovery order as it was “satisfied that [Appellee] made every effort to obtain
all bank statements relating to the Decedent’s accounts” and indicated that
“[a]ll copies of the bank statements were turned over to Appellants’ counsel.”
T.C.O. at 11. Further, the trial court noted that the parties were able to access
Decedent’s phone and had the opportunity for an in camera review of the
phone before the trial court.
Given the trial court found that Appellants did not establish that they
suffered prejudice from Appellee’s delay in providing discovery, it deemed
Appellants’ request for an adverse inference against Appellee to be a harsh
and severe remedy that was unwarranted. We cannot find that the trial court
abused its discretion in refusing to impose Appellants’ requested sanctions.
Lastly, Appellants claim the trial court did not issue timely rulings on
their evidentiary objections during the December 2022 hearings. “Our
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standard of review for a trial court's evidentiary rulings is narrow, as the
admissibility of evidence is within the discretion of the trial court and will be
reversed only if the trial court has abused its discretion.” Commonwealth v.
Hernandez, 230 A.3d 480, 489 (Pa.Super. 2020) (quoting Commonwealth
v. Melvin, 103 A.3d 1, 35 (Pa.Super. 2014)).
At the conclusion of the hearings in this case, Appellee moved to admit
Exhibits 1 through 50B. N.T. 12/27/22, at 131-32. Appellants objected to the
admission as Appellee had not offered testimony referring to all the exhibits
at the hearing. The trial court gave Appellants the opportunity to submit a
post-trial memorandum as to the particular exhibits they found objectionable.
While the trial court did not discuss this specific claim in its January 10,
2023 order denying Appellants’ motion to remove Appellee as executrix, it
subsequently clarified in its opinion pursuant to Pa.R.A.P. 1925(a) that it had
only considered the testimony of the parties and the photograph exhibits
presented by Appellee.
Appellants do not challenge the trial court’s finding that Appellee had
properly authenticated the photos that she entered into evidence. After
Appellee testified that she was tasked with cleaning and selling a home and
garage filled with countless items, most of which were “junk,” she indicated
that she had personally taken the photographs of Decedent’s home to
demonstrate her claim to the trial court.
As to Appellee’s remaining exhibits that were not photographs, the trial
court entertained Appellants’ argument that such items were not properly
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authenticated and did not consider those exhibits in reaching its conclusion
that removal of Appellee as executrix was unwarranted. Further, Appellants
do not specifically identify the exhibits that they found objectionable or explain
how the supposed admission of such exhibits prejudiced Appellants in any
way. We decline to review this claim further.
For the foregoing reasons, we affirm the trial court’s order denying
Appellants’ motion to remove Appellee as executrix.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/08/2023
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