author: SCHMEHL, P W., J,

text:
    In re Estate of Hernandez

      C.P. of Berks County,
    nos. 0608-0658, 80402.

      Stephen G. Welz, for petitioner.

      Joseph L. Haines, John J. Speicher, and William R. Blumer, for respondent.

      September 1, 2010
   SCHMEHL, P W., J,

Georgette L. Hernandez (decedent) died testate on June 26, 2007. The decedent was survived by a daughter, Georgette L. Veeder (respondent), a son, Robert L. Hernandez (petitioner), and petitioner’s daughters (collectively the granddaughters), one of whom was a minor at the time of the decedent’s death. By the terms of the decedent’s will, the respondent and petitioner are to share the decedent’s personalty as equally as practical. The residue of the decedent’s estate is to be shared equally by the granddaughters. Additionally, the decedent established a trust providing for the transfer of real estate to respondent, who, by operation of law, also received a number of bank accounts in which the decedent had an interest. There has been no challenge to the validity of the decedent’s will or trust.

Legal proceedings began on May 13, 2008 when petitioner filed a petition for citation to compel agent to file account before this court as well as a petition for citation to produce will and compel probate before the register of wills. The petition to compel account requested the issuance of a citation upon the respondent to show cause why she should not file a formal account of her activities as agent for the decedent pursuant to a durable power of attorney executed on or after February 8, 1996. The respondent filed an answer pro se and, by the time of the first status conference in this matter, had acquired counsel. Respondent was ordered on September 23, 2008 to “file a formal account of all of her activities as agent of the decedent,” and on October 23, 2008 the respondent timely complied.

With regard to the petition to compel probate, the original will was filed of record on June 3, 2008; however, the named executrix, a Mend of the decedent, was not willing to serve and the named alternate could not be found. Ultimately, on July 7, 2008, by order of the register of wills, which order was implemented by the granting of letters on March 20, 2009, Attorney David Sobotka was appointed as administrator c.t.a.

On November 18, 2008, petitioner filed a petition for contempt against the respondent alleging that the respondent’s account as agent was a barely legible photocopy of a handwritten list of expenses that failed to comply with Orphans’ Court Rule 6.1. He complained that the account does not constitute a formal account and that it is worthless as a source of reliable information, totally and consciously disregarding the letter and spirit of the court’s order. The respondent filed a timely answer and a status conference was scheduled. In the interim, counsel for petitioner began on a course of discovery which included, ultimately, deposing respondent and her husband and subpoenaing documents from several banking institutions.

Also on November 18,2008, simultaneously with the petition for contempt, respondent filed a petition for protective order enjoining the transfer, alienation or encumbrance of real estate, by which the petitioner sought to enjoin the respondent from encumbering or disposing of the real estate that she received from the decedent’s revocable trust. Petitioner averred that the trust document was never produced and therefore held the belief that it had been revoked, thereby causing the real estate at issue to be an asset of the decedent’s estate. He argued that without a protective order the estate remained at risk of not receiving the asset. Following an answer to the petition and a status conference thereon, the court entered an order enjoining the respondent from transferring, alienating or encumbering the real estate that the respondent received by way of the trust.

Several months later, on June 30,2009, the respondent filed a petition to vacate the injunction. Following an answer and briefs, the court, on November 4, 2009, vacated its order of February 2,2009 enjoining the respondent from encumbering or disposing of the real estate. The court does not here give greater detail regarding the issue of the real estate and the proceedings thereon because it is not a matter raised by the petitioner or any other person in interest in the concise statement of errors complained of on appeal filed August 3, 2010.

Following a lengthy and contentious course of discovery, motions and petitions regarding the real estate, and a series of continuances and status conferences, the court scheduled a trial on all outstanding issues for June 9 and 10, 2010.

After trial in the matter was scheduled, apparently realizing there was no formal foundation for a trial on the merits of the matter as opposed to a petition for contempt on the form of respondent’s account, the petitioner caused objections to account of agent to be filed on May 17, 2010, together with a motion for summary judgment. The objections to account renewed the petitioner’s position that the account does not constitute a formal account and does not comply with the rules of Orphans’ Court. The petitioner also objected to the account’s consisting of a list of expenses paid from a single checking account while failing to include information regarding 58 other accounts in which the decedent had an interest. He believed that respondent managed these accounts and that at least some portion of these accounts should be considered assets of the decedent’s estate.

The petitioner’s motion for summary judgment alleged that the respondent managed a number of the decedent’s accounts by opening and closing accounts, changing accounts from sole to joint ownership, and changing the beneficial interest of “in trust for” accounts, all in such a way to benefit herself or her husband. Additionally, she transferred substantial sums from these accounts to herself, despite the funds’ having been contributed to these accounts by the decedent. The discovery of these transactions led the petitioner to accuse the respondent of filing a false and fraudulent account. Petitioner believes that the unequivocal evidence of record indicates that the respondent misappropriated the decedent’s funds, thereby frustrating her testamentary intent. The motion also indicated that respondent had no objective or documentary evidence to support her claim that the decedent wished her to have these funds and that she is barred by the Dead Man’s Rule from testifying to any conversations allegedly held with the decedent (a problematic position given the petitioner’s deposing the respondent and calling her as a witness as if on cross-examination at trial).

In his brief, the petitioner frames the issues as being: (1) whether an agent is liable for gifts made absent express authority in the power of attorney and which are otherwise inconsistent with prudent estate planning or contrary to the decedent’s testamentary intent; (2) can the agent/donee testify to statements allegedly made by the decedent absent prima facie evidence of donative intent; and (3) is the agent excused from compliance with ordinary fiduciary duty simply because a transfer is made from an account jointly held by the agent.

Petitioner argues that the decedent’s power of attorney does not specifically grant the respondent power to make gifts and, even if it did, the agent is responsible if a gift is inconsistent with prudent estate planning or financial management for the principal. He argues that the respondent knew of the decedent’s testamentary plan and that the gifts she made to herself constituted an abuse of authority.

Turning to the issue of the respondent’s competency to testify, the petitioner argues that before an agent can testify to an alleged gift made to the agent by the decedent, there must be a showing that the decedent, not the fiduciary, made the gift. The donee must make a prima facie showing of donative intent and delivery. Petitioner argues that because the decedent did not write a single check from the joint checking account in question, delivery by the decedent has not been established. Furthermore, petitioner argues that respondent was in a confidential relationship with the decedent, meaning that the burden shifted to the respondent to show that any alleged gift was free of any taint or undue influence or deception. Petitioner therefore believes and argues that the respondent bore the burden to show that the inter vivos gifts were valid and, absent independent evidence establishing a prima facie gift, the respondent was unable to testify as to any statement by the decedent.

Finally, petitioner argues that respondent is liable even if she did not act in her capacity as agent because the mere existence of a joint account does not presume donative intent on the part of one party and because funds deposited by the decedent were the decedent’s during her lifetime and not the property of the respondent.

On May 18, 2010, the estate administrator joined in the petitioner’s motion for summary judgment and brief in opposition [sic]. On June 7, 2010, the respondent timely filed a reply to the petitioner’s motion for summary judgment and cross-motion for partial summary judgment as well as a brief-of-law. In the cross-motion for partial summary judgment the respondent notes that even prior to the decedent’s execution of the power of attorney, the decedent and respondent held several joint bank accounts and that after the execution of the power of attorney the decedent, not the respondent, modified several solely owned accounts, making them joint with the respondent. The signature cards for the accounts were attached as exhibits to support these averments. Additionally, some of the accounts which petitioner seeks to have turned over to the estate were trust accounts that, according to the multiple-party account act, belonged to the trustee, the respondent herein, during her lifetime and would have become property of the beneficiary, the decedent herein, only upon the trustee’s death. Additionally, prior to the execution of the power of attorney in 2004, the respondent owed the decedent no fiduciary duty and any withdrawals made by the respondent were done as joint owner and not as agent. Respondent further argues that any claims arising from actions taken prior to May 13,2006 are time barred by the two-year statute of limitations set forth in 42 Pa.C.S. §5524 and that any claims made as a result of the respondent’s withdrawal from joint accounts after the decedent’s death are barred by the Multiple-Party Account Act’s presumption that upon the death of a party to a joint account the sum remaining on deposit belongs to the surviving party and not the decedent’s estate. The respondent asks that the court find that she did not breach her fiduciary duty and that, further, petitioner’s claims should be barred in accordance with the above arguments.

In her brief, the respondent notes that depositing assets into a joint account does not make an irrevocable gift, but the conversion by a sole owner of a bank account into a joint account as evidenced by a duly signed signature card is prima facie evidence of an inter vivos gift. In this case, a number of accounts were made joint with the respondent by the decedent prior to the execution of the power of attorney, a time when the respondent had no legal authority to engage in banking transactions on behalf of the decedent. Equally important, a number of the accounts were altered after the execution of the power of attorney by the decedent herself as evidenced by the signature cards. The respondent also notes that the respondent signed those cards in her individual capacity and not as agent for the decedent. These were no transactions performed by the respondent as agent with regard to these accounts; therefore, they were not subject to the court’s order for an accounting.

On the argument of the Dead Man’s Rule, the respondent argues that the rule is waived when a party deposes the witness sought to be found incompetent, which the petitioner has done. Furthermore, the petitioner’s argument that the respondent may not testify unless she first introduces competent independent evidence that the decedent made the gift is defeated by the respondent’s production of the signature cards executed by the decedent. Additionally, the argument by petitioner that the respondent enjoyed a confidential relationship is without merit given his attempt to apply this claim to transactions made prior to the power of attorney. Furthermore, the transfers and transactions by the respondent were at all times consistent with a long-standing pattern that began prior to the execution of the power of attorney and with the decedent’s blessing; hence, they are not tainted. The respondent further notes that the decedent was active, alert and very much in control of her finances when this process began and that there is no evidence or even an allegation that the decedent lacked capacity, suffered from a weakened intellect, or was otherwise unable to manage her affairs or detect and object to the transactions that the petitioner finds objectionable.

In addition to the respondent’s arguments that the petitioner cannot claim a breach of fiduciary duty prior to such duty being created by the power of attorney, the petitioner’s claims are also barred in part by the statute of limitations. If indeed the respondent had breached her duty to the decedent, the injured party would have been the decedent, not the petitioner, and as such she would have had to initiate action within two years of the breach. No such action was filed by the decedent at any time. Furthermore, the limitations period does not begin to run again upon the decedent’s death so as to allow the estate to do what the decedent chose not to do during her lifetime. Because the petitioner began this action on May 13, 2008, any claim arising from transactions prior to May 13, 2006 should be barred.

The respondent also notes that the petitioner complains that the respondent liquidated various accounts the decedent held in trust for the granddaughters; however, under the Multi-Party Account Act, these accounts were the decedent’s and not the granddaughters’ during the decedent’s lifetime. Given the respondent’s authority under the power of attorney to engage in banking transactions, she was absolutely entitled to close decedent’s accounts held in trust for the granddaughters and deposit them into the decedent’s other accounts. The granddaughters simply had no right to the funds within those “in trust for” accounts until the decedent’s death, by which time they had been closed. Similarly, the respondent had complete authority to withdraw monies from accounts that she and her husband held in trust for the decedent given that they were their accounts in which the decedent had no interest until the respondent and her husband passed. With regard to the joint bank accounts, the sums on deposit became the property of the respondent by operation of law upon the decedent’s death. The decedent’s signature on the signature cards is prima facie evidence of her intent to make an inter vivos gift to the respondent, and the funds remaining on deposit upon the death of one party become the property of the surviving party unless there is clear and convincing evidence of a different intent at the time the account is created. Additionally, the respondent argues that the existence of a confidential relationship between the owners of a joint account does not alone shift the burden of proof to the survivor to demonstrate gift. This is such a case, given no evidence or even allegation of undue influence or lack of capacity. There is simply no evidence that the decedent did not voluntarily create the joint accounts; therefore, the sums remaining on deposit at the decedent’s death belong to the respondent free and clear of any claims by the petitioner or the estate.

Although the court was inclined to grant the respondent’s motion for partial summary judgment and to deny the petitioner’s motion for summary judgment on the morning of trial and so informed the parties in hopes that they might settle the matter, the court, after being informed that settlement would not occur, chose to reserve judgment on the motions and take testimony. Prior to the commencement of the trial, the respondent, through counsel, for the first time raised the issue of the petitioner’s standing in the matter, given his entitlement under the will to personal property only. Petitioner’s counsel attempted to argue that the petitioner was a stand-in for his daughters, one of whom was a minor up until shortly before the trial, but neither of whom was present. Counsel, indicating he had such authority, also offered to enter his appearance for the granddaughters. In a supporting effort to cure the standing defect, the estate’s administrator also offered his consent for petitioner’s counsel to enter his appearance on behalf of the administrator. With reluctance, the court chose to proceed with the trial rather than again delay getting to the merits of the matter.

The petitioner presented the testimony of two witnesses, the CPA who reviewed all of the accounts in which the decedent and the respondent had an interest and the respondent as if on cross-examination. The CPA testified about his review of the various accounts and laid out a pattern of the respondent’s transferring funds to herself from a number of joint accounts and accounts held by her and her husband in trust for the decedent. He acknowledged that the respondent was signing checks drawn on joint accounts beginning prior to the execution of the decedent’s power of attorney appointing the respondent as agent. He also testified as to his attempts to track balances being transferred from one account to another and admitted that he could not verily the source of all funds, whether from decedent or respondent, because his research went back to only 2002. Tie also testified that he did not see any activity by the respondent in her capacity as agent; all transactions were conducted in her individual capacity. He also confirmed that all bank statements were sent to the decedent and not the respondent.

Upon conclusion of the CPA’s testimony, the petitioner called the respondent as if on cross-examination. She testified as to the decedent’s wanting to execute a power of attorney for bank account management following a recent hospitalization. She testified as to the creation of a variety of joint bank accounts and “in trust for” accounts prior to the execution of the power of attorney as well as contributions to the accounts made by the decedent, the respondent, and the respondent’s husband. She also testified that prior to the execution of the power of attorney, the decedent maintained control over the accounts and had all statements sent to her — the decedent was in charge. Even after the execution of the power of attorney, statements were sent to the decedent’s mailing address, not the respondent’s.

Throughout all of the pretrial proceedings, the petitioner made the respondent out to be some sort of monster who took advantage of their mother. Given the number of accounts and transactions that the petitioner put at issue, the trial testimony regarding those accounts and transactions was rather cursory in the grand scheme and showed merely that the respondent acted in her individual capacity only and not as agent with respect to a variety of accounts in which the respondent had an interest as either a joint owner or as the trustee of an informal trust account. Every such account was made joint by the decedent or created with funds from such joint accounts, with the exception of accounts that the respondent and her husband created in trust for the decedent from their own funds. There was no testimony to support the respondent’s acting as an agent, let alone an agent bent on wrongdoing. Additionally, all transactions were conducted in accordance with a pattern established prior to the decedent’s naming the respondent as agent. It is clear to the court that the decedent was aware of the transactions and condoned them, both before and after her appointing respondent as agent.

Even if the respondent had been dealing with funds deposited solely by the decedent, the court cannot consider the respondent’s actions to have been “stealing,” given the decedent’s creation of the joint accounts, which constitutes prima facie evidence of a gift, coupled with her knowledge of the transactions and approval thereof. There was absolutely no allegation that the decedent possessed a weakened intellect, was subject to undue influence, lacked testamentaiy capacity, or was otherwise of a mind subject to the control of the respondent. Being of sound mind, the decedent at no time showed herself to be against the continuation of the pattern of withdrawals and transfers. It is for these reasons that the court hoped that the respondent would make a motion for nonsuit following the petitioner’s resting his case, and failing such motion after invitation the court opted to stop the testimony and put an end to the trial. Given the lengthy financial history between the decedent and the respondent, there is no doubt in the court’s mind that the decedent wanted these transactions to occur.

In addition to the court’s factual determinations going against the petitioner, the petitioner, in the court’s view, has additional legal hurdles which he has failed to overcome. First, any claims arising from transactions prior to May 13, 2006 are barred by the applicable two-year statute of limitations. 42 Pa.C.S. §5524, Maillie v. Greater Delaware Valley Health Care Inc., 156 Pa. Commw. 582, 590, 628 A.2d 528, 532 (1993) (claim for breach of fiduciary duty subject to two-year statute of limitations). Second, the petitioner has failed to in any way to rebut the prima facie evidence of donative intent demonstrated by the decedent when she added the respondent to her accounts as a joint owner. Third, it is clear to the court that the petitioner does not have standing in this matter, having an interest in only the personal property of the estate and not the real estate or cash. See In re Trust Under Agreement of Keiser, 392 Pa. Super. 146, 150, 572 A.2d 734, 736 (1990) (standing conferred only on “aggrieved” party adversely affected by the matter he seeks to challenge). He has failed to prosecute this action on behalf of his minor daughter, proceeding and acting in his name alone. Even upon attaining the age of majority, neither daughter has filed any objections or claims of their own. Even the estate administrator has failed to present a claim or objection that would somehow cause the respondent’s interests in the joint accounts under the Multiple Party Account Act to fail. See 20. Pa.C.S. §6304(a) (sums remaining on deposit at death of joint owner belong to surviving owner(s) and not estate of decedent absent clear and convincing evidence of different intent). Simply put, this has been a horrible and lengthy witch hunt that has revealed nothing more than a close financial relationship between a mother and daughter.

For the foregoing reasons, the court entered its order of June 9, 2010 dismissing the petitions, objections and motions of the petitioner.

      . The court notes that the administrator, c.t.a. opposed the petition to vacate and joined in the Petitioner’s brief in opposition.

      . It would appear that one of the outstanding issues at the time of scheduling trial was a motion to reconsider the court’s vacating the protective order regarding the real estate. To the extent that the motion was not previously denied orally or in some lost written order, the same should be denied for the failure of the parties to raise the issue at the trial; consequently, an order to that effect is being entered contemporaneously with the filing of this opinion.

      . E.g. In re Estate of Eastman, 760 A.2d 16, 19 (Pa. Super. 2000) (“Where a sole owner of a bank account converts the account into a joint one owned by himself and another, as evidenced by a duly signed signature card, the transaction is prima facie one of an inter vivos gift.” (citations omitted) (emphasis in original)

      . It is questionable whether the administrator even has standing himself; however, such determination is clouded by the fact that petitioner was allowed, without objection to his standing, to proceed with this action up to the morning of trial when the standing issue was raised for the first time. See Keiser (fiduciary is unaggrieved stakeholder who lacks standing when parties in interest are represented in matter at hand).


source: Caselaw Access Project

author: TERESHKO, J.,

license: Public Domain

text:
    Kang v. Trustees of the University of Pennsylvania

      Christopher Ezold, for appellant.

      Mark J Foley, for appellees.
    August 23, 2010
   TERESHKO, J.,

Plaintiff Bin Kang appeals this court’s order granting the preliminary objections of defendants, trustees of the University of Pennsylvania, Mr. Ramin Sedehi, and Dr. Richard Schultz, and dismissing the complaint against said defendants.

I. BACKGROUND

Plaintiff commenced this action following the termination of his employment with the University of Pennsylvania. In January 2002, plaintiff was appointed to the position of postdoctoral fellow with the Biology Department of the University of Pennsylvania, effective February 1, 2002. (Complaint, ¶2.) The letter of appointment indicated that 2002 was the first year of a possible five-year appointment. (Id.) The University of Pennsylvania hires individuals who have attained either a Ph.D. or a M.D. degree for the purpose of conducting research into various scientific and academic matters. (Id., ¶9.)

Plaintiff’s appointment was renewed for one-year increments in 2003, 2004, 2005, and 2006. (Id., ¶¶22-23.) Plaintiff was employed pursuant to a written employment contract. The University of Pennsylvania maintained and enforced a “Policy for postdoctoral fellows in the Physical, Biological, and Health sciences and in engineering at the University of Pennsylvania.” (Id., exhibit B.) Under the section entitled “Obligations of postdoctoral fellows,” the policy states, in part, that:

“Postdoctoral fellows have certain obligations to their mentor, the unit in which they are working, the department with which they are associated, the grantor whose funds support them, and the university. These obligations include but are not limited to:...

“(vi) collegial conduct towards co-workers and members of the research group; . . . .” (Policy for postdoctoral fellows in the Physical, Biological, and Health sciences and in engineering at the University of Pennsylvania.)

During the fall of 2005, plaintiff allegedly engaged in conduct that was disruptive and prohibited by this policy by harassing his co-workers and accessing their e-mail accounts without permission. (Complaint, ¶37; memorandum in support of defendants’ preliminary objections to plaintiff’s complaint, exhibit 2.)

A meeting between plaintiff, defendant Sedehi, the associate dean of the School of Arts & Sciences at the University of Pennsylvania, the chair of the Biology Department, and plaintiff’s supervisor took place on October 24, 2005. This meeting was documented by way of a December 21, 2005 letter from defendant Sedehi to plaintiff, which amended the terms of plaintiff’s employment. (Id.) Plaintiff was informed that he would be able to remain in his position even though he had engaged in prohibited conduct, but that his employment would be terminated if he should further engage in prohibited conduct. The letter reads, in part:

“The behavior you have exhibited is grounds for termination. However, as we informed you, we have decided to give you one more chance to continue your research work at Penn but subj ect to the following terms:
“• You may not harass, attempt to intimidate, or engage in violent outbursts regarding anyone at Penn whether they are colleagues, professors, students or staff... If you engage in such behavior again your postdoctoral fellowship and any other relationship with Penn will be terminated immediately.
“• If you again access, or attempt to access, anyone’s e-mail account without permission, your postdoctoral fellowship and any other relationship with Penn will be terminated immediately.” (Id.)

In July 2006, plaintiff, again, allegedly engaged in prohibited conduct similar to that which was outlined in the December 21 letter. (Complaint, ¶43.) Plaintiff’s employment with the University of Pennsylvania was terminated on August 4, 2006. (Id., ¶45.) Plaintiff, in his complaint, asserted claims for breach of contract (Count I) and wrongful discharge (Count II) stemming from his August 4, 2006 termination.

After review of the preliminary objections and responses thereto, this court granted and sustained defendants’ preliminary objections and dismissed with prejudice plaintiff’s claims against all defendants on May 17, 2010. On June 1, 2010, plaintiff timely filed an appeal from the May 17 order. Plaintiff then filed his concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) on June 11, 2010. The issue for review on appeal is as follows:

“Whether the trial court erred in finding that plaintiff has failed to provide sufficient evidence that defendants breached the employment contract with plaintiff.”

II. DISCUSSION

A preliminary objection in the nature of a demurrer tests the legal sufficiency of the plaintiff’s complaint. Smith v. Wagner, 403 Pa. Super. 316, 588 A.2d 1308 (1991). The standard of review in granting preliminary objections is that “all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true.” Youndt v. First National Bank of Port Allegany, 868 A.2d 539, 542 (Pa. Super. 2005). “A preliminary objection in the nature of a demurrer must be sustained where it is clear and free from doubt that the law will not permit recovery under the facts alleged.” Petsinger v. Department of Labor and Industry, 988 A.2d 748, 753 n.1 (Pa. Commw. 2010) (citing Africa v. Horn, 701 A.2d 273 (Pa. Commw. 1997)).

Plaintiff alleges that, by terminating his employment, defendants breached his employment contract. In order to state a cause of action for breach of contract, plaintiff’s complaint must contain averments of fact which, if proven, would establish “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Core-States Bank v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999) (citing General State Authority v. Coleman Cable and Wire Co., 27 Pa. Commw. 385, 365 (1976)). (emphasis added) In construing the terms of his employment contract, plaintiff ignores the section of the contract dealing with “Obligations of postdoctoral fellows,” as well December 21,2005 letter from the dean of University of Pennsylvania. Both emphasize collegial conduct in the workplace. Plaintiff’s conduct of in 2005 and 2006 was clearly prohibited by the University of Pennsylvania’s policy and breached his obligations under the employment contract.

The December 21, 2005 letter sets forth in further detail the “Obligations of postdoctoral fellows” as stated in plaintiff’s employment contract. The letter specifically stated that if plaintiff engaged in any of the described prohibited conduct, his employment would be immediately terminated. (Complaint, ¶37; memorandum in support of defendants’ preliminary objections to plaintiff’s complaint, exhibit 2.) Plaintiff contends that, because the December letter was not attached to his complaint, it should not be considered in determining the preliminary objections. However, plaintiff makes note of this letter in his complaint. (Complaint, ¶36.) The main force of the letter, that plaintiff’s employment would be terminated if he harassed his co-workers or impermissibly accessed anyone’s e-mail account, is noted in the complaint. (Id, ¶37.) That the letter referenced was not attached as an exhibit to plaintiff’s complaint does not preclude it from being reviewed by this court in determining defendants’ preliminary objections because it was unrebutted that the letter was part of the plaintiff’s contract of employment the breach of which he alleges.

“The general rule is that a party who has materially breached a contract may not complain if the other party refuses to perform his obligations under the contract.... A party also may not insist upon performance of the contract when he himself is guilty of a material breach of the contract.” Ott v. Buehler Lumber Co., 373 Pa. Super. 515, 518, 541 A.2d 1143, 1145 (1988). (internal citations omitted) Plaintiff was aware that, pursuant to his employment contract, he must follow the policy guidelines set out by the University of Pennsylvania. It is clear that plaintiff breached the terms of his employment contract by engaging in conduct that was prohibited by the university’s policy by harassing co-workers and accessing other’s email accounts. He was reminded that this conduct was a violation of the policy of the school in a meeting with the dean of the school and by the letter of December 21, 2005. Despite having been reminded of the school’s policy on several occasions, plaintiff continued to conduct himself in a manner that was á violation of the policy for postdoctoral fellows at the University of Pennsylvania.

Because plaintiff continued to engage in conduct that was a violation of the policy for postdoctoral fellows at the University of Pennsylvania, it constituted a material breach of his employment contract. Therefore, plaintiff’s allegations in his complaint that the defendants breached the employment contract are without merit. Because plaintiff did not properly state a cause of action for breach of contract, it was proper for the court to grant the preliminary objections of defendants.

III. CONCLUSION

For the foregoing reasons, this court’s order granting defendants’ preliminary objections to plaintiff’s complaint and dismissing plaintiff’s complaint, should be affirmed.

      . Plaintiff voluntarily withdrew Count II of his complaint by way of his response in opposition to defendants preliminary objections, filed April 30, 2010. (See p. 5.)


author: O’KEEFE, J.,

text:
    In re Witherspoon

      C.P. of Philadelphia County,
    no. 231 AP of 2007.

      J Kurt Straub and Nina B. Stryker, for Episcopal Long Term Care and Temple University Heath System Inc.

      William L. Banton Jr., for Philadelphia Nursing Home.

      Brian L. Strauss, for Adam S. Bernick.

      Brent Moss, for Angela Barnes Triplett.
    June 30, 2010
   O’KEEFE, J.,

John Witherspoon died intestate on April 6,2004 at the age of 82. At the time of his death he was a resident of the Philadelphia Nursing Home, where he had lived since January 24, 2003. At the time of his death, the decedent was impoverished and dependent upon medical assistance. As a result of benefits paid on decedent’s behalf during his lifetime, the Pennsylvania Department of Public Welfare has subsequently asserted a lien against the estate in the amount of $264,616.76.

At the time of his death, Witherspoon had a potential heir, his alleged son, James Redding. On February 23, 2005, James Redding renounced his right to administer the decedent’s estate and respectfully requested that letters be issued to Lottie Moore, a sister of the decedent. Said renunciation appears as exhibit A-3 in the record in this matter.

On September 2,2004, Ms. Moore hired the law firm of Wilkes and McHugh to investigate a potential lawsuit on behalf of Mr. Witherspoon’s estate against the Philadelphia Nursing Home, Episcopal Long Term Care and Temple University Health Care Systems. A copy of the contingency fee agreement between Ms. Moore and the firm of Wilkes and McHugh appears as exhibit A-l in the record in this matter.

On October 1,2004, Wilkes and McHugh sent a letter to the Philadelphia Nursing Home informing them that the estate of John Witherspoon may have a potential claim against the Nursing Home. Enclosed with the letter was a “HIPPA complaint medical authorization,” signed by Ms. Moore, authorizing the nursing home to release the decedent’s medical records and other information to the firm of Wilkes and McHugh.

On March 28, 2005, Ms. Moore filed a petition for citation to show cause why petitioner should not be appointed administratrix with the register of wills, which appears as exhibit A-4. In her petition, Ms. Moore asserts that Mr. Witherspoon left behind seven heirs, all siblings of the decedent.

Concurrently, on March 28, 2005, the law firm of Wilkes and McHugh filed a petition with the register of wills for letters of administration pendente lite on behalf of Denise Rafter, a paralegal at said firm. In the petition, which appears as exhibit A-5 in the record in this matter, Ms. Rafter avers that Ms. Moore retained the firm of Wilkes and McHugh to investigate the death of Mr. Witherspoon. Ms. Rafter avers that the estate requires an administrator pendente lite in order to “preserve any action under the statute of limitations”, as the alleged tort occurred on March 31,2003, and therefore the two-year statute of limitation would run on March 31, 2005. The petition further states that Ms. Rafter will “withdraw” when the register appoints “any other legitimate petitioner”.

On March 30, 2005, the register of wills of Philadelphia County appointed Denise Rafter to serve as administratrix pendente lite of the Estate of John Witherspoon, deceased.

On March 31, 2005, Ms. Rafter, as administratrix pendente lite, filed a writ of summons in the civil trial division of the Philadelphia Court of Common Pleas, civil trial division, against Philadelphia Nursing Home, Episcopal Long Term Care and Temple University Health Systems, alleging that John Witherspoon suffered a severe injury of bilateral pneumonia and congestive heart failure on March 31, 2003, as a result of the conduct of the defendants. The action is captioned Denise Rafter, administratrix pendente lite of the estate of John Witherspoon, deceased v. Episcopal Long Term Care, Philadelphia Nursing Home and Temple University Health Systems Inc., March Term 2005, no. 3770.

On May 19, 2006, Lottie Moore signed a letter to the register of wills withdrawing her petition to be appointed administratrix of the estate of John Witherspoon, originally filed on March 28, 2005. In said letter, which appears as exhibit A-6 in the record, Ms. Moore consents to the removal of Denise Rafter as administratrix pendente lite and to the appointment of Adam S. Bernick, Esquire, as successor administrator pendente lite of the estate of John Witherspoon.

Thereafter, on June 1,2006, the register accepted Ms. Rafter’s resignation and appointed Mr. Bernick as her successor.

On October 3, 2006, the register of wills issued a decree denying the petition to revoke ab initio the letters of administration. There is no written opinion of the register of wills.

On January 3, 2007, Andrew A. Coates, Esquire, in his capacity as counsel for the Commonwealth of Pennsylvania Department of Public Welfare, executed a consent to Mr. Bemick’s appointment as administrator pendente lite of the estate, and consented to the malpractice suit filed in the Philadelphia Court of Common Pleas.

On January 4,2007, Angel Triplet, a niece of decedent John Witherspoon, came forward and executed a consent to Mr. Bemick’s appointment as administrator pendente lite of the estate. At such time Ms. Triplet also consented to the ongoing civil proceedings.

On February 9, 2007, the defendants in the civil matter filed a notice of appeal and a petition for citation to show cause why their appeal from the register’s decree of October 3,2006 should not be granted. In their petition for citation sur appeal, the appellants again cite Brokans v. Melnick, 391 Pa. Super. 21, 569 A.2d 1373 (1989) and argue that Denise Rafter, Adam Bemick and the law firm of Wilkes and McHugh have not “established any grounds or authority to proceed on behalf of the intestate heirs of the decedent.”

On March 1,2007, Adam Bemick, Esquire, filed preliminary objections to the petition for citation sur appeal, arguing that defendants have no standing to appeal from the register because they have no interest in the decedent’s estate.

The appellants filed an answer to Bemick’s preliminary objections on March 20, 2007, in which they argue that the Pennsylvania Superior Court decision in Brokans trumps any case law on standing.

On September 10, 2007, Angela Triplet, a niece of decedent Witherspoon, filed an answer and new matter to the petition sur appeal, raising issues similar to those filed by Adam Bernick in his preliminaiy objections.

On October 7,2008, at a hearing held on the pleadings in this matter, this court heard from the attorneys for Angela Barnes Triplet, Adam Bernick, Philadelphia Nursing Home, Episcopal Long Term Health Care and Temple University Health System Inc. The appellants offered six depositions into the evidence as “D-l.” Respondents offered 13 exhibits into evidence as “A-l” through “A-13.”

I hold that the letters of administration pendente lite granted to Denise Rafter, and subsequently to Adam Bemick, are valid and enforceable.

Appellants assert that the letters of administration pendente lite granted by the register of wills to Ms. Rafter, and subsequently to Mr. Bemick, are void and should therefore be revoked ab initio. The basis of appellants’ argument is that Ms. Rafter and Mr. Bernick are not entitled to letters of administration as they are not surviving heirs of decedent and are therefore considered “strangers” to the estate under 20Pa.C.S. §3155.

In Pennsylvania, the person entitled to letters of administration is determined by the application of 20 Pa.C.S. §3155(b), which provides:

“(b) Letters of administration.
“Letters of administration shall be granted by the register, in such for as the case shall require, to one or more of those hereinafter mentioned, and except for good cause, in the following order:
“(1) Those entitled to the residuary estate under the will.
“(2) The surviving spouse.
“(3) Those entitled under intestate law as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the sizes and shares of those in this class.
“(4) The principal creditors of the decedent at the time of his death.
“(5) Other fit persons.”

The Superior Court in Brokans v. Melnick, 391 Pa. Super. 21, 569 A.2d 1373 (1989), explained the construction of 20 Pa.C.S. §3155(b). Brokans held that an attorney, who petitioned the register of wills for letters of administration in order to commence a civil malpractice lawsuit, could not be granted letters of administration. The court found that the attorney was an improper administrator because he was, “a complete stranger without any financial, blood or marital interest in the estate” when the decedent’s immediate family members had survived her. Id. at 29-30, 569 A.2d at 1377. The court noted that these intestate heirs had “not expressly renounced their right to administer the estate.” Id. at 30, 569 A.2d at 1377. The Superior Court therefore affirmed the order of the lower court which had granted the preliminary objections and dismissed the complaint against the defendant.

Appellants’ argument is flawed on several counts. First, appellants address “letters of administration”, and not “letters of administration pendente lite.” Letters of administration pendente lite are evaluated under a different statute than letters of administration. Rafter, and her successor Bernick were not appointed by the register to be administrators of the decedent’s estate, rather, administrators pendente lite.

The appellants evaluated the register’s decree under 20 Pa.C.S. §3155(b). 20 Pa.C.S. §3155(b), which determines the order of the persons entitled to be appointed administrator, does not apply to the appointment of an administrator pendente lite. The appointment of an administrator pendente lite is evaluated under 20 Pa.C.S. §3160, and not 20 Pa.C.S. §3155(b).

20 Pa.C.S. §3160 dictates that the register may grant letters of administration pendente lite to “any fit person.” In the 1949 official comment following 20 Pa.C.S. §3160, it is stated that the register, when selecting “any fit person” to serve as administrator pendente lite, is “not bound to follow the statutory order ofpreference that otherwise applies to the selection of administrator. ” (emphasis added) Here, the register appointed Rafter, and subsequently Bernick, to the post of administrator pendente lite of the estate of John Witherspoon following the review of the petitions filed on their behalf. Therefore, under 20 Pa.C.S. §3160 the register was well within his right to appoint both Ms. Rafter and Mr. Bernick as administrators pendente lite.

The appellants argument under Brokans is similarly faulty in that it attempts to evaluate the legal ramifications of the appointment of Mr. Bernick as administrator, and not administrator pendente lite. Furthermore, unlike the facts presented in Brokans, here three intestate heirs of the decedent renounced their right to serve as the administrator of his estate, and two intestate heirs consented to Mr. Bernick’s appointment as administrator pendente lite. Additionally, no steps have been taken by Mr. Bernick or Ms. Rafter to impede or prevent the appointment of any intestate heir as administrator of decedent’s estate. In fact, the record suggests that Mr. Bernick has attempted to locate additional family members should they desire to serve in the capacity of administrator.

Appellants argument, that Brokans establishes that all possible heirs in the statutory scheme must renounce their right to administer the estate before a “stranger” can be appointed administrator pendente lite, is erroneous. As the court noted in Brokans, at 32, 569 A.2d at 1378, a “stranger” can be appointed administrator when “a party entitled to administer the estate renounces his right to administration in favor of a stranger.” This language in Brokans states “a party” in the singular and not “all parties”, renounce the right to administer. The record shows that James Redding, the alleged son of the decedent, Lottie Moore, the sister of the decedent, and Angela Triplet, the niece of the decedent, all potential intestate heirs and therefore within the right to administer the decedent’s estate, renounced their right to serve as administrator of the decedent’s estate. Ms. Moore and Ms. Triplet also consented to Mr. Bernick serving as administrator pendente lite. Thus, we must reject this argument by the appellants.

The appellants’ final argument, that the length of the pendente lite administration has exceeded its “finite duration,” is also without merit. The appellants to that Ms. Rafter and subsequently Mr. Bernick have served in this “temporary” position for several years. Appellants assert that the time served is long past the alleged imminent “crisis of filing suit to toll the statute of limitations.” Case law, however, suggests that there is no time limit that one can serve as administrator pendente lite. This court held in In re Gorsuch’s Estate, 8 D.&C.2d 190 (Orphans’ Ct. 1957) that the role of administrator pendente lite runs the length of litigation, but “may not exist longer than the pendency of the litigation.” Thus, as there is no finite term to the position of administrator pendente lite, and per the fact that the civil litigation is pending, Mr. Bemick’s appointment as administrator pendente lite remains valid.

In conclusion, appellants’ argument that appellee’s letters of administration pendente lite should be revoked ab initio is without merit. An appropriate decree will be entered.

      . It is disputed as to whether James Redding is in fact the son of decedent John Witherspoon. Lottie Moore, sister of the decedent, previously stated that Redding was in fact the son of decedent Witherspoon. However, Redding’s birth certificate states that his father’s name is “Information not recorded”. To date there has been no final determination as to whether James Redding is the son of the decedent.

      . Appellants contend that the statute of limitations began running on April 6, 2004, when John Witherspoon died and ended on April 6, 2006. Respondents state that because the underlying lawsuit contains a survival claim, the statute of limitations began when the injury allegedly occurred on March 31, 2003.


author: MILLER, J,

text:
    In re Estate of Hunsicker

      C.P. of Monroe County,
    no. 74 O.C. 2010.

      David W Skutnik, for appellants.

      David A. Martino, for executor.

      Maryann Garvey, for register of wills.
    August 10, 2010
   MILLER, J,

In 2003, Donald A. Hunsicker, the decedent herein, met with Attorney Michael Ozalas for the purpose of preparing a last will and testament. Attorney Ozalas prepared a will and the decedent executed it on April 28,2003. In this will, decedent made a specific bequest to his friend, Charles Steltzman, and left the residue of his estate to his brother, Carl Vanhorn Hunsicker. He also named alternate beneficiaries in the event Carl predeceased him. He further named Carl and his friend, Steltzman, as executors.

Sometime in 2008, defendant made a handwritten codicil to his will which he signed on June 18, 2008. In this codicil, he bequeathed to his brother bank accounts and his cottage and house at the lake.

Decedent died on October 9, 2009, and his brother predeceased him.

After his death, Mr. Steltzman appeared in the office of the register of wills here in Monroe County with the will and the codicil. However, the will was missing page two, which would have been the alternate beneficiary bequests and contained several interlineations and handwritten notations. The Monroe County register of wills refused to accept them for probate.

On December 30, 2009, we issued a citation to show cause why Steltzman should not be appointed executor of the estate of decedent. After a hearing before the registrar, she issued an opinion invalidating the will but accepting the codicil as a later will for probate. Steltzman appealed her decision on April 29,2010. While the probate, estate and fiduciaries code allows the parties a de novo hearing before the court, it also allows the parties, if they agree, to proceed with the appeal based upon the record made before the register of wills.

Any party in interest seeking to challenge the probate of a will or is otherwise aggrieved by a decree of the registrar, may appeal therefrom to the court within one year of the decree. 20 Pa.C.S. §908 (a). As a general rule, a party must have an interest in order to challenge the grant or denial of letters to administer decedent’s estate. In Re Estate of Sidlow, 374 Pa. Super. 624, 543 A.2d 1143 (1988).

A legatee under a prior will whose legacy is revoked by implication upon the execution of a later will does have standing since he will be able to recover under the earlier will if the later will is declared invalid. Id. Accordingly, we find that Steltzman has standing to bring this petition under section 908. However, he has the burden to challenge the validity of the will. In other words, Steltzman must prove that the will is valid.

Our first inquiry then is whether the register of wills correctly invalidated the will. In Pennsylvania, every will shall be in writing and shall be signed by the testator at the end subject to certain rules and exceptions, Burns v. Kabboul, 407 Pa. Super. 289, 595 A.2d 1153 (1991), the chief purpose of which is to see that the testator’s wishes are observed. See In Re Sheaffer’s Estate, 240 Pa. 83, 87 A. 577 (1913). Here, both the will and codicil proposed to probate are in writing and signed by the decedent. However, the registrar found that the decedent revoked his will by certain handwritten notations contained therein and it was subsequently replaced by the codicil. We don’t agree.

Although the will contains interlineations and handwritten notations, the substance of the residuary disposition of decedent’s estate is not affected and the codicil maintains an orderly connection to the will. In the will, all the rest, residue and remainder of decedent’s estate is left to his brother. Clearly what is written on the codicil is part of the residue of the decedent’s estate and this, also, goes to the brother. The only items missing in the will would be the alternate beneficiary designations that were deleted from the original will.

In the items he deleted from his original will, the alternate beneficiaries are his two nieces and Mr. Steltzman. Under our findings, Mr. Steltzman still receives his specific bequest and the nieces receive the residuary as daughters of decedent’s brother.

Although the will contains interlineations and handwritten notations, the substance of the residuary disposition of decedent’s estate is not affected and the codicil maintains an orderly connection to the will.

In Pennsylvania, a valid will may be written on separate not physically united sheets of paper. Burns, supra at 319, 595 A.2d at 1168. In order to probate separate not physically united sheets of paper as a will. . ., the test is whether the not physically united sheets of paper are connected by their internal sense, by coherence or adaptation of parts. The order of the connection must appear on the face of the will and cannot be established by extrinsic evidence. Additionally, interlineations and marginal notes are of no effect if they are not properly executed. Supplee Estate, 57 D.&C.2d 40 (1972). Additionally, there is a presumption that marginal and interlineated notes in a testator’s handwriting to a typewritten will were affixed after its execution.

Attorney Michael Ozalas testified before the registrar, but he could only testify that the handwritten notations were not on the will when decedent signed it. Attorney Ozalas said he had searched his records but could not find a copy of the original will he prepared or any of his notes taken during his interview with Mr. Hunsicker.

After reviewing the testimony and records submitted by the registrar, it is clear that decedent made an alteration to his will after its execution. He made several interlineations to the third paragraph of his will, but they had no effect on the residuary disposition to his brother Carl. The only other interlineations occur in paragraph eight which deals with the appointment of an executor. Decedent crosses out the name of Carl and writes Steltzman’s name underneath. Decedent then crosses out Steltzman’s name but later writes error above it and signs, dates and initials it. A handwritten notation on the bottom of that page indicates that he removed the fourth and fifth sheets, to which he signed his name. Clearly he meant the fourth and fifth paragraphs which are on one sheet of the original will. When we read the codicil in place of paragraphs fourth and fifth which were removed from the will, the codicil language is connected to the will by its internal sense, coherence and by adaptation of its parts. In addition, as we said before, the codicil does not change the residuary bequest to his brother Carl, which he has made clear in all of his writings.

In Pennsylvania, it’s been repeatedly held that there are no formal words that made up a will and the form of the instrument is immaterial as long as it is a gift intended to take place after the testator’s death. In Re Wolfe’s Estate, 284 Pa. 169, 130 A. 501 (1925). Although the codicil is small, it is decedent’s handwritten wishes on paper that indicates his intent that in the event he should die, he makes of his property to his brother. The totality of this instrument read in conjunction with the will, which Steltzman attempted to probate, demonstrates that together it is a testamentary document. Accordingly, we find that the will, along with the codicil, constitutes a valid will which shall be admitted for probate. In addition, the will clearly appoints Steltzman as executor and accordingly the registrar is directed to appoint Steltzman as the executor of the estate of Donald Hunsicker.

Steltzman’s next argument is that the codicil fails to name a personal representative or make complete disposition of the decedent’s estate. We agree with him but since we have determined that the codicil and the will should be probated, with Steltzman as executor, we find this issue moot.

Finally, we are constrained to comment on the parties’ agreement to have this matter determined on the record made before the register. Although the rules state that an appeal may be “heard on the testimony taken before the register,” the usual course is for the trial court to hear the testimony de novo. 20 Pa.C.S. §776. The record submitted in this case is so dreadful we found it difficult to determine the facts of the matter. However, since the parties agreed that the case would be heard on the testimony taken before the register we complied.

However, the better course is for the trial court to hear testimony de novo. Based on the foregoing, we enter the following decree:

DECREE

And now, August 10, 2010, after a review of the testimony before the register of wills and upon consideration of the appeal filed by Charles Steltzman, it is hereby ordered that the will and codicil of Donald A. Hun-sicker shall be admitted to probate and Charles Steltzman shall be appointed as executor of the estate of Donald A. Hunsicker.


text:
    In re Camillo

      C.P. of Philadelphia County,
    no. 138 DE of 2009.

      Joseph P. McGowan, for petitioner.

      Edward J. Gilson, for respondent.
    June 30, 2010
   O’KEEFE, J.,

Doris J. Camillo died intestate on January 17,2008 at Artman Assisted Living, a nursing home and assisted living facility. At the time of her death, Mrs. Camillo owned a home at 412 East Allens Lane in Philadelphia and held some cash assets.

Mrs. Camillo was survived by her four daughters: Karen Senske, Deborah Fulton, Linda Cohen, and Cheryl Schrier. Her husband, Wallace R. Camillo, had predeceased her in 2007.

On September 10, 2005, Mrs. Camillo and her husband, Wallace R. Camillo, signed identical wills. One of these wills appears as exhibit P-1 in the record in this matter. Exhibit P-1 gives the residue of the decedent’s estate in equal, one-third shares, to daughter Linda Cohen; to daughter Deborah Fulton; and to daughter Karen Senske. Daughter Cheryl Schrier is bequeathed a mere $1. Exhibit P-1 names Karen Senske as executrix and Deborah Fulton as the successor executrix.

On January 8,2007, Doris Camillo’s husband, Wallace Camillo, died. Following his death, daughters Deborah and Karen assumed the responsibility of the care of Mrs. Camillo. Karen handled Mrs. Camillo’s finances and Deborah handled her medical care.

On June 17, 2007, Deborah assumed the full care of Mrs. Camillo.

Thereafter, in the summer of 2007, Mrs. Camillo destroyed her September 2005 will, and hired attorney Charles McKee, Esquire, to draft her a new will. Mrs. Camillo’s 2007 will was never completed or signed.

On January 17, 2008, Mrs. Camillo died.

On February 16, 2008, Cheryl cleared out Mrs. Camillo’s room at Artman Assisted Living. Cheryl distributed much of her mother’s remaining clothing and furniture to charitable organizations. Any additional furniture was sent back to Mrs. Camillo’s prior residence at 412 East Allens Lane in Philadelphia, Pennsylvania.

Following her mother’s death, Deborah petitioned the register of wills for letters of administration to the estate of Doris Camillo, deceased. Accordingly, Deborah requested that each of her three sisters renounce their right to serve as administratrix of Mrs. Camillo’s estate, in favor of Deborah assuming this role. Her sisters Linda and Cheryl immediately signed and notarized the renunciation form. Karen did not.

On February 27, 2008, Deborah sent Karen an email requesting that she sign the renunciation. A copy of said email appears as exhibit P-4 in the record in this matter. The email reads as follows:

“It would be very helpful if you would now sign the renunciation form so we can move forward with Mom’s estate. If you elect not to sign the renunciation form and an attorney must be retained to handle Mom’s estate, it will cost a minimum of $15,700 from Mom’s hard-earned estate. This makes no sense, is a genuine waste of Mom’s money, and I am sure that Mom would not want it this way. She trusted me and so should you. So let’s move on. I need to know your answer by Monday, March 3. ... I already have people interested in the house and in the car, and you are wasting time and potentially wasting a lot of money....”

On March 19, 2008, Karen signed the renunciation form.

On June 3, 2008, Karen received an email from Gayle Benjamin Hall. The email was addressed to Cheryl but forwarded to each of the sisters. This email thanked the sisters for sending Ms. Hall a box of Mrs. Camillo’s items.

On June 3, 2008, Karen emailed an attorney, Edward Gilson, with questions regarding the proper handling of Mrs. Camillo’s estate and distribution of assets. A copy of this email appears as exhibit P-7 in the record in this matter.

On June 10,2008, Karen drafted a list of specific items, both sentimental and valuable, that she wanted from her mother’s home. Karen sent this list to Mr. Gilson, who then forwarded the list to Deborah. A copy of said list appears as Exhibit P-8 in the record in this matter.

On June 13,2008, the register of wills issued a decree appointing Deborah Fulton to serve as administratrix of the estate of Doris Camillo, deceased.

On December 27, 2008, a group of Mrs. Camillo’s family members, including her daughters Deborah, Cheryl, and Linda, their husbands and children, went to Mrs. Camillo’s house to sort through and claim desired assets. Neither Karen, her husband, nor her children, were present at the house on this date. The family in attendance set aside nearly 20 items for Karen; a number of the items reserved were those delineated in Karen’s June 10th email list, including those with sentimental value.

On January 8,2009, Karen received notification from her attorney, Joseph McGowan, that many of the items requested in her June 10th email list had been donated to charity.

January 19, 2009 and on May 7, 2009, Deborah donated many of Mrs. Camillo’s unclaimed personal items to the charitable organizations “New Life” and “Purple Heart”.

January 26, 2009, Karen entered her mother’s house for the first time since her death, under the supervision of the attorney Mr. Gilson. At this time Karen found the house was virtually empty.

On Januaiy 27,2009, Karen filed a petition for citation directed to Deborah to show cause why this court should not remove Deborah as administratrix and appoint a neutral administrator for Mrs. Camillo’s estate. In her petition, Karen requested this court to order an accounting of Deborah’s administration of the estate. She also asked that this court surcharge Deborah for Karen’s expenses, losses and attorney’s fees, as Karen claimed that she incurred legal fees in order to protect her interests in her mother’s estate from Deborah. Karen alleged that Deborah had created an adversarial relationship between the sisters by failing to communicate with Karen. Karen further asserted that Deborah willfully destroyed items desired by Karen, and made inequitable distributions of estate property to other heirs contrary to the.intestate laws of the Commonwealth of Pennsylvania. Karen contended that Deborah’s failure to appraise, inventory, distribute, or provide an accounting of tangible personal property of their mother’s estate was a violation of Deborah’s fiduciary duty as administratrix of the estate. Finally, Karen maintained that Deborah’s failure to file the inheritance tax return, failure to account for the disposition of decedent’s cash assets and bank accounts, and failure to market and sell the decedent’s real estate was both a violation of her fiduciary duty and a cause of additional expenses for the estate. Based on these assertions, Karen asked that this court remove Deborah as administratrix and appoint a neutral party to administer the estate in her stead.

On March 6,2009, this court ordered and decreed that a citation be directed to Deborah to show cause why she should not be removed from her office as administratrix of the estate of Doris J. Camillo, deceased; why the letters of administration granted to her as administratrix should not be vacated; and, why she should not be ordered to file an account.

On April 22, 2009, Deborah filed an answer and new matter to Karen’s petition, asking that this court dismiss Karen’s aforementioned petition to remove Deborah as administratrix. In her answer, Deborah claimed that the adversarial relationship between the sisters had existed for some time. Deborah maintained that she had provided an accounting of the personal items found thus far in Mrs. Camillo’s estate, and denied that she had willfully destroyed or inequitably distributed any of these items. In her new matter, Deborah asserted that the estate of Doris Camillo had been advertised since July of2008, is current on its bills and has filed income tax returns. Deborah averred that on April 4, 2008, she made an inheritance tax payment in the amount of $ 16,000, in order to secure a discount in excess of $800. She explained that the estate contacted the inheritance tax division regarding an extension on filing the inheritance tax, as the house had yet to be sold. Deborah stated that she intends to provide an accounting of Mrs.Camillo’s estate upon the sale of her mother’s property at 412 East Allens Lane in Philadelphia. With regards to the distribution of assets, Deborah maintained that on April 30, 2008, she provided Karen with a letter listing assets of the estate and took reasonable steps to secure items those sought by Karen and even delivered them to her.

On May 6,2009, Karen filed an answer to new matter of respondent, Deborah Fulton, denying all claims therein. Karen argued in her answer that Deborah distributed estate assets contrary to intestate laws and permitted estate assets to diminish in value. Karen asserted that there were items of personal property with sentimental and monetary value that Deborah threw away, donated or distributed to others, despite the fact that Karen had made multiple requests to receive such items.

On January 25, 2010, a hearing was held before this court on the pleadings in this matter. At said hearing, this court heard the testimony of the petitioner Karen Senske and respondent Deborah Fulton, as well as the testimony of Gayle Hall Benjamin, Francis Senske, Helen Byrnes, Barbara Huggett, and Robert Fulton. The attorney for the petitioner, Joseph Go wan, Esquire, offered 18 exhibits, which were entered into evidence as P-1 through P-18. The attorney for the respondent, Edward Gilson, Esquire, offered 6 exhibits, which were entered into evidence as R-l through R-6.

The court has the exclusive power to remove an administraton 20 Pa.C.S. §3182. Although within the sound discretion of the trial court, removal of an administrator is a drastic action that should only be taken when the estate is actually endangered and intervention is necessary to save trust property. In Re Francis Edward McGillick Foundation, 537 Pa. 194, 642 A.2d 467 (1994). Removal of an administrator is a stringent and summary process, thus there must be a substantial reason for removal of an executor. In Re Hurley’s Estate, 313 Pa. 53, 169 A. 81, 82 (1933). Among other reasons not relevant here, this court may remove an administrator if he or she is “wasting or mismanaging the estate, is likely to become insolvent, or has failed to perform any duty imposed by law; or . . . when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office.” 20 Pa.C.S. §3182(1), (5).

Karen presented to this court sufficient evidence to show that a majority of the assets of the estate of Doris Camillo were distributed; however Karen has not clearly demonstrated to this court that these assets were distributed in a wasteful or inefficient manner. This court is of the opinion that Deborah, in her role as administratrix, has properly and reasonably managed the estate of Doris Camillo.

Karen asserted that Deborah mismanaged the estate of Doris Camillo and should thus be removed as administratrix of the estate, and surcharged for losses where she has mismanaged and wasted estate assets and commingled funds. As evidence of this mismanagement and waste, Karen offered the following arguments, that: (1) Deborah failed to inventory and appraise Mrs. Camillo’s personal property, (2) Deborah inequitably distributed Mrs. Camillo’s tangible personal property, (3) the utility bills and real estate taxes were paid late, the home owners insurance lapsed, and there was insufficient inheritance tax paid for the 412 East Allens Lane property, and (4) the 412 East Allens Lane property was not listed for sale for over one year after Deborah was appointed administratrix.

This court may remove an administrator for waste or mismanagement if (s)he has no plans or knowledge as to how to complete administration of the estate. In the Matter of the Estate of John W. Frey, 693 A.2d 1349, 1352 (Pa. Super. 1997). This may be evidenced where he or she has not taken even the threshold steps which are necessary to ensure the effective administration of an estate. Id. More specifically, an administrator may be removed for failure to pay decedent’s debts, taxes, or interest or failure to maintain property in the estate, especially where he makes no explanation for his lack of action and the mismanagement is likely to lead to insolvency of the estate. In Re Miller’s Estate, 264 Pa. 310, 314, 107 A. 684, 684-85 (1919).

This court finds that Deborah has been diligent in her management of the estate, and has properly taken all steps necessary to ensure effective administration of the estate. Although Karen claims that Deborah failed to inventory the estate and appraise Mrs. Camillo’s personal property, Deborah has testified to and shown evidence of a succinct plan to properly handle the estate. Deborah explained that once she was appointed as administratrix of Mrs. Camillo’s estate, she consulted with Mr. Gilson and undertook the affairs of the estate. She collected all of Mrs. Camillo’s assets, settled any outstanding debts and made distributions when necessary to the beneficiaries. Furthermore, Deborah collected all bank accounts and life insurance policies in Mrs. Camillo’s name, and, secured the proceeds from said assets and opened a separate account for the estate at Citizens Bank. N.T. 198-212.

Deborah testified before this court to her detailed plan to handle the care and distribution of the contents of the estate of Doris Camillo. N.T. 206-209. Deborah testified that her first priority was to clean, organize, and repair the home. N.T. 206-207. Second, she planned to identify which items in the home the family wanted. N.T. 207. Third, Deborah had an appraiser come to determine if there were any assets remaining in the house of value. N.T. 207. Finally, Deborah reviewed the remaining unwanted items, donated the remaining items if functional, and disposed of the waste. N.T. 208.

This court finds that Deborah’s actions with regards to distributing Mrs. Camillo’s tangible personal property have been equitable and fair. Karen argues that Deborah failed to distribute Mrs. Camillo’s personal property in a prompt, efficient, and just matter. Karen alleges that Deborah began disposing of items within weeks of their mother’s death, and that Deborah gave a few of their mother’s belongings to Gayle Benjamin, a non-heir, before allowing Karen, a daughter, an opportunity to claim these items for herself. N.T. 183, exhibit P-7. In addition, Karen claims that she only received 18 of the items she requested in her email and that all the other items she received were “offensive” or unwanted. N.T. 55-56.

Deborah responded that the reason that some items were donated immediately following her mother’s death was because Ms. Camillo’s room at the Artman Assisted Living needed to be vacated in order to avoid incurring a bill for an additional month of rent. N.T. 198. Further, the disputed items were donated before Deborah was appointed as administratrix, and they were not donated by Deborah but by their sister Cheryl. N.T. 185-86.

It is clear that none of the sisters could receive everything she wanted. Each sister did however receive some of the items she desired from her mother’s estate. N.T. 210. Once each sister had claimed her chosen items, Deborah arranged for the remaining items to be evaluated for their value. N.T. 207. Valuable items that the family did not want were sold and the rest of the items were either donated or thrown away if not useable. N.T. 208-209. This court finds that the aforementioned process used by Deborah to distribute her mother’s assets was reasonable under the circumstances.

Deborah demonstrated her propensity for fairness by equally distributing the proceeds of Mrs. Camillo’s insurance policy. As sole beneficiary of the life insurance policy, Deborah received the full amount of the proceeds. Although Deborah alone was entitled to the proceeds, she divided them equally among herself and her three sisters. N.T. 87.

This court finds that the evidence supports Deborah’s claim that she has been diligent in managing the finances of the estate. As evidence of Deborah’s mismanagement of the estate finances, Karen proffered testimony that Deborah paid the utility bills and real estate taxes late, caused the homeowners insurance to lapse, and did not pay sufficient inheritance tax for the 412 East Allens Lane property.

The Pennsylvania Supreme Court has held that it is appropriate to remove an executor for failure to pay decedent’s debts, taxes, or interest in a timely fashion. In Re Miller’s Estate, supra at 314, 107 A. at 684-85. Especially when the executor has no explanation for lack of action in managing the estate or mismanagement was likely to cause the estate to become insolvent. Id.

This court finds that Deborah’s explanation for her lack of action is satisfactory and as she has remedied the situation, the estate is not at risk of becoming insolvent. Deborah admitted that several bills were paid late. She testified that the timing of the payments was not a result of her negligence, but rather because she was unaware ofthe outstanding bills. N.T. 198. Once Deborah learned of the overdue bills, she paid them and their late fees. N.T. 171,198. While Deborah has not filed an inheritance tax return, she testified that this action was not the result of neglect but rather because she was advised by counsel that she was not required to file an inventory with the register of wills or file the inheritance tax until after the house was sold. N.T. 167. On December 17, 2009, Deborah received an extension of time to file the inheritance tax, until June 17,2010, because the house had not yet been sold. Exhibit R-4; N.T. 200.

Karen contends that Deborah abused her position as administratrix when she used a check signed by Mrs. Camillo after her death. In response, Deborah testified that while she did use the $8,000 check after Mrs. Camillo’s death, she accounted for the use of those funds in Mrs. Camillo’s estate. N.T. 173. Deborah used the $8000 check to cover debts to the estate, including an inheritance tax payment, funeral payments, and payments for two outstanding bills from Artman Assisted Living. Since Deborah promptly resolved the unpaid bills of the estate and has been diligent in handling the finances of the estate, it would be improper for this court to remove Deborah as administratrix for mismanagement of the estate finances.

Karen points to the fact that Mrs. Camillo’s real property was not put on the market until over a year after Mrs. Camillo’s death and that Deborah refused an offer. This court finds that this assertion is without merit, as Deborah has taken appropriate steps to dispose of the 412 East Allens Lane property. It has been held that an executor need not be removed for failing to sell real estate at a fair price that had been offered to her in hope of a larger price, especially where the property was kept in good repair. Parson’s Estate, 82 Pa. 465 (1876). Deborah’s delay in placing the property on the market and refusal of the offer is justified given the facts and circumstances presented to this court.

Deborah testified that the property required a lot of repair before it could be viable on the market. The property required repairs to the roof, floors, and walls. These repairs took over 13 months to complete. Deborah, her husband, Robert Fulton, and her sister Cheryl completed the majority of the repairs. After completing the repairs Deborah had the house appraised at $285,000. N.T. 181. Subsequently, at the recommendation of the real estate agent and the estate attorney, Mr. Gilson, the property was listed for $339,900. N.T. 182. When the house was first put on the market there was an offer for $310,000 but Deborah rej ected it. N.T. 182. The price was reduced several times. Deborah agreed to all of the price reductions in a good faith effort to dispose of the house as quickly as possible. N.T. 183. Deborah has repaired and maintained the property. It would not be appropriate for this court to remove Deborah as administratrix at this time.

Karen further asserts that Deborah should be removed as administratrix because the animosity and lack of communication between the two sisters has jeopardized the interests of the estate. Karen argues that Deborah breached the agreement made at the time Karen signed the renunciation form through her lack of communication, failure to cooperate, and failure to treat Karen in a fair and equitable manner with regards to the distribution of the tangible assets of the estate. Brief ofpetitioner, 5, 12.

This court finds that the adversarial relationship and lack of communication between Deborah and Karen has not jeopardized the interests of the estate. The adversarial relationship began before the death of Mrs. Camillo. Since February 2008, Karen and Deborah only communicate through their respective attorneys. N.T. 163. Deborah believed that the most appropriate way for them to communicate was through counsel. N.T. 164. Karen claims that the lack of amicable communication between the sisters is cause for removal of Deborah as administratrix because it has lead to the mismanagement and waste of the estate. Flowever, all of the evidence that Karen has presented has not shown that Deborah has wasted or mismanaged the estate.

The existence of ill feelings between an administratrix and a beneficiary will not, per se, serve as grounds for removal except where it can be shown that such ill feelings endanger the estate or the rights of a beneficiary. Scientific Living Inc. v. Hohensee, 440 Pa. 280, 295, 270 A.2d 216, 223 (1970). Although ill feelings do exist between Deborah and Karen, Karen has not been able to show that those ill feelings have endangered the estate or her rights as a beneficiary. Deborah has made and executed plans for the administration of the estate, she has attempted to equitably distribute the assets of the estate amongst Mrs. Camillo’s heirs, she has handled the finances of the estate, and she has made repairs and a significant effort to sell the remaining assets of the estate.

This court finds that Karen Senske has not met her burden of proof so as to justify removal of Deborah Fulton as administratrix of the estate of Doris J. Camillo, deceased. The petition to remove Deborah Fulton as administratrix will be denied by separate decree bearing even date herewith.

      . Karen created an inventory of over 900 items that she remembered being in the house prior to her January 26, 2009 visit. A copy of said inventory appears as exhibit P-10 in the record in this matter. Deborah also provided an inventory of the items in her mother’s house prior to January 2009. A copy of this inventory appears as exhibit P-11 in the record in this matter.