In Re: Estate of Vera Gazak ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF VERA GAZAK, : IN THE SUPERIOR COURT OF
DECEASED : PENNSYLVANIA
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APPEAL OF: F. RICHARD GAZAK :
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: No. 1215 EDA 2017
Appeal from the Decree Entered March 10, 2017
In the Court of Common Pleas of Philadelphia County Orphans' Court at
No(s): 488DE of 2015
BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 04, 2018
Appellant, F. Richard Gazak, appeals from the Decree entered March 10,
2017 in the Philadelphia County Court of Common Pleas Orphans’ Court
granting the Petition to remove him as Administrator C.T.A. of the Estate of
Vera Gazak, his deceased mother. After careful review, we affirm.
We glean the relevant facts and procedural history underlying this
appeal from the parties’ Briefs, the Notes of Testimony, and the Orphans’
Court’s Opinion Sur Appeal, dated May 15, 2018.
Vera Gazak suffered from dementia and other ailments. After Appellant
committed various crimes against his mother that resulted in her
hospitalization and his arrest, Ms. Gazak was moved to Towne Manor East
Health and Rehabilitation Center (“Towne Manor East”) to live. As a condition
of Appellant’s bail, the court ordered Appellant to have no contact with his
mother. Because Ms. Gazak lacked the ability to care for herself or her
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financial affairs, Towne Manor East filed a petition for the appointment of a
guardian in September 2013. The court shortly thereafter appointed Rosalind
Karlin, Esq., as plenary guardian of the person and estate of Ms. Gazak.
Ms. Gazak left Towne Manor East on April 7, 2014, and was admitted to
Holy Redeemer Health Systems d/b/a Lafayette Redeemer (“Holy
Redeemer”). On September 9, 2014, she died intestate at Holy Redeemer.
On February 5, 2015, the Philadelphia County Register of Wills raised
the Estate and appointed Appellant, the decedent’s sole heir, as Administrator
of the Estate. Appellant failed to advertise the raising of the Estate as required
by 20 Pa.C.S. § 3162.
Attorney Karlin, Towne Manor East, and Holy Redeemer (collectively
“Appellees”) submitted detailed bills to Appellant and his attorney for payment
from the Estate. Each Appellee also filed Notices of Claim with the Orphans’
Court as creditors of the Estate.1 Additionally, in mid-2015, Attorney Karlin
sent an inventory and annual report to Appellant and Appellant’s attorney.
Neither Appellant nor his attorney disputed the claims filed against the estate.
On October 14, 2015, Appellant executed and filed an inheritance tax
return with the Commonwealth of Pennsylvania showing estate assets totaling
$482,703.82, and claiming Appellees’ claims as deductions. The
Commonwealth accepted the tax return, and on April 4, 2016, issued a Notice
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1 Holy Redeemer filed a claim for $17,180.72; Towne Manor East filed a claim
for $27,009.27; and Rosalind Karlin, Esq., filed a claim against the Estate for
$9,962.50.
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of Inheritance Tax Appraisement, Allowance or Disallowance of Deductions
and Assessment of Tax. The Commonwealth granted the tax deductions
sought by Appellant for the claims due.
Notwithstanding the tax benefit resulting from the deduction of the
claims, the Estate did not pay the claims.
On September 1, 2016, Holy Redeemer filed a Petition for Citation to
Show Cause Why the Administrator Should be Removed in accordance with
20 Pa.C.S. §§ 3181, 3182, and 3183 (“Petition for Removal”). The Petition
for Removal contended that Appellant improperly administered the estate
because (1) he failed to advertise the Estate as required by the Probate,
Estates and Fiduciaries Code, 20 Pa.C.S. § 3162, and (2) failed and/or refused
to make any payment on the claims owed despite the Estate having sufficient
assets. On September 13, 2016, the Orphans’ Court awarded the requested
Citation. Attorney Karlin and Towne Manor East joined the Petition for
Removal and filed Answers with New Matter. Appellant filed an Answer and
in his denials questioned the reasonableness of the claims. The court ordered
discovery and scheduled a hearing.
On March 7, 2017, the court held a hearing on the Petition for Removal
at which Attorney Karlin and Appellant testified. The court admitted into
evidence the inheritance tax return as well as letters sent to Appellant’s
attorney from Appellees and a series of email communications. The court
granted the Petition for Removal. On March 10, 2017, the court entered a
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Decree removing Appellant as Administrator of the Estate, and directing the
Register of Wills to appoint a successor administrator.
Appellant timely appealed and filed a Pa.R.A.P. 1925(b) Statement as
ordered.2 The Orphans’ Court subsequently filed its Opinion Sur Appeal
pursuant to Pa.R.A.P. 1925(a).3
In his Brief, Appellant provides the following Statement of the Question
Presented:
Should the Lower court have removed the administrator of the
estate when:
a) He is the sole heir;
b) He has properly disputed creditor claims of Lafayette
Redeemer, Town Manor East, and Rosalind Karlin Esq.;
c) No claim has been made property of the estate would be
jeopardized by his continuation as Administrator;
Appellant’s Brief at 4 (verbatim).
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2 In the Rule 1925(b) Statement, Appellant asserted, inter alia, that “[t]he
evidence does not support a finding that Holy Redeemer, … Town[e] Manor
East, … [and] Rosalind Karin Esq., proved the[ir] claim against the Estate of
Vera Gazak as reasonable and necessary services.” See Statement of Matters
Complained of on Appeal, dated May 1, 2017. Appellant also stated that the
evidence did not show that Appellant’s failure to pay the claims was improper
estate administration or that Appellant should be removed as Administrator of
the estate. Id. at 1-2.
3 After the Orphans’ court filed an initial Pa.R.A.P. 1925(a) Opinion stating
that the appeal should be quashed because Appellant had failed to file a
docketing statement with this Court, we determined that Appellant’s docketing
statement had been filed, albeit late. We then remanded the case to the
Orphans’ Court for a Rule 1925(a) Opinion that addressed the merits of the
claims raised in Appellant’s Rule 1925(b) Statement. The Orphans’ Court
complied, and the case returned to this panel for our review in June 2018.
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As an initial matter, we note that Appellant did not raise in his Rule
1925(b) Statement the issues he now presents to this Court in his Statement
of the Question Presented.4 Accordingly, the specific issues set forth in his
Brief are waived. See Pa.R.A.P. 1925(b)(4)(ii), (vii) (providing that a Rule
1925(b) statement shall “concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent
issues” and “[i]ssues not included in the Statement … are waived.”);
Commonwealth. v. Hill, 16 A.3d 484, 494 (Pa. 2011) (reiterating that “any
issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”
(citation omitted)).
To the extent Appellant generally challenges his removal when he states
that he “did nothing improper,” Appellant’s Brief at 9, we note the following.
The removal of an executor “is a matter vested in the sound discretion of the
trial court, and thus we will disturb such a determination only upon a finding
of an abuse of that discretion.” In re Estate of Mumma, 41 A.3d 41, 49
(Pa. Super. 2012). “[A]n abuse of discretion requires proof of more than a
mere error of judgment, but rather evidence that the law was misapplied or
overridden, or that the judgment was manifestly unreasonable or based on
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4 In his Rule 1925(b) Statement, Appellant did not assert that removal was
improper because he is the sole heir. While he raised a challenge to evidence
regarding the amounts of Appellees’ claims, he did not assert that he had
properly disputed the claims. Further, he raised absolutely no issue in his
1925(b) Statement pertaining to whether there was proof that the estate
would be in jeopardy if he remained as Administrator.
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bias, ill will, prejudice or partiality.” Portugal v. Portugal, 798 A.2d 246, 249
(Pa. Super. 2002) (quotation marks and citation omitted).
With respect to removal of an administrator from an estate, the Probate,
Estates and Fiduciaries Code provides, in relevant part, that the court may
remove a personal representative when he or she mismanages the estate,
fails to perform any duty imposed by law, or when the interests of the estate
are “likely to be jeopardized by his continuation in office.” 20 Pa. C.S. §§
3182(1), (5). Further, a court may summarily order removal of an
administrator of an estate “when necessary to protect the rights of creditors
or parties in interest.” 20 Pa.C.S. § 3183.
In addressing Appellant’s claim that his removal was improper, the
Orphans’ Court provided the following cogent analysis:
Here, Appellant has failed to take steps to administer the estate.
Decedent died on September 9, 2014. Appellant filed the
inheritance tax on October 14, 2015, wherein he claimed all debts
at issue in this instant case. On April 8, 2015, Ms. Karlin sent
Appellant’s counsel all of her bills and documentation from the
time she served as Decedent’s guardian. On April 21, 2015,
Towne Manor sent Appellant’s counsel an additional notice of the
claim. On February 3, 2016, Holy Redeemer sent Appellant’s
counsel a copy of their billing statements. Despite claiming the
debts on the inheritance tax and having all this documentation,
Appellant has failed to take any steps to formally dispute or
negotiate a compromise of the claims. There was no follow-up by
Appellant or his counsel to inform Appellees what specifically was
disputed in their claims. Ms. Karlin was simply told that Appellant
was not going to pay her bill. She received no response when she
inquired as to what specific parts of the bill were in dispute.
Appellant admits that he has done nothing to administer the
estate other than speak to his lawyers. He admits that he did not
advertise the estate in accordance with Pennsylvania Estates and
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Fiduciaries code. He was un[a]ware or unwilling to admit that his
attorneys even received the above-referenced documentation.
Appellant was given every opportunity to give a rational
explanation for disputing the debts at the hearing but he was
evasive throughout the hearing. . . . Appellant may have
legitimate disputes with the Appellees[’] bills in this matter.
However, the reasonableness of the bills was not before the Court.
The issue is Appellant’s unwillingness to address these
outstanding matters since Decedent’s death in 2014. Even at the
hearing he had no plan to address them in the near future nor
could he explain specifically what was in dispute. Appellant’s
concerns centered on not having received documents at his
personal address despite being represented by counsel. If
Appellant should remain as administrator, it is clear he has no plan
of remedying the outstanding estate claims now or at any time in
the future.
Opinion Sur Appeal, dated May 15, 2018, at 7-8.
Our review of the record, including the Notes of Testimony from the
hearing on the Petition for Removal, supports the Orphans’ Court’s
assessment of the evidence and its reasoning for removing Appellant as
administrator. Appellant has failed to demonstrate that the court’s decision
was the result of an abuse of discretion or an error of law. Accordingly, we
affirm the Decree granting Appellees’ Petition.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/18
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