Estate of Russell, S. Appeal of: Brooks, K. ( 2017 )

J-S69014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF SONDRA H. RUSSELL IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: KENNETH L. BROOKS
No. 737 WDA 2017
Appeal from the Order Entered April 24, 2017
In the Court of Common Pleas of Fayette County
Orphans' Court at No(s): 115 OC 2014
BEFORE: BOWES, RANSOM, AND STEVENS, P.J.E.,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 28, 2017
Kenneth Brooks appeals from an orphans’ court order surcharging him
and re-affirming his removal as administrator of this estate. We affirm.
Sondra H. Brooks died intestate on February 7, 2014, and, on
February 13, 2014, Appellant filed a petition for issuance of letters of
administration on her estate. Appellant set forth in that petition that, as a
maternal first cousin, he was the sole intestate heir, and the Register of Wills
of Fayetteville County issued letters of administration to Appellant, who was
represented by Donald Blake Moreman. Sondra was a widow with no
children, no siblings, and parents who predeceased her.
On August 22, 2014, Edward Russell filed a petition for rule to show
cause why Appellant should not be compelled to allow him to remove certain
* Former Justice specially assigned to the Superior Court.
J-S69014-17
of his personal property from the decedent’s home and compelled to
reimburse Mr. Russell for the funeral expenses that Mr. Russell had paid on
behalf of the estate. Mr. Russell was romantically involved with Sondra for
forty years, and certain of his belongings were in her home. Mr. Russell was
granted relief. Appellant reimbursed the funeral expenses to Mr. Russell
and, after Mr. Russell filed another petition, Appellant allowed Mr. Russell
into Sondra’s home to document which of the items therein belonged to him.
Appellant subsequently failed to transfer to Mr. Russell some of his personal
property remaining in Sondra’s house.
On September 25, 2014, Jack Hann and Uganda Leighlighter filed a
petition averring that Appellant should be removed as administrator. They
claimed that decedent had numerous paternal first cousins, that Appellant
personally knew both Mr. Hann and Ms. Leighlighter, that Appellant knew
that they were Sondra’s paternal first cousins, that he thus knew that they
were intestate heirs, and that the petition for letters of administration that
Appellant filed was factually incorrect. In their petition, Mr. Hann and Ms.
Leighlighter also alleged that they never were notified of the opening of the
estate, even though they were co-equal intestate heirs with Appellant, and
they also noted that Appellant had not performed any function to fulfill his
obligations as administrator. Specifically, Appellant had not filed an
inventory and had not placed the decedent’s home on the market. On March
26, 2015, a consent order was entered appointing Mr. Hann and Appellant as
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co-administrators. Mr. Hann subsequently discovered that there were
fourteen paternal first cousins with the same degree of consanguinity to
decedent as Appellant held.
Mr. Hann thereafter filed a second petition requesting removal of
Appellant as co-administrator. Mr. Hann set forth that Appellant refused to
turn over any records of accounts or other personal assets owned by
Sondra. On September 3, 2015, Appellant was removed as administrator,
and Mr. Hann was named as the sole administrator of the estate. On
October 1, 2015, the estate attorney was ordered to return $24,000 that
Appellant had paid him three months after the estate was opened.
Mr. Hann then filed a motion for Appellant to be required to return
funds to him, and Mr. Russell filed a petition to enforce and for contempt
against Appellant because Appellant had not returned certain of Mr. Russell’s
belongings to him. The court held a hearing, and, in an order dated April
21, 2017, and entered on April 24, 2017, the orphans’ court disallowed the
$24,000 advanced to Mr. Moreman as an estate expense, thus surcharging
Appellant for that amount. The orphans’ court also surcharged Appellant for
$4,000 in personalty that Mr. Russell had not received. In the April 21,
2017 order, the court also reaffirmed its decision to remove Appellant as
administrator. This appeal followed. Appellant raises these various issues
on appeal:
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I. As the burden of production and persuasion is on the moving
party, whether there was sufficient tangible documentary
evidence produced by the moving party generally and in the
following particulars to support the Court's findings/order:
a. The Court accepted the testimony of Edward
Russell, even though opining from the bench that Mr.
Edward Russell did not know too much of anything.
b. The Court accepted testimony of Jack Hann, Co-
Administrator, without any basis, even when he
testified that he did not remember, but chastised
Kenneth L. Brooks for not remembering everything.
c. The Court did not accept the testimony of Kenneth
L. Brooks and Kenneth R. Brooks with respect to all
of the decisions being made with respect to estate
administration after the appointment of the Co-
Administrator, being joint decisions; even though
Jack Hann, Co-Administrator, did not dispute this
testimony.
d. The Court did not accept the testimony of Kenneth
R. Brooks with respect to the number of firearms and
disposition; but rather, appeared to accept the
testimony of Edward Russell (the same Edward
Russell the Court said did not know too much of
anything) without any basis.
e. The Court did not accept the Authorization to
Represent the Estate of Sondra Russell in Litigation
dated May 15, 2014, which reads that a retainer of
$24,000.00 would be billed at the rate of $210.00
per hour for estate litigation.
f. The Court did not accept that the Litigation
retainer was in response to prior counsel of Edward
Russell threatening litigation a month after
decedent's death and counsel demanding support for
the informal claim, before the claim was made
formally (which it was never filed as a claim).
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g. The Court did not accept testimony that Edward
Russell had sole care, custody and control of the
decedent's residence and personalty until Kenneth L.
Brooks appointment on February 13, 2014.
h. The Court did not accept testimony that the
residence was listed with a realtor shortly after the
initial stage of litigation resulted in the appointment
of the Co-Administrator.
i. The Court did not accept testimony that Edward
Russell frustrated Kenneth L. Brooks' efforts by
intercepting Decedent's mail. (regarding life
insurance, stock etc.)
j. The Court did not accept testimony that Kenneth L.
Brooks had installed a security system at decedent's
residence requiring the internet (Armstrong Cable in
the area.); but rather chastised Brooks for incurring
the cable bill after death.
k. The Court did not accept the testimony the
Kenneth L. Brooks, through Kenneth R. Brooks, had
secured the buyer for the decedent's residence;
which was finalized through the Real Estate Broker
secured by Kenneth L. Brooks.
l. The Court apparently considered a Motion to
Enforce which was filed after the hearings were
begun, thereby considering issues not properly
before the Court.
m. The Court, without any basis nor testimony in
support, concluded that the clean up, fix up, auction
or storage should have been accomplished before
any of the within litigation commenced.
n. The Court, without having any testimony of value
of anything, concluded that Edward Russell was
improperly deprived of at least $4,000.00 worth of
property.
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o. The Court, over testimony that the Co-
Administrators, agreed to continue a $100.00 yearly
donation to the local volunteer fire department
servicing the decedent's residence, erroneously
attributed the decision to Kenneth L. Brooks alone.
p. The Court erroneously determined that Kenneth L.
Brooks was retired and not working; when, in fact,
Kenneth L. Brooks, during all times relevant herein,
was and is employed by the Connellsville School
District during regular business hours.
q. The Court erroneously determined that Jack Hann
did not have access to the Decedent's residence;
when, in fact, Jack Hann had full access to the
decedent's residence by having the alarm code on
the alarm system to gain access to the residence.
r. The Court erroneously determined that Jack Hann
did not have access to the Decedent's property;
when, in fact, Jack Hann had access to all of the
decedent's property, as he was listed on the Estate
bank account, with full access.
s. The Court determined that since Brooks was
completely removed in September 2015, the Estate
Administration has improved dramatically; when, in
fact, Administration was completed by Kenneth R.
Brooks assisting Kenneth L. Brooks locating a buyer
for the decedent's residence; and, when the Court
received no evidence of any Administration
after Kenneth L. Brooks' removal.
t. The Court erred by not considering the detailed,
dated, billing of services provided pursuant to the
Authorization to Represent. The detailed billing, as
submitted by counsel for the movant, will speak for
itself; Kenneth L. Brooks neither wrote nor fully
understood the billing - as he testified. Kenneth L.
Brooks testified that he knew there was a bill and it
would be addressed after this was over.
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II. Whether the Court erred by not following contempt
procedures.
Appellant’s brief at 4-9 (typographical errors corrected).
Initially, we outline our established standard of review herein:
Our standard of review of an orphans’ court’s decision is
deferential. When reviewing an orphans’ court’s decree, this
Court must determine whether the record is free from legal error
and whether the orphans’ court’s findings are supported by the
record. Because the orphans’ court sits as the finder of fact, it
determines the credibility of witnesses and, on review, this Court
will not review its credibility determinations absent an abuse of
discretion.
Estate of Sachetti v. Sachetti, 128 A.3d 273, 282-83 (Pa.Super. 2015)
(citations omitted).
We next observe that the eighteen sub-issues raised in Appellant’s first
statement of questions involved in this appeal are not developed in the
argument portion of his brief, and he provides no case authority on the
merits of questions I. a-t. Appellant’s failure to argue these contentions
and provide legal authority to support his positions results in their waiver on
appeal. Korn v. Epstein, 1727 A.2d 1130, 1135 (Pa.Super. 1999) (citation
omitted) (“Where the appellant has failed to cite any authority in support of
a contention, the claim is waived.”) Even if not waived, sub-issues I. a-t
concern the decision of the orphans’ court to credit certain testimony and
disregard other testimony. As the above standard of review indicates, this
Court cannot reverse the credibility determinations of the orphans’ court
absent an abuse of discretion. The orphans’ court provided a explanation for
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all of its credibility determinations in its Pa.R.A.P. 1925(b) Opinion filed on
June 20, 2017, and to the extent necessary, we rely on that in concluding
that there is no abuse of discretion.
In the argument portion of his brief, Appellant first maintains that
there was insufficient evidence produced by the moving parties to support
the April 21, 2017 order. Appellant’s brief at 15. He claims that his removal
as administrator was unsupported by the proof. Appellant’s brief at 15-18.
The removal of a personal representative is a final, appealable order.
Pa.R.A.P. 342(a)(5) (“An appeal may be taken as of right from . . . orders of
the Orphans’ Court Division . . . determining the status of fiduciaries . . . in
an estate.”). Appellant was removed as administrator on September 3,
2015, and, on that date, Mr. Hann was named as the sole administrator.
That order was not appealed, even though it was final.
The failure to appeal a final order results in the issue decided therein
as being res judicata. Estate of Braun, 650 A.2d 73, 76 (Pa.Super. 1994)
(“The failure to appeal from a final order renders the doctrine of res judicata
applicable.”); see also U.S. National Bank v. Johnson, 487 A.2d 809 (Pa.
1985). Appellant failed to timely appeal the September 3, 2015 removal
order, which means the issue of whether he should have been removed as
administrator has been finally litigated and cannot be re-visited in this
appeal from the April 21, 2017 order, which merely re-affirmed the prior
decision that Appellant was properly removed as administrator of the estate.
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Appellant also contends that the court erroneously concluded that the
$24,000 in attorney’s fees that he tendered to the estate attorney three
months after the estate was opened was not a proper estate expense,
essentially surcharging Appellant for those attorney’s fees. 1 Appellant’s brief
at 18-19. The amount of attorney’s fees awarded from an estate is
committed to the discretion of the orphans’ court. In re La Rocco’s Trust
Estate, 246 A.2d 337 (Pa. 1968); Estate of Geniviva, 675 A.2d 306(Pa.Super. 1996). Herein, the only work that Mr. Moreman actually
performed on behalf of the estate was to complete the form for a petition for
Appellant to be appointed as administrator. The remainder of Mr.
Moreman’s efforts were expended on defending Appellant personally for his
utter failure to fulfill his duties as administrator, turn over the estate records
to Mr. Hann after he was appointed administrator, and to return Mr. Russell’s
personal property to him. Appellant maintains that the $24,000 was paid to
Mr. Moreman as a litigation retainer, but the litigation that Mr. Moreman
conducted was not performed to benefit the estate. Appellant should have
immediately reimbursed the funeral expenses advanced by Mr. Russell. As
administrator, he also should have promptly ascertained what property in
Sondra’s home belonged to Mr. Russell and returned it to him. Anything
____________________________________________
1A surcharge is immediately appealable. Estate of Cherwinski, 856 A.2d
165 (Pa.Super. 2004).
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done by Mr. Moreman after filing the factually-inaccurate petition for letters
of administrator were not conducted on behalf of the estate but instead
performed to defend Appellant against misfeasance and malfeasance. Thus,
the court properly determined that the estate is not responsible for the
$24,000 in fees paid to Mr. Moreman from estate funds and that the sum in
question is owed by Appellant.
In the argument portion of his brief, Appellant also avers that the
orphans’ court did not follow the proper procedures to find him in contempt.
Appellant’s brief at 19. As the orphans’ court observed, Appellant received
notice and an opportunity to be heard. Additionally, Appellant does not
delineate what steps were not followed herein in connection with the
contempt procedure. Finally, the amounts awarded against Appellant were
not in the nature of contempt fines. Rather, they are properly characterized
as surcharges for improper payment of estate funds to Mr. Moreman and for
failing to properly fulfill his duties as administrator by returning all of Mr.
Russell’s property to him. We thus reject Appellant’s final claim on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
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Circulated 11/01/2017 09:01 AM
IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA FILE0
U6/211/2017 3;:..09 PM
REGISTER OF n.LLS
FAYETTE COUNIY
In re: ESTATE of SONDRA H. RUSSELL, ORPHAN'S COURT ?MVO PAIR
deceased. inst Nip& 2017070Ag
No.' )6 -011,j
Pa.R.A.P. 1925(a) Opinion
The within matter was resolved by way of Findings of Facts
and Conclusions of Law on April 21, 2017, which document is incorporated
herein by reference. Respondent filed a "Concise Statement of Errors
Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b)" on June 13, 2017,
and this Opinion is authored in response thereto.
The Errors Complained of, followed by this Court's response,
are as follows:
1. The burden of production and persuation [sic] is on the
moving party. It is alleged error that sufficient tangible
documentary evidence was not produced by the moving
party generally and in the following particulars to support
the Court's findings/order:
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown, PA 15401
ITEM NO. 66
a. The Court accepted the testimony of Edward
Russell without any basis to do so, after the Court
exclaimed in response to a request to keep the
record open for deposition of a potential witness
who had been hospitalized, that Mr. Edward Russell
certainly did not know much of anything. [The basis
for accepting the testimony of Edward Russell despite his
memory being incomplete was because he appeared
more credible in honestly attempting to answer questions
than the testimony that opposed his. He honestly
admitted that his lack of memory on some specifics was
because: "That's what comes with old age, I guess." (Tr.
1/25/16, p. 73). Appellant's unwarranted refusal to pay
the funeral bill and return Edward Russell's personal
property is what originally exposed Appellant's
maladministration of this estate. By the time of the
hearing, Edward Russell had recovered most of his
personal property, had been relieved of the obligation of
paying the funeral bill, and had no contingent interest as
an heir. In contrast, Mr. Brooks had attempted to claim
the entire estate by misrepresenting himself as the sole
heir (instead of a one -fifteenth heir), and attempted to
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown, PA 15401
2
justify that on the basis of his own poor memory. Mr.
Brooks also underreported the value of the estate assets,
held onto cash receipts without properly reporting them,
claimed excessive expenses had been paid in cash
without receipts or any record, and attempted to transfer
guns belonging to Mr. Russell from the estate to his son
on the transparently false pretense that the female
decedent-who did not hunt and was not reputed to
collect guns-owned the entire gun collection. The
decision on credibility was not difficult.]
b. The Court accepted testmony [sic] of Jack Hann,
co -Administrator, without any basis, even when he
testified that he did not remember, but chastised
Kenneth L. Brooks for not remembering anything.
[Again, the decision on the credibility of the various
witnesses was not a close call. None of the witnesses
had perfect recollection, and all of them were
impeachable on one or more areas of their testimony, but
on balance, the testimony of Jack Hann and Edward
Russell was substantially more believable than the
opposing testimony.]
Judge Steve P. Leskinen
Fayette County Couit of Common Pleas
61 E. Mall St. Uniontown, PA 15401
3
c. The Court did not accept the testimony of Keneth
[sic] L. Brooks and Kenneth R. Brooks with respect
to all of the decisions being made with respect to
estate administration after the appointment of the
Co -Administrator, [sic] being joint decision [sic];
even though Jack Hann, Co -Administrator, did not
dispute this testmony [sic]. pack Hann may or may not
have acquiesced in some poor decisions while sewing as
co -administrator. That did not excuse Appellant Brooks
from his own responsibility for those decisions. No one
has presented a legal challenge to Hann's conduct.]
d. The Court did not accept the testimony of
Kenneth R. Brooks with respect to the number of
firearms and disposition; but rather, appeared to
accept the testimony of Edward Russell (the same
Edward Russell the Court said did not know too
much of anything) without any basis. [Again, the
credibility question was not a close call between
Russell's admitted but honest inability to remember every
detail and Brooks' deliberate defense tactic of claiming a
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown, PA 15401
4
loss of memory whenever a truthful recollection could
have been against his personal interest.]
e. The Court did not accept the Authorization to
Represent the Estate of Sondra Russell in Litigation
dated May 15, 2014, which reads that a retainer of
$24,000.00 would be billed at the rate of $210.00 per
hour for estate litigation. [The Court accepted that the
fee agreement was signed, and does not quarrel with a
$210 per hour rate in the abstract. However, the Court
concluded that the litigation was only necessary because
of the bad faith, the unwarranted delays, the
unreasonable legal positions, and the self-interested self-
dealing exhibited by Brooks and his counsel.]
f. The Court did not accept that the Litigation
retainer was in response to prior counsel of Edward
Russell threateniing [sic] litigation a month after
Decedent's death and counsel demanding support
for the informal claim, before the claim was made
formally (which it was never filed as a claim). [Such
alleged threats were not made clear on the record, and
may have been part of settlement discussions. To the
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown, PA 15401
5
extent this assertion is an attempt to blame the opposing
party for causing the litigation, the assertion is factually
inaccurate. Brooks was made the sole personal
representative 6 days after the decedent's death. From
his appointment on February 13, 2014 until the Motion
for Rule to Show Cause was presented on September 3,
2014, no inventory was filed, no advertisement for heirs
was published, no advertisement of appointment of the
representative was published, no auction of personal
property was arranged, and no listing agreement for the
real estate was signed. Discovery was ordered and only
complied with after court orders were entered. Until other
heirs intervened on their own behalf, Brooks falsely
represented himself as being the sole heir. The bulk of
the heirs ultimately had an attorney enter an appearance
on their behalf in December of 2014, and they were not
found by Brooks. The home was not sold until October,
2015, twenty months after Brooks was originally
appointed. The cash sale of the automobile was not
reported and the proceeds not deposited. The auto was
reported at a value more than $4,000 below the actual
sale price, even though it was allegedly already sold.
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown; PA 15401
6
Guns not owned by the decedent were transferred to
Brooks' son, purportedly in exchange for services
rendered. Proper legal advice, good faith and a
reasonable level of diligence would have avoided the
necessity of any litigation.]
g. The Court did not acept [sic] testimony that
Edward Russell had sole care, custody and control
of the decedent's residence and personalty until
Keneth [sic] L. Brooks appointment on February 13,
2014. [The six days referred to does not appear to be
material-perhaps Edward Russell could have retrieved
his guns and other personal property from the house
during that interval and practically eliminated Brooks'
opportunity to make the claim that Decedent owned
those items, but he did not do so.]
h. The Court did not accept testmony [sic] that the
residence was listed with a realtor shortly after the
initial stage of litigation resulted in the appointment
of the Co -Administrator. [The Co -Administrator, Jack
Hann was not appointed until April 1, 2015, almost
fourteen months after Decedent's death and Brooks'
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown PA 15401
7
appointment as Administrator. The home should have
been on the market long before that date, so the fact that
it was put on the market shortly thereafter does not
materially help Brooks' position.]
i. The Courtt [sic] did not accept testimony that
Edward Russell frustrated Kenneth L. Brooks' efforts
by intercepting Decedent's mail. (regarding life
insurance, stock etc...) [Whether or not this occurred
does not appear to be very consequential. The personal
representative had every right to go to the post office on
the day he was appointed and order that the mail be
forwarded to him. Evidently this is one of many things he
failed to perform.]
The Court did not accept testimony that Kenneth
L. Brooks had installed a security system at
Decedent's residence requiring the internet
(Armstrong Cable in the area.); but rather chastised
Brooks for incurring the cable bill after death. [The
testimony may have conflated cable tv service with
internet service. The Court's ruling was that cable tv
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown, PA 15401
8
service was completely unnecessary to the estate
administration, and should not have been incurred.]
k. The Court did not accept the testimony the [sic]
Kenneth L. Brooks, through Kenneth R. Brooks, had
secured the buyer for the decedent's residence;
which was finalized through the Real Estate Broker
seccured [sic] by Kenneth L. Brooks. lit does not
matter who directed the ultimate buyer to the listing
agent-the property was ultimately sold twenty months
after the decedent's death, and only after the Court had
to appoint a co -administrator to force the administration
to proceed. Both co -administrators signed the listing
agreement, and extra credit is not awarded to the person
who first suggested the particular realtor chosen.J
I. The Court apparently considered a Motion to
Enforce which was filed after the hearings were
begun, thereby considering issues not properly
before the Court. [The Court believes all issues were
properly considered after notice and an opportunity to be
heard was given to all persons affected by the decision
Judge Steve P. Leskinen
Fayette County Court of Conunon Pleas
61 E. Main St. Uniontown, PA 15401
9
of the Court. Responding to this claimed error is difficult
without reference to any specific issue or issues.]
m. The Court, without any basis nor testimony in
support, concluded that the clean up, fix up, auction
or storage should have been accomplished before
any of the within litigation commenced. [The time
delays speak for themselves, and there was no valid
excuse ever offered for Brooks' failure to administer the
estate in a good faith and timely fashion.]
n. The Court, without having any testimony of value
of anything, concluded that Edward Russell was
improperly deprived of at least $4,000.00 worth of
property. [This damages figure is an estimate based on_
the photos and descriptions of the misappropriated
property, the damages described to the guns and the
value attributed to the lost and damaged property by the
appraiser and Mr. Edward Russell. Had the estate been
administered in a good faith and efficient manner, there
would have been no loss to recoup at all.]
o. The Court, over testimony that the Co -
Administrators, [sic] agreed to continue a $100.00
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown, PA 15401
10
yarrly [sic] donation to the local volunteer fire
department servicing the decedent's residence,
erroneously attributed the decision to Kenneth L.
Brooks alone. [Again, the decisions made by Jack Hann
were not challenged, so he was not forced to defend his
role, if any. The donation was presented as a charitable
donation. As worthy a charity as the fire department is, a
personal representative has no legal authority to make
charitable donations not authorized by any testamentary
document. Donations to volunteer fire companies could
arguably be considered a payment to secure their
services, but only if the legislature authorized such
treatment.]
P. The Court erroneously determined that Kenneth L.
Brooks was retired and not workeing [sic]; when, in
fact, Kenneth L. Brooks, during all times relevant
herein, was and is employed by the Connellsville
School District during regular business hours.
[Whether or not Brooks was retired is a detail that was
not material, and perhaps should not have been
included. A personal representative is required to to
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown, PA 15401
11
exercise reasonable diligence in performing the duties
required by their oath whether or not they are employed
elsewhere.]
q. The Court erroneously determined that Jack Hann
did not have access to the Decedent's residence;
when, in fact, Jack Hann had full access to the
decedent's residence by having the alarm code on
the alarm systen [sic] to gain access to the
residence. [This Court will rely on the record of
testimony. Hann had no access until he was appointed
Co -administrator, and may or may not have been as
assertive as he should have been after he was
appointed.]
r. The Court erroneously determined that Jack Hann
did not have access to the Decedent's property;
when in fact, Jack Hann had access to all of the
decedent's property, as he was listed on the Estate
bank account with full access. [Same response.]
s. The Court determined that since Brooks was
completely removed in September 2015, the Estate
Administration has improved dramatically; when, in
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. 'Uniontown, PA 15401
12
fact, Administration was completed by Kenneth R.
Brooks assisting Kenneth L. Brooks locating a buyer
for the decedent's residence; and, when the Court
received no evidence of any Administration after
Kenneth L. Brooks' removal. [The house was listed
after Hann was appointed and sold after Brooks was
finally removed, and that alone was a dramatic
improvement over the first fourteen months of
administration. As noted above, whether or not the
ultimate buyer spoke to someone before talking to the
realtor is immaterial.]
f. The Court erred by not considering the detailed,
dated, billing of services provided pursuant to the
Authorization to Represent. The detailed billing, as
submitted by counsel forte [sic] movant will speak
for itself;_Konneth L. Brooks neither wrote nor fully---- _
understood the billing-as he testified. Kenneth L..
[sic] Brooks testified that he knew there was a bill -
and it would be addressed after this was over. [Again,
the issue with the attorney's fees is not the amount of
time spent or the reasonable hourly rate-although there
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
61 E. Main St. Uniontown, PA 15401
13
was evidence that hours were exaggerated and/or not
reasonably necessary-the Court found that there would
have been no need for litigation if proper legal advice
was given and the estate was diligently administered in
good faith. Moreover, securing a $24,000.00 advance
"retainer" for litigation in an estate then valued at just
over $200,000 is facially unreasonable, more particularly
so when the incorrect and obdurate legal positions taken
by counsel were the primary reason for the lititgation.]
2. The Court erred by not following contempt procedures.
[This Court is unable to discern what this alleged error
specifically refers to. All parties adversely affected by the
Court's rulings had fair notice and an extended opportunity for a
hearing on all issues.]
BY THE COURT:
ATTEST:
EVE P. LESKINEN, JUDGE
CLERK OF ORPHANS COURT
CO
Co
Judge Steve P. Leskinen
Fayette County Court of Common Pleas
C -J 61 E. Main St. Uniontown, PA 15401
14