Opinion
J-A20038-18 No. 1907 WDA 2017
10-31-2018
IN RE: ESTATE OF EDWARD C. WAGNER APPEAL OF: TAMMY WAGNER AND JAMES R. WAGNER, JR.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 1, 2017 in the Court of Common Pleas of Westmoreland County, Orphans'Court at No(s): 65-05-2323 BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Tammy Wagner ("Wagner") and James R. Wagner, Jr. ("Wagner, Jr."), appeal from the Order of the Orphans' Court, which granted the Motion filed by the Administratrix of the Estate of Edward C. Wagner ("the Estate"), Peggy Hooker, Esquire ("Attorney Hooker"), surcharged Wagner the sum of $6,430.00, and directed that Wagner, Jr., be jointly liable for $2,430.00 of that amount. We affirm.
This case involves protracted litigation over the administration of the Estate. Edward C. Wagner ("Decedent") died on September 25, 2005. At the time of his death, Decedent was married to Sandra J. Wagner ("Sandra"). Although the two had parted, Decedent never secured a divorce from Sandra. Thereafter, Decedent purportedly married Mary B. Shaulis ("Mary"), and lived with her prior to his death. Consequently, at the time of his death, Decedent was legally married to Sandra, and not legally married to Mary.
Following Decedent's death, Wagner filed a Petition for Grant of Letters Testamentary, and presented for probate a document purporting to be Decedent's will. Richard F. Flickinger, Esquire ("Attorney Flickinger"), represented Wagner before the Orphans' Court. The Register of Wills determined that document lacked the appropriate acknowledgement and signature of Decedent. Consequently, the Register of Wills declined to recognize the writing as Decedent's will. Notwithstanding, the Register of Wills determined that the document's appointment of Wagner as executrix for the Estate was valid. The Register of Wills thereafter appointed Wagner as Executrix for the Estate, and granted Wagner Letters of Administration on October 28, 2005.
Wagner is married to Decedent's nephew, Wagner, Jr.
While Executrix for the Estate, Wagner commenced an action to quiet title to certain real property held by Decedent and Mary at the time of Decedent's death (hereinafter, "the quiet title action"). Because Mary was not legally married to Decedent, the quiet title action would determine whether Decedent and Mary held two parcels as tenants-in-common, or as joint tenants with the right of survivorship ("JTWROS").
"When two or more persons hold property as JTWROS, title to that property vests equally in those persons during their lifetimes, with sole ownership passing to the survivor at the death of the other joint tenant." In re Estate of Quick , 905 A.2d 471, 474 (Pa. 2006) (citation omitted). "In contrast, a tenancy in common is an estate in which there is unity of possession but separate and distinct titles." Id.
The quiet title action involved real property purchased by Decedent and Mary in 1998. Attorney Flickinger represented Decedent and Mary in the real estate transaction. The resulting October 22, 1998, deed identified the grantees as "Edward C. Wagner and Mary B. Wagner, his wife." See Estate Inventory, 1/7/2014. In March 2002, Decedent and Mary acquired an adjoining parcel, but it is not clear whether Attorney Flickinger was involved in that acquisition. In December 2005, Mary signed two deeds conveying her interest in the two parcels to her daughter, Rose M. Blough ("Rose"), and Rose's husband, Kenneth E. Blough (collectively, "the Bloughs").
Mary died in December 2009, survived by Rose and James P. Shaulis, Mary's son.
On December 20, 2013, the Bloughs filed a Petition for Citation to Show Cause Why [] Wagner Should not be Removed as Executrix (hereinafter, "the Removal Petition"), and requested an accounting of the Estate. On January 15, 2014, Wagner filed a First and Partial Account and an Inventory of the Estate. On January 24, 2014, after a hearing, the Orphans' Court entered an Order discharging Wagner as Executrix of the Estate, and appointing Attorney Hooker as Administratrix d.b.n. See Orphans' Court Order, 1/24/14. Thereafter, the Register of Wills granted Letters of Administration to Attorney Hooker. In March 2014, Attorney Flickinger withdrew his appearance on behalf of Wagner. On October 30, 2014, Attorney Flickinger entered his appearance, in the Orphans' Court proceeding, on behalf of Wagner and Janet S. Wagner ("Janet").
Wagner filed a First Amended Account on February 13, 2014, detailing her administration of the Estate.
Janet is the widow of James R. Wagner, Sr., who was the brother of Decedent and the father of Wagner, Jr.
On March 19, 2015, the Orphans' Court entered an Order finding that Sandra had not forfeited her right as the sole heir of Decedent, and that she is the sole intestate heir of the Estate. See Orphans Court Order, 3/19/15. On April 13, 2015, Attorney Flickinger, on behalf Wagner, Jr., filed a Petition for Reconsideration of the Orphans' Court's March 19, 2015 Order. On April 16, 2015, the Orphans' Court entered an Order expressly granting reconsideration of its March 19, 2015 Order. See Orphans' Court Order, 4/16/15. Ultimately, by an Order dated April 30, 2015, the Orphans' Court denied Wagner, Jr., the relief he sought, and reinstated its March 18, 2015 Order. See Orphans' Court Order, 4/30/15. Wagner, Jr., did not file an appeal of the May 1, 2015 Order.
The Orphans' Court's Order is dated March 18, 2015, but was filed on March 19, 2015.
Thus, this Order declared the status of Wagner, Jr., as a non-beneficiary of the Estate. See Pa.R.A.P. 342(a)(5) (providing that an order declaring the status of beneficiaries is immediately appealable).
The Orphans' Court Order is dated April 30, 2015, but was filed on May 1, 2015.
In July 2015, the Bloughs filed a Motion to Disqualify Attorney Flickinger in the quiet title action. After a hearing, on September 28, 2015, the common pleas court disqualified Attorney Flickinger from appearing in the quiet title action. This Court quashed an appeal of that Order. See Hooker v. Wagner , 159 A.3d 587 (Pa. Super. 2016) (unpublished memorandum).
In June 2016, Attorney Hooker filed a Petition for a declaratory judgment in the Orphans' Court proceeding. Specifically, Attorney Hooker sought a declaration regarding the effect of a release, signed by Sandra, which purportedly assigned Sandra's interest in the Estate to the Bloughs. Attorney Flickinger filed a response to the Petition on behalf of the Wagners. The Orphans' Court scheduled a hearing on the Petition, but did not permit Attorney Flickinger to participate at that hearing. On December 15, 2016, the Orphans' Court entered an Order declaring, inter alia, that Decedent's natural heirs (including Wagner, Jr.) have no claim to the Estate; Sandra's assignment of her rights to the Bloughs precludes Sandra or her heirs from asserting any claim against Mary and/or the Bloughs; and nothing in the Decree precluded Attorney Hooker from pursuing the quiet title action. See Orphans' Court Order, 12/15/16. On January 3, 2017, Attorney Flickinger filed a Motion for Reconsideration, asking that the Orphans' Court note in its Order that Attorney Flickinger was present, but not permitted to appear on behalf of the Wagners. See Motion for Reconsideration, 1/3/17. There is no docketed order granting reconsideration.
There is no order of record disqualifying Attorney Flickinger from representing Wagner, Jr. and Janet.
We note that the certified record includes a purported Order granting reconsideration, which is dated December 30, 2016. That Order was not docketed, and there is no time stamp on the Order.
In the interim, on December 15, 2016, Attorney Hooker filed in the Orphans' Court a Petition for Citation ("the Petition") to show cause why Wagner should not be compelled to restore certain assets to the Estate. In relevant part, Attorney Hooker averred that (1) Wagner had appropriated $2,479.16 from Decedent's bank account, and had failed to list those funds on the Estate's inventory; and (2) Wagner failed to collect certain firearms, owned by Decedent, for administration through the Estate. See Petition, 12/15/16, ¶ 13. After a hearing, the Orphans' Court entered an Order directing that Wagner immediately refund $2,479.16 to the Estate. See Orphans' Court Order, 1/9/17. The Orphans' Court additionally surcharged Wagner for (1) the value of Decedent's firearms that Wagner previously had distributed to James R. Wagner, Sr., Thomas Wagner, and Wagner, Jr., plus any costs incurred by the Estate to determine their value; and (2) the value of any other of Decedent's firearms found to be in the possession of Wagner's family members, plus the costs incurred by the Estate to determine their value; and (3) the counsel fees and costs incurred by Attorney Flickinger, as approved by the Orphans' Court, in connection with the early administration of the Estate. See id.
The Wagners subsequently filed a Notice of Appeal of the Orphans' Court's January 9, 2017, Order. On February 17, 2017, the Bloughs filed an Application to Quash the appeal, arguing that (1) the Wagners lack standing to appeal, as they were not aggrieved by that Order; and (2) the Wagners had failed to preserve for review a challenge to the disqualification of their counsel. See Application to Quash, 2/17/17, at 3-4, 6. On April 7, 2017, this Court quashed the appeal of the January 9, 2017 Order. See In re Estate of Wagner , No. 100 WDA 2017 (Pa. Super. filed April 7, 2017).
On December 1, 2017, Attorney Hooker filed a Motion to Compel Wagner and Wagner, Jr. (collectively, "Appellants") to restore funds to the Estate (hereinafter referred to as "the Motion"). According to the Motion, Wagner misappropriated $4,000 out of Decedent's checking account three days prior to his death. Motion, 12/1/17, at ¶¶ 2-3. Attorney Hooker further asserted that Wagner had not restored to the Estate the value of the firearms referenced in the Orphans' Court's January 9, 2017 Order. Id. at ¶¶ 4-5. Attorney Hooker averred that, although Wagner had refused to make the firearms available for appraisal, Attorney Hooker was able to secure two appraisals, which she attached to her Motion. Id. ¶¶ 6-12. Additionally, Attorney Hooker sought the costs for securing the appraisals of the firearms. Id. ¶ 13. In total, Attorney Hooker sought $6,430.00 from Appellants.
On December 1, 2017, the Orphans' Court entered the Order at issue in the instant appeal. The Orphans' Court's Order granted Hooker's Motion, surcharged Wagner the sum of $6,430.00, and ordered that Wagner, Jr., is jointly liable with Wagner for the sum of $2,430.00, which sum was related to Decedent's firearms in Wagner, Jr.'s possession. Thereafter, Appellants filed the instant timely appeal of the Orphans' Court's December 1, 2017 Order. In addition, Appellants appealed the Orphans' Court's Orders entered on February 14, 2014, March 19, 2015, April 30, 2015, December 15, 2016, and January 9, 2017. Appellants subsequently filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
Attorney Hooker filed a Motion to quash Appellants' appeal of the Orphans' Court's Orders entered on February 14, 2014, March 19, 2015, April 30, 2015, December 15, 2016, January 9, 2017, and December 1, 2017. By an Order entered on February 14, 2018, this Court granted Attorney Hooker's Motion, in part. Specifically, this Court's Order quashed the appeals from the Orphans' Court's Orders entered on March 19, 2015, April 30, 2015, December 15, 2016, and January 9, 2017. Thus, this Court only permitted Appellants' appeal of the December 1, 2017, Order to proceed.
Appellants had failed to file an appeal within 30 days of the Orphans' Court's Orders entered on February 14, 2014, March 19, 2015, and April 30, 2015. See Pa.R.A.P. 903(a) (requiring that a notice of appeal be filed within 30 days after entry of the order from which the appeal is taken). As non-heirs, Appellants lack standing to appeal the December 15, 2016 Order, which determined the legal effect of an assignment of rights to the Estate. Wagner, Jr., filed an appeal within 30 days of the January 9, 2017 Order. However, he had no standing to challenge the imposition of a surcharge on Wagner, which was the subject of that Order. Wagner was not named as a party to the appeal of the January 9, 2017 Order.
Appellants present the following claims for our review:
1. Did the [Orphans' Court] err in prohibiting [A]ppellants' counsel from representing [A]ppellants?Brief for Appellants at 8.
2. Did the [Orphans' Court] err in determining that Sandra [] was entitled to inherit from [Decedent] as his widow, when it was shown [that] she had left him and married Charles Kelly some 20 years previously?
3. Did the lower court err in determining that the "Release" signed by Sandra [] was an assignment of her rights and not a release of any claims against [the Estate]?
Appellants first claim that the December 1, 2017 Order cannot stand, because the Orphans' Court improperly prohibited Appellants from having the representation of their attorney of choice: Attorney Flickinger. Id. at 20. According to Appellants, an attorney-client relationship existed between Attorney Flickinger and Decedent and Mary in 1998. Id. at 21. They assert that Attorney Flickinger's representation of Decedent and Mary in 1998 has no relevance to the issue of the marital status of Decedent and Mary, which arose in the context of the quiet title action in 2005. Id. at 22. Further, Appellants argue, because Mary conveyed her interest in the property to the Bloughs, she has no remaining interest in the litigation. Id. Appellants posit that whatever the results of the instant litigation, it would not impact Mary's interests, should Attorney Flickinger represent them. Id. Although the same real estate may be involved, Appellants argue, "the matters affecting it are very different, and the issues involved in 1998[,] when Attorney Flickinger represented [] Mary [] and Decedent[,] are not the same issues—or people-involved today." Id. at 24.
In its Opinion filed on March 30, 2017, the Orphans' Court addressed the disqualification of Attorney Flickinger, and, quoting the Opinion of the trial court in the quiet title action, determined that Attorney Flickinger's disqualification was appropriate. See Orphans' Court Opinion, 3/30/17, at 5-7. We agree with the Orphans' Court's determination, and affirm on this basis with regard to Appellants' first claim. See id.
Our review discloses that the second and third claims raised by Appellants, and addressed in their appellate brief, do not pertain to the Orphans' Court's December 1, 2017 Order. Rather, they pertain to the appeals quashed by this Court, as set forth in this Court's February 14, 2018 Order. Because Appellants present no further challenge to the Orphans' Court's December 1, 2017 Order, which is the only Order subject to review in the present appeal, we affirm that Order.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/31/2018
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