Opinion
No. 1186 C.D. 2012
03-04-2013
Gerald S. Lepre, Jr., Petitioner v. Commonwealth of Pennsylvania, Department of Treasury, Bureau of Unclaimed Property, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Gerald S. Lepre, Jr. (Lepre) challenges the order of the Commonwealth of Pennsylvania, Department of Treasury (Treasury) which denied and dismissed Lepre's claim against property No. 9523659 for funds that were held by the Bureau of Unclaimed Property (BUP) as deposited by U.S. Bank Corporate Trust Services under the name of Matthew A. Lepre (M. Lepre).
BUP received uncashed checks totaling $10,500.00 from U.S. Bank Corporate Trust Services, Holder in the names of Gerald Lepre, Sr. and Christine Lepre as primary owners for the benefit of M. Lepre under agreement dated March 14, 1989, Property I.D. number 9523659. Lepre asserted a claim against this property by claim petition dated September 28, 2011. By letter dated October 24, 2011, BUP determined that Lepre was not entitled to collect the funds in question because he was not the listed trustee of the Matthew Lepre Trust.
On November 4, 2011, Lepre petitioned for review with Treasury. Lepre alleged that his parents, Gerald S. Lepre, Sr. and Christine Lepre created two trusts, one for Lepre and one for M. Lepre on or about April 16, 1984, as part of a divorce settlement agreement. Treasury bills or bonds formed the corpus of the trusts. Lepre further alleged:
4. As part of said trust, Claimant/Successor [Lepre] and Beneficiary [M. Lepre] were to receive the t-bonds when they turned the age of majority which was twenty-five (25) years or when the bonds became mature, whichever came first. (Claimant/Successor [Lepre] knows this fact to be true from his own personal knowledge being that he had an opportunity to read the irrevocable trust agreement and/or from the attached corresponding Exhibits.)
. . . .
6. As part of said trust, if either Claimant/Successor [Lepre] or Beneficiary [M. Lepre] were to pass away during the lifetime of said trust, the t-bonds would be succeeded to either Claimant/Successor [Lepre] and/or Beneficiary [M. Lepre] vice versa. . . .
7. On September 23, 1997, Beneficiary [M. Lepre] experienced an untimely death from a self-inflicted gunshot wound to the head. . . .
8. At not [sic] time relative hereto, did Trustee I [Gerald S. Lepre, Sr.] or Trustee II [Christine Lepre] make the necessary changes to guarantee Claimant/Successor [Lepre] received the Beneficiary's [M. Lepre] portion of trust or t-bonds. (The same is evident from the circumstance.)
. . . .
13. On or about May 16, 2004, Claimant/Successor [Lepre] cornered Trustee I [Gerald S. Lepre, Sr.] in the Lackawanna County Courthouse and demanded Trustee I [Gerald S. Lepre, Sr.] to release Claimant/Successor [Lepre] and Beneficiary's [M. Lepre] trust or t-bonds; however, Trustee I [Gerald S. Lepre, Sr.] said he did not
want to talk about the trust at that time or in the near future. . . .
. . . .
17. On September 28, 2011, Claimant/Successor [Lepre] was 'Surfing' the internet and happened to 'Google' the Pennsylvania Treasury Division of Unclaimed Property to see if he had any property to claim. . . .
18. Claimant/Successor [Lepre] noticed, while 'goggling [sic]', that Claimant/Successor [Lepre] had unclaimed property that should have been succeeded to him on September 23, 1997, or sometime shortly thereafter, from the Beneficiary (M. Lepre) located in the Treasury and placed there by US Bank. . . .
19. Claimant/Successor [Lepre] immediately pledged his claim to this property by filing a claim with the Pennsylvania Treasury with accompanying documents i.e. Affidavit of Entitlement to the Deceased or Beneficiary's Estate, in addition to, inserting a true and correct copy of a death certificate. . . . .
. . . .
29. On November 3, 2011, Claimant/Successor [Lepre] received a letter from US Bank transferring ownership rights to that of the Claimant/Successor [Lepre] to the Beneficiary's [M. Lepre] t-bonds which went to escheat because of Trustee I [Gerald S. Lepre, Sr.] and Trustee II [Christine Lepre] breach of fiduciary duty or inability to cash the same. . . .
30. Claimant/Successor [Lepre] immediately sent US Bank's correspondence to the Pennsylvania Treasury Division of Unclaimed Funds and, five (5) minutes thereafter, Bree Silver of that Division, advised Claimant/Successor [Lepre] that they would not be releasing said property to him because Claimant/Successor [Lepre], 'allegedly', was not the 'owner', of the 'property.' . . . .
. . . .
35. The Pennsylvania Department of Treasury Unclaimed Funds Division's continued abuse of this process and willful and/or wanton refusal to release this property to Claimant/Successor [Lepre], in which they
hold 'hostage' or 'captive' without just cause or Claimant/Successor's [Lepre] consent, authorization, permission and demand for it's [sic] release, effectively denies this Claimant/Successor [Lepre] his property rights or his rights to due process of law that are protected under both the Pennsylvania and United States Constitutions, in that, 'no man shall be denied life, liberty or property without due process of law.'Petition for Review, November 4, 2011, Paragraph Nos. 4, 6-8, 13, 17-19, 29-30, and 35 at 2-4 and 6-8; Reproduced Record at R.R. 14.
BUP answered and denied the material allegations.
Treasury held an administrative hearing on May 9, 2012. Lepre testified that there was a trust established for his brother, M. Lepre, and that the funds in the trust should have gone to him after M. Lepre's death. Notes of Testimony, May 9, 2012, (N.T.) at 5. Lepre testified, "the clauses were written in the trusts stated that if any beneficiary died in the process, the money would go to the next sibling. In fact, that's what happened in my case; however, I didn't receive the money." N.T. at 7. BUP's attorney, Jennifer Langan, objected to Lepre's testimony as to the existence of the trust documents and any related testimony as hearsay because the trust documents were not part of the record. N.T. at 7. The hearing examiner did not rule on the objection at that time. Lepre testified that he had read the trust document but "nobody has the trust document." N.T. at 7. Lepre introduced into evidence M. Lepre's death certificate.
On cross-examination, Lepre testified that he had a sister, Lindsay, and that Gerald S. Lepre, Sr. and Christine Lepre Lukas were his parents. N.T. at 20.
After receiving briefs from both parties, Treasury denied and dismissed Lepre's petition. Treasury made the following relevant conclusions of law:
2. The Claimant's [Lepre] testimony as to what he read in the trust created by his parents for his brother Matthew is hearsay and inadmissible.Final Decision and Order, June 21, 2012, Conclusions of Law Nos. 2-5 at 12.
3. There is no exception to the hearsay rule that would permit the Claimant [Lepre] to testify as to his reading of his brother Matthew's Trust that was created by Matthew's parents.
4. The Claimant [Lepre] would be the only person to benefit from his hearsay testimony as to the terms and conditions of his deceased brother Matthew's Trust.
5. The Claimant has not met his burden of proof to show that he was the beneficiary of a trust in his brother's name held by U.S. Bank Corporate Trust Services.
Lepre contends that Treasury abused its discretion, committed an error of law or violated Lepre's constitutional rights, that Treasury's findings of fact and conclusions of law were unsupported by substantial evidence, and that he met his burden of proof to support his claim to the property.
This Court's review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, and whether all necessary findings of fact are supported by substantial evidence. First Federal Savings and Loan Association of Hazleton v. Office of the State Treasurer, Unclaimed Property Review Committee, 650 A.2d 1166 (Pa. Cmwlth. 1994). --------
Lepre has the burden to establish that he is entitled to the property by the "preponderance of the evidence." Agostino v. Township of Collier, 968 A.2d 258, 269 (Pa. Cmwlth. 2009). The "[p]reponderance of the evidence is tantamount to a 'more likely than not standard.' ... Proof by a preponderance of the evidence is 'often alluded to as a weighing of the evidence and a determination based upon which way the mythical scales are tipped.'" Id. (quoting Commonwealth v. McJett, 811 A.2d 104, 110 (Pa. Cmwlth. 2002)). In these proceedings Treasury is the factfinder. The factfinder determines credibility and the weight given to evidence. Balshy v. Pennsylvania State Police, 988 A.2d 813, 835 (Pa. Cmwlth. 2010).
Lepre asserts that Treasury held a hearing despite his objection and request to have the case decided based on the submission of briefs and that even if his evidence was "flawless," Treasury still would have denied his claim. He argues that Treasury erred when it rejected his overwhelming evidence in support of his claim and sustained an objection to his testimony as hearsay when Treasury requested a hearing. He argues that Treasury cannot sustain an objection on the basis of hearsay when it ordered that a hearing be held to present evidence.
This argument makes no sense. The fact that Treasury determined that a hearing should be held does not preclude Treasury from ruling on evidentiary objections.
Lepre also contends that his evidence is uncontroverted in support of his claim and that he has proved by a preponderance of the evidence that he has met his burden of proof to show his entitlement to the funds. Lepre ignores the fact that much of the evidence he presented referred to a separate trust for which he was the beneficiary. Lepre failed to introduce the trust document or any evidence to support his contention that he was entitled to receive the funds other than his own testimony which was properly rejected as impermissible hearsay. While Lepre characterizes Treasury's action sustaining the hearsay objection as "malicious and an abuse of discretion, error of law and/or a violation of constitutional rights," Lepre Brief at 12, Lepre fails to assert any legal argument to support his position.
Lepre believes that he proved that the trust existed, that M. Lepre was the trust beneficiary and that Lepre was to receive the proceeds if M. Lepre died before he reached the age of twenty-five, that M. Lepre did die before that age, and that he is entitled to the funds which escheated to BUP. Except for M. Lepre's death, a review of the record reveals that Lepre failed to prove any of these facts.
Accordingly, this Court must affirm.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 4th day of March, 2013, the order of the Commonwealth of Pennsylvania, Department of Treasury, Bureau of Unclaimed Property in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge