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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF ADAM R. CHERRY,         :    IN THE SUPERIOR COURT OF
DECEASED                                 :          PENNSYLVANIA
                                         :
APPEAL OF: STACI FULTON                  :         No. 1365 WDA 2016


               Appeal from the Order Entered August 24, 2016,
                 in the Court of Common Pleas of Elk County
                Orphans’ Court Division at No. OC-2026-12646


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 26, 2018

      Staci Fulton (“Mother”) appeals the order of the Court of Common Pleas

of the Fifty-Ninth Judicial District of Pennsylvania -- Elk County Branch that

directed the Register of Wills of Elk County to issue letters of administration

on the Estate of Adam R. Cherry, deceased (“Estate”), to Albert Cherry

(“Father”).    After careful review, we reverse and remand for further

proceedings.

      Adam R. Cherry (“Decedent”) was the son of Mother and Father who

were divorced. Father had primary physical custody of Decedent. Mother and

Father shared legal custody of Decedent. On January 7, 2016, Decedent died

in a fire at Father’s residence located at 698 Shelvey Summit Road on State

Route 948 in Fox Township, Elk County, Pennsylvania.




* Retired Senior Judge assigned to the Superior Court.
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      On or about February 2, 2016, Mother petitioned for letters of

administration for Decedent’s Estate with the Register of Wills of Elk County

(“Register”). On February 4, 2016, the Register issued to Father a citation to

show cause why letters of administration should not be granted to Mother. On

February 25, 2016, Father answered and asserted that the Register should

issue him the letters because Decedent resided with Father his entire life. He

further alleged as new matter that he was an intestate heir, as well as the

primary physical and legal custodian of Decedent, so he was entitled to the

grant of letters. On March 11, 2016, Mother replied to new matter and averred

that at the time of Decedent’s death, Mother and Father shared legal custody.

Mother also alleged that she intended to pursue a wrongful death/survival

action as Administratrix of the Estate and Father would be a material factual

witness in the action.

      On May 12, 2016, the Register concluded, following a hearing, that

Father was not disqualified as unfit to administer the Estate. The Register

also concluded that Father would best administer the Estate. The Register

dismissed Mother’s petition. (Register of Wills’ Findings of Fact, Conclusions

of Law and Decree Resolving Petitioner, Staci Fulton’s Contested Application

for the Grant of Letters of Administration, 5/12/16, Conclusions of Law Nos. 1-

3 at 7-8.)




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      On May 27, 2016, Mother appealed the Register’s decision to the trial

court and moved to have Father removed as Administrator of the Estate and

replaced by Mother.

      On June 6 2016, the trial court ordered that a hearing de novo be held

on a rule to show cause as to why Father should not be removed as

Administrator of the Estate of Decedent.

      The trial court held the hearing on August 23, 2016. Trooper Patrick S.

McMackin (“Trooper McMackin”) of the Pennsylvania State Police testified on

behalf of Mother. Trooper McMackin arrived at the site of the fire as a criminal

investigator. (Notes of testimony, 8/23/16 at 8.) Trooper McMackin explained

that the deceased individuals were Decedent and Rhonda Kline (“Ms. Kline”),

Father’s fiancé, and they were found on the first floor.         (Id. at 9-10.)

Jenna Cherry, another child of Mother and Father, told Trooper McMackin that

there were no smoke detectors in the house. (Id. at 11.)

      Trooper David M. Powell (“Trooper Powell”) of the Pennsylvania State

Police and currently assigned as a deputy fire marshal testified that he was

dispatched to the fire on January 7, 2016. He talked to Trooper Stewart who

arrived at the scene before he did, performed a cursory inspection around the

outside of the house, talked with other troopers, and talked with the fire chief.

(Id. at 20-21.) Trooper Powell determined that a wood/coal burning stove in

the basement of the residence caused the fire. Trooper Powell opined that

the heat was too close to the wood joists. (Id. at 22-23.) Decedent was



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sleeping in the bedroom in the basement when the fire began. (Id. at 25.)

Trooper Powell did not find any carbon monoxide detectors, fire extinguishers,

smoke detectors, or smoke alarms in the house. (Id. at 26-27.)

      Mother read from Decedent’s death certificate, which indicated that the

causes of Decedent’s death were carbon monoxide, smoke inhalation, and

house fire. (Id. at 35-36.) Mother sought letters of administration on behalf

of decedent to open an estate to pursue a cause of action for Decedent’s

death. (Id. at 36-37.)

      Mother then called Father as a witness on cross-examination. Father

testified that the owner of the property where the fire occurred was Ron Kline

(“Kline”), who was the father of Ms. Kline and the grandfather of the child

Father and Ms. Kline had together. (Id. at 40.) Father testified that there

were two smoke detectors at the home. (Id. at 42.) Father also testified that

there were no smoke detectors in Decedent’s bedroom. (Id. at 43.) On direct

examination, Father testified that he saw Decedent on the landing to the

basement during the fire. Father shouted, “Get out. Fire. Now.” (Id. at 45.)

Father testified that Decedent then “headed back towards his room.” (Id.)

      Father called Corporal Greg A. Agosti (“Corporal Agosti”) of the

Pennsylvania State Police as a witness. Corporal Agosti was the supervisor

for the overall incident at the scene of the fire and assisted Trooper Powell

with the fire investigation.   (Id. at 53.)   Corporal Agosti testified within a




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reasonable degree of scientific certainty that the fire was an accident. (Id. at

54-55.)

      On August 23, 2016, the trial court directed that the Register issue

letters of administration on Decedent’s Estate to Father.

      On September 13, 2016, Mother filed a notice of appeal to this court.

On September 15, 2016, the trial court ordered Mother to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On October 3, 2016, Mother complied with the order. On January 17, 2017,

the trial court filed its 1925(a) opinion dated January 11, 2017.

      Mother raises the following issues for this court’s review:

            A.    Whether the [trial] Court committed error
                  and/or abused its discretion in directing the
                  Register of Wills of Elk County to issue letters of
                  administration on the Estate of [Decedent] to
                  [Father] when a conflict of interest exists
                  between [Father] and both the estate as well as
                  the estate’s beneficiaries because the estate
                  and/or its beneficiaries have grounds to file
                  claims and/or lawsuits against [Father] for his
                  negligence     and/or     conduct     surrounding
                  [Decedent’s] death?

            B.    Whether the [trial] Court erred and/or abused
                  its discretion in appointing and/or failing to
                  remove [Father] as Administrator of the Estate
                  of [Decedent], because the interests of the
                  estate are likely to be jeopardized by his
                  continuation in office, because [Father’s]
                  personal interest is in conflict with the interests
                  of the estate to the point where the two
                  interests cannot be served at the same time
                  and/or because [Father] has a claim of interest
                  hostile to the estate?



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            C.    Whether the [trial] Court erred and/or abused
                  its discretion in failing to remove [Father] as
                  Administrator of the Estate of [Decedent], when
                  removal was necessary to protect parties in
                  interest?

Mother’s brief at 6-7.

                     Our standard of review of the
                     findings of an Orphans’ Court is
                     deferential.

                         When reviewing a decree
                         entered by the Orphans’
                         Court, this Court must
                         determine whether the
                         record is free from legal
                         error and the court’s
                         factual      findings     are
                         supported by the evidence.
                         Because       the   Orphans’
                         Court sits as the fact-
                         finder, it determines the
                         credibility of the witnesses
                         and, on review, we will not
                         reverse      its   credibility
                         determinations absent an
                         abuse of that discretion.

                     However, we are not constrained to
                     give the same deference to any
                     resulting legal conclusions.

                  In re Estate of Harrison, 745 A.2d 676,
                  678-79     (Pa.Super.    2000),    appeal
                  denied, 563 Pa. 646, 758 A.2d 1200
                  (2000) (internal citations and quotation
                  marks omitted). “The Orphans’ Court
                  decision will not be reversed unless there
                  has been an abuse of discretion or a
                  fundamental error in applying the correct
                  principles of law.”     In re Estate of
                  Luongo, 823 A.2d 942, 951 (Pa.Super.



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                  2003), appeal denied, 577 Pa. 722, 847
                  A.2d 1287 (2003).

            In re Estate of Whitley, 50 A.3d 203, 206-207
            (Pa.Super. 2012).

            This Court’s standard of review of questions of law is
            de novo, and the scope of review is plenary, as we
            may review the entire record in making our
            determination. Kripp v. Kripp, 578 Pa. 82, 849 A.2d
            1159, 1164 n. 5 (2004). When we review questions of
            law, our standard of review is limited to determining
            whether the trial court committed an error of law.
            Kmonk-Sullivan       v.    State     Farm     Mutual
            Automobile Ins. Co., 746 A.2d 1118, 1120
            (Pa.Super.1999) (en banc).

In re Fiedler, 132 A.3d 1010, 1018 (Pa.Super.), appeal denied, 145 A.3d

166 (Pa. 2016).

      Initially, Mother contends that the trial court committed error and/or

abused its discretion when it directed the Register to issue letters of

administration to Father when a conflict of interest exists between Father and

both the Estate and the Estate’s beneficiaries because the Estate and/or its

beneficiaries have grounds to file claims and/or lawsuits against Father for his

conduct surrounding Decedent’s death.

      Specifically, Mother asserts that it was Father’s decision to have

Decedent reside at 698 Shelvey Summit Road, the site of the fire.         More

directly related to the fire and resulting death of Decedent, Mother further

asserts that Father caused his son to sleep in the basement in one of two

bedrooms that were separated from each other by hanging sheets from the

ceiling as dividers with no fire retardant door.   The source of the fire, the


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wood/coal burning stove, was also in the basement. According to the record,

there    were    no    smoke     detectors,1    carbon   monoxide      detectors,   fire

extinguishers, or any other type of advance warning system present in the

basement.

        It is Mother’s desire to serve as Administratrix of Decedent’s Estate, so

that she can pursue wrongful death and survival claims 2 against Father for




1 Mother acknowledges that Father testified that the home had two smoke
detectors. However, Father also testified that he did not know if they were
operational. Notes of testimony, 8/23/16 at 42.

2   Section 8301 of the Judicial Code provides in pertinent part:

              § 8301. Death Action

              (a)     General rule.--An action may be brought
                      under procedures prescribed by general rules,
                      to recover damages for the death of an
                      individual caused by the wrongful act or neglect
                      or unlawful violence or negligence of another if
                      no recovery for the same damages claimed in
                      the wrongful death action was obtained by the
                      injured individual during his lifetime and any
                      prior actions for the same injuries are
                      consolidated with the wrongful death claim so
                      as to avoid a duplicate recovery.

              (b)     Beneficiaries.--Except        as     provided      in
                      subsection (d), the right of action created by
                      this section shall exist only for the benefit of the
                      spouse, children or parents of the deceased,
                      whether or not citizens or residents of this
                      Commonwealth or elsewhere. The damages
                      recovered shall       be    distributed    to    the
                      beneficiaries in the proportion they would take
                      the personal estate of the decedent in the case
                      of intestacy and without liability to creditors of


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Decedent’s untimely demise. She argues that she has a cause of action for

negligence where death was caused and/or contributed to by the lack of

smoke detectors in a residence.

      Although factually distinguishable, in In re Estate of Westin, 874 A.2d

139 (Pa.Super. 2005), this court addressed the issue of a conflict of interest

between a personal representative of an estate, and the estate and/or its

beneficiaries. In Westin, Paul D. Zavarella, Esq. (“Attorney Zavarella”), was

appointed the executor of the estate of Jonathan Mills Westin, deceased.

Attorney Zavarella filed his first and final account of the estate. The orphans’

court issued a decree and schedule of distribution of the estate’s remaining

assets of $382,796. Of this amount, $89,469 was apportioned to 18 creditors

of the estate with most of the remainder going to the Internal Revenue

Service. After several months, the distribution of the estate assets still had

not occurred. In response to a petition from the creditors, the orphans’ court



                  the deceased person under the statutes of this
                  Commonwealth.

42 Pa.C.S.A. § 8301(a-b).

      Section 8302 of the Judicial Code provides:

            § 8302. Survival action

            All causes of action or proceedings, real or personal,
            shall survive the death of the plaintiff or of the
            defendant, or the death of one or more joint plaintiffs
            or defendants.

42 Pa.C.S.A. § 8302.


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issued a citation to Attorney Zavarella to show cause why distribution should

not be made in accordance with the earlier decree.        At the hearing, the

orphans’ court and the creditors learned that the office manager of the law

firm that represented the estate had embezzled all but approximately $10,000

of the estate’s funds.

      This court determined:

                   Sufficient reason for removal of a fiduciary has
            been found when the fiduciary’s personal interest is in
            conflict with that of the estate, such that the two
            interests cannot be served simultaneously.          The
            reasons for removal of a fiduciary must be clearly
            proven. However, proof of a conflict of interest can
            be inferred from the circumstances. When a conflict
            of interest is apparent from the circumstances, bad
            faith or fraudulent intent on the part of the fiduciary
            need not be proven.

                   In the present case, all parties agree that at
            least $370,000 from the Westin estate was embezzled
            from an account maintained by executor Zavarella’s
            law firm, Dice & Associates. This fact was revealed to
            the court in February 2003, but the record reveals no
            evidence of any attempts by the executor to recover
            these funds for the estate.       By any reasonable
            measure, the estate has grounds to file a claim
            against Zavarella and Dice & Associates to recover its
            assets. Zavarella would then be in the position of
            representing the estate, in his capacity as executor,
            in a claim against himself and his law firm. A conflict
            of interest between Zavarella and the estate is readily
            apparent from these circumstances.          Therefore,
            Zavarella should be removed as executor of the
            Westin estate and a new administrator should be
            appointed.

Id. at 143 (citations and footnote omitted).




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        Mother argues that there is a conflict between Father acting as

administrator and the Estate has grounds to file a claim against Father for

wrongful death. She also argues that there would be a conflict because one

of Father’s children is the grandchild of Kline, the owner of the property

located at 698 Shelvey Summit Road.

        Here, the conflict of interest is apparent because the Estate has a

potential cause or causes of action against Father for Decedent’s death in the

fire. Similarly, Father’s connection to Kline, the father of Father’s late fiancé,

grandfather of one of Father’s children, and owner of the property where

Decedent perished, could also serve as a conflict when possibly taking action

against Kline, as the owner of the property.

        Based on the record and pertinent case law, we conclude that the trial

court erred when it determined that Father should serve as administrator of

the Estate due to the conflicts of interest Mother raised.

        Order reversed and case remanded to the trial court to conduct a

hearing to determine a proper administrator of the Estate.3           Jurisdiction

relinquished.




3   We need not address the other two issues Mother raises.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/26/2018




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