J-A29038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: JAMES M. LONG, AN ALLEGED          :     IN THE SUPERIOR COURT OF
INCAPACITATED PERSON                      :           PENNSYLVANIA
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APPEAL OF: CAROL LORENZ, PH.D.            :          No. 491 WDA 2016

                     Appeal from the Order March 8, 2016
              in the Court of Common Pleas of Allegheny County,
                  Orphans' Court Division, No(s): 7272 of 2014

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED FEBRUARY 14, 2017

      Carol Lorenz, Ph.D. (“Lorenz”), appeals from the Order dismissing her

Exceptions and approving the payment of fees and costs to Lazarus Support

Services, LLC (“Lazarus Support Services”), in the amount of $11,503.75,

and to Arnold H. Caplan, Esquire (“Caplan”), in the amount of $4,282.10.

We affirm.

      James M. Long (“Long”) (d/o/b 8/4/30) and Lorenz were married in

June 2001. Long had two children, Debra Petitt (“Petitt”) and Marshall Long,

prior to his marriage to Lorenz.     On February 8, 2011, Long suffered a

stroke, which diminished his cognitive skills and caused his right arm to be

paralyzed.    As a result of the stroke, Long required 24-hour care and

assistance with daily living.   Subsequent to the stroke, Petitt and Lorenz
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maintained a hostile relationship based upon, inter alia, who had power of

attorney over Long and Long’s care.1

      On August 4, 2015, Petitt filed a Petition seeking, inter alia, the

appointment of Rhonda Lazarus (“Lazarus”), the owner of Lazarus Support

Services, as temporary guardian for Long.         On August 13, 2015, the

Orphans’ Court appointed Lazarus as “the temporary, limited guardian” for

Long, and directed Lazarus to obtain skilled nursing care and supervision for

Long.2   The Orphans’ Court also ordered Lazarus to be paid directly from

Long’s assets “at a rate not to exceed $125 per hour plus travel expenses,

subject to review by the Guardianship Department.” Order, 8/13/15. The

relationship between Lazarus and Lorenz was acrimonious, as evidenced by

lawsuit threats, lengthy depositions, and requests for documents.          As a

result, Lazarus retained Caplan’s services.

      In November 2015, the Orphans’ Court held a hearing to determine,

inter alia, whether a permanent guardian for Long was required.              On

November 17, 2015, the Orphans’ Court determined that Long was

incapacitated and appointed Santoriella as the limited guardian of Long.

Based    upon   the   appointment   of   Santoriella   as   guardian,   Lorenz’s



1
  In 2009, Long executed a Power of Attorney (“2009 Power of Attorney”)
naming Lorenz as his agent. Under the 2009 Power of Attorney, Lorenz,
inter alia, managed Long’s financial affairs.
2
  Previously, on February 25, 2015, the Orphans’ Court had appointed
Rachael Santoriella, Esquire (“Santoriella”), as Long’s guardian ad litem.


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appointment as temporary guardian concluded. Long subsequently died on

December 17, 2015.

     On December 7, 2015, Lazarus Support Services filed a Petition

seeking fees and expenses incurred for Long’s care totaling $11,305.75. On

December 8, 2015, Caplan filed a Petition seeking counsel fees in the

amount of $4,282.10.     Lorenz filed a Response in Opposition to each

Petition. On February 2, 2016, following the review and recommendation of

the Guardianship Department,3 the Orphans’ Court granted the Petitions and

ordered that the payments must be made from Long’s funds, whether in his

name or held jointly with Lorenz, or from funds transferred to Lorenz.

Lorenz filed Exceptions to the Orders granting the Petitions. The Orphans’

Court dismissed the Exceptions, and approved the payments to Lazarus

Support Services and Caplan. Lorenz filed a timely Notice of Appeal and a

court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise

Statement.

     On appeal, Lorenz raises the following questions for our review:




3
  In Allegheny County, the Guardianship Department in the Orphans’ Court
“handles all cases involving the appointment of guardians for minors and
incapacitated individuals. Court investigators review guardianship petitions
before presenting them to the judges for hearing dates; review petitions for
allowance when there is a request to pay legal or guardianship fees or when
invading the principal of the incapacitated person’s estate.” Fifth Judicial
District      of       Pennsylvania,       County        of       Allegheny,
http://www.alleghenycourts.us/orphans/guardianship.aspx (last visited Jan.
12, 2017).


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      1. Whether the [Orphans’ Court] erred in approving and
         ordering that the estate of [] Long pay costs and fees to
         Lazarus Support Services [] and [Caplan]?

         a.    Whether [] Lazarus’[s] fees are           supported   or
               supportable by competent evidence?

         b.    Whether [] Caplan’s fees are supported or supportable
               by competent evidence?

      2. Whether the [Orphans’ Court] erred in ordering that costs and
         fees of Lazarus Support Services [] and [Caplan] be paid in
         part out of the personal accounts of [Lorenz], thereby
         ignoring, negating and/or overriding the 2009 Power of
         Attorney which names [Lorenz] as [] Long’s Power of
         Attorney?

      3. Whether the [Orphans’ Court] erred by failing to apply the
         American Rule in determining which party should pay
         attorney’s fees[?]

Brief for Appellant at 5.

            Our standard of review of an [O]rphans’ [C]ourt’s decision
      is deferential. When reviewing an [O]rphans’ Court decree, this
      Court must determine whether the record is free from legal error
      and whether the [O]rphans’ [C]ourt’s findings are supported by
      the record. Because the [O]rphans’ [C]ourt sits as the finder of
      fact, it determines the credibility of the witnesses and, on
      review, this Court will not reverse its credibility determinations
      absent an abuse of discretion. However, this Court is not bound
      to give the same deference to the [O]rphans’ [C]ourt conclusions
      of law. Where the rules of law on which the [O]rphans’ [C]ourt
      relied are palpably wrong or clearly inapplicable, we will reverse
      the court’s decree. Moreover, we point out that an abuse of
      discretion is not merely an error of judgment. However, if in
      reaching a conclusion, the court overrides or misapplies the law,
      or the judgment exercised is shown by the record to be
      manifestly unreasonable or the product of partiality, prejudice,
      bias, or ill will, discretion has been abused.

In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa. Super. 2013)

(citations and quotation marks omitted).


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     In her first claim, Lorenz contends that the Orphans’ Court erred in

approving the payment of fees to Lazarus Support Services and Caplan

without holding an evidentiary hearing.     Brief for Appellant at 32.   Lorenz

argues that the record did not support the fees requested by Lazarus

Support Services. Id. at 34-35, 37, 38. Lorenz claims that the submission

of invoices for work performed for Long was insufficient to sustain the claim

for payment of the fees.    Id. at 38-39.     Lorenz further asserts that the

Orphans’ Court’s findings that (1) Long’s estate should pay the fees of

Lazarus Support Services because Lazarus’s services furthered Long’s

interests; (2) Lorenz threatened to sue Lazarus; and (3) Lazarus was

subjected lengthy depositions were not supported by the evidence of record.

Id. at 36-37.   Lorenz also claims that contrary to the Orphans’ Court’s

finding, Petitt was responsible for the extensive deposition and discovery in

this case. Id. at 37-38.

     “The allocation of the fees of the guardian …, including the amount

thereof and the source of payment, is a matter largely within the discretion

of the Orphans’ Court, and unless there is a clear abuse of that discretion,

the determination will not be disturbed on appeal.” In re Trust Estate of

Pleet, 410 A.2d 1224, 1232 (Pa. 1980). When reviewing the award of fees

to determine whether they are reasonable, courts should consider, inter alia,

the amount of work performed, the problems involved, and the services

rendered, whether routine or complicated. See generally In re LaRocca’s



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Trust Estate, 246 A.2d 337, 339 (Pa. 1968); In re Thompson’s Estate,

232 A.2d 625, 629 (Pa. 1967) (stating that “when it comes to the question

of the appropriate compensation to be paid to appellant-trustee, we must

not lose sight of the fact that he is to be paid only in an amount

commensurate with the services which he performed in connection with the

administration of the trust.”).

      In its Order appointing Lazarus as temporary guardian, the Orphans’

Court stated the following:

            [A]fter review of the Petition filed and a conference with
      attorneys and parties present, an Emergency Temporary Limited
      Guardian of the Person and Estate is appointed …. Due to safety
      concerns, starting immediately, [] Lazarus, of Lazarus Support
      Services[,] is hereby appointed to serve as the temporary,
      limited guardian for [] Long and to obtain skilled nursing care
      and supervision of [] Long, as discussed with the attorneys in
      the conference.

            [] Lazarus shall be paid directly from [] Long’s estate, at a
      rate not to exceed $125 per hour plus travel expenses, subject
      to review by Guardianship Department.

Order, 8/13/15.

      Subsequently, the Orphans’ Court entered an Order granting the

Petition filed by Lazarus Support Services for payment of fees, which stated

the following:

            [U]pon consideration of the foregoing Petition for
      Allowance for Authorization of Fees and Costs to Temporary
      Guardian, and upon review and recommendation of the
      Guardianship Department, IT IS HEREBY ORDERED AND
      DECREED that fees and costs to Lazarus Support Services [],
      appointed as Temporary Guardian per Order dated August 13,
      2015, in the amount of $11,503.75 … for services through


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     November 13, 2015, and costs incurred, on behalf of [] Long, an
     incapacitated person, are approved. Payment shall be made
     from the funds of [] Long, whether such funds are held in the
     sole name of [] Long or jointly with another party including his
     wife, [] Lorenz, or from funds of [] Long transferred from his
     name to another party’s name including his wife, [] Lorenz[,] to
     be paid by the Permanent Guardian of the Estate and/or by []
     Lorenz upon the presentation of this Order….

Order, 2/2/16.

     Here, Lazarus Support Services attached to its Petition seeking fees for

Lazarus’s services, an itemized statement of the services performed and the

time needed to complete each service. See, e.g., Orphans’ Court Opinion,

6/1/16, at 2 (stating that “Lazarus monitored [Long’s] well-being, arranged

for needed hospitalizations, arranged placements in nursing homes, made

medical decisions, and monitored and organized his financial information.”).

The Guardianship Department reviewed these charges and found them to be

reasonable. We conclude that the Orphans’ Court’s acceptance of the review

and recommendation of the Guardianship Department did not constitute an

abuse of discretion. See id. (noting that the fees awarded were for services

that furthered the best interests of Long, as required under 20 Pa.C.S.A.

§ 5521); see also In re Trust Estate of Pleet, 410 A.2d at 1232.4

     Lorenz also contends that the record did not support the trial court’s

award of Caplan’s fees. Brief for Appellant at 39; see also id. at 36, 37.


4
  Lorenz also argues that the Orphans’ Court erred in appointing Lazarus as
Long’s guardian. Brief for Appellant at 35. However, Lorenz did not raise
this claim in her Rule 1925(b) Concise Statement; thus, the claim is waived.
See Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super. 2007).


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Lorenz argues that the trial court did not hold a hearing on Caplan’s fees,

and only based its award on Caplan’s invoices.      Id. at 39. Lorenz further

asserts that Lazarus retained Caplan based upon her own conduct and the

conduct of Petitt, not Lorenz’s conduct; therefore, Long’s estate should not

have to pay the fees. Id.5

      When reviewing an Orphans’ Court’s allowance of attorney fees from

an estate, this Court will not interfere with the court’s decision absent a clear

abuse of discretion.    In re Estate of Rees, 625 A.2d 1203, 1206 (Pa.

Super. 1993).    An attorney who seeks compensation for services from an

estate bears “the burden of establishing facts which show that he or she is

entitled to such compensation.” In re Estate of Sonovick, 541 A.2d 374,

376 (Pa. Super. 1988). The attorney must present evidence that the fees

charged to the estate are reasonable.       Id.; see also In re Davidson’s

Estate, 150 A. 152, 152 (Pa. 1930) (stating that any charges against an

estate of an incapacitated person must be “manifestly just and moderate.”)

(citation omitted).

      Here, the Orphans’ Court’s Order, which granted Caplan’s Petition for

payment of fees, stated the following:

5
  Lorenz also baldly argues that Lazarus did not seek court approval before
retaining Caplan. Brief for Appellant at 36. However, Lorenz does not cite
to any case law demonstrating that this action constituted reversible error.
See Pa.R.A.P. 2119(a) (stating that the argument section must include
“such discussion and citation of authorities as are deemed pertinent.”).
Thus, this argument is waived on appeal. See Lackner v. Glosser, 892
A.2d 21, 29 (Pa. Super. 2006) (stating that failure to cite pertinent authority
results in waiver).


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           [U]pon consideration of the foregoing Petition For Approval
     of Counsel Fees and Costs to Attorney for Temporary Guardian,
     and upon review and recommendation of the Guardianship
     Department, IT IS HEREBY ORDERED AND DECREED that fees
     and costs to [Caplan] in the amount of $4,282.10 … for services
     through November 27, 2015, and costs incurred, for
     representation of the Temporary Guardian of [] Long, an
     incapacitated person, are approved. Payments shall be made
     from the funds of [] Long, whether such funds are held in the
     sole name of [] Long or jointly with another party including his
     wife, [] Lorenz, or from funds of [] Long transferred from his
     name to another party’s name including his wife, [] Lorenz[,] to
     be paid by the Permanent Guardian of the Estate and/or by []
     Lorenz upon the presentation of this Order….

Order, 2/2/16.

     With regard to Caplan’s request for fees from Long’s estate, the

Orphans’ Court stated that it was

     aware of the allegations that Lazarus was threatened with
     physical harm, lawsuits, and harm to her business and
     reputation. Lazarus needed Caplan’s services due to the lawsuit
     threats, lengthy depositions, and requests for production of
     documents. The [Orphans’] Court will note that Lorenz and her
     attorney greatly contributed to the fees and costs incurred in this
     case. But for Lorenz and her counsel’s actions, much of the time
     billed by Lazarus and Caplan would not have been necessary.

Orphans’ Court Opinion, 6/1/16, at 2.

     While Lorenz argued that Petitt’s and Lazarus’s actions necessitated

Caplan’s services, a review of the certified record reveals that “[t]his case

involved highly contentious proceedings,” wherein both parties made

numerous filings. See Orphans’ Court Opinion, 6/1/16, at 2. However, the

Orphans’ Court observed firsthand the actions of Lorenz and her attorney

throughout the proceedings, and found that these specific actions caused



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Lazarus to retain Caplan as counsel.           See id.      Furthermore, the

Guardianship Department reviewed Caplan’s request for fees and found

them to be reasonable.    See Order, 2/2/16.     Thus, because the Orphans’

Court had firsthand observations of the conduct of Lorenz and her attorney,

and the Guardianship Department reviewed and accepted Caplan’s fees, we

conclude that the Orphans’ Court did not abuse its discretion. See ACE Am.

Ins. Co. v. Underwriters at Lloyds & Cos., 939 A.2d 935, 946 (Pa. Super.

2007) (stating that the trial court acted within its discretionary authority in

deciding a motion for sanctions without conducting an evidentiary hearing,

since the court observed counsel’s actions firsthand); see also Gilmore by

Gilmore v. Dondero, 582 A.2d 1106, 1108 (Pa. Super. 1990) (noting that

“the trial court that has the best opportunity to judge the attorney’s skills,

the effort that was required and actually put forth in the matter at hand, and

the value of that effort at the time and place involved.”) (citation omitted);

In re Estate of Sonovick, 541 A.2d at 376.

      Finally, with regard to Lorenz’s claim that the fees should not be paid

from Long’s estate or any joint funds, the Orphans’ Court stated that it

“structured its Order in this fashion because the Court knew that Lorenz

transferred or restricted accounts belonging to Long. Because of the actions

Lorenz made regarding Long’s accounts, the payment of the fees from

accounts in Lorenz’s name is justified.” Orphans’ Court Opinion, 6/1/16, at

2. Here, under the 2009 Power of Attorney, Lorenz acted as Long’s agent,



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and managed Long’s financial affairs. The Orphans’ Court did not find that

Lorenz mismanaged Long’s finances or that she committed any wrongdoing.

The Orphans’ Court merely acknowledged that Lorenz’s management of the

Long’s finances caused some of their assets to be comingled.       Thus, the

Orphans’ Court did not abuse its discretion in directing from where the fees

in question were to be paid. Based upon the foregoing, Lorenz’s first claim

is without merit.

      In her second claim, Lorenz contends that the Orphans’ Court erred in

ordering her to pay the fees to Lazarus Support Services and Caplan out of

her personal accounts.   Brief for Appellant at 40.   Lorenz argues that this

action by the Orphans’ Court overrode the 2009 Power of Attorney. Id. at

40, 48. Lorenz asserts that the trial court had no basis for the Order other

than its animosity toward Lorenz. Id. at 40; see also id. at 48 (wherein

Lorenz maintains that the Orphans’ Court improperly relied on ex parte

communications to reach its conclusion). Lorenz claims that Long properly

executed the 2009 Power of Attorney, and that Lorenz managed Long’s

physical and financial affairs in accordance with the 2009 Power of Attorney.

Id. at 43-44; see also id. at 45 (wherein Lorenz points out that the

Orphans’ Court found that all parties had the best interests of Long at

heart).   Lorenz further argues that she acted in good faith with regard to

Long’s finances, and that she was permitted to use Long’s funds to protect

his interests. Id. at 46, 47. Lorenz also claims that section 5601.3(b) of



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the Probate, Estates, and Fiduciaries Code does not require that the

separation of funds of an agent and principal. Id. at 47.

      Here, as noted above, the Orphans’ Court Orders do not indicate any

wrongdoing by Lorenz in her role as Long’s agent.           There has been no

finding that Lorenz improperly administered Long’s funds or estate. Further,

the Orders do not overturn the 2009 Power of Attorney or require an

accounting of Lorenz’s actions.        The Orphans’ Court’s Orders simply

acknowledge that Lorenz had power of attorney over Long, and had

commingled her personal funds with Long’s funds.        The Orphans’ Court’s

Orders were based, not on any alleged wrongdoing, but on an effort to

ensure payment. See Orphans’ Court Opinion, 6/1/16, at 2. Thus, Lorenz is

not entitled to relief on her second claim.

      In her final claim, Lorenz contends that the Orphans’ Court failed to

apply the correct legal standard in determining that Caplan is entitled to

legal fees.   Brief for Appellant at 49.   Lorenz argues that generally, each

party pays their own counsel fees, and that such fees are only recoverable

under express statutory authorization. Id. Lorenz asserts that there was no

statutory authorization for Caplan to receive fees from Long’s estate. Id.

      “The general rule within this Commonwealth is that each side is

responsible for the payment of its own costs and counsel fees absent bad

faith or vexatious conduct.”    McMullen v. Kutz, 985 A.2d 769, 775 (Pa.

2009) (citation omitted); see also 42 Pa.C.S.A. § 2503(9) (stating that



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“[t]he following participants shall be entitled to a reasonable counsel fee as

part of the taxable costs of the matter ... (9) [a]ny participant who is

awarded counsel fees because the conduct of another party in commencing

the matter or otherwise was arbitrary, vexatious or in bad faith.”); In re

Barnes Found., 74 A.3d 129, 136 (Pa. Super. 2013) (stating that an action

is vexatious if brought without legal or factual grounds, or its sole purpose is

to cause annoyance). “This so-called ‘American Rule’ holds true unless there

is express statutory authorization, a clear agreement of the parties or some

other established exception.”    McMullen, 985 A.2d at 775 (citation and

quotation marks omitted).

      Here, while Lorenz argues that there is no statutory authority to

support Caplan’s claim for counsel fees, she does not raise any claim with

regard to an award of counsel fees for vexatious conduct. As noted above,

the Orphans’ Court specifically found that but for the actions of Lorenz and

her counsel, including threatening Lazarus with physical harm, lawsuits and

harm to her business, Caplan’s representation and the subsequent fees

would have been unnecessary. See Orphans’ Court Opinion, 6/1/16, at 2;

see also ACE Am. Ins. Co., 939 A.2d at 946. Further, the Guardianship

Department approved the fees, which furthered the best interests of Long.

See Order, 2/2/16; see also Orphans’ Court Opinion, 6/1/16, at 2. Thus,

under the facts of this case, the Orphans’ Court did not abuse its discretion




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in awarding fees to Caplan. See McMullen, 985 A.2d at 775. Accordingly,

Lorenz’s final claim is without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/14/2017




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