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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF                        :     IN THE SUPERIOR COURT OF
FRANKLIN A. HAWK                        :           PENNSYLVANIA
                                        :
APPEAL OF: CAROL CALLANAN,              :            No. 1954 EDA 2015
CO-EXECUTRIX, A CLAIMANT AND            :
A RESPONDENT                            :


                   Appeal from the Order Dated May 22, 2015,
             in the Court of Common Pleas of Northhampton County
                    Orphans’ Court Division at No. 2012-0392


BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 09, 2016

      Carol Callanan appeals the order of the Court of Common Pleas of

Northhampton County that denied appellant’s exceptions from the trial

court’s order that granted in part and denied in part appellant’s claims

against the Estate of Franklin A. Hawk (“Estate”).

      Franklin A. Hawk      (“decedent”), whose      wife, Patricia A. Hawk,

predeceased him, died intestate on February 28, 2012. His two daughters,

Annette M. Harka (“Harka”) and appellant, were the only survivors.       On

March 22, 2012, Letters of Administration were issued to Harka and

appellant.    Appellant lived in decedent’s home, located at 2074 Fourth

Street, Bethlehem, Pennsylvania (“Property”), from 2008 until March 5,

2014, when the Property was sold.
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      On June 14, 2013, Harka filed a petition to compel action and payment

by co-administrator. In the petition, Harka sought to compel the sale of the

Property, to receive payment for the fair rental value of the Property plus

interest, and to direct payment to Harka in an amount equal to the value of

any damage for waste committed on the Property, plus interest.

      By order dated August 2, 2013, the trial court granted the motion in

part and directed that appellant and Harka hire a realtor to facilitate the sale

of the Property. In the event that appellant and Harka could not agree on a

realtor, the trial court would appoint one.       The remaining claims in the

petition were held in abeyance.       Appellant and Harka could not reach an

agreement,     and   the   trial   court   appointed   David   A.   Lichtenwalner

(“Lichtenwalner”) of Prudential Choice Properties by order dated September

10, 2013. The trial court directed Lichtenwalner to arrive at a listing price

for sale and to also advise the trial court and the parties of the fair rental

value of the property.       In a letter report dated September 26, 2013,

Lichtenwalner determined the fair market value of the property as $75,000,

the listing price for sale as $80,000, and the fair rental value of the property

as $800 per month.

      In December 2013, the Estate received an offer on the Property in the

amount of $95,000 with $5,000 earnest money, no mortgage, and no

inspections.   In order to bring the matter to a prompt conclusion, Harka

petitioned to cooperate with sale and fix the fair rental value. By order of



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court dated January 17, 2014, the trial court ordered Harka and appellant to

cooperate and sign all documents related to the sale of the Property.

Appellant was ordered to vacate the property seven days prior to closing.

The parties were further ordered to cooperate with one another to remove

all items of personal property from the Property and prepare the Property for

closing.

      On March 5, 2014, the closing was held. The net proceeds of the sale

which originally totaled $84,779.49 plus a subsequent deposit of $1,852.35

was made, bringing the total amount in escrow to $86,631.84.

      Harka petitioned to compel action and payment by co-administrator

and brought claims for fair rental value and waste against appellant on the

basis that appellant lived at the Property from 2008 through the closing.

The trial court conducted a hearing on the petition on May 13, 2014.

      Prior to trial, appellant moved for the trial court judge to recuse

himself on the basis that the trial court judge allegedly engaged in ex parte

communications with Lichtenwalner. The trial court judge and Lichtenwalner

knew each other and occasionally encountered each other in the community.

On November 2, 2013, the trial court judge and Lichtenwalner had such an

encounter. At that time, Lichtenwalner informed the trial court that he had

contacted counsel for both parties but had not heard back from appellant’s

counsel, Ronald L. Clever, Esq. (“Attorney Clever”). On November 5, 2013,

the trial court’s law clerk telephoned Lichtenwalner and left a voice mail



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message in which he inquired as to whether Lichtenwalner required the

assistance of the trial court to contact Attorney Clever.   On November 6,

2013, Lichtenwalner returned the telephone call and informed the trial court

that he had heard from Attorney Clever and did not need any help from the

trial court.

      On December 3, 2013, the trial court received a telephone call from

Lichtenwalner in which Lichtenwalner informed the trial court that he had

been unable to obtain contact information for appellant from Attorney Clever

who provided his own contact information rather than appellant’s. The trial

court then wrote a letter to Attorney Clever and relayed the substance of

Lichtenwalner’s letter to Attorney Clever that Attorney Clever purportedly

provided appellant’s contact information but it was actually Attorney Clever’s

and requested that Attorney Clever give the requested information to

Lichtenwalner by a certain date. In response, Attorney Clever wrote a letter

to the trial court and accused the trial court of one-to-one communication

with Lichtenwalner and Harka’s counsel.      At the May 13, 2014 hearing,

Attorney Clever moved for recusal which the trial court denied.

      By order dated June 3, 2014, the trial court denied the claim for waste

but granted Harka’s claim for fair rental value and ordered that $9,810.88 be

subtracted from appellant’s share of the Estate. The trial court found that

appellant lived at the Property from February 28, 2012 through March 5,




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2014, for a total of 736 days at a rate of $13.33 per day which represented

half of the fair rental value of $26.66 per day or $800 per month.

      Appellant filed exceptions to the June 4, 2014 order. The trial court

denied the exceptions on September 3, 2014. The trial court directed the

parties to prepare an accounting and a schedule of distribution. Harka filed

a first and final accounting with the trial court which was listed on the Audit

List of September 26, 2014.       On September 26, 2014, appellant appealed

the September 3, 2014 order that denied the exceptions to this court. On

August 18, 2015, this court quashed the appeal because we lacked

jurisdiction as appellant did not appeal a final order.   In Re:     Estate of

Franklin A. Hawk, No. 2858 EDA 2014, unpublished memorandum

(Pa.Super. filed August 18, 2015).

      On September 26, 2014, appellant filed a claim and objections to the

accounting. In her claim, appellant sought reimbursement for expenses she

paid on behalf of the Estate when she was living at the Property in the

amount of $5,653.44.     Appellant also asserted a claim for the fair rental

value of the Property against the Estate in the amount of $14,716.32 for the

storage of the Estate’s personal property on the Property.     The trial court

conducted   a non-jury    trial   on the    claims on   December     17, 2014.

Specifically, appellant sought reimbursement for the alleged payment of real

estate taxes for the Property in 2013 in the amount of $3,054.38. The trial

court denied the claim on the basis that a tenant in common who pays more



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than his or her proportionate share of the tax obligations is not entitled to

contributions from co-tenants for the excess tax payment.         (Trial court

opinion, 2/6/15 at 5-6.)

      Appellant also sought reimbursement for the payment of the 2013

homeowner’s insurance, a sewer bill in 2013, and a 2012 electric bill for a

total of $799.06. The trial court determined that appellant did pay for these

bills and was entitled to reimbursement for one-half of the expenses so that

the Estate owed her $399.53. (Trial court opinion, 2/6/15 at 6-7.)

      In addition, appellant sought reimbursement from the Estate for the

values of a stove, washer, and dryer that she bought when she resided at

the Property but were sold when the Property was sold.         The trial court

denied this claim because appellant could not provide evidence as to the

value of these items at the time of sale. (Id. at 7-8.)

      Appellant also sought reimbursement for the Estate storing personal

property which had belonged to appellant’s parents at the Property from the

time of decedent’s death until the Property was sold.      Appellant asserted

that because the Estate’s tangible assets occupied approximately 80% of the

space inside the house on the Property, the Estate should be responsible for

$14,716.32 which was 75% of the fair rental value of $800 per month. The

trial court denied her claim in its opinion and order dated February 6, 2015.

      Appellant filed exceptions to the February 6, 2015 order, which the

trial court denied in an opinion and order dated May 22, 2015.



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

            A.     Is there any legal basis – either under Title 20
                   or under Title 68 – for [Harka’s] original
                   monetary request?

            B.     If there is some legal basis for [Harka’s]
                   original request, did [Harka] meet the legal
                   standards for awarding a sum of money from
                   one heir to the other heir?

            C.     Should the Judge have recused himself?

            D.     Because the decision . . . requires the
                   appellant to pay the Estate for the entire fair
                   rental value for the entire house, is the Estate
                   then liable, to her for storing its goods there?

            E.     Because the decision . . . requires the
                   appellant to pay the Estate for the entire fair
                   rental value for the entire house, is the Estate
                   then liable, to her, to reimburse her for real
                   estate taxes that she paid separately?

Appellant’s brief at 5.

      Initially, appellant contends that there is no statutory authority for

permitting the Estate to deduct from her share of the Estate one-half the fair

rental value of the Property from the decedent’s death until the time of sale.

      This court’s review of a decision of an Orphans’ Court is as follows:

            Our standard of review of the findings of an
            [O]rphans’ [C]ourt 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



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           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, 678-679,
           appeal denied, 758 A.2d 1200 (Pa. 2000).
           (internal citations and quotation marks omitted).
           “[T]he Orphans’ [C]ourt 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. 2003), appeal denied, 847 A.2d
           1287 (Pa. 2003).

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

citations and quotation marks omitted).

     Section 3311(a) of the Probate, Estates, and Fiduciaries Code,

20 Pa.C.S.A. § 3311(a), applies to this case and provides as follows:

           § 3311. Possession of real and personal estate;
           exception

           (a)   Personal      representative.--A        personal
                 representative shall have the right to and shall
                 take possession of, maintain and administer all
                 the real and personal estate of the decedent,
                 except real estate occupied at the time of
                 death by an heir or devisee with the consent of
                 the decedent. He shall collect the rents and
                 income from each asset in his possession until
                 it is sold or distributed, and, during the
                 administration of the estate, shall have the
                 right to maintain any action with respect to it
                 and shall make all reasonable expenditures
                 necessary to preserve it. The court may direct
                 the personal representative to take possession
                 of, administer and maintain real estate so
                 occupied by an heir or a devisee if this is
                 necessary to protect the rights of claimants or


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                  other parties. Nothing in this section shall
                  affect the personal representative’s power to
                  sell real estate occupied by an heir or devisee.

20 Pa.C.S.A. § 3311(a).

      The comment to Section 3311 states that it is not contemplated that

rents shall be collected by the personal representative from real estate

occupied by an heir or devisee unless needed for the payment of claims.

      In In re Padezanin, 937 A.2d 475 (Pa.Super. 2007), this court

addressed the question of whether an heir is liable for rent to an estate if the

heir continues to live on property owned by the estate.       Two of the heirs

resided at real property owned by the Estate of Daniel Padezanin, deceased.

The Orphans’ Court Division of the Court of Common Pleas of Beaver County

assessed Debra A. Florida (“Florida”) $22,064.73 in rent and Danielle P.

Sweesy (“Sweesy”) $29,340. Florida resided on real property owned by the

decedent at the time of the decedent’s death. She continued to reside there

until she moved to another property owned by the estate. They appealed to

this court and argued that Section 3311(a) of the Probate, Estates and

Fiduciaries Code, 20 Pa.C.S.A. §3311(a), precluded the assessment of rent.

Id. at 479, 481-482.

      This court determined that Sweesy was not eligible for relief because

she was not residing on real estate owned by the decedent at the time of his

death. With respect to Florida, the court determined that she was living on

real property owned by the decedent at the time of his death and could not



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be assessed rent for the time she resided there unless the estate was

insolvent, which it was not. Florida could be assessed rent for the time she

lived at the second property owned by the estate because she was not living

there at the time of the decedent’s death. Id. at 482-483.

     More recently, in In re:    Estate of Bouks, 964 A.2d 4 (Pa.Super.

2008), this court again addressed the same issue. Tamara Bouks owned the

property where she lived. Her son, Oleg Bouks (“Bouks”), lived with her at

the property.   Tamara Bouks died on November 25, 2001.       Bouks was a

co-executor and co-beneficiary of his mother’s estate with his sister,

Ariadna Dittess Mergelkamp (“Mergelkamp”).     He continued to live at the

residence where he had lived when his mother was alive. Bouks expressed

an interest in purchasing the property, which ultimately occurred four years

later. Bouks initially sought to purchase the property at the assessed value

$67,900 which was used for inheritance tax purposes. Mergelkamp rejected

the offer. Each co-executor obtained an appraisal for the property with one

at $110,000 and the other at $140,000. On October 21, 2003, two years

after his mother’s death, Bouks petitioned the orphans’ court and sought to

purchase the property at the assessed value.     This request was denied.

Bouks was ordered to file an accounting and to place the property for sale.

When Bouks failed to do so, Mergelkamp filed a contempt petition.     When

faced with the contempt petition, Bouks purchased the home for $176,000.

Bouks filed an account. Mergelkamp objected and argued that Bouks should



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have to pay rent to the estate for the time he occupied the estate’s property.

The Orphans’ Court Division of the Court of Common Pleas of Philadelphia

County agreed and awarded the estate rental payments from Bouks that

commenced six months after his mother’s death. Id. at 5.

      This court agreed and distinguished Padezanin on the basis that

Bouks did not vacate the real estate in a timely manner and engaged in

conduct that delayed the proper administration of the estate.         This court

concluded:

             Thus, we affirm the orphans’ court’s conclusion that
             when the occupancy of the decedent’s real estate by
             an estate’s beneficiary is unnecessarily prolonged
             due solely to the improper behavior of the
             beneficiary occupying the real estate, 20 Pa.C.S.[A.]
             § 3311, will not be construed to prevent an award of
             rental following a reasonable period. A contrary
             construction of that enactment would encourage
             beneficiaries to delay settling an estate in order to
             take advantage of dwelling on estate property
             rent-free. In light of legal precepts that require the
             prudent administration of an estate and timely
             distribution of estate assets, the legislature did not
             intend section 3311 to prevent an award of rental
             under circumstances present herein.

Bouks, 964 A.2d at 7.

      What seems clear from this court’s recent case law is that a

beneficiary can be held to pay a fair rental value under Section 3311 if the

possession is prolonged and/or causes undue delay and prejudice in the

administration of the estate.




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      Here, appellant lived on the Property from the time of her father’s

death until the property was sold. A review of the record reveals that while

Harka alleged that appellant had resided on the Property since their father’s

death, there was no allegation in the petition that appellant delayed the sale

of the Property for her own benefit nor did the trial court find her liable for

any waste to the Property.     In the hearing before the trial court, there

similarly was no such allegation except that each sister took steps to prevent

the sale of the Property to the other.         The trial court resolved this

controversy based on a partition action of the property with the two sisters

as tenants in common.     The trial court did not follow or even distinguish

Section 3311 of the Probate, Estates and Fiduciaries Code or the relevant

case law. Based on Padezanin and Bouks, Harka failed to establish that

appellant was required to pay rent for the time she remained on the Estate’s

Property.   Accordingly, the trial court erred when it awarded the Estate

$9,810.88 from appellant’s share of it.

      Appellant next contends that the trial court should have recused itself

because the trial court had ex parte communications with Lichtenwalner in

part concerning whether Attorney Clever had provided Lichtenwalner with a

phone number that he represented was appellant’s when in fact it was

Attorney Clever’s.

            We review a trial court’s decision to deny a motion to
            recuse for an abuse of discretion.           Vargo v.
            Schwartz, 940 A.2d 459, 471 (Pa.Super. 2007).
            Indeed our review of a trial court’s denial of a motion


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              to recuse is exceptionally deferential. Id. . . . . [A]
              trial judge should grant a motion to recuse only if a
              doubt exists as to his or her ability to preside
              impartially or if impartiality can be reasonably
              questioned. In re Bridgeport Fire Litigation, 5
              A.3d 1250, 1254 (Pa.Super. 2010).

              In order to prevail . . . [a] party seeking recusal
              must satisfy the burden “to produce evidence
              establishing bias, prejudice or unfairness which
              raises a substantial doubt as to the jurist’s ability to
              preside impartially.” In re S.H., 879 A.2d 802, 808
              (Pa.Super. 2005) (quoting Arnold v. Arnold, 847
              A.2d 674, 680-681 (Pa.Super. 2004)).

In the Interest of A.D., 93 A.3d 888, 892 (Pa.Super. 2014).

      Here,     the    chance    encounter      between    the   court-appointed

Lichtenwalner and the further correspondence between the court and

Lichtenwalner does not establish any sort of bias or the appearance of

impartiality. Although the trial court used the word “purported” in its letter

to Attorney Clever concerning whether Attorney Clever had provided his

phone number to Lichtenwalner instead of appellant’s, this word did not

necessarily imply that the trial court thought that Attorney Clever was lying

to Lichtenwalner.     Further, appellant argues that the trial court should not

have accused Attorney Clever of padding his fees and should not have called

him “arrogant.”        These comments do not create the appearance of

impropriety either.1    During the course of a trial or hearing, there may be


1
  Appellant also raises the issues that the Estate should be liable to her for
storing its goods on the property and that the Estate should reimburse her
for real estate taxes for the property that she personally paid. However, she
asserts that had the issue of the rental payment been decided in her favor,


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criticism from the bench which does not mean that the trial court is biased

against a party or disposed to rule against that party. This court determines

that the trial court did not commit an abuse of discretion when it denied the

motion to recuse.

     Order reversed as to the payment of rent and affirmed as to the denial

of the motion to recuse.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2016




these issues would not exist. Because this court has decided the rental issue
in her favor, this court need not address these arguments. Appellant also
contends that even if there were some legal basis for the assessment of rent
Harka did not meet the legal standard for awarding a sum of money from
heir to another. Because this court has determined that the trial court erred
when it awarded the rental, this court need not address this issue.


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