J-S08009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ROBERT L. REICHLE, AS POWER              IN THE SUPERIOR COURT OF
OF ATTORNEY FOR EMILY REICHLE                         PENNSYLVANIA



                     v.

MARY JUANITA LIPTAK, A/K/A JUANITA
LIPTAK, PETITIONER

APPEAL OF: ROBERT L. REICHLE                         No. 802 WDA 2015


              Appeal from the Order Entered January 16, 2015
             In the Court of Common Pleas of Allegheny County
                     Orphans’ Court at No: 2706 of 2013


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED AUGUST 24, 2016

      Appellant, Robert L. Reichle, appeals pro se from the order entered in

the Court of Common Pleas of Allegheny County dismissing exceptions to the

imposition of a surcharge on him in the amount of $497,215.11.              Upon

review, we affirm.

      In its Pa.R.A.P. 1925(a) opinion, the trial court summarized the facts

of this case as follows.

             On February 2, 2005, Emily Reichle executed a Power of
      Attorney (hereinafter “POA”) granting respondent, her son,
      Robert L. Reichle (hereinafter “Appellant”) the power to act as
      her agent in fact. On April 29, 2013, Petitioner Mary Juanita
      Liptak [(hereinafter “Appellee”)], daughter of Emily Reichle, filed
      a Petition for Citation for Rule to Show Cause as to Why the
      Power of Attorney Should Not File an Account Pursuant to 20
      Pa.C.S.A. § 5610, requesting that this [c]ourt compel Agent to
      file an accounting. On May 16, 2013, this [c]ourt entered an
      Order directing Agent to file an account. The Appellant failed to
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      comply with this [c]ourt’s Order to file an account, until
      sanctions were imposed, fines had accumulated and
      incarceration was threatened. The Appellant belatedly filed his
      account on January 2, 2014. [Appellee] filed objections to the
      account.

            An Audit was held on February 18, 2014, and the
      objections to the Account were placed on the record. The matter
      preceded to trial before this [c]ourt on September 22, 2014, and
      was continued to October 28, 2014, and concluded on October
      29, 2014. On January 1[6], 2015, this [c]ourt entered an
      Opinion and Order of [c]ourt, imposing surcharge of
      $497,215.11 on Appellant.

            Appellant filed timely Exceptions on February [3], 2015.
      Argument was heard in open court on April 28, 2015, and the
      Exceptions were denied on [May 6], 2015. On May 20, 2015,
      Appellant filed an appeal from this [c]ourt’s Order [docketed May
      6], 2015, which had denied Appellant’s exceptions to this
      [c]ourt’s Order of January 1[6], 2015.

            This [c]ourt [o]rdered Appellant to file a 1925(b)
      statement of errors complained of on appeal. The Appellant filed
      his 1925(b) statement on June 4, 2015.

Trial Court Opinion (T.C.O.), 7/1/15, at 1-2.

      Appellant raises two issues for our review:

      1. Did the trial court commit an abuse of discretion and err as a
         matter of law in failing to deny standing to Mary Juanita Liptak,
         sister of the Appellant?

      2. Did the lower court commit an abuse of discretion and err as a
         matter of law in failing to recognize that the Statute of Limitations
         was a bar to any relief claimed by Mary Juanita Liptak, sister of the
         Appellant?

Appellant’s Brief at 8.

      Our standard of review regarding Appellant’s issues is well settled.

             The findings of a judge of the orphans’ court division,
      sitting without a jury, must be accorded the same weight and

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       effect as the verdict of a jury, and will not be reversed by an
       appellate court in the absence of an abuse of discretion or a lack
       of evidentiary support.

              This rule is particularly applicable to findings of fact which
       are predicated upon the credibility of the witnesses, whom the
       judge has had the opportunity to hear and observe, and upon
       the weight given to their testimony. In reviewing the Orphans’
       Court’s findings, our task is to ensure that the record is free
       from legal error and to determine if the Orphans’ Court’s findings
       are supported by competent and adequate evidence and are not
       predicated upon capricious disbelief of competent and credible
       evidence. However, we are not limited when we review the legal
       conclusions that the Orphans’ Court has derived from those
       facts.

In re Estate of Schultheis, 747 A.2d 918, 922 (Pa. Super. 2000) (quoting

In re Estate of Rider, 711 A.2d 1018, 1020 (Pa. Super. 1998).

       Appellant first claims Appellee did not have standing to bring an action

to compel him to file an account under 20 Pa.C.S.A. § 5610.            Appellant,

citing In re Kilpatrick’s Estate, 84 A.2d 339 (Pa. 1951), argues it is

established that “only the personal representative of a deceased party in

interest stands in the shoes of such decedent. Legatees, spouses or next

of kin of that decedent really have no such interest.” Appellant’s Brief

at 16 (citation omitted) (emphasis added by Appellant). Appellant’s reliance

on Kilpatrick’s Estate is misplaced. In Kilpatrick’s Estate, the appellant

requested review of a confirmed final account for an estate.1 Kilpatrick’s

____________________________________________


1
  The estate belonged to the appellant’s deceased wife’s deceased first
husband. Our Supreme Court determined that, while the appellant’s wife
was a distributee of the balance of her first husband’s account, the appellant
was not and did not have a direct interest in it. As such, our Supreme Court
(Footnote Continued Next Page)


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Estate, 84 A.2d at 339. Here, we are not dealing with an estate, but rather

with the filing of an account under a power of attorney that was ordered by

a court pursuant to Section 5610.                 As such, Kilpatrick’s Estate is

inapposite to Appellant’s first issue.

      Nonetheless, Appellant argues that Appellee does not have standing

because “at no time did [Appellee] infuse any dollar amount of money into

the corpus of the assets managed by her brother. As such, she has and had

no beneficial interest in those assets.” Appellant’s Brief at 17 (emphasis in

original). Appellant argues that while 20 Pa.C.S.A. § 5610 provides that an

agent must file an account whenever directed to do so by the court, only the

principal, or principal’s agent, may ask the court to do so.2            Id.   We

disagree.

      Pursuant to Section 5610, “[a]n agent shall file an account of his

administration whenever directed to do so by the court and may file an

account at any other time.” 20 Pa.C.S.A. § 5610. Accordingly, as the trial

court notes, by the plain text of Section 5610, the trial court had statutory
                       _______________________
(Footnote Continued)

determined that the appellant did not have standing to sue his wife’s first
husband’s estate on behalf of his deceased wife. Id. at 340.
2
  Although not in effect at the time the instant appeal was filed, Appellant
cites 20 Pa.C.S.A. 5601.3(d)(1) to support his argument that only the
principal may compel him to file an account. Appellant ignores that this
statute also permits a court to order disclosure by an agent. 20 Pa.C.S.A.
5601.3(d)(1) (“Except as otherwise provided in the power of attorney, an
agent shall not be required to disclose receipts, disbursements . . . unless
ordered by a court or requested by the principal . . .”).



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authority to independently order Appellant to file an account that was not

dependent upon the standing of Appellee.       Although Appellee brought the

matter to the trial court’s attention, Appellant was required to file an account

because he was ordered to do so by the trial court. Appellant, therefore, is

not entitled to relief on his first issue.

      With respect to Appellant’s second issue, he argues that Appellee was

barred from requesting that Appellant file an account for the period of time

prior to April 13, 2011 by the two-year statute of limitations for breach of

fiduciary duty and taking of property under 42 Pa.C.S.A. § 5524. Appellant’s

Brief at 18.      In support thereof, Appellant contends the petitioner had

retained the services of counsel as early as May 28, 2008 for purposes of

seeking an accounting. Yet, Appellant maintains petitioner took no action to

compel an accounting or institute any action against him for more than five

years after that date until April 13, 2013, when she initiated the present

action by the filing of her petition for a rule to show cause why an account

should not be filed by Appellant as the agent in fact for his mother.

Additionally, since petitioner was aware as early as 2008 that Appellant may

have committed some wrongdoing, Appellant maintains that the discovery

rule cannot operate here to toll the running of the statute of limitations.

Again, we disagree.

      Assuming without deciding for the moment whether the two-year

statute of limitations applies to the claims upon which the orphans court

imposed a surcharge upon Appellant for transactions he conducted under the

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POA,3 see In re Estate of Moskowitz, 115 A.3d 372 (Pa. Super. 2015),

Appellant’s argument misses the mark by focusing upon the petitioner’s

knowledge. Under 20 Pa. C.S.A. § 5601(e), “an agent acting under a power

of attorney has a fiduciary relationship with the principal.” Since Appellant’s

duty ran to the principal, it was the principal’s knowledge that should have

been the focus on the applicability of the discovery rule as to any statute of

limitations question for breach of fiduciary duty. Here, Appellant focused not

upon the principal, but upon the petitioner to whom he owed no fiduciary

duty under the power of attorney.              Since the principal is now dead, and

there is nothing in the record before us to suggest that the principal had any

knowledge of Appellant’s wrongful acts before she died, Appellant cannot

sustain his burden of proving that any of the surcharge claims imposed upon

him are barred by any applicable statute of limitations.4

       As Appellant is not entitled to relief on either of his issues, we affirm

the order of the trial court dismissing Appellant’s exceptions.

       Order affirmed.
____________________________________________


3
  Personal representatives acting under a will and trustees acting under a
trust remain liable for all distributions made by them until court confirmation
of an account. See 20 Pa. C.S.A. §§ 3533, 7799.2. No similar statutory
provisions pertain to agents acting under a power of attorney. In the
absence of any statutory provisions pertaining to powers of attorney,
principles of law and equity apply. 20 Pa. C.S.A. § 5612.
4
 In light of our disposition on the statute of limitations issue, we need not
address Appellant’s argument that the trial court improperly looked to the
doctrine of laches in denying his exceptions.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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