J-A02005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF THOMAS BRAWNER, SR.                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: COREN WISE, ESQUIRE

                                                      No. 1144 EDA 2016


                     Appeal from the Decree March 14, 2016
              In the Court of Common Pleas of Philadelphia County
                     Orphans' Court at No(s): 201401043DE


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                 FILED APRIL 13, 2017

        Coren Wise, Esquire (“Appellant”), appeals from the Decree entered

March 14, 2016,1 in the Court of Common Pleas of Philadelphia County,

ordering him, in accordance with the Orphans’ Court’s Adjudication of the

First and Final Account of George Brawner, Administrator D.B.N. (the

“Adjudication”), to disgorge his fee in the amount of $14,845.00, and to be

personally liable for up to $16,500.00, to the extent that amount is not

recoverable as a surcharge from George Brawner (“Administrator”). Based

upon the following, we vacate the portion of the Decree surcharging
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 As will be more fully discussed below, the Decree at issue is dated March 9,
2016, was docketed on March 11, 2016, and Rule 236 notice was entered on
March 14, 2016.
J-A02005-17



Appellant and ordering him to disgorge his fee of $14,845.00, and remand

for the orphans’ court’s consideration of Appellant’s fee under LaRocca; and

we vacate the portion of the Decree that makes Appellant personally liable

for the surcharge imposed against        George Brawner, in the amount of

$16,500.00, to the extent this amount is not recoverable against George

Brawner.

      The orphans’ court has summarized the facts giving rise to this appeal,

as follows:

      Thomas Brawner, Sr. (“Decedent”), died intestate on December
      29, 1991. He was unmarried at the time of his death, but was
      survived by three sons: Thomas Brawner, Jr., Edward Brawner,
      and    George     Brawner  (hereinafter  “Mr.   Brawner”  or
      “Administrator”).

      On January 30, 1992, Thomas Brawner, Jr. was granted Letters
      of Administration for the Decedent’s estate with the consent of
      his two brothers. On April 15, 1992, Thomas Brawner, Jr., as
      Administrator, improperly transferred title of 303 N. 41st St. to
      himself.

      On March 15, 2003, Thomas Brawner, Jr. died, and Letters of
      Administration for his estate were granted to his daughter,
      Charmaine Brawner. On August 28, 2006, as a result of the
      death of Thomas Brawner, Jr., George Brawner was granted
      Letters of Administration D.B.N. for the Decedent’s estate.

      Administrator entered into an agreement with DDE Investments,
      LLC, to sell 303 N. 41st St. for $25,000.00. Meanwhile,
      [Charmaine Brawner] had found another buyer offering
      $106,200.00. Due to the fraudulent transfer of the property in
      1992 and the resulting title issues, Administrator initiated a quiet
      title action through his counsel, Appellant. By order dated
      January 30, 2014, the Honorable Judge Fox struck the fraudulent
      deed and the property was returned to Decedent’s estate. After
      the title issues were resolved, the property sold for $106,200.00
      and closing occurred on June 9, 2014.

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J-A02005-17



       A total of $48,759.65 was deducted from the gross sale proceeds
       to pay various costs of administration, including taxes,
       Appellant’s fee of $14,845.00, and $20,000.00 as a “release” to
       DDE Investments, LLC. As a result of the sale, a total of
       $57,523.05 was paid to George Brawner as Administrator D.B.N.
       of Decedent’s estate for distribution. Administrator paid himself a
       commission of $16,500.00 and distributed the remainder of the
       proceeds in two even shares to himself and his surviving
       brother, Edward Brawner.

       No distribution was made to Thomas Brawner, Jr., his estate, or
       his personal representative. At trial, Administrator stated that at
       the time he felt he did not have to pay anything to [Charmaine
       Brawner, Administratrix of the Estate of Thomas Brawner, Jr.]
       because Thomas Brawner, Jr. had died.[2]

       Upon Citation and subsequent order of the Trial Court, George
       Brawner filed The First and Final Account of George Brawner,
       Administrator D.B.N. on December 2, 2014, pertaining only to
       the real estate located at 303 N. 41st St., Philadelphia.

       Objections to the Account were filed by Charmaine Brawner,
       Administratrix of the Estate of Thomas Brawner, Jr.
       (“Objectant”). The Objections alleged, among other things, that
       no distribution of Thomas Brawner, Jr.’s [one-third] share of
       Decedent’s estate was ever made. At trial, Objectant also
       challenged the distribution made to DDE Investments, LLC at
       closing. The Objections requested the following relief as a result:
       (1) Surcharge Administrator the amount of Thomas Brawner,
____________________________________________


2
  George Brawner stated in his pro se Answer to the Amended Petition for
Accounting by Administrator, filed by Charmaine Brawner as Administratrix
of the Estate of Thomas Brawner, Jr., that when Thomas Brawner, Jr. died
he lost his rights as heir of the Estate of Thomas Brawner, Sr., “according to
his father’s wishes” and because “fraud was involved.” See Brawner’s
Answer, 8/13/2014, ¶¶3, 6.

       At trial, however, George Brawner testified he did not make one-third
distribution to Charmaine Brawner, Administratrix of the Estate of Thomas
Brawner, Jr., because there had been a “forfeiture of the agreement.” N.T.,
10/29/2015, at 86. See also id. at 84.



                                           -3-
J-A02005-17


     Jr.’s, intestate share ($19,174.35) plus interest; and (2)
     Surcharge Administrator the amount of any unsubstantiated
     expenses or commissions.

     Appellant was made a party in this matter by Objectant’s petition
     that he be held accountable for the failure to distribute assets to
     the heirs, filed under control no. 150773. No response was
     forthcoming, and neither Administrator nor Appellant appeared
     as ordered at a February 17, 2015 hearing. Appellant was then
     ordered to respond to the Objectant’s original petition. He did so
     by way of answer with new matter, to which Objectant replied.
     Administrator was attached in contempt as a result of his failure
     to appear.

     The issues raised by these pleadings were tried at the
     consolidated adjudicatory hearing held October 29, 2015.

     On March 9, 2016, upon consideration of all evidence and
     testimony presented at trial and post-trial submission of
     Proposed Findings of Fact and Conclusions of Law, the Trial Court
     issued the following:

     1. Adjudication of the First and Final Account of George Brawner,
        Administrator D.B.N. (the “Adjudication”), under control no.
        145560, docketed on March 10, 2016;

     2. Decree vacating George Brawner’s bench warrant in
        attachment, under control no. 150744, docketed on March
        11, 2016;

     3. Decree ordering Appellant to disgorge the sum he was
        surcharged in the Adjudication and holding him personally
        liable beyond that sum for damages caused by George
        Brawner (“Decree Holding Appellant Liable”), under control
        no. 150773, docketed on March 11, 2016;

     4. Decree removing George Brawner as Administrator D.B.N.
        (“Decree Removing Administrator”), under control no.
        145560, docketed on March 14, 2016.

Orphans’ Court Opinion, 7/16/2016, at 1-4.




                                    -4-
J-A02005-17


       The orphans’ court imposed a surcharge against George Brawner,

Administrator D.B.N. and Accountant, in the amount of the commission he

paid himself, $16,500.00. The orphans’ court also surcharged Appellant and

ordered him to disgorge his fee of $14,845.00. In addition, Appellant was

ordered to be personally liable above the surcharge of his fee, up to

$16,500.00, to the extent that amount is not recoverable against George

Brawner. The Objections pertaining to the sale of the property, and those

raised at trial pertaining to the release paid to DDE Investments, LLC, were

dismissed. The orphans’ court further ordered George Brawner removed as

Administrator D.B.N. See Adjudication, dated 3/9/2016.

       Appellant filed exceptions to the Adjudication on April 4, 2016, and

filed an appeal on April 12, 2016. Oral argument on the exceptions was held

on June 22, 2016, after which the orphans’ court, by Decree dated June 27,

2016, found that it lacked jurisdiction to consider the exceptions. 3      See

Orphans’ Court Opinion, 7/21/2016, at 5.         Appellant timely complied with

the orphans’ court’s order to file a concise statement of errors complained of

on appeal, pursuant to Pa.R.A.P. 1925(b), and the orphans’ court issued a

Rule 1925(a) opinion on July 21, 2016.

       Appellant raises seven issues in this appeal:


____________________________________________


3
 It is unclear why the orphans’ court held oral argument on the exceptions
when Appellant had filed his notice of appeal on April 12, 2016.



                                           -5-
J-A02005-17


   1. Did the [orphans’ c]ourt err in including in its Adjudication
      language that required that the Appellant file “exceptions within
      twenty days and an appeal within thirty days”?

   2. Did the [orphans’ c]ourt err in finding that Appellant’s filing was
      untimely since Notice of the Order in question is reflected on the
      dockets as being sent on March 14, 2016, and Appellant filed its
      Exceptions on April 4, 2016, and its Appeal on April 12, 2016?

   3. Did the [orphans’ c]ourt err in finding that Appellant Mr. Wise
      failed to appear at a hearing on February 17, 2015?

   4. Did the [orphans’ c]ourt err in finding that Appellant Wise was
      the general estate attorney when he was engaged as a real
      estate attorney to clear title to estate real property?

   5. Did the [orphans’ c]ourt err in ordering [Appellant] to disgorge
      the fees and costs related to the Quiet Title Action and clearing
      the title for sale of 303 N. 41st Street that were paid at closing
      on the sale of the property?

   6. Did  the [orphans’ c]ourt abuse its discretion in holding
      [Appellant] responsible for George Brawner’s subsequent
      payment to himself of unsubstantiated Administrator’s fees for
      years 2006 to 2015?

   7. Did  the [orphans’] court abuse its discretion in holding
      [Appellant] responsible for distribution of a one-third share from
      the Estate of Thomas Brawner, Sr., to the Estate of Thomas
      Brawner, Jr.?

Appellant’s Brief at 3–4.

      Our standard of review for an orphans’ court decree is well settled:

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

                                      -6-
J-A02005-17


        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.

In re Estate of Bechtel, 92 A.3d 833, 837 (Pa. Super. 2014) (citation

omitted).

        The first two questions involve the timeliness of Appellant’s exceptions

and notice of appeal. The orphans’ court’s Adjudication provided:

        Exceptions to this Adjudication may be filed within twenty (20)
        days from the date of entry of the Adjudication. An appeal from
        this Adjudication may be taken, to the appropriate Appellate
        Court, within thirty (30) days from the date of entry of the
        [A]djudication. See Phila. O.C. Div. Rule 7.1A and Pa.O.C. Rule
        7.1, and Pa.R.A.P. 902 and 903.

Adjudication, dated 3/9/2016, at 9.

        For purposes of discussion, the relevant dates are as follows:

        Adjudication of the First and Final Account of George Brawner,
        Administrator D.B.N. – dated March 9, 2016; docketed March 10,
        2016; Pa.R.C.P. 2364 notice given March 14, 2016

____________________________________________


4
    Rule 236 states, in part:

     (a)   The prothonotary shall immediately give written notice of the entry
           of …

           (2) any other order or judgment to each party’s attorney of record
           or, if unrepresented, to each party. The notice shall include a copy
           of the order or judgment.

     (b)   The prothonotary shall note in the docket the giving of the notice ….

Pa.R.C.P. 236(a), (b).




                                           -7-
J-A02005-17


        Decree ordering Appellant to disgorge the sum surcharged in the
        Adjudication and holding Appellant personally liable beyond that
        sum for damages caused by George Brawner – dated March 9,
        2016; docketed March 11, 2016; Rule 236 notice given March
        14, 2016

        Exceptions to the “Adjudication, Findings and Order of March 9,
        2016” – filed by Appellant on April 4, 2016

        Notice of Appeal from “the Adjudication and Order that was
        entered in this matter on the 14th day of March, 2016” – filed by
        Appellant on April 12, 2016

See Orphans’ Court Docket.

        The orphans’ court found Appellant’s exceptions, filed on April 4, 2016,

were filed 25 days after the Adjudication, docketed March 10, 2016, and 24

days after the Decree, docketed March 11, 2016. The orphans’ court

concluded that because the exceptions were filed more than 20 days after

the dates the Adjudication and Decree were docketed, Appellant’s exceptions

were untimely.       The orphans’ court further found the 30-day period for

appealing the Decree ran from March 11, 2016, and expired on Monday,

April 11, 2016.5 Therefore, the orphans’ court determined Appellant’s April

12, 2016 notice of appeal was also untimely. As more fully discussed below,

we agree with the orphans’ court that Appellant’s exceptions are untimely.

However, we find the appeal is timely.



____________________________________________


5
    See Orphans’ Court Opinion, 7/21/2016, at 7 n.7.




                                           -8-
J-A02005-17


        Regarding exceptions, former Pa. O.C. Rule 7.1 provided, in relevant

part:

        Except as provided in Subdivision (e) [regarding Adoptions and
        Involuntary Terminations], no later than 20 days after entry
        of an order, decree or adjudication, a party may file
        exceptions to any order, decree or adjudication which would
        become a final appealable order under PaR.A.P. 341(b) or
        Pa.R.A.P. 342 following disposition of the exceptions. If
        exceptions are filed, no appeal shall be filed until the disposition
        of the exceptions except as provided in Subdivision (d) (Multiple
        Aggrieved Parties). Failure to file exceptions shall not result in
        waiver if the grounds for appeal are otherwise properly
        preserved.

Pa. O.C. Rule 7.1(a) (emphasis added).6

        Appellant contends the 20-day filing period provided in Rule 7.1 began

to run on the date notice of the Adjudication and Decree was given to the

parties pursuant to Pa.R.C.P. 236. In support, Appellant relies on Reeves v.

Middletown Athletic Association et al., 866 A.2d 1115 (Pa. Super.

2004). Reeves, however, only addresses the timeliness of an appeal under

the Rules of Appellate Procedure. See id. at 1121, citing Pa.R.A.P. 301(a)

and Pa.R.A.P. 108(b).

        The language of Rule 7.1 is clear. Exceptions must be filed no later

than 20 days “after entry of the order, decree or adjudication” on the
____________________________________________


6
 The Supreme Court Order of December 1, 2015, effective September 1,
2016, rescinded and replaced Rules 1.1 through 13.3 and Rule 17 of the
Orphans’ Court Rules and amended Rules 14.1 through 16.12. As of
September 1, 2016, “[t]he former exception practice is discontinued[.]”.
Pa. O.C. Rule 8.1, Explanatory Comment.




                                           -9-
J-A02005-17


docket.     Pa. O.C. Rule 7.1(a).              Here, because Appellant did not file

exceptions until April 4, 2016, i.e., more than 20 days after the dates the

Adjudication and the Decree were entered on the docket, the Orphans’ Court

properly determined the exceptions were untimely.

        With regard to the appeal, as the exceptions were untimely, the appeal

period    was   not    tolled.     See    Pa.O.C.     Rule   7.1,   Explanatory   Note.

Consequently, for Appellant’s appeal to be timely, the appeal was required to

be filed “within 30 days after the entry of the order from which the appeal is

taken.” Pa.R.A.P. 903(a).

        As mentioned above, Appellant filed his notice of appeal on April 12,

2016.     Reeves, supra, instructs that “pursuant to the express terms of

[Pa.R.A.P. 301(a) and 108(b)], an order is not appealable until it is entered

on the docket with the required notation that appropriate notice has been

given.” Reeves, 866 A.2d at 1121 (emphasis added). Here, Rule 236 notice

for the Adjudication and for the Decree at issue was given on March 14,

2016.      Therefore, the appeal period for the Adjudication and the Decree

began to run from March 14, 2016. Accordingly, Appellant’s appeal, filed 29

days later, on April 12, 2016, is timely.7

____________________________________________


7
   Appellant’s notice of appeal states that the appeal is taken from “the
Adjudication and Order [sic] that was entered in this matter on the 14 th day
of March, 2016.” However, Appellant’s notice of appeal attaches the docket
sheet showing only the court’s March 14, 2016 Decree removing George
Brawner as Administrator D.B.N. Nonetheless, because Rule 236 notice for
(Footnote Continued Next Page)


                                          - 10 -
J-A02005-17


      The third issue raised by Appellant challenges the finding of the

orphans’ court that Appellant failed to appear at the hearing on February 17,

2015. Appellant contends he had no notice of the hearing that took place on

February 17, 2015, because he was not subject to the court’s jurisdiction at

that time. He argues:

      The Appellant did not appear because he had no notice of this
      hearing, had never entered his appearance in Orphans’ Court,
      and was not a party to any proceedings. Not until Objectant
      [Charmaine Brawner, Administratrix of the Estate of Thomas
      Brawner, Jr.] filed its Petition for Citation against Appellant on
      February 27, 2015, was [Appellant] aware and made subject to
      the jurisdiction of this court.

      The Court erred in its recounting of the chronology. Objectant’s
      first petition was only directed to George Brawner as
      Administrator, [] requesting a surcharge of the administrator
      only.

Appellant’s Brief at 14-15.

      Based on our examination of the record, we find that Appellant’s

position is correct. George Brawner filed the Account pro se, and Appellant

was not made a party to this proceeding until Charmaine Brawner filed a

petition for citation against him on February 27, 2015, after the February 17,

2015 hearing. The orphans’ court is incorrect in its finding and, in fact, the

orphans’ court’s Adjudication identifies George Brawner as “pro se.”

However, the court’s finding that Appellant “failed to appear” at the February
                       _______________________
(Footnote Continued)

the Adjudication and for the Decree at issue were given on the same date,
March 14, 2016, see Orphans’ Court Docket, we address the appeal.




                                           - 11 -
J-A02005-17


17, 2015, hearing does not appear to have influenced the court’s ultimate

determinations.

       The remaining questions raised in this appeal involve the surcharge

imposed against Appellant and Appellant’s personal liability for the surcharge

imposed against George Brawner. Initially, we quote the relevant portion of

the orphans’ court’s Adjudication that is the basis of the Decree at issue:

       [T]he court declines to approve any fees for [A]ttorney Wise’s
       work because that work precipitated damages to the [E]state in
       excess of the fees claimed, and Coren Wise, Esq., is hereby
       SURCHARGED and ORDERED to DISGORGE the sum of
       $14,845.00, payable to the [E]state of Thomas Brawner, Jr.,
       [sic8] in accordance with the Decree [] entered this date under
       control no. 150773. It is further ORDERED and DECREED that
       Coren Wise, Esq., shall also be personally liable to the [E]state
       of Thomas Brawner, Jr., [sic] beyond the surcharge of fees, up
       to $16,500.00, to the extent that this amount is not recoverable
       as a surcharge from George Brawner.

       …

       The Account shows a combined balance of principal and income
       before distributions of $40,938.09.[9] To this add back

____________________________________________


8
  The $14,845.00 fee that the orphans’ court required Appellant to disgorge
should have been made payable to the Estate of Thomas Brawner, Sr., as
this amount would have been part of the Estate monies available for
distribution to the heirs, had the fee not been paid to Appellant at the
closing on the property. Furthermore, awarding $14,845.00 and $16,500.00
to the Estate of Thomas Brawner, Jr., could result in that estate receiving
more than its one-third intestate share of Thomas Brawner, Sr.’s Estate.
9
  Our calculation finds a combined balance of principal and income before
distributions, of $41,023.05.   This amount is calculated based on the
property settlement sheet, showing $106,284.56 (gross amount due to
seller) less $48,761.51 (settlement charges), yielding $57,523.05 (cash to
(Footnote Continued Next Page)


                                          - 12 -
J-A02005-17


      surcharges of $14,845.00 and $16,500.00 for a balance of
      $72,283.09, awarded in three equal shares to each of George
      Brawner, Edward Brawner, and the [E]state of Thomas Brawner,
      Jr.

      The above award is subject to all distributions heretofore
      properly made.

      Leave is hereby granted to the accountant to make all transfers
      and assignments necessary to effect distribution in accordance
      with this adjudication.

Adjudication, dated 3/9/2016, at 8–9.

      In his fourth issue, Appellant asserts the orphans’ court erred in

determining Appellant was the Estate’s attorney when his legal services were

limited to the work that he performed to quiet title to the property and

enable the property to be sold as an asset of the Estate of Thomas Brawner,

Sr.

      Appellant maintains “Of course[,] in the Quiet Title Action and related

sale [Appellant] was representing the Estate. But the natural extension of

the court’s ruling would be, for example, that no tax accountant who was

                       _______________________
(Footnote Continued)

seller), and additionally deducting the amount of $16,500.00, which was
paid by George Brawner to himself as administrator’s fees.

      The Account filed by George Brawner, Administrator D.B.N. of the
Estate of Thomas Brawner, Sr., did not use the gross amount indicated on
the settlement sheet, but rather used the price shown on the Agreement of
Sale, $106,200.00. From the figure of $106,200.00, he deducted amounts of
$48,761.51 for settlement charges and $16,500.00 for his administration
fees, to arrive at the figure of $40,938.09 (more accurately, $40,938.49).
See Final Estate Account, 12/2/2014.




                                           - 13 -
J-A02005-17


getting a refund to [sic] the Administrator, nor any real estate attorney at

closing, would ever be able to pay the funds to the administrator.”

Appellant’s Brief at 17.

      The orphans’ court opined:       “While it is admitted that Appellant

represented George Brawner as administrator in the quiet title action, the

evidence presented to and credited by the Trial Court establishes that

Appellant’s   representation   was   never    anything   short   of   a   general

representation of Mr. Brawner in his fiduciary capacity.”        Orphans’ Court

Opinion, supra, at 9-10 (footnote omitted). The orphans’ court pointed out

that “Mr. Brawner states in his pleadings he never entered into a written

agreement with Appellant, making it all the less likely that the informed

consent needed to limit the scope of representation was obtained, and

discrete, credible testimony on this area was never presented at trial.”

Orphans’ Court Opinion, 7/21/2016, at 10 (footnote omitted).

      In addition, the orphans’ court relied on Atkinson v. Haug, 622 A.2d

983 (Pa. Super. 1993), which instructs:

      Absent an express contract, an implied attorney-client
      relationship will be found if: 1) the purported client sought
      advice or assistance from the attorney; 2) the advice sought was
      within the attorney’s professional competence; 3) the attorney
      expressly or impliedly agreed to render such assistance; and 4)
      it is reasonable for the putative client to believe the attorney was
      representing him.

Id. at 986. Applying Atkinson, the orphans’ court reasoned:

      Based on trial testimony, it appears Mr. Brawner initiated an
      attorney-client relationship with Appellant by seeking out his

                                     - 14 -
J-A02005-17


      services, first with regard to the civil quiet title action or
      otherwise, in 2012. This is confirmed in that Appellant did in
      fact undertake to represent him, as copiously demonstrated by
      evidence of record. However, Appellant’s assertion that his
      representation was strictly limited to the civil quiet title action is
      contradicted by Appellant’s fee statement, for example, which
      includes an item for “Administration:           Estate of Thomas
      Brawner” for which he billed $2,500. Appellant also introduced a
      letter from himself to George and Edward Brawner, and Arnold
      Wainstein, Esq. for Charmaine Brawner, by writing “Dear
      Sir/Madam: I represent the Estate of Thomas Brawner, Sr.”

      Appellant’s conduct is likewise consistent with a general
      representation. He attended closing with the Administrator. He
      advised the Administrator (and possibly the beneficiaries) of the
      need for a family settlement agreement. All of this indicates
      that Appellant impliedly agreed to “render assistance” beyond
      the scope of the quiet title action. George Brawner indicated
      throughout that he believed that Appellant was his attorney and
      represented him generally as administrator. Thus the Atkinson
      test supplies an independent basis for finding that an attorney-
      client relationship existed between Mr. Brawner and Appellant
      during the quiet title action, the subsequent real estate
      transaction, and, to an extent, through the subsequent
      administration of the estate.

Orphans’ Court Opinion, 7/21/2016, at 10–11 (footnotes omitted).

      Appellant contends the Atkinson case lends support to his position

because, in Atkinson, this Court held that the plaintiff’s/appellant’s

subjective belief that the attorney client relationship existed “was an

insufficient basis upon which to find there existed a genuine issue of material

fact precluding summary judgment.”            Atkinson, 622 A.2d 987–988.

Appellant maintains “[t]here is absolutely no evidence in the record that

would show that George Brawner ever sought Mr. Wise’s advice in any

estate matter before or after the sale of the Property nor that the Estate of


                                     - 15 -
J-A02005-17


Thomas Brawner, Jr., ever understood Mr. Wise to be general counsel.”

Appellant’s Brief at 19.

      The evidence presented at trial showed that on March 24, 2014, prior

to closing, Appellant addressed a letter to George Brawner, Edward Brawner,

and Arnold Wainstein, Esquire, counsel for Charmaine Brawner, stating that

he “represented the [E]state of Thomas Brawner, Sr.,” and explained that

the proceeds would be “distributed in three equal shares to the three heirs

(or their Estate).” Letter from Appellant, 3/24/2014 (Exhibit P-1A; Wise

Exhibit 15).   This letter is clearly related to the sale of the real estate, and

Appellant attended the closing with George Brawner on June 9, 2014.

      The only evidence of legal services provided after the closing was the

preparation of a family settlement agreement sent to Arnold Wainstein,

Esquire, for Charmaine Brawner’s signature.       See “Receipt, Release, and

Indemnity Agreement,” 6/11/2014 (Wise Exhibit 14).             See also N.T.,

10/29/2015, at 32-34, 37. As such, the record only partially supports the

orphans’ court’s determination that Appellant provided legal services to

George Brawner in addition to the quiet title action. The extent and value of

those services is to be determined on remand, as discussed below.

      In his fifth issue, Appellant claims the orphans’ court erred in finding

that he took his fee from the Estate funds, and in ordering him to disgorge

his fee and costs related to the quiet title action and clearing the title for

sale of 303 N. 41st Street.      Specifically, the orphans’ court surcharged


                                     - 16 -
J-A02005-17


Appellant and ordered him to disgorge his entire fee, including costs, of

$14,845.00 that he had been paid at the property closing.

     “Attorneys and executors seeking compensation from an estate have

the burden of establishing facts which show the reasonableness of their fees

and entitlement to the compensation claimed.” In re Estate of Rees, 625

A.2d 1203, 1206 (Pa. Super. 1993) (citation omitted). Guidelines for making

a determination of appropriate attorney fees in the absence of a contract

have been set forth by the Pennsylvania Supreme Court in LaRocca Estate,

246 A.2d 337 (Pa. 1968):

     The facts and factors to be taken into consideration in
     determining the fee or compensation payable to an attorney
     include: the amount of work performed; the character of the
     services rendered; the difficulty of the problems involved; the
     importance of the litigation; the amount of money or value of
     the property in question; the degree of responsibility incurred;
     whether the fund involved was "created" by the attorney; the
     professional skill and standing of the attorney in his profession;
     the results he was able to obtain; the ability of the client to pay
     a reasonable fee for the services rendered; and, very
     importantly, the amount of money or the value of the property in
     question. Huffman Estate (No. 3), 349 Pa. 59, 64, 36 A.2d
     640; Bickel Appeal, 388 Pa. 270, 276, 130 A.2d 498; Fraiman
     Estate, 408 Pa. 442, 448, 184 A.2d 494; Thompson Estate,
     426 Pa. 270, 282, 232 A.2d 625. A larger fee than usual is
     likewise frequently awarded when an attorney “creates” a fund.

     By now it is hornbook law that the reasonableness of the fee is a
     matter for the sound discretion of the lower Court and will be
     changed by an appellate Court only when there is a clear abuse
     of discretion.

LaRocca Estate, supra, 246 A.2d at 339.




                                   - 17 -
J-A02005-17


      We recognize that technically Appellant’s fees were taken from the

gross sale price of the property, and not from the net proceeds as was the

$16,500.00 commission that George Brawner paid himself. However, the

real estate property was the only asset in the Estate and, therefore, whether

Appellant took his fees at or after closing, Appellant’s fee is subject to

LaRocca’s reasonableness test.

      Here, the orphans’ court determined Appellant’s fee of $14,845.00 was

“grossly excessive,” stating:

      George Brawner’s ability to pay, even in his capacity as
      Administrator, was limited by the small estate available, already
      reduced by various costs and a $20,000 “release.” The LaRocca
      court’s final “very important” factor, the amount of funds
      available, weighs heavily against a fee as large as the one
      Appellant charged, which is almost 14% of the gross estate.

Orphans’ Court Opinion, 7/21/2016, at 13 (footnote omitted). Additionally,

the orphans’ court opined that, while Appellant’s total of 53 hours of legal

work represented a “significant” expenditure of time, “[t]he overall outcome

of the representation was not satisfactory, resulting in the instant litigation.”

Id. The orphans’ court credited George Brawner’s testimony that “Appellant

advised him that he did not need to make a distribution to Charmaine

Brawner, either in her individual capacity or her capacity as Administrator of

Thomas Jr.s’ [E]state.” Id. at 13 (footnote omitted).

      The orphans’ court cited In re Lohm’s Estate, supra, for the

principle that “[t]he award of counsel fees presupposes not only that legal

services were performed, but that they were performed satisfactorily.” Id.,

                                     - 18 -
J-A02005-17


269 A.2d at 456.10          Applying Lohm and LaRocca, the orphans’ court

“declined to award Appellant any fee from the estate because of the

extremely deleterious effect his involvement has had on the estate.”

Orphans’ Court Opinion, 7/21/2016, at 14.

       Based on our review, we conclude the orphans’ court abused its

discretion in determining Appellant is not entitled to any fee from the

Estate, and that he also must disgorge the amount of $1,595.00 that he

received as reimbursement for costs. See Wise Exhibit 13.

       As the orphans’ court recognized in its opinion, “Mr. Brawner initiated

an attorney-client relationship with Appellant by seeking out his services,

first with regard to the civil quiet title action or otherwise, in 2012.”

Orphans’ Court Opinion, 7/21/2016, at 10 (footnote omitted). According to

Appellant’s invoice, Appellant performed 43 hours of work related to the

quiet title action, and 10 hours of work related to “Administration: Estate of

Thomas Brawner” and “Prepare/Appear [Redevelopment Authority] Vacant

Land Comm.”         Wise Exhibit 13. The 43 hours of work was invoiced at




____________________________________________


10
   Lohm involved two attorneys tasked with filing a federal estate tax
return, who failed to file a timely return and caused the estate to suffer a
large loss.    The Pennsylvania Supreme Court surcharged counsel for
negligence and ruled that neither attorney was entitled to a fee award. See
id., 269 A.2d at 457.



                                          - 19 -
J-A02005-17


$10,750.00, the additional 10 hours of work was invoiced at $2,500.00, and

reimbursement of legal fees was invoiced at $1,595.00.11 See id.

        The   evidence     showed      the     quiet   title   litigation   was   resolved

satisfactorily on January 30, 2014,12 when the Honorable Judge Idee Fox

struck the fraudulent deed and the property was returned to the Estate of

Thomas Brawner, Sr.          But for the success of the quiet title action, the

property that had been fraudulently transferred by Thomas Brawner, Jr., to

himself, would not have been an asset of Thomas Brawner, Sr.’s Estate.

See N.T., 10/29/2015, at 52-53.                Furthermore, Appellant arranged the

$20,000.00 release with the original buyer found by George Brawner, who

had an agreement to pay $25,000.00 for the property. This release allowed

the property to proceed to closing with the buyer secured by Charmaine

Brawner, who paid $106,200.00.13 Hence, Appellant’s handling of the quiet

title action was successful, and there was no loss to the Estate. Therefore,

the orphans’ court should have reviewed Appellant’s bill for 43 hours for the



____________________________________________


11
  Although Appellant itemized the 43 hours of work on the quiet title action,
he did not itemize the remaining 10 hours. See Wise Exhibit 13.
12
     See N.T., 10/29/2015, at 52; Wise Exhibit 10 (Civil Docket Record).
13
   In its Adjudication, the orphans’ court dismissed the objections raised at
trial pertaining to the release paid to DDE Investments, LLC.            See
Adjudication, dated 3/9/2016, at 9.




                                          - 20 -
J-A02005-17


quiet title action to determine whether the amount of time and hourly rate

were appropriate for the work performed by Appellant.

       The 10 hours of Appellant’s legal work for estate administration is a

separate consideration.14 Here, the orphans’ court found:

       Appellant, either by commission or omission, is at least partly
       responsible for the losses to the [E]state caused by George
       Brawner’s actions as Administrator D.B.N., who on numerous
       occasions stated that Appellant advised him that he did not need
       to make a distribution to Charmaine Brawner, either in her
       individual capacity or her capacity as Administrator of Thomas
       Jr. ’s [E]state.25
       ________________________________________________________


           25
            See, e.g., Notes of Testimony, October 29, 2015, p.
          86.
       ___________________________________________

       Even if he never advised George Brawner not to make a
       distribution to the Estate of Thomas Brawner, Jr., Appellant had
       an obligation to disabuse him of the incorrect but foreseeable
       notion that nothing was owed to the estate of a now deceased
       heir who survived the decedent.

Orphans’ Court Opinion, 7/21/2016, at 13. We find no support in the record

for this finding.

       The evidence presented at trial included Appellant’s March 24, 2014,

letter regarding the property settlement, which was addressed to George

Brawner, Edward Brawner, and the attorney for Charmain Brawner, and

____________________________________________


14
   The invoice date for these 10 hours is April 15, 2014. See Wise Exhibit
13. It appears that the only legal work performed by Appellant for the
Estate after the June 9, 2014 closing was the June 11, 2014 release/family
settlement agreement.



                                          - 21 -
J-A02005-17


clearly explained the Estate was to be divided into thirds. See Exhibit P-1A;

Wise Exhibit 15. In addition, the post-settlement release prepared and sent

by Appellant on June 11, 2014, to Charmaine Brawner’s attorney, indicated

there would be distribution of the Estate in three equal shares.     See Wise

Exhibit 14.

      Appellant testified that at all times he advised George Brawner that

the Estate monies were to be divided equally among the three heirs. See

N.T., 10/29/2015, at 39-41, 47.      Furthermore, the evidence showed that

Appellant did not hold the proceeds of the sale or have a checkbook for the

Estate. See id. at 39–40, 93–94.

      At trial, George Brawner testified:

      I told Charmaine that Wise had told me that there was no
      payment on the basis that the lawyer didn’t sign the agreement
      or papers that she was supposed to sign and that’s why I didn’t
      have to give up the money. He told me it was a forfeiture of the
      agreement that was supposed to be made on the basis of
      the one third distribution.

      So she told me she was going to see about that in court to know
      what was going on. But I told her that Wise didn’t do what I told
      him to do. On the basis I told Wise that the contract was based
      on the $106,200 that for me to sell the property, Charmaine had
      something to do with this to sell the property, the broker.

      And I told Wise, I said, let me talk to the broker, because the
      property is in [sic] my responsibility now. And I said, let me talk
      to the broker, you understand. And I told – to have the broker
      give the money back to the people that was going to be buying
      the property, $3,000 to the broker.

      Wise said, okay. I take care of that. But when I got the
      receipts, I find out he didn’t do what I told him to do.


                                    - 22 -
J-A02005-17


N.T., 10/29/2015, at 86–87 (emphasis added).

      We recognize that the orphans’ court made a credibility determination

and accepted George Brawner’s testimony that Appellant advised him that

he did not need to make a distribution to the Estate of Thomas Brawner, Jr.

However, the documentary evidence that showed George Brawner was

properly advised regarding a one-third distribution, which he clearly ignored.

George even testified that he understood there was “supposed” to be a one-

third distribution.   Id. at 86. Therefore, the record does not support the

orphans’ court’s finding that Appellant did not attempt to disabuse George

Brawner of his notion that Thomas Brawner, Jr.’s Estate was not entitled to a

one-third share of the Estate of Thomas Brawner, Sr.

      Furthermore, there is no evidence that Appellant had control of the

Estate funds, and, in fact, the orphans’ court’s Adjudication identifies George

Brawner as “pro se” in these proceedings on the “First and Final Account of

George Brawner, Administrator.” See Adjudication, dated 3/9/2016, at 1.

Accordingly, the orphans’ court erred in its legal conclusion that Appellant

was responsible for George Brawner’s at risk distribution.       As such, the

orphans’ court’s reliance on Lohm as support for its decision to order

disgorgement of Appellant’s entire fee is misplaced.

      Therefore, based on our discussion, we vacate the portion of the

orphans’ court’s Decree surcharging Appellant and requiring disgorgement of

the amount of $14,845.00, and remand this case to the orphans’ court to


                                    - 23 -
J-A02005-17


consider counsel’s fees (53 hours) under LaRocca, and to allow Appellant to

retain the $1,595.00 he was reimbursed for costs.

      Turning to the sixth issue, Appellant contends the orphans’ court erred

in holding him personally liable for the surcharge imposed against George

Brawner in the amount of $16,500.00, to the extent that amount is not

recoverable against George Brawner. Appellant argues that “[t]he only

credible evidence in the record shows that Mr. Wise advised Mr. Brawner

that the proceeds of the Property [are] to be divided into three shares.”

Appellant’s Brief at 29-30.

      In his seventh issue, Appellant claims that the orphans’ court abused

its discretion in holding Appellant responsible for distribution of a one-third

share from the Estate of Thomas Brawner, Sr., to the Estate of Thomas

Brawner, Jr. Appellant has argued these issues together.

      By way of background, the orphans’ court surcharged George Brawner

the amount he took as his commission, $16,500.00, finding that “the

services actually performed by the Administrator D.B.N. were clearly

unsatisfactory or non-existent[.]” Adjudication, dated 3/9/2016, at 5. We

find no fault with this determination.

      In holding Appellant personally liable for the amount of the surcharge

assessed against George Brawner in the amount of $16,500.00, to the

extent this amount is not recoverable against George Brawner, the orphans’

court reasoned:


                                     - 24 -
J-A02005-17


     The duty that Appellant owed to the beneficiaries of Decedent’s
     Estate was derived from that of his client, the administrator –
     namely, to fairly and efficiently administer the estate according
     to the law, exercising the care that a man of ordinary prudence
     would in the administration of his own estate, and “to see that
     [his] purely private interests were not advanced at the expense
     of the estate.” Estate of Pew, 440 Pa. Super. 195, 236 (1994)
     (citations omitted); In re Pitone’s Estate, 489 Pa. 60, 66
     (1980) (citing Herman’s Estate, 90 Pa. Super. 512 (1927)).
     Finally, where a fiduciary possesses skills that the “ordinary
     person” does not possess, and which are applicable to the
     discharge of his duties, the standard of care by which he must
     act will be elevated accordingly. In re Killey’s Estate, 457 Pa.
     474, 477 (1974).

     Here, Appellant had a duty that devolved to him through his
     representation of the Administrator, but as a practicing attorney,
     he was held to a higher standard and was bound to act as a
     prudent attorney would under the circumstances. By failing to
     take steps appropriate to an attorney, like ensuring that Mr.
     Brawner distributed estate assets to estate beneficiaries
     appropriately or ensuring that Mr. Brawner was given proper
     advice regarding the distribution of proceeds, Appellant breached
     his duties and caused harm to the beneficiaries of Decedent’s
     estate, which would have been whole but for his inaction.

     Mr. Brawner indicated that at trial he had dissipated the funds
     that he had distributed to himself, and that his brother Edward
     was now insolvent. Further, as noted above, the Trial Court
     found that Appellant bore at least some responsibility for the
     harm caused by Mr. Brawner as administrator of the estate in
     that Appellant failed to take ordinary precautions.

Orphans’ Court Opinion, 7/21/2016, at 14-15.      Based on our review, we

conclude the orphans’ court abused its discretion and committed an error of




                                   - 25 -
J-A02005-17


law in holding Appellant personally liable for the surcharge imposed against

George Brawner.15

        When the closing occurred on June 9, 2014, the check for the net

proceeds was made payable to the Estate, and George Brawner took the

check in his capacity as Administrator.16, 17 Shortly thereafter, he opened an

account and deposited the proceeds in a bank.18         At trial, when he was

asked when he moved the money into Edward Brawner’s account, George

testified “10, 15 days, something like that.”      N.T., 10/29/2015, at 94.19

However, Appellant’s pre–closing letter of March 24, 2014, letter advised the

Estate proceeds were to be divided equally among the three heirs.20      This

____________________________________________


15
     We find the case law cited by the orphans’ court unpersuasive.
16
     N.T., 10/29/2015, at 40, 79, 90.
17
   It would not be not unusual for an administrator to maintain control of
estate funds to minimize legal fees for estate administration.
18
     Id. at 93–94.
19
   George Brawner’s pro se Account attaches two receipts, both dated June
18, 2014, that show distributions to himself and his brother, respectively, of
$20,511.00, i.e., one-half of the Estate proceeds left after George Brawner
paid himself $16,500.00 for administrator’s fees. See Account, filed
12/2/2014. George Brawner’s failure to make a one-third distribution to
Charmaine Brawner, in her capacity of Administratrix of the Estate of
Thomas Brawner, Jr., is particularly egregious since it was Charmaine who
found the buyer who agreed to pay $106,200.00 for the property.
20
   “In the event the sale is approved and all claims are settled, it is
anticipated that proceeds, after payments of settlements, commissions,
taxes, expenses, and fees will amount to approximately $60,000, to be
(Footnote Continued Next Page)


                                          - 26 -
J-A02005-17


distribution   scheme       is   confirmed       by   the   post-closing   release/family

settlement agreement, which was prepared by Appellant on June 11, 2014,

and executed by Charmaine Brawner on June 24, 2014. See N.T., 32-33;

Wise Exhibit 14.

      After closing, Appellant had no control over the Estate funds.

Furthermore, there was no testimony that Appellant was consulted by

George Brawner when he paid himself the $16,500.00 commission or that

George Brawner consulted Appellant about distributing the Estate funds

before the family settlement agreement was signed by all parties. George

Brawner made an illegal, at risk distribution for which he is solely

liable.21   See 20 Pa.C.S. §§ 3532, 3533.                   See also In re Estate of

Geniviva, 675 A.2d 306, 311 (Pa. Super. 1996) (finding “executor’s reliance

on counsel does not provide him with immunity in this instance”; “[t]he

                       _______________________
(Footnote Continued)

distributed in three shares to the three heirs (or their Estate.)” Letter from
Appellant to Arnold Wainstein, Esquire, Edward Brawner, and George
Brawner, 3/24/2014 (Exhibit P-1A; Wise Exhibit 15).
21
   Charmaine Brawner, Administratrix of the Estate of Thomas Brawner, Jr.,
initiated the petition for citation seeking to hold Appellant responsible for the
Estate monies, in an attempt to make a successful recovery. She filed the
petition for citation against Appellant on February 27, 2015. By that time,
George Brawner had filed a pro se Answer to her amended petition for a
citation for an accounting, had filed his Account that showed distribution of
all Estate funds to himself and his brother, Edward, and had failed to appear
at the February 17, 2015 hearing as ordered by the court. See Decree,
3/25/2015 (issuing bench warrant for George Brawner for failure to appear
at February 17, 2015 hearing).




                                           - 27 -
J-A02005-17


ultimate responsibility for the payment of estate taxes falls upon the

executor.”).


       Even accepting the orphans’ court’s credibility determination that

Appellant failed to disabuse George Brawner of the incorrect notion that he

did not have to distribute a one-third share to Thomas Brawner’s Estate, the

orphans’ court erred in its legal conclusion that Appellant can be held

personally liable for George Brawner’s illegal actions. The petition filed by

Charmaine Brawner provides no basis upon which to hold Appellant

personally liable for the surcharge imposed against George Brawner for

Administrator’s fees of $16,500.00, to the extent that amount is not

recoverable against George Brawner.

       In sum, while we recognize the Estate of Thomas Brawner, Jr., never

received its rightful one-third share of the Estate of Thomas Brawner, Sr.,

we conclude that Appellant cannot be held liable for George Brawner’s

actions.

       Accordingly, we vacate the portion of the Decree surcharging Appellant

and ordering him to disgorge his fee of $14,845.00, and remand for the

orphans’ court’s consideration of the appropriate amount of Appellant’s fee

under LaRocca;22 and we vacate the portion of the Decree that makes

____________________________________________


22
   In the event the orphans’ court declines to approve Appellant’s total legal
fee, any amount not approved should be ordered to be disgorged, payable to
the Estate of Thomas Brawner, Sr., as each beneficiary would be entitled to
(Footnote Continued Next Page)


                                          - 28 -
J-A02005-17



Appellant personally liable for the surcharge imposed against George

Brawner, in the amount of $16,500.00, to the extent this amount is not

recoverable from George Brawner. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




                       _______________________
(Footnote Continued)

one third of those amounts, reduced by the improper at risk distributions of
George Brawner.



                                           - 29 -
