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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF EDMOND A.                 :   IN THE SUPERIOR COURT OF
    CONONGE, DECEASED                          :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: SUSAN M. CONONGE,               :
    ADMINISTRATRIX                             :
                                               :
                                               :
                                               :   No. 439 WDA 2019

               Appeal from the Decree Entered February 27, 2019
     In the Court of Common Pleas of Washington County Orphans' Court at
                              No(s): 63-13-0614


BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.:                            FILED APRIL 30, 2020

        Susan M. Cononge (“Wife”) appeals from the February 27, 2019

amended decree and schedule of distribution for the estate of her husband,

Edmond A. Cononge (“Decedent”). Appellee, Anna Cononge (“Daughter”)

seeks attorney’s fees and delay damages. We affirm the orphans’ court’s

decree and deny Daughter’s request for fees and damages.

        The relevant facts, as set forth by a previous panel of this Court, are as

follows:

              On May 3, 2013, Decedent died intestate. At the time of
           his death, Decedent was married to [Wife], who is not
           [Daughter’s] mother. [Daughter] and [Wife] are Decedent’s
           only heirs.

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*   Retired Senior Judge assigned to the Superior Court.
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              On November 24, 2014, [Wife][1] filed a First Account,
           which provided an accounting for the period from May 3,
           2013, through October 31, 2014. The First Account noted
           that during that period [Wife] had paid attorneys’ fees on
           an hourly basis totaling $10,640 but had not paid any
           administratrix commissions.

              The First Account also listed as part of the estate
           inventory Decedent’s 2011 Ford truck with an inventory
           value of $41,000 and the date-of-death balance on a truck
           loan as $36,476.00. At the time of his death, Decedent’s
           equity in the truck was $4,524.00. On June 25, 2013, the
           estate paid the outstanding balance on the truck loan.

              On December 23, 2014, [Daughter] filed objections to
           the First Account, in which she objected to the attorneys’
           fees of $10,640.00. She also objected to [Wife’s]
           commissions, although none had yet been paid. [Daughter]
           did not object to the listed inventory value of the truck, the
           date of death balance on the truck loan, or the pay-off of
           the truck loan by [the estate].

              On April 15, 2015, [Wife] filed the Second Account
           covering the period from November 1, 2014, through March
           31, 2015. The Second Account reflected the payment of an
           additional $3,410.00 in attorneys’ fees, calculated hourly
           (for a total of $14,050.00), and [Wife’s] commissions of
           $28,380.00. The Second Account also reflected the pay-off
           of the truck loan by [the estate]. [Daughter] did not file
           objections to the Second Account.

              On April 29, 2015, the orphans’ court held a hearing on
           the objections filed by [Daughter] to the First Account. At
           the hearing, [Daughter] did not object to the inventory
           value of Decedent’s Ford truck, the date of death balance
           on the truck loan, or [the estate’s] pay-off of the truck loan.
           Following the hearing, on May 5, 2015, the court entered an
           order, inter alia, denying [Daughter’s] objection to the
           attorneys’ fees, and approving future attorney’s fees to the
           extent allowable under the guidelines.

             On September 29, 2015, [Wife] filed the Third Account.
           On November 18, 2015, [Daughter] filed objections to this
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1   Wife serves as the administratrix of Decedent’s estate.

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          Account, in which she objected to, inter alia, (1) the
          attorney for [Wife] changing his fee calculation from an
          hourly rate to a percentage of the estate; and (2) the
          commission rate charged by [Wife, as administratrix].

             Following a hearing, on October 11, 2016, the court
          entered an Order granting in part and dismissing in part
          [Daughter’s] objections. In the Order, the court approved
          total attorney’s fees of $34,577.00 and total administratrix
          commissions of $14,833.00, and directed [Wife] to file a
          decree and schedule of distribution within 10 days. See Trial
          Ct. Order, 10/11/16.

             On November 14, 2016, pursuant to the court’s October
          11, 2016 Order, [Wife] filed a Petition Sur Audit Intestacy,
          a Supplemental Petition Sur Audit Intestacy, and a Schedule
          of Distribution. In the Supplemental Petition, [Wife]
          requested that the court award her Decedent’s Ford truck
          “in-kind.” [Wife] represented that she would pay [Daughter]
          $2,262.00 for her one-half interest in the $4,524.00 equity
          held in the truck by Decedent at the time of his death.

             That same day, the court signed and entered on the
          docket the Adjudication and Decree. [Daughter] timely
          appealed on December 9, 2016 [“first appeal”].

In re: Estate of Edmond A. Cononge, 179 A.3d 599 (Table) (unpublished

memorandum) (October 12, 2017).

        This Court, in a memorandum decision dated October 12, 2017,

remanded the case and directed the orphans’ court to determine the proper

value of the truck for distribution purposes but affirmed the orphans’ court’s

November 14, 2016 decree in all other respects. See id. Our Court specifically

held:

             [Daughter] was unaware of [Wife’s] intent to take the
          truck as an in-kind distribution prior to entry of the court’s
          November 14, 2016 final Order. Accordingly, the first
          opportunity she had to challenge this proposed distribution
          was by way of her December 9, 2016 Notice of Appeal. In
          her Rule 1925(b) statement, [Daughter] notified the

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         orphans’ court of the basis for her objection, thus providing
         the court with the opportunity to explain its ruling. We,
         therefore, conclude that [Daughter] preserved this issue for
         appeal.

             However, because the orphans’ court did not address the
         merits of the issue raised by [Daughter], and noted only
         that it “may have merit,” we are constrained to remand this
         matter for the court to make findings of fact and conclusions
         of law regarding the proper value of the truck for purposes
         of distribution and how it is to be distributed as an asset of
         the estate.

Id. at 10.

      After the parties had an opportunity to file further pleadings and a

hearing was conducted, the orphans’ court issued the October 9, 2018 order,

which, inter alia, established a schedule of distribution with the truck valued

at $41,000, but included the date of death loan balance, which had already

been satisfied with estate funds, as being split between the parties. After

Daughter filed a motion for reconsideration, the orphans’ court ultimately

issued the February 27, 2019 amended decree and schedule of distribution

here at issue. In the instant decree, the orphans’ court recognized that the

truck’s outstanding loan balance had already been paid using estate funds and

therefore would not be deducted again from the balance remaining for

distribution to the respective parties.

      Wife filed a timely appeal and a court-ordered Pa.R.A.P. 1925(b)

statement. The orphans’ court filed a responsive Pa.R.A.P. 1925(a) opinion.

Wife raises the following issue on appeal:

         1. Whether the orphans’ court erred as a matter of law in
            failing to address in the Rule 1925(a) opinion issues 5, 6,

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            7 and 8 that were raised in [Wife’s] Rule 1925(b)
            statement and whether this matter must be remanded to
            the orphans’ court with instructions to find that the
            distribution value of the truck is $4,524.00 and the value
            of [Daughter’s] interest is $2,262.00.

Wife’s Br. at 4.

      In her lone issue for review, Wife’s arguments all center around the

underlying contention that Daughter waived her claim regarding the truck’s

value for purposes of estate distribution. To this end, Wife maintains that in

the first appeal, this Court did not have the benefit of a complete record, which

would have established that Daughter had had the opportunity to object to

the truck’s valuation prior to the first appeal but did not. In furtherance of this

argument, Wife baldly asserts that the orphans’ court’s valuation of the truck

should have been barred by the doctrine of laches. At the core of Wife’s claim

is her contention that the orphans’ court should have valued the truck at

$4,524 (the equity amount in the truck prior to the payoff of the loan against

the truck, made with estate funds, in the amount of $36,476.00) rather than

at $41,000 (the appraised value of the truck). Wife does not argue that the

orphans’ court’s actual monetary calculations were incorrect.

      When we review an orphans’ court decree we employ a deferential

standard of review and “must determine whether the record is free from legal

error and the court’s factual findings are supported by the evidence.” In re

Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016) (en banc) (citation omitted).

Further, because the orphans’ court sits as the fact-finder, we will not reverse

credibility determinations absent an abuse of discretion. Id. “However, we are


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not constrained to give the same deference to any resulting legal conclusions.”

Id. (citation omitted).

      Further, because the current procedural posture of this case is a

challenge to the orphans’ court’s decision upon a remand with directives from

this Court, we particularly note that the orphans’ court is required to “strictly

comply with the mandate of the appellate court.” Carmen Enters., Inc. v.

Murpenter, LLC, 185 A.3d 380, 389 (Pa.Super. 2018) (citation omitted).

Thus, “[i]ssues not included in the mandate cannot be considered by the

trial court.” Id. (emphasis in original). In addition, the law of the case doctrine

requires that “upon a second appeal, an appellate court may not alter the

resolution of a legal question previously decided by the same appellate court.”

True R.R. Assocs., L.P. v. Ames True Temper, Inc., 152 A.3d 324, 337

(Pa.Super. 2016) (citation omitted).

      In the case sub judice, this Court, in the first appeal, concluded that the

issue of the valuation of the truck was not waived. Therefore, Wife’s

arguments to the contrary are precluded by the law of the case doctrine

because the issue of wavier of the valuation issue was specifically addressed

by this Court. See True R.R., 152 A.3d at 336-37. Moreover, this Court

specifically directed the orphans’ court to consider the issue of the truck’s

valuation and the court considered that issue and properly did not review any

other claim outside that mandate. See Carmen Enters., 185 A.3d at 389.

Indeed, the orphans’ court aptly concluded:




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             The orphans’ court submits that, after careful
          consideration of the record, the appropriate outcome was to
          award [Daughter] half the fair market value of the truck,
          without deduction for the loan balance which had been paid
          prior to distribution. In this case, the Decedent died
          intestate. As the Decedent’s surviving spouse, [Wife] is
          entitled to one half of the intestate estate, and [Daughter],
          as his surviving issue, who is not the issue of the surviving
          spouse, is entitled to the remaining one half of the intestate
          estate. See 20 Pa.C.S.A. 2101 and 2102. It is clear that
          estate funds were used to pay off the truck loan remaining
          at date of death, in the amount of $36,476. These estate
          funds would have otherwise been available for distribution
          to both heirs. The parties agreed that [Wife] would receive
          the truck in kind, which the parties agreed had a value of
          $41,000. [Daughter] was then entitled to receive an amount
          equal to half of the value of the truck, or $20,500.

Orphans’ Court Rule 1925(a) opinion at 10.

       We agree with the orphans’ court’s analysis and conclude that the court

did not err by determining that the truck’s value at the time of distribution

was $41,000. Thus, Wife’s sole issue on appeal does not warrant relief.

       Lastly, Daughter requests that we award counsel fees and delay

damages associated with this appeal. We may award counsel fees upon a

determination “that an appeal is frivolous or taken solely for delay or that the

conduct of the participant against whom costs are to be imposed is dilatory,

obdurate or vexatious.” Pa.R.A.P. 2744.2 “In determining the propriety of such
____________________________________________


2      Rule 2744 states:
          In addition to other costs allowable by general rule or Act of
          Assembly, an appellate court may award as further costs
          damages as may be just, including

          (1) a reasonable counsel fee and



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an award, we are ever guided by the principle that an appeal is not frivolous

simply because it lacks merit; rather, it must be found that the appeal has no

basis in law or fact.” Wallace v. State Farm Mut. Auto. Ins. Co., 199 A.3d

1249, 1257 n.12 (Pa.Super. 2018) (citation and brackets omitted). In the

instant case, while we hold that Wife’s appellate issue is meritless, we decline

to conclude her appeal “has no basis in fact or law.” See id. Therefore, we

deny Daughter’s request for counsel fees and damages.

       Decree affirmed. Request for counsel fees and damages denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2020




____________________________________________


          (2) damages for delay at the rate of 6% per annum in
          addition to legal interest,
          if it determines that an appeal is frivolous or taken solely for
          delay or that the conduct of the participant against whom
          costs are to be imposed is dilatory, obdurate or vexatious.
          The appellate court may remand the case to the trial court
          to determine the amount of damages authorized by this
          rule.
Pa.R.A.P. 2744.

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