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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: THE ESTATE OF IRENE G.              :   IN THE SUPERIOR COURT OF
    USCHOCK                                    :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: WILLIAM USCHOCK                 :
                                               :
                                               :
                                               :
                                               :   No. 23 WDA 2018

                   Appeal from the Order December 18, 2017
            In the Court of Common Pleas of Westmoreland County
                     Orphans' Court at No(s): 65-08-0671


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                    FILED JULY 24, 2018

       William Uschock appeals, pro se, from the order entered December 18,

2017, in the Court of Common Pleas of Westmoreland County, which granted

his brothers’, Richard Uschock and David Uschock, petition to remove William

Uschock as co-executor of the estate of their deceased mother, Irene G.

Uschock (“Estate”) pursuant to 20 Pa.C.S. § 3128.1              William Uschock

complains the trial court erred in removing him as executor of the Estate.

Based upon the following, we affirm.

       The facts underlying the Orphans’ Court’s order are as follows.        On

March 16, 2008, Irene G. Uschock passed away.             See Death Certificate,



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1The Orphans’ Court order is appealable under the collateral order doctrine.
See Pa.R.A.P. 313; In re Estate of Mumma, 41 A.3d 41, n.1 (Pa. Super.
2012).
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3/19/2008, at 1. Her Will was probated and the Estate was opened on May

1, 2008. See Certification of Notice of Estate Administration, 5/19/2008. An

inheritance tax return was filed and accepted by the Pennsylvania Department

of Revenue on April 27, 2009. See Notice of Inheritance Tax Appraisement,

4/27/2009. The Estate is insolvent. See id.

        Irene Uschock’s Will named her five children, Richard Uschock, David

Uschock, William Uschock, Diane Santmyer, and Patricia Glott as co-executors

and equal residuary beneficiaries of the Estate. See Last Will and Testament,

7/22/1991, at SECOND - THIRD. Patricia Glott, Diane Santmyer, and Richard

Uschock renounced their rights as executors, leaving David Uschock and

William Uschock as the remaining co-executors.2 See N.T., 12/14/17, at 5.

        The principal assets of the Estate include several parcels of land in Mt.

Pleasant Township, including a farm, and a smaller plot of land containing a

furniture store and two other buildings. See id., at 6-7. The Will provided,

in pertinent part: “I direct that my co-executors get together to divide the

farm in a manner they can agree to or by majority vote.”3          Last Will and

Testament, 7/22/1991, at FOURTH.



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2   Patricia Glott and Diane Santmyer are not a part of this appeal.

3 Due to the reluctance of the executors to pay for an appraisal of the assets,
the values as stated on the Inheritance Tax Return were calculated by
multiplying the assessed values by the common level ratio. See N.T.,
12/14/17, at 18.


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Since the Estate was opened in 2008, no action has been taken to finalize and

close the Estate for approximately nine years, largely due to the reluctance of

William Uschock to cooperate in settling the Estate and paying its debts. See

id., at 62-63. His co-beneficiaries and co-executor approached him “dozens”

of times regarding the sale or lease of the large farm property, and he rejected

their proposals.4 Id. Meanwhile, he continued to occupy the property for his

own personal use.5 See id., at 40. To the present day, he cultivates the

farm, and uses the family furniture store to store his farming equipment and

to sell his personal fruits and vegetables. See id.

       On multiple occasions, other beneficiaries attempted to discuss

solutions with William Uschock and were rejected. When approached about

listing the farm property, he continually insisted on delaying any potential

sale.6 See id., at 39. Richard Uschock testified that he attempted to hand

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4There have been occasional rentals for the two residences on the smaller
parcel. See N.T., 12/14/2017, at 26.

5 Richard Uschock testified he was not aware of any payments made by
William Uschock to the Estate in exchange for the use of the land. See N.T.,
12/14/2017, at 30. William Uschock disputed this and claimed that he used
the funds from his use of the land to pay down the debts of the Estate, but
the trial court found Richard Uschock’s testimony to be more credible. See
id., at 76. William Uschock also claimed his use of the property was pursuant
to an agreement with his father, who predeceased his mother. See id., at
42-43. Even if such an agreement existed, the provisions of the Will control
the disposition of the farm.

6William Uschock claimed he wished to maximize the value of the Estate by
waiting to sell until the “turnpike interchange… comes through,” which he



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his brother information about the valuation of the property, which William

Uschock refused to take.         See id., at 54-55.       Similarly, when the other

brothers identified a potential lessee for the farm property in the spring of

2017, William Uschock refused, told them he would be farming the land, and

refused to sign the lease. Id., at 28. He remained adamant even after the

family voted to go forward with the lease. See id., at 66-67.

        Since 2008, the assets of the Estate were placed at risk on numerous

occasions due to its insolvency. Other family members were forced to pay

real estate taxes out-of-pocket in order to protect the real estate from a tax

sale.   See N.T., 12/14/2017, at 8.            Richard Uschock testified he received

notice several times that mortgage payments were delinquent. See id., at

31. Additionally, William Uschock’s placement of his farm equipment on the

furniture store parcel caused the family’s insurance provider to threaten to

rescind its coverage. See Loss Control Recommendations Letter, 6/21/2017,

at 1. The equipment was subsequently removed at the expense of the Estate.

See N.T., 12/14/2017, at 56.

        On July 21, 2017, Richard and David Uschock petitioned for William

Uschock’s removal as co-executor of the Estate. The case proceeded to a


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contended would “maybe triple” the value of the property. N.T., 12/14/2017,
at 79-80. He relied on nothing but his own non-expert evaluation of the
property’s future value to support this contention. See id., at 80-83.




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hearing on December 14, 2017. On December 18, 2017, the Orphans’ Court

issued an order removing him as co-executor. This pro se appeal followed.7

       Before we address the merits of this appeal, we note the pro se brief

William Uschock submitted to this Court has substantial defects.                See

Pa.R.A.P. 2111. It does not contain a statement of jurisdiction or a statement

of questions presented. See William Uschock’s Brief at 1-2. More importantly,

it fails to cite to authority entirely, and does not contain any meaningful

discussion of the issue raised. See id. It consists of two handwritten pages,

and baldly states that the Orphans’ Court acted “without an iota of evidence

to show cause,” without indicating where the evidence is lacking in the

reasoning.8 Id. at 2.

       We are guided by the following: “When issues are not properly raised

and developed in briefs, when the briefs are wholly inadequate to present

specific issues for review[,] a Court will not consider the merits thereof.”

Commonwealth v. Maris, 629 A.2d 1014, 1017 (Pa. Super. 1993).

Moreover,

       [w]hile this court is willing to liberally construe materials filed by
       a pro se litigant, we note that appellant is not entitled to any
       particular advantage because []he lacks legal training. As our
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7The Orphans’ Court did not order William Uschock to file a concise statement
of errors complained of on appeal under Pa.R.A.P. 1925(b), but did issue an
opinion under Pa.R.A.P. 1925(a) on February 6, 2018.

8 Likewise, William Uschock’s reply brief merely recites facts that contravene
those adopted by the Orphans’ Court, and does not cite to authority or develop
any analysis. See William Uschock’s Reply Brief at 1-3.

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      supreme court has explained, “any layperson choosing to
      represent [himself] in a legal proceeding must, to some
      reasonable extent, assume the risk that [his] lack of expertise and
      legal training will prove [his] undoing.”

Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996) (citation

omitted). Nevertheless, because we are able to discern the nature of the claim

raised as a challenge to his removal as executor, we will address William

Uschock’s appeal.

      Our standard of review for the findings of an Orphans’ Court is as

follows:

      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 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 Warden, 2 A.3d 565, 571 (Pa.Super. 2010) (citations and

quotations omitted).

      Section 3182 of the Probate, Estates, and Fiduciaries Code governs the

removal of executors and provides, in relevant part:

      The court shall have exclusive power to remove a personal
      representative when he:

      (1) is wasting or mismanaging the estate, is or is likely to become
      insolvent, or has failed to perform any duty imposed by law; or


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                                       ...

      (5) when, for any other reason, the interests of the estate are
      likely to be jeopardized by his continuance in office.

20 Pa.C.S. § 3182. With respect to Section 3182, the Pennsylvania Supreme

Court has stated:

      While, under that statutory provision, orphans' courts do have the
      power of removal of personal representatives and such removal
      lies largely within the discretion of such courts, an abuse of such
      discretion renders its exercise subject to appellate review. . . . Our
      present inquiry is whether the court below abused its discretion .
      ...

      In our review we are mindful of well settled principles in this area.
      An executor, of course, is chosen by the testator himself, and his
      appointment represents an expression of trust and confidence by
      the testator. Hence, his removal is a drastic action which should
      be undertaken only when the estate within the control of such
      personal representative is endangered. To justify the removal of
      a testamentary personal representative the proof of the cause for
      such removal must be clear.

In re Estate of Lux, 389 A.2d 1053, 1059 (Pa. 1978) (citations omitted).

“The personal interest of a fiduciary being in conflict with that of the estate

and the unfriendly feeling between the heirs constitute sufficient cause for

removal.” Id. at 1060, quoting Rafferty Estate, 105 A.2d 147, 148 (Pa.

1954).   “Where a conflict of interest or self-dealing is apparent from the

circumstances, there is no need to demonstrate that the fiduciary acted in bad

faith or with fraudulent intent.” In re Estate of Dobson, 417 A.2d 138, n.6

(Pa. 1980).

      Turning to the present matter, in removing William Uschock, the

Orphans’ court found the following:


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       Based upon the relevant testimony, the Court was able to
       establish that the estate has been open for over nine years [ ],
       and in that time no movement has been made towards finalizing
       and closing the estate. All parties credibly testified that this lack
       of movement was based on a refusal by William Uschock to agree
       to any sale of the at-issue real property, based on his own non-
       expert evaluation of the present and future value of said real
       property. It is evident that for the past nine years, William
       Uschock has been making use of said real property, while
       simultaneously refusing to move toward a resolution of the estate
       with his former co-executor Richard Uschock and his current co-
       executor David Uschock.         Co-executor David Uschock made
       known his intention to facilitate a liquidation and closing of the
       estate in order to facilitate a disbursement to all five (5) heirs to
       the estate as soon as possible. The December 18, 2017 Order
       was issued to expedite the closing of the simple estate at issue,
       based upon the testimony of the parties and witnesses listed
       above.

Orphans’ Court Opinion, 2/6/2018, at 1-2.           We agree with the court’s

conclusion.

       The record demonstrates that William Uschock persistently refused to

sign a lease, even after his co-executor and co-beneficiaries conducted a vote

in favor of signing.9 Additionally, by insisting upon waiting to sell, William

Uschock put the Estate assets at risk several times. Due to the insolvency of

the Estate, the delay of the sale resulted in missed mortgage and real estate

tax payments. This nearly led to a tax sale multiple times, which would have

deprived all beneficiaries of their rightful share of the Estate, and forced other

parties to contribute personal funds to save the property. The record is replete


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9 See Last Will and Testament, 7/22/1991, at FOURTH (stating “I direct that
my co-executors get together to divide the farm in a manner they can agree
to or by majority vote”).

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with evidence that William Uschock “[mismanaged] the estate.”          See 20

Pa.C.S. § 3182(1).     Accordingly, his removal is appropriate under Section

3182.

        Furthermore, we are guided by Lux, supra, in which our Supreme Court

affirmed an order removing an appellant as executor because she knowingly

failed to report assets of the estate. See Lux, 389 A.2d at 1060-61. The Lux

Court found the ruling in Rafferty Estate, 105 A.2d 147, 148 (Pa. 1954), in

which an order removing an administrator was affirmed, governed because

the appellant demonstrated “clear conflicts of interest” and caused “manifest

hostility” between herself and the other heirs. Id. at 1060.

        The Lux Court also noted that our Supreme Court had previously

distinguished Rafferty in DiMarco Estate, 257 A.2d 849, 854 (Pa. 1969), by

holding that a testator-chosen personal representative, rather than an

administrator, could not be removed “in the absence of a showing of injury by

reason thereof to the best interests of the estate.”    Id., quoting DiMarco

Estate, 257 A.2d 849, 854 (Pa. 1969). However, despite the Lux appellant’s

status as a testator-chosen executor, the Supreme Court ordered her removal

because her failure to report assets displayed a conflict of interest and her

continuance in office would put the estate at risk of injury going forward. Id.

        Similar to Lux, supra, William Uschock’s refusal to cooperate, coupled

with his personal use of the land, constituted a conflict of interest. William

Uschock caused animosity by frustrating his siblings’ efforts to sell the real


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estate and distribute the residue, if any. Moreover, his use of the land for his

personal farming operation is clearly at odds with the interest of the other

residuary beneficiaries in selling the real estate and settling the Estate as soon

as possible. Because of the nine years since the Estate has been opened and

exposed to risk, paired with William Uschock’s refusal to cooperate and his

personal interest in using the land, there is sufficient evidence to indicate the

interests of the Estate are “likely to be jeopardized by his continuance in

office.” 20 Pa.C.S. § 3182(5).

       We further note William Uschock was chosen by the testatrix as

executor, as in Lux, supra, and his removal is therefore a “drastic action”

taken only because the Estate would be otherwise endangered. Lux, supra,

389 A.2d at 1059. However, it is less drastic since David Uschock, who was

similarly chosen by the testatrix, remains as executor.10             See N.T.,

12/14/2017, at 90. Consequently, we conclude the Orphans’ Court did not

abuse its discretion in removing William Uschock as executor.

       William Uschock’s handwritten application for relief, filed May 14, 2018,

is denied as it is duplicative of the issues raised on appeal.

       Order affirmed. Application for relief denied.




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10David Uschock’s counsel assured the Orphans’ Court he would work to close
the Estate and to facilitate the disbursement of the assets as soon as possible.
See N.T., 12/14/2017, at 90.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2018




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