J-A24014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF ESTATE OF SARAH P.              IN THE SUPERIOR COURT OF
DELIBERTY, DECEASED                                    PENNSYLVANIA




APPEAL OF: PAMELA D’ALESSANDRO

                                                     No. 2636 EDA 2014


                Appeal from the Order Entered August 11, 2014
               In the Court of Common Pleas of Delaware County
                       Orphans' Court at No(s): 608-2009


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 13, 2015

       Appellant, Pamela D’Alessandro,1 appeals from the order entered in

the Delaware County Orphans’ Court confirming administrative costs and

fees to the court-appointed administrator of the estate of Sarah P.

DeLiberty, William A. Pietrangelo, Esquire.        D’Alessandro argues that

Attorney Pietrangelo’s failure to pursue a debt owed to the estate, as well as

failing to treat beneficiaries equitably during preliminary distribution, render

the award of costs and fees an abuse of discretion. We conclude that the



____________________________________________


*
  Retired Senior Judge assigned to the Superior Court.
1
  Formerly Palma D’Alessandro, and is referenced as such in many filings in
the certified record.
J-A24014-15


orphans’ courts findings are well supported by the record and its order does

not constitute an abuse of discretion. We therefore affirm.

      Sarah P. DeLiberty died on May 8, 2006.         Under her Will, Peter

DeLiberty, Pamela D’Alessandro, and Mario DeLiberty were appointed as co-

executors of Sarah’s estate.   Although there was clearly hostility between

them during this time, they administered the estate jointly until Peter’s

death in June, 2008.       In 2009, Mario DeLiberty approved advance

distributions of $100,000 to himself and to Peter’s widow, Stephanie

DeLiberty.

      In 2010, the conflict between Mario and Pamela came to a head over

Mario’s desire to collect a debt owed to the estate by Pamela’s son, Stephen

D’Alessandro.   Mario filed a petition to remove Pamela as a co-executor,

alleging that Pamela was failing to perform her fiduciary duty by refusing to

pursue this debt.    Pamela filed an answer asserting that there was no

evidence of the debt, and that her refusal to pursue the debt was therefore

reasonable.

      After a hearing on the petition, the orphans’ court entered an order

removing both Pamela and Mario as co-executors.          In their stead, the

orphans’ court appointed Attorney Pietrangelo as Administrator CTA of the

estate.   Attorney Pietrangelo proceeded to collect the debt from Stephen,

ultimately obtaining a judgment against Stephen in the amount of

$153,963.29.


                                    -2-
J-A24014-15


       Mario subsequently filed an account of his actions as co-executor of

the estate, which included acknowledgement of the advance distributions to

himself and Stephanie. This accounting was approved by the orphans’ court

as Mario’s final accounting as co-executor of the estate.

       Approximately 2 years later, in 2013, Attorney Pietrangelo filed a

petition for administrative costs and fees.               Attorney Pietrangelo filed a

supplemental petition for fees and costs in 2014, and on August 12, 2014,

the   orphans’      court   entered    an      order   awarding   Attorney    Pietrangelo

$59,983.19 in fees and costs. This timely appeal followed.2

       On    appeal,    Pamela    does      not     challenge   the    reasonableness    or

appropriateness of any of the listed fees claimed by Attorney Pietrangelo.

Rather, Pamela asserts that since Attorney Pietrangelo has (a) failed to

collect an alleged debt owed to the estate by Peter and (b) refused to

provide her with an advance distribution of $100,000 from the estate, he

has violated his fiduciary duty and should not receive payment at all.

Therefore,    for    purposes     of   this     appeal,   we    need    not   assess    the

reasonableness or appropriateness of the fees claimed, but rather only

whether Attorney Pietrangelo has breached his fiduciary duty.

       Our standard of review is as follows:

____________________________________________


2
 We conclude that Pamela correctly invokes our jurisdiction under Pa.R.A.P.
342(a)(1), as Attorney Pietrangelo’s petitions constituted partial accountings
of the estate. See Rule 342, Note.



                                              -3-
J-A24014-15


      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.

      The rule is particularly applicable to the 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 [an] Orphans’ Court has derived from those
      facts.

In re Wilton, 921 A.2d 509, 513 (Pa. Super. 2007) (brackets in original;

citation omitted).

      As noted above, Pamela does not challenge the reasonableness of any

of the fees claimed by Attorney Pietrangelo; rather, she asserts breaches of

fiduciary duty.   However, Pamela did not file a petition seeking to remove

Attorney Pietrangelo as administrator. Instead, she raised these issues in an

answer to Attorney Pietrangelo’s request for payment of costs and fees.

      As a purely technical matter, neither of the arguments presented by

Pamela on appeal constitute grounds for disallowing the fees and costs

claimed by Attorney Pietrangelo.       If established, they are grounds for

removing Attorney Pietrangelo as administrator, and then possibly, at least




                                      -4-
J-A24014-15


with respect to the first argument,3 a basis for surcharging Attorney

Pietrangelo due to the breach of fiduciary duty. As Pamela did not request

either the orphans’ court or this court to (a) remove Attorney Pietrangelo as

administrator, or (b) surcharge Attorney Pietrangelo, we can divine no

reason to reverse the orphans’ court’s order approving the petition filed by

Attorney Pietrangelo.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015




____________________________________________


3
  Pamela’s first argument, that Attorney Pietrangelo failed to pursue and
collect an alleged asset of the estate, would justify a surcharge against
Attorney Pietrangelo if established.     With respect to Pamela’s second
argument, that Attorney Pietrangelo has refused an advance distribution to
her commensurate with the advance distributions given to Peter and Mario
before Attorney Pietrangelo’s involvement, we conclude that this would not
justify a surcharge even if established.



                                           -5-
