J-A31006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF: JOHN C. WHITEHEAD,                     IN THE SUPERIOR COURT OF
DECEASED                                                PENNSYLVANIA

APPEAL OF: KENNETH L.R. WHITEHEAD,
ADMINISTRATOR D.B.N. OF THE ESTATE
OF JOHN C. WHITEHEAD, DECEASED
                                                      No. 1219 EDA 2016


                     Appeal from the Decree March 14, 2016
              In the Court of Common Pleas of Philadelphia County
                 Orphans' Court at No(s): O.C. 1418 DE of 2004


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 18, 2017

        Kenneth L.R. Whitehead (“Kenneth”), Administrator d.b.n. of the

Estate of John C. Whitehead (“Decedent”), appeals from the decree, dated

March 14, 2016, that removed him as the Administrator d.b.n. of the Estate

in response to the Removal Petition filed by Aaliyah Castro (“Aaliyah”), a

party in interest.1     In granting the Petition, the orphans’ court determined

that Kenneth “willfully fail[ed] to comply with a [c]ourt-approved Stipulation

to file an account.” Trial Court Opinion (TCO), 6/15/16, at 1 (unnumbered).

We affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  In Kenneth’s brief, he explains that Decedent was a member of a recording
and composing duo, McFadden and Whitehead, that had apparently been
quite successful. Kenneth also discusses Decedent’s marital history and the
fact that an IRS lien of nearly $5,000,000 exists against the estate, thus,
essentially leaving it insolvent. Kenneth also emphasizes that due to the IRS
lien any royalties due to the estate were paid directly to the IRS.
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     The    orphans’   court   opinion   provides   the   following   background

information:

     John C. Whitehead (“Decedent”) died testate on May 11, 2004.
     The Register of Wills of the County of Philadelphia accepted the
     Decedent’s Will for probate on June 25, 2004 and issued Letters
     Testamentary to Elnor Whitehead. Following objections to Elnor
     Whitehead’s December 8, 2008 Account, the Court issued a
     Decree dated May 6, 2009 removing Elinor [sic] Whitehead as
     Executrix. On May 28, 2013, the Register of Wills issued Letters
     of Administration d.b.n. to Kenneth. On October 14, 2015,
     Aaliyah Castro (“Aaliyah”), a beneficiary of the Estate, filed a
     Petition for a Citation, directed to Kenneth, then-Administrator of
     the Estate, to show cause why he should not file an [A]ccount of
     his administration of the Estate. In a Preliminary Decree dated
     [o]n October 22, 2015, this Court awarded that Citation. The
     attorney for Aaliyah and the attorney for Kenneth then entered
     into a Stipulation whereby Kenneth would “file an Account and
     statement of the status of his administration of the Estate …
     within thirty (30) days of the approval of this Stipulation by the
     Court” and, in exchange, Kenneth would not be obligated to
     respond to the Petition. On December 21, 2015, this Court
     approved the Stipulation.

     Kenneth never filed an Accounting, which was due January 20,
     2016, or requested an extension of time. On March 2, 2016,
     Aaliyah filed a Petition to Remove Kenneth as Administrator of
     the Estate. In a Decree dated March 14, 2016, this Court,
     without a hearing,1 removed Kenneth as Administrator of the
     Estate.    On March 24, 2016, Kenneth filed a Petition for
     Reconsideration, which this Court denied in a Decree dated
     March 30, 2016. On April 8, 2016, Kenneth filed a Petition to
     vacate the March 14, 2016 Decree and grant other relief,
     including removing Aaliyah’s attorney from the case for alleged
     conflict of interest. Shortly thereafter, Kenneth filed a notice of
     appeal of the March 14, 2016 Decree to the Superior Court. In
     an Order dated May 9, 2016, this Court declined to address
     Kenneth’s April 8, 2016 Petition while the appeal is pending.
        1
         We note that Kenneth has neither sought a hearing nor
        complained that he was deprived of one.



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     In an Order dated May 3, 2016, this Court, pursuant to Pa.R.A.P.
     1925(b), ordered Kenneth to file a concise statement of the
     errors complained of on appeal. Kenneth timely filed and served
     that statement. This opinion in support of the Court’s March 14,
     2016 Decree, pursuant to Pa.R.A.P. 1925(a), follows.
     Importantly, the record reflects that Kenneth has still not filed an
     Account, which is now overdue by five (5) months.

TCO at 1-2 (unnumbered).

     In his brief submitted to this Court, Kenneth sets forth one general

question for our review:      “Whether the lower court order removing

[Kenneth] as administrator d.b.n. should be vacated as an abuse of

discretion and a misapplication of the law[?]”   Kenneth’s brief at 3.      More

specifically, Kenneth asserts the following arguments.     First, he contends

that the orphans’ court misapplied 20 Pa.C.S. § 3182 (“Grounds for

removal”) and 20 Pa.C.S. § 3183 (“Procedure for and effect of removal”).

As part of this argument, Kenneth asserts that the orphans’ court’s factual

findings are not supported by the evidence, and that a hearing must be held

on a petition to remove an administrator. Second, Kenneth contends that

the orphans’ court failed to provide him 20 days in which to object to the

Petition to remove him as the Administrator d.b.n.

     Before addressing Kenneth’s arguments, we note that the following

guides our review of orphans’ court matters:

     The standard of review is well settled and requires that we be
     deferential to the findings of the Orphans’ Court. Specifically,

           When reviewing a decree entered by the Orphans’
           Court, this Court must determine whether the record
           is free from legal error and the court’s factual
           findings are supported by the evidence. Because the


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           Orphans’ Court sits as the fact-finder, it determines
           the credibility of the witnesses and, on review, we
           will not reverse its credibility determinations absent
           an abuse of that discretion. However, we are not
           constrained to give the same deference to any
           resulting legal conclusions. Where the rules of law
           on which the court relied are palpably wrong or
           clearly inapplicable, we will reverse the court’s
           decree.

In re Estate of Rich, 139 A.3d 235, 239 (Pa. Super. 2016) (quoting In re

Estate of Miller, 18 A.3d 1163, 1169 (Pa. Super. 2011) (en banc) (brackets

removed) (quoting In re Ware, 814 A.2d 725, 731 (Pa. Super. 2002)).

     More directly, we recognize that:

     “The removal of an executrix is a matter vested in the sound
     discretion of the trial court, and thus we will disturb such a
     determination only upon a finding of an abuse of that discretion.”
     In re Estate of Mumma, 41 A.3d 41, 49 (Pa. Super. 2012).
     The grounds for removal of a personal representative are
     delineated in 20 Pa.C.S. § 3182.        That statute allows the
     orphans’ court to replace a personal representative when he or
     she “is wasting or mismanaging the estate, is or is likely to
     become insolvent, or has failed to perform any duty imposed by
     law” as well as “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(1)[,](5).

In re Estate of Andrews, 92 A.3d 1226, 1230 (Pa. Super. 2014)

(emphasis added).

     In connection with his first argument, Kenneth claims that the

orphans’ court accepted allegations in Aaliyah’s Removal Petition as fact,

namely, that Kenneth was collecting royalties and that he was “attempting

to sell the Estate’s valuable music rights without intending to deposit any

proceeds of the sale into an Estate bank account or otherwise distribute the

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net proceeds of the sale to the beneficiaries of the Estate….” Kenneth’s brief

at 12 (quoting Aaliyah’s Petition to Remove Administrator d.b.n. Kenneth

Whitehead).    Kenneth also asserts that because he indicated that the will

was “wrongly admitted to probate,” the court inferred that Kenneth planned

to ignore the will, which would have been “a serious breach of his fiduciary

duty….” Id. at 13. Kenneth further relates that he never sought fees or any

contribution from any of the heirs for his services, and that Aaliyah is the

only beneficiary who does not support his efforts to administrate the Estate.

      Kenneth also quotes the first sentence of 20 Pa.C.S. § 3183, which

provides:

      The court on its own motion may, and on the petition of any
      party in interest alleging adequate grounds for removal shall
      order the personal representative to appear and show cause why
      he should not be removed, or when necessary to protect the
      rights of creditors or parties in interest, may summarily remove
      him.

Based upon this language, Kenneth argues that a hearing must be held

before the court could order his removal. He also relies on In re Estate of

Velott, 529 A.2d 525 (Pa. Super. 1987), and Estate of Wolongovich, 489

A.2d 248 (Pa. Super. 1985), to support a requirement that a hearing was

necessary.    In other words, Kenneth contends that without a hearing, the

court only could rely on allegations and had nothing upon which it could

determine facts.    Kenneth then reiterates the allegations from Aaliyah’s

Removal Petition that he claims the court relied on to order his removal. He




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also contends that without a hearing, he was unable to respond. However,

as noted by the orphans’ court, Kenneth never requested a hearing.

     Kenneth’s final argument centers on a local orphans’ court rule, which

provides for a twenty-day response window to file objections to petitions

similar to the one filed in the instant matter. He contends that in this case

the court entered the decree thirteen days after the Petition was mailed,

thus, leaving him without any recourse to state his objections.

     The orphans’ court explained the basis for Kenneth’s removal, stating:

     The decision by this [c]ourt to remove Kenneth as Administrator
     of the Estate was not made lightly and the Court did not abuse
     its discretion in doing so. Per the Court-approved Stipulation
     that Kenneth’s attorney signed on Kenneth’s behalf, Kenneth had
     a legal obligation to file with the Court an account of his actions
     as Administrator of the Estate on or before January 20, 2016.
     See Zampetti v. Cavanaugh, 406 Pa. 259, 265, 176 A.2d 906,
     909 (1962) (internal citation omitted) (emphasis removed)
     (noting that “a consent decree … binds the parties with the same
     force and effect as if a final decree has been rendered after a full
     hearing upon the merits”). However, Kenneth did not file an
     account by the deadline or petition the court for additional time.
     When Aaliyah filed the Petition to remove Kenneth as
     Administrator that this Court granted, about six weeks had
     passed since the deadline and Kenneth had still not filed an
     account or requested additional time. In Kenneth’s March 24,
     2016 Petition for Reconsideration (which this [c]ourt evaluated
     as a petition for reinstatement under 20 Pa.C.S. § 3183), he
     claimed that “he complied by filing an accounting with the
     [c]ourt by the deadline” but admitted that his alleged attempt to
     file an account was unsuccessful and ultimately no account was
     accepted for filing. See Petition for Reconsideration, ¶ 17.
     Notably, in his Concise Statement of Matters Complained of on
     Appeal, Kenneth claims that his alleged attempt to file an
     account occurred “on or about January 22, 2016,” even though
     that date is after the deadline in the Stipulation. Ultimately, the
     excuses and explanations in Kenneth’s Petition for Reinstatement


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      were unconvincing to this Court and, in any event, should have
      been raised before the deadline in the Stipulation.

TCO at 3-4 (footnote omitted) (unnumbered).

      We agree with the orphans’ court’s reasoning and further note that

Kenneth’s reliance on Wolongovich and Velott is misplaced. In those two

cases, this Court remanded for hearings to be held because “without sworn

testimony, we are unable to review that which is mere allegation and that

which has not been subjected to the test of an evidentiary hearing and

judicial determination.”   Velott, 529 A.2d at 527 (quoting Wolongovich,

489 A.2d at 250). Here, the court did not rely on allegations contained in

the Removal Petition; rather, it determined that Kenneth had a legal duty to

comply with its Order, dated December 21, 2015, approving the parties’

Stipulation that Kenneth would submit the Accounting by January 20, 2016,

or request an extension of time. See 20 Pa.C.S. § 3182(1). This is not a

situation where a hearing was required.      The docket in this case evinces

Kenneth’s failure to perform a required duty to which he had agreed. This

fact likewise did not obligate the court to wait 20 days to allow for Kenneth’s

response to Aaliyah’s Removal Petition. In fact, the court’s decree removing

Kenneth from his position as Administrator d.b.n. of the Estate, which was

dated March 14, 2016, was issued 54 days after Kenneth had been required

to file the Accounting.     Accordingly, for the reasons stated above, we

conclude that the orphans’ court did not abuse its discretion in removing him

as the Administrator. Thus, we affirm the orphans’ court’s decree.

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     Decree affirmed.

     Justice Fitzgerald joins this memorandum.

     Judge Moulton concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2017




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