J-S09031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RE: ESTATE OF IRENE OLICK                 :   IN THE SUPERIOR COURT OF
BUNGARDY, DECEASED                        :        PENNSYLVANIA
                                          :
                                          :
                                          :
APPEAL OF: THOMAS W. OLICK                :        No. 1307 MDA 2017

                    Appeal from the Decree August 9, 2017
             In the Court of Common Pleas of Lackawanna County
                    Orphans’ Court at No(s): 35-16-00957


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED JULY 20, 2018

        Appellant, Thomas W. Olick, appeals from the decree entered in the

Lackawanna County Orphans’ court, following its decision on Appellant’s

petition for removal of Appellee, Marguerite Dippel, as Co-Executor of the

Estate of Irene Olick Bungardy, deceased, and related estate claims, and his

motion to compel the Register of Wills to file and docket documents

Appellant maintains have been refused. We affirm the decree and quash the

appeal in part.

        The Orphans’ court decision and decree sets forth the relevant facts of

this case. Therefore we have no reason to restate them. The court held a

hearing on Appellant’s petition on April 21, 2017, after which the parties

continued to debate certain estate issues.     On August 9, 2017, the court

denied Appellant’s claims for relief and granted in part Appellee’s motion to

sell decedent’s residence. Appellant filed a notice of appeal on August 18,

2017.     No concise statement of errors complained of on appeal, per
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09031-18


Pa.R.A.P. 1925(b) was ordered or filed.

      Appellant raises these issues on appeal:

         [WHETHER THE ORPHANS’ COURT ERRED WHEN IT:

         (1) OVERRULED APPELANT’S OBJECTIONS TO APPELLEE
         DIPPEL’S INVENTORY OF DECEDENT’S ESTATE;

         (2) DENIED APPELLANT’S REQUEST FOR SANCTIONS;

         (3) DENIED APPELLANT’S MOTION TO REMOVE APPELLEE
         DIPPEL AS CO-EXECUTOR;

         (4) DENIED APPELLANT’S MOTION TO COMPEL APPELLEE
         CLERK OF ORPHANS’ COURT TO ACCEPT APPELLANT’S
         FILINGS; AND

         (5) GRANTED APPELLEE DIPPEL’S MOTION              TO   SELL
         DECEDENT’S RESIDENCE AT A PRIVATE SALE?]

(Appellant’s Brief at 2).

      Principally, Appellant complains that the court should have removed

Appellee as Co-Executor of the Estate of Irene Olick Bungardy, deceased,

because Appellee failed to protect the estate’s assets and abused her

position as Co-Executor for personal gain, which is prima facie evidence of

fraud. Appellant’s claim for sanctions relates to Appellee’s alleged failure to

protect the estate and her alleged non-compliance with various court orders

to produce pertinent documents. Additionally, Appellant contends Appellee

improperly included assets in the estate inventory, while also clandestinely

excluding assets for her personal enrichment.      Appellant also claims the

clerk of Orphans’ court exceeded his authority when he wrongfully rejected

the submission of documents directly related to the estate.          Appellant

                                     -2-
J-S09031-18


concludes the Orphans’ court abused its discretion and erred as a matter of

law in its decision, which must be reversed. We cannot agree.

         Our standard of review of the findings of an [O]rphans’
         court is deferential.

            When reviewing a decree entered by the Orphans’
            [c]ourt, 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
            Orphans’ [c]ourt 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.

         [T]he Orphans’ court decision will not be reversed unless
         there has been an abuse of discretion or a fundamental
         error in applying the correct principles of law.

In re Estate of Whitley, 50 A.3d 203, 206-07 (Pa.Super. 2012), appeal

denied, 620 Pa. 724, 69 A.3d 603 (2013) (internal citations and quotation

marks omitted). “[T]he Orphans’ Court decision will not be reversed unless

there has been an abuse of discretion or a fundamental error in applying the

correct principles of law.”   In re Estate of Luongo, 823 A.2d 942, 951

(Pa.Super. 2003).      “An abuse of discretion is not merely an error of

judgment; if, in reaching a conclusion, the court overrides or misapplies the

law, or the judgment exercised is shown by the record to be either

manifestly unreasonable or the product of partiality, prejudice, bias or ill will,

discretion has been abused.”        Silver v. Pinskey, 981 A.2d 284, 291

(Pa.Super. 2009) (en banc) (quoting Mencer v. Ruch, 928 A.2d 294, 297

                                      -3-
J-S09031-18


(Pa.Super. 2007)). “Our scope of review is also limited: we determine only

whether the court’s findings are based on competent and credible evidence

of record. In re Estate of Karschner, 919 A.2d 252, 255-56 (Pa.Super.

2007) (quoting In re Estate of Westin, 874 A.2d 139, 142 (Pa.Super.

2005)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Thomas J.

Munley, we conclude Appellant’s issues merit no relief. The Orphans’ court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Orphans’ Court Decision and Decree, dated August 9,

2017, at 2-5) (finding: evidence did not show Appellee Dippel performed

tasks and responsibilities of estate administration in any way harmful to

Decedent’s estate; evidence also failed to show Appellee Dippel acted

dishonestly, neglectfully, or without care; rather, testimony at April 21, 2017

hearing indicated Appellee Dippel timely met her responsibilities as co-

executor; Appellee Dippel’s administration of estate did not warrant

sanctions; evidence demonstrated bank accounts at issue were multiple-

party joint accounts in names of both Decedent and Appellee Dippel, with

right of survivorship; inclusion of these joint bank accounts in Decedent’s

will does not negate right of survivorship; similarly, savings bonds Decedent

bought during her lifetime were co-owned by Decedent and Appellee Dippel;

during her lifetime, Decedent gave Appellee Dippel jewelry that Appellant


                                     -4-
J-S09031-18


claimed was missing from inventory; evidence indicated Appellee Dippel has

complied with court’s orders regarding production of documents concerning

estate matters, assets, and administration; bank accounts and savings

bonds were not estate assets, because they were co-owned by Decedent and

Appellee Dippel upon Decedent’s death; when Decedent died, Appellee

Dipple became owner of bank accounts and savings bonds via right of

survivorship; assets passing outside estate are not part of Decedent’s estate

and are excluded from estate accounting and inventory; clerk of Orphans’

court rejected Appellant’s filing of two civil suits, raising tort claims against

Appellee Dippel and Appellee Dippel’s counsel; office staff of clerk of

Orphans’ court informed Appellant that documents regarding civil lawsuits

must be filed in proper filing office, Clerk of Judicial Records; Appellant’s

attempt to file civil complaint for money damages in estate litigation was

incorrect; clerk of Orphans’ court correctly directed Appellant to file his civil

suits in proper manner).1 The record supports the Orphans’ court’s decision

____________________________________________


1 With respect to the claim regarding the court’s order allowing the sale of
Decedent’s real estate, the court ordered the estate to list for sale the
residence on the open market, because hiring a realtor is the proper way to
dispose of the residence as an estate asset. Appellant requested an arm’s-
length transaction, which the court granted. Appellant prevailed on this
issue, so neither he nor the estate is technically “aggrieved,” so he cannot
appeal that decision. See Pa.R.A.P. 501 (stating only aggrieved party can
appeal decision).    Significantly, under Pa.R.A.P. 342, Appellant cannot
appeal from an order allowing executors to market realty in the estate;
Appellant can appeal only from the order confirming the sale of the estate
realty. See In re Estate of Krasinski, ___ A.3d ___, ___, 2018 PA Super
(Footnote Continued Next Page)


                                           -5-
J-S09031-18


and we have no reason to disturb it.           Accordingly, as to all of Appellant’s

issues, except his claim regarding the court’s order allowing Appellee to list

Decedent’s real estate for sale, we affirm based on the Orphan’s court’s

decision and decree.

      Decree affirmed; appeal quashed in part.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/20/2018




(Footnote Continued) _______________________

130 *7 (filed May 15, 2018) (en banc) (holding court order permitting sale
of realty is not immediately appealable; order approving final sale of realty is
immediately appealable because that is order which “determines an interest
in real…property”) (quoting Pa.R.A.P. 342(a)(6)).          Thus, we quash
Appellant’s appeal of his claim regarding the court’s order allowing Appellee
to list Decedent’s real estate for sale.



                                          -6-
                                                                   Circulated 06/28/2018 02:56             M




                          IN THE COURT
                        OF COMMON PLEAS
               OF LACKAWANNA COUNTY, PENNSYLVANIA
                     ORPHANS' COURT DIVISION


Re: Estate of Irene Olick Bungardy,                                     q,)
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Before the Court are the filed Motions of Petitioner Thomas Olick (hereiiiafter
"Olick'1 regarding the Estate of Irene Glick Bungardy. Chiefly, Olick seeks the
removal of Co-Executor Marguerite Dippel, maintaining that Marguerite Dippel
(hereinafter "Dlppel") is unsuitable to continue in her role administering the
Estate, and should be removed by this Court. Click also has raised an Objection
to Inventory, a Motion for Sanctions, and an Objection to a proposed agreement
for the sale of the Decedent's home. Glick also filed a Motion to Compel the
Register of Wills to file and docket documents he maintains have beerµ-efused.
The Motions of Petitioner regarding the Estate Administration are opp�cB;y �;a
Dippel, and the Register of Wills opposes the Motion to Compel.         :::n.: ;: ��
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Irene Olick Bungardy died in August of 2016, leaving a Will executed ij 201;5. fti;x
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Olick and Dippel were granted Letters Testamentary, and according tj:th� �::,.
evidence offered at hearing, Glick and Dippel do not have a cooperatffie �rk� -
relationship. Glick maintains that Dippel has been both uncommunic�ive=wit�:;;
him and neglectful with respect to her responsibilities regarding Esta; � en�
Administration. In Court, Glick stated that Dippel has also been wasting the -
Estate assets, converting Estate assets for her own benefit, and has engaged in
misconduct regarding this Estate, while being assisted by Attorney Eugene
Lucas. Olick maintains that the actions of Dippel with respect to the Estate are
improper and sanctionable, which brings the Court to the first and' most
significant issue in this matter, the Petition for Removal of Dippel from her
position of authority with respect to this Estate.

At the hearing, at which Olick represented himself, Olick testified that Dippel,
along with Attorney Lucas, have not been forthcoming with his questions
regarding Estate financial assets, the contents of a safe deposit box supposedly
maintained by the Decedent, pieces of personal property such as Decedent's
jewelry, and the proposed sale of Decedent's real estate. Coupled with the

                                                                                                1
alleged communication problems between the two Co-Executors, Olick asserted
that the issues he raised regarding Dippel's abilities and trustworthiness with
respect to their late mother's assets call for removal of Dippel, at the minimum.

Dippel testified at the hearing as well, and she indicated that she has thus far
executed her responsibilities as Co-Executor in a competent manner, despite
what she believed was a lack of assistance and cooperation from Co-Executor
Olick. Dippel indicated that she caused the Will to be probated, obtained the
necessary short certificates and federal tax identification number, opened an
Estate bank account into which Estate assets were deposited, and used her
personal funds to pay a significant inheritance tax bill in a manner which would
allow the Estate to obtain a discount on that tax for early filing. She has been
working to sell the Decedent's Lackawanna County real estate, which was
appraised within weeks of the death of Bungardy, but her testimony was that
Olick refused to agree to secure the services of a realtor to get the property sold.
Regarding the safety deposit box, Dippel testified that she was concerried that
Olick had removed four bonds from the box for potential personal use, so she
took the remaining bonds from the Decedent's safety deposit box and placed
them in her own safety deposit box; copies of those savings bonds were
produced for Thomas Olick. Regarding jewelry owned by Decedent, Dippel
stated that her mother had given her what jewelry she owned years prior to her
death. Any communications problems, according to Dippel, are attributable to
her Co-Executor.

The standard ofcare to which a fiduciary is held in Pennsylvania is that of such
common skill, judgment and caution as persons of ordinary prudence, discretion,
and intelligence under similar circumstances, would exercise in the management
of their own estate. In re Estate of Lerch, 159 A.2d 506 (Pa. 1960). The
honest exercise of discretionary power produces no liability absent "supine
negligence or willful default.'' In re Estate of Lohm, 269 A.2d 451 (Pa.
1970). A Court may order removal in instances where it is alleged and shown
that the fiduciary in question is wasting or mismanaging the assets of the Estate,
or jeopardizing the interests and assets of the Estate which he or she is
administering. In re Shahan, 631 A.2d 1298 (Pa. Super. 1993). Factual
evidence regarding waste and mismanagement, rather than supposition, must be
presented. In the matter before this Court, the evidence did not show that
Dippel had performed the tasks and responsibilities of Estate administration in a
way that that harmed the Estate, and it did not show that she acted dishonestly,
neglectfully, or without care. Rather, as indicated through the testimony offered,
Dippel met her responsibilities thus far in a timely manner, marshaling assets,
hiring counsel, attempting to list the house for sale, and even paying inheritance
tax from her own funds to allow the Estate to secure a discount on that tax. ·
Olick did not show in any factually-supported way that the actions of Dippel as


                                                                                           2
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Co-Executor were improper or harmful to the Estate, and for these reasons we
will not grant Olick's Petition to Remove Co-Executor.

Olick's next Objection was to the completeness and accuracy of the Inventory
Dippel provided. He stated that the Decedent possessed savings bonds, one or
more--bank=accotJnts,::and:jewelry that were not containecJ·- :ifftt-re--:Inventa�and'--
he offered the possibility that those Estate assets may have remained ln the
private possession of Dippel. However, the evidence given at the hearing
showed that the bank accounts in question were multiple party accounts in the
names of the Decedent and Dippel, with right of survivorship to Dippel.
Regardless of their inclusion in the Will, the circumstance of the accounts being
named in a Will as an Estate asset does not defeat the survivorship right created
by joint accounts merely because the Will would distribute a decedent's property
in a different matter. In re Estate of Cella, 12 A.3d 374 (Pa. Super. 2010).
Similarly, the savings bonds bought by Decedent during her lifetime were co-
owned by Dippel and the Decedent. According to 31 C.F.R. §315.70, should
"one of the co-owners named on a bond die, the surviving co-owner will be
recognized as its sole and absolute owner, and payment and reissue will be
made as though the bond were registered in the name of the survivor alone."
The jewelry which Olick claimed was missing from the Inventory was shown to
have been given during Decedent's lifetime to Dippel, her only daughter. We
overrule the Objection to Inventory as being without merit.

  Similarly, we deny Olick's Motion for Sanctions against Co-Executor. Said Motion
· puts forth that Dippel did not produce documents for Olick's review in a complete
  and timely manner, yet the evidence showed that Respondent has, to this point,
  complied with Court Orders regarding the production of documents regarding
  Estate matters, assets, and administration. Again, the bank accounts and
  savings bonds were not Estate assets, as they were in the names of Decedent
  and Dippel and co-owned by both at the time of Decedent's passing, and right of
  survivorship made Dippel the owner of said assets. Assets passing outside of the
  Estate are not part of a Decedent's Estate and do not need to be included in any
  Estate Accounting and Inventory. ·

The sale of the Decedent's home is also an issue with which Olick takes issue.
He asserted that Dippel:

       "has failed to permit the hiring of a realtor to dispose of Decedent's
       former residence. She keeps insisting that it can only be sold to her
       brother, Andrew Olick. She has failed to present to the Court and/or the
       Petitioner any valid sales agreement of the residence to Andrew and has




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                             failed to justify why it should be sold to him at a prlce substantially less
                             than the amount stated in the appraisal she obtained. "1

          Our review of the transcript indicated that, within weeks of Decedent's passing,
          Dippel obtained an appraisal on the Decedent's home, and was in contact with
----�1-1--the::otber--=bei�t0=tbis:Estate,-Andrew-e1·tck,::whQ-maGfe::knGwn=his=wisl:i=t0---:---=----
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          purchase the property. The testimony of Dippel was that Andrew Olick offered
          less than the appraised amount, given that the Estate could avoid a realtor's fees
          and also that Andrew Olick was an heir, so that it would be appropriate to reduce
          the purchase price by one-third. Given that Co-Executor Olick apparently
          believes that a more arm's length transaction would be appropriate, and, despite
          the house's current state of disrepair, that hiring a realtor and seeking to sell the
          home on the open market is the proper way to dispose of this Estate asset, we
          will direct that a realtor be retained and paid with respect to selling the home,
          even though this may result in less, not more, money going to the heirs. Co-
          Executor's position to challenge the proposed sale of the house to Andrew Olick
          at a discount may prove unwise, as a guaranteed sale seems like an option
          Estate administrators would seize upon, yet Olick is a Co-Executor and he cannot
          be shut out of any administrative tasks, such as the selling of assets. Andrew
          Olick may purchase the property, should he so choose, through the realtor
          chosen by the Co-Executors.

                  Finally, Olick raised the issue that the Register of Wills of Lackawanna County
                  (hereinafter "the Register'') had refused to accept certain documents for filing,
                  and that, regarding Olick's status as being allowed to proceed in forma peupens,
                  that the Register was "refusing to recognize that, and they want to charge me."2
                  The document or documents at issue that the Register reportedly refused to file
                  were one or more civil Complaints naming Olick as Plaintiff and Dippel and
                  Attorney Eugene Lucas as Defendants. According to Olick:

                             If I want to file a Complaint against Marguerite Dippel and Eugene Lucas,
                             I have the right to do that. It's not up to her (the Register) to make a
                             decision where venue and jurisdiction is.

                             So if, in fact, it's the case that I've got to get her permission before I
                             come to you and ask if I can file something in Motions Court, that's fine;
                             but that's what she's doing. She's saying she's the gatekeeper. Nobody
                             can file anything unless she says it's there, and that's wrong. I want to be
                             able to file those Complaints.

                  In her testimony, the Register explained as so:


                      P�st Hearing Brief of Thomas w. Olick, filed May 31, 2017.
                  1
                  2
                      Notes ofTestimony of 4/21/17 hearing, p. 60.

                                                                                                            4

                                                      ! �1::39
                     "(the filings presented by Olick have) been accepted except for filings that
                     are a civil matter. If it (a Complaint) has a tort in it where he (Olick) is
                     suing someone or it has information in that, all it does is compound
                     confusion for the Court.

- - - -- - -- - � ---�¥0s=l"lave=-te=ffte=pr-ap-er-ly,- - -and=--J=urrderstan"EJ=tl1ere=ts=f-r-11Str-attem==eiq::::l"fis-- ----
                      beh a If. We were trying to inform him so that he would file it correctly.
                      We do not accept this filing. It has civil information in it. It had
                      something to do with some civil matter he had filed with the Clerk of
                      Judicial Records.

                     You can't just file in any office that you want because you presented it to
                     us. We were trying to direct Mr. Olick in the correct manner. It doesn't
                     belong with us.                                                      ·

                      So from an office perspective and an Orphans' Court perspective, anything
                      that belongs to the Orphans' Court is filed with us. Any civil matter that
                      pertains to a civil suit belongs in the Clerk of Judicial Records. It's as
                      simple as that.

               The Register is correct. Her office accepted for filing the Petition for Removal of
               Co-Executor, which is an estate matter under the jurisdiction of the Orphans'
               Court division of this Court. Her office rejected filings regarding two civil suits
               alleging a number of torts filed by Olick against his sister, Marguerite Dippel, and
               Attorney Lucas, and staff of the Register of Wills informed him that documents
               regarding civil lawsuits must be filed in the proper filing office, which for civil
               actions is the Clerk of Judicial Records. Olick's act of attempting to file a civil
               complaint for money damages under a Decedent's Estate caption with the
               Register of Wills was incorrect, and the Register was correct in directing Olick to
               file his civil complaint in the correct manner. Olick's issue with this action and
               direction of the Register is entirely without merit, as is his Motion to Compel. A
               litigant cannot choose to file an action in any division of the Court which he or
               she chooses, and circumstances such as proceeding pro se, and in forma
               peupetts: do not change that rule.        -


                 _                    _ fl/)            DECREE                     .

               AND NOW, this      b      day of August, 2017, this Court HEREBY DENIES the
               Petition to Remove Co-Executor Dippel, DENIES the Objections presented by Co-
               Executor Olick regarding the administrative actions of Dippel, and DENIES the
               Motion to Compel aimed at forcing the Register of Wills to accept for filing
               pleadings belong to civil matters. We GRANT his Objection with respect to
               DippeVs proposed sale of the property and we DIRECT the Co-Executors to

                                                                                                                     5



           I
secure the services of a Realtor and allow the Decedent's home to be sold on an
open market.




                                                      �:i;11-···--
                                                      _________, J.
                                                     Hon. Thomas J. Munley, Judge




Copies of this Decision were sent, via First Class U.S. Mail,
Attorney Edwin Abrahamsen and Register of Wills' Solicitor
Gallagher, and Thomas Olick, prose.




                                                                                  6
