J-S69014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF SONDRA H. RUSSELL                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: KENNETH L. BROOKS

                                                      No. 737 WDA 2017


                Appeal from the Order Entered April 24, 2017
              In the Court of Common Pleas of Fayette County
                   Orphans' Court at No(s): 115 OC 2014


BEFORE: BOWES, RANSOM, AND STEVENS, P.J.E.,* JJ.

MEMORANDUM BY BOWES, J.:                     FILED NOVEMBER 28, 2017

      Kenneth Brooks appeals from an orphans’ court order surcharging him

and re-affirming his removal as administrator of this estate. We affirm.

      Sondra H. Brooks died intestate on February 7, 2014, and, on

February 13, 2014, Appellant filed a petition for issuance of letters of

administration on her estate. Appellant set forth in that petition that, as a

maternal first cousin, he was the sole intestate heir, and the Register of Wills

of Fayetteville County issued letters of administration to Appellant, who was

represented by Donald Blake Moreman.          Sondra was a widow with no

children, no siblings, and parents who predeceased her.

      On August 22, 2014, Edward Russell filed a petition for rule to show

cause why Appellant should not be compelled to allow him to remove certain


* Former Justice specially assigned to the Superior Court.
J-S69014-17



of his personal property from the decedent’s home and compelled to

reimburse Mr. Russell for the funeral expenses that Mr. Russell had paid on

behalf of the estate. Mr. Russell was romantically involved with Sondra for

forty years, and certain of his belongings were in her home. Mr. Russell was

granted relief.   Appellant reimbursed the funeral expenses to Mr. Russell

and, after Mr. Russell filed another petition, Appellant allowed Mr. Russell

into Sondra’s home to document which of the items therein belonged to him.

Appellant subsequently failed to transfer to Mr. Russell some of his personal

property remaining in Sondra’s house.

      On September 25, 2014, Jack Hann and Uganda Leighlighter filed a

petition averring that Appellant should be removed as administrator. They

claimed that decedent had numerous paternal first cousins, that Appellant

personally knew both Mr. Hann and Ms. Leighlighter, that Appellant knew

that they were Sondra’s paternal first cousins, that he thus knew that they

were intestate heirs, and that the petition for letters of administration that

Appellant filed was factually incorrect. In their petition, Mr. Hann and Ms.

Leighlighter also alleged that they never were notified of the opening of the

estate, even though they were co-equal intestate heirs with Appellant, and

they also noted that Appellant had not performed any function to fulfill his

obligations as administrator.     Specifically, Appellant had not filed an

inventory and had not placed the decedent’s home on the market. On March

26, 2015, a consent order was entered appointing Mr. Hann and Appellant as

                                    -2-
J-S69014-17



co-administrators.   Mr. Hann subsequently discovered that there were

fourteen paternal first cousins with the same degree of consanguinity to

decedent as Appellant held.

     Mr. Hann thereafter filed a second petition requesting removal of

Appellant as co-administrator. Mr. Hann set forth that Appellant refused to

turn over any records of accounts or other personal assets owned by

Sondra. On September 3, 2015, Appellant was removed as administrator,

and Mr. Hann was named as the sole administrator of the estate.           On

October 1, 2015, the estate attorney was ordered to return $24,000 that

Appellant had paid him three months after the estate was opened.

     Mr. Hann then filed a motion for Appellant to be required to return

funds to him, and Mr. Russell filed a petition to enforce and for contempt

against Appellant because Appellant had not returned certain of Mr. Russell’s

belongings to him. The court held a hearing, and, in an order dated April

21, 2017, and entered on April 24, 2017, the orphans’ court disallowed the

$24,000 advanced to Mr. Moreman as an estate expense, thus surcharging

Appellant for that amount. The orphans’ court also surcharged Appellant for

$4,000 in personalty that Mr. Russell had not received.     In the April 21,

2017 order, the court also reaffirmed its decision to remove Appellant as

administrator. This appeal followed. Appellant raises these various issues

on appeal:




                                    -3-
J-S69014-17



     I. As the burden of production and persuasion is on the moving
     party, whether there was sufficient tangible documentary
     evidence produced by the moving party generally and in the
     following particulars to support the Court's findings/order:

          a. The Court accepted the testimony of Edward
          Russell, even though opining from the bench that Mr.
          Edward Russell did not know too much of anything.

          b. The Court accepted testimony of Jack Hann, Co-
          Administrator, without any basis, even when he
          testified that he did not remember, but chastised
          Kenneth L. Brooks for not remembering everything.

          c. The Court did not accept the testimony of Kenneth
          L. Brooks and Kenneth R. Brooks with respect to all
          of the decisions being made with respect to estate
          administration after the appointment of the Co-
          Administrator, being joint decisions; even though
          Jack Hann, Co-Administrator, did not dispute this
          testimony.

          d. The Court did not accept the testimony of Kenneth
          R. Brooks with respect to the number of firearms and
          disposition; but rather, appeared to accept the
          testimony of Edward Russell (the same Edward
          Russell the Court said did not know too much of
          anything) without any basis.

          e. The Court did not accept the Authorization to
          Represent the Estate of Sondra Russell in Litigation
          dated May 15, 2014, which reads that a retainer of
          $24,000.00 would be billed at the rate of $210.00
          per hour for estate litigation.

          f. The Court did not accept that the Litigation
          retainer was in response to prior counsel of Edward
          Russell threatening litigation a month after
          decedent's death and counsel demanding support for
          the informal claim, before the claim was made
          formally (which it was never filed as a claim).




                                 -4-
J-S69014-17



          g. The Court did not accept testimony that Edward
          Russell had sole care, custody and control of the
          decedent's residence and personalty until Kenneth L.
          Brooks appointment on February 13, 2014.

          h. The Court did not accept testimony that the
          residence was listed with a realtor shortly after the
          initial stage of litigation resulted in the appointment
          of the Co-Administrator.

          i. The Court did not accept testimony that Edward
          Russell frustrated Kenneth L. Brooks' efforts by
          intercepting   Decedent's  mail.   (regarding life
          insurance, stock etc.)

          j. The Court did not accept testimony that Kenneth L.
          Brooks had installed a security system at decedent's
          residence requiring the internet (Armstrong Cable in
          the area.); but rather chastised Brooks for incurring
          the cable bill after death.

          k. The Court did not accept the testimony the
          Kenneth L. Brooks, through Kenneth R. Brooks, had
          secured the buyer for the decedent's residence;
          which was finalized through the Real Estate Broker
          secured by Kenneth L. Brooks.

          l. The Court apparently considered a Motion to
          Enforce which was filed after the hearings were
          begun, thereby considering issues not properly
          before the Court.

          m. The Court, without any basis nor testimony in
          support, concluded that the clean up, fix up, auction
          or storage should have been accomplished before
          any of the within litigation commenced.

          n. The Court, without having any testimony of value
          of anything, concluded that Edward Russell was
          improperly deprived of at least $4,000.00 worth of
          property.




                                   -5-
J-S69014-17



          o. The Court, over testimony that the Co-
          Administrators, agreed to continue a $100.00 yearly
          donation to the local volunteer fire department
          servicing the decedent's residence, erroneously
          attributed the decision to Kenneth L. Brooks alone.

          p. The Court erroneously determined that Kenneth L.
          Brooks was retired and not working; when, in fact,
          Kenneth L. Brooks, during all times relevant herein,
          was and is employed by the Connellsville School
          District during regular business hours.

          q. The Court erroneously determined that Jack Hann
          did not have access to the Decedent's residence;
          when, in fact, Jack Hann had full access to the
          decedent's residence by having the alarm code on
          the alarm system to gain access to the residence.

          r. The Court erroneously determined that Jack Hann
          did not have access to the Decedent's property;
          when, in fact, Jack Hann had access to all of the
          decedent's property, as he was listed on the Estate
          bank account, with full access.

          s. The Court determined that since Brooks was
          completely removed in September 2015, the Estate
          Administration has improved dramatically; when, in
          fact, Administration was completed by Kenneth R.
          Brooks assisting Kenneth L. Brooks locating a buyer
          for the decedent's residence; and, when the Court
          received no evidence of any Administration
          after Kenneth L. Brooks' removal.

          t. The Court erred by not considering the detailed,
          dated, billing of services provided pursuant to the
          Authorization to Represent. The detailed billing, as
          submitted by counsel for the movant, will speak for
          itself; Kenneth L. Brooks neither wrote nor fully
          understood the billing - as he testified. Kenneth L.
          Brooks testified that he knew there was a bill and it
          would be addressed after this was over.




                                  -6-
J-S69014-17



      II. Whether      the   Court   erred    by   not   following   contempt
      procedures.

Appellant’s brief at 4-9 (typographical errors corrected).

      Initially, we outline our established standard of review herein:

            Our standard of review of an orphans’ court’s decision is
      deferential. When reviewing an orphans’ court’s decree, this
      Court must determine whether the record is free from legal error
      and whether the orphans’ court’s findings are supported by the
      record. Because the orphans’ court sits as the finder of fact, it
      determines the credibility of witnesses and, on review, this Court
      will not review its credibility determinations absent an abuse of
      discretion.

Estate of Sachetti v. Sachetti, 128 A.3d 273, 282-83 (Pa.Super. 2015)

(citations omitted).

      We next observe that the eighteen sub-issues raised in Appellant’s first

statement of questions involved in this appeal are not developed in the

argument portion of his brief, and he provides no case authority on the

merits of questions I. a-t.      Appellant’s failure to argue these contentions

and provide legal authority to support his positions results in their waiver on

appeal. Korn v. Epstein, 1727 A.2d 1130, 1135 (Pa.Super. 1999) (citation

omitted) (“Where the appellant has failed to cite any authority in support of

a contention, the claim is waived.”)         Even if not waived, sub-issues I. a-t

concern the decision of the orphans’ court to credit certain testimony and

disregard other testimony. As the above standard of review indicates, this

Court cannot reverse the credibility determinations of the orphans’ court

absent an abuse of discretion. The orphans’ court provided a explanation for

                                       -7-
J-S69014-17



all of its credibility determinations in its Pa.R.A.P. 1925(b) Opinion filed on

June 20, 2017, and to the extent necessary, we rely on that in concluding

that there is no abuse of discretion.

      In the argument portion of his brief, Appellant first maintains that

there was insufficient evidence produced by the moving parties to support

the April 21, 2017 order. Appellant’s brief at 15. He claims that his removal

as administrator was unsupported by the proof. Appellant’s brief at 15-18.

The removal of a personal representative is a final, appealable order.

Pa.R.A.P. 342(a)(5) (“An appeal may be taken as of right from . . . orders of

the Orphans’ Court Division . . . determining the status of fiduciaries . . . in

an estate.”).   Appellant was removed as administrator on September 3,

2015, and, on that date, Mr. Hann was named as the sole administrator.

That order was not appealed, even though it was final.

      The failure to appeal a final order results in the issue decided therein

as being res judicata. Estate of Braun, 650 A.2d 73, 76 (Pa.Super. 1994)

(“The failure to appeal from a final order renders the doctrine of res judicata

applicable.”); see also U.S. National Bank v. Johnson, 487 A.2d 809 (Pa.

1985).   Appellant failed to timely appeal the September 3, 2015 removal

order, which means the issue of whether he should have been removed as

administrator has been finally litigated and cannot be re-visited in this

appeal from the April 21, 2017 order, which merely re-affirmed the prior

decision that Appellant was properly removed as administrator of the estate.

                                        -8-
J-S69014-17



       Appellant also contends that the court erroneously concluded that the

$24,000 in attorney’s fees that he tendered to the estate attorney three

months after the estate was opened was not a proper estate expense,

essentially surcharging Appellant for those attorney’s fees. 1 Appellant’s brief

at 18-19. The amount of attorney’s fees awarded from an estate is

committed to the discretion of the orphans’ court. In re La Rocco’s Trust

Estate, 246 A.2d 337 (Pa. 1968); Estate of Geniviva, 675 A.2d 306

(Pa.Super. 1996).         Herein, the only work that Mr. Moreman actually

performed on behalf of the estate was to complete the form for a petition for

Appellant to be appointed as administrator.             The remainder of Mr.

Moreman’s efforts were expended on defending Appellant personally for his

utter failure to fulfill his duties as administrator, turn over the estate records

to Mr. Hann after he was appointed administrator, and to return Mr. Russell’s

personal property to him. Appellant maintains that the $24,000 was paid to

Mr. Moreman as a litigation retainer, but the litigation that Mr. Moreman

conducted was not performed to benefit the estate. Appellant should have

immediately reimbursed the funeral expenses advanced by Mr. Russell. As

administrator, he also should have promptly ascertained what property in

Sondra’s home belonged to Mr. Russell and returned it to him.           Anything

____________________________________________


1A surcharge is immediately appealable. Estate of Cherwinski, 856 A.2d
165 (Pa.Super. 2004).



                                           -9-
J-S69014-17



done by Mr. Moreman after filing the factually-inaccurate petition for letters

of administrator were not conducted on behalf of the estate but instead

performed to defend Appellant against misfeasance and malfeasance. Thus,

the court properly determined that the estate is not responsible for the

$24,000 in fees paid to Mr. Moreman from estate funds and that the sum in

question is owed by Appellant.

      In the argument portion of his brief, Appellant also avers that the

orphans’ court did not follow the proper procedures to find him in contempt.

Appellant’s brief at 19. As the orphans’ court observed, Appellant received

notice and an opportunity to be heard.        Additionally, Appellant does not

delineate what steps were not followed herein in connection with the

contempt procedure. Finally, the amounts awarded against Appellant were

not in the nature of contempt fines. Rather, they are properly characterized

as surcharges for improper payment of estate funds to Mr. Moreman and for

failing to properly fulfill his duties as administrator by returning all of Mr.

Russell’s property to him.   We thus reject Appellant’s final claim on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/28/2017


                                     - 10 -
                                                                           Circulated 11/01/2017 09:01 AM




         IN THE COURT    OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA                       FILE0
                                                                                      U6/211/2017 3;:..09        PM
                                                                                           REGISTER OF   n.LLS
                                                                                            FAYETTE COUNIY
 In re: ESTATE    of SONDRA   H.   RUSSELL,                 ORPHAN'S COURT                   ?MVO PAIR
 deceased.                                                                          inst   Nip&          2017070Ag



                                                            No.'    )6   -011,j


                    Pa.R.A.P. 1925(a) Opinion

              The within matter was resolved by way of Findings of Facts

and Conclusions of Law on April 21, 2017, which document is incorporated

herein by reference. Respondent filed a "Concise Statement of Errors

Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b)" on June 13, 2017,

and this Opinion is authored in response thereto.



             The Errors Complained of, followed by this Court's response,

are as follows:

             1.      The burden of production and persuation [sic] is on the

                  moving party. It is alleged error that sufficient tangible

                  documentary evidence was not produced by the moving

                  party generally and in the following particulars to support

                  the Court's findings/order:



                                     Judge Steve P. Leskinen
                             Fayette County Court of Common Pleas
                              61 E. Main St. Uniontown, PA 15401




                                        ITEM NO.       66
a.       The Court accepted the testimony of Edward

      Russell without any basis to do so, after the Court

     exclaimed in response to        a   request to keep the

     record open for deposition of a potential witness

     who had been hospitalized, that Mr. Edward Russell

     certainly did not know much of anything. [The basis

     for accepting the testimony of Edward Russell despite his

     memory being incomplete was because he appeared

     more credible in honestly attempting to answer questions

     than the testimony that opposed his. He honestly

     admitted that his lack of memory on some specifics was

     because: "That's what comes with old age,       I   guess." (Tr.

     1/25/16, p. 73). Appellant's unwarranted refusal to pay

     the funeral bill and return Edward Russell's personal

     property is what originally exposed Appellant's

     maladministration of this estate. By the time of the

     hearing, Edward Russell had recovered most of his

     personal property, had been relieved of the obligation of

     paying the funeral bill, and had no contingent interest as

     an heir. In contrast, Mr. Brooks had attempted to claim

     the entire estate by misrepresenting himself as the sole

     heir (instead of a one -fifteenth heir), and attempted to
                  Judge Steve P. Leskinen
          Fayette County Court of Common Pleas
           61 E. Main St. Uniontown, PA 15401
                            2
     justify that on the basis of his own poor memory. Mr.

     Brooks also underreported the value of the estate assets,

     held onto cash receipts without properly reporting them,

     claimed excessive expenses had been paid in cash

     without receipts or any record, and attempted to transfer

     guns belonging to Mr. Russell from the estate to his son

     on the transparently false pretense that the female

     decedent-who did not hunt and was not reputed        to

     collect guns-owned the entire gun collection. The

     decision on credibility was not difficult.]

b.      The Court accepted testmony [sic] of Jack Hann,

     co -Administrator, without any basis, even when he

     testified that he did not remember, but chastised

     Kenneth L. Brooks for not remembering anything.

     [Again, the decision on the credibility of the various

     witnesses was not a close call. None of the witnesses

     had perfect recollection, and all of them were

     impeachable on one or more areas of their testimony, but

     on balance, the testimony of Jack Hann and Edward

     Russell was substantially more believable than the

     opposing testimony.]


                  Judge Steve P. Leskinen
          Fayette County Couit of Common Pleas
           61 E. Mall St. Uniontown, PA 15401
                            3
c.       The Court did not accept the testimony of Keneth

     [sic]   L.   Brooks and Kenneth     R.   Brooks with respect

     to all of the decisions being made with respect to

     estate administration after the appointment of the

     Co -Administrator, [sic] being       joint decision [sic];

     even though Jack Hann, Co -Administrator, did not

     dispute this testmony [sic]. pack Hann may or may not

     have acquiesced in some poor decisions while sewing as

     co -administrator. That did not excuse Appellant Brooks

     from his own responsibility for those decisions. No one

     has presented a legal challenge to Hann's conduct.]

d.      The Court did not accept the testimony of

     Kenneth R. Brooks with respect to the number of

     firearms and disposition; but rather, appeared to

     accept the testimony of Edward Russell (the same

     Edward Russell the Court said did not know too

     much of anything) without any basis. [Again, the

     credibility question was not a close call between

     Russell's admitted but honest inability to remember every

     detail and Brooks' deliberate defense tactic of claiming a




                  Judge Steve P. Leskinen
          Fayette County Court of Common Pleas
           61 E. Main St. Uniontown, PA 15401
                            4
     loss of memory whenever a truthful recollection could

     have been against his personal interest.]

e.      The Court did not accept the Authorization to

     Represent the Estate of Sondra Russell in Litigation

     dated May 15, 2014, which reads that                a   retainer of

     $24,000.00 would be billed at the rate of $210.00 per

     hour for estate litigation. [The Court accepted that the

     fee agreement was signed, and does not quarrel with a

     $210 per hour rate in the abstract. However, the Court

     concluded that the litigation was only necessary because

     of the bad faith, the unwarranted delays, the

     unreasonable legal positions, and the self-interested self-

     dealing exhibited by Brooks and his counsel.]

f.      The Court did not accept that the Litigation

     retainer was in response to prior counsel of Edward

     Russell threateniing [sic] litigation       a   month after

     Decedent's death and counsel demanding support

     for the informal claim, before the claim was made

     formally (which it was never filed as           a   claim). [Such

     alleged threats were not made clear on the record, and

     may have been part of settlement discussions. To the


                  Judge Steve P. Leskinen
          Fayette County Court of Common Pleas
           61 E. Main St. Uniontown, PA 15401
                            5
extent this assertion is an attempt to blame the opposing

party for causing the litigation, the assertion is factually

inaccurate. Brooks was made the sole personal

representative 6 days after the decedent's death. From

his appointment on February 13, 2014 until the Motion

for Rule to Show Cause was presented on September 3,

2014, no inventory was filed, no advertisement for heirs

was published, no advertisement of appointment of the

representative was published, no auction of personal

property was arranged, and no listing agreement for the

real estate was signed. Discovery was ordered and only

complied with after court orders were entered. Until other

heirs intervened on their own behalf, Brooks falsely

represented himself as being the sole heir. The bulk of

the heirs ultimately had an attorney enter an appearance

on their behalf in December of 2014, and they were not

found by Brooks. The home was not sold until October,

2015, twenty months after Brooks was originally

appointed. The cash sale of the automobile was not

reported and the proceeds not deposited. The auto was

reported at   a   value more than $4,000 below the actual

sale price, even though it was allegedly already sold.
              Judge Steve P. Leskinen
      Fayette County Court of Common Pleas
       61 E. Main St. Uniontown; PA 15401
                        6
     Guns not owned by the decedent were transferred to

     Brooks' son, purportedly in exchange for services

     rendered. Proper legal advice, good faith and a

     reasonable level of diligence would have avoided the

     necessity of any litigation.]

g.      The Court did not acept [sic] testimony that

     Edward Russell had sole care, custody and control

     of the decedent's residence and personalty until

     Keneth [sic] L. Brooks appointment on February 13,

     2014. [The six days referred to does not appear to be

     material-perhaps Edward Russell could have retrieved

     his guns and other personal property from the house

     during that interval and practically eliminated Brooks'

     opportunity to make the claim that Decedent owned

     those items, but he did not do so.]

h.      The Court did not accept testmony [sic] that the

     residence was listed with        a   realtor shortly after the

     initial stage of litigation resulted in the appointment

     of the Co -Administrator. [The Co -Administrator, Jack

     Hann was not appointed until April           1,   2015, almost

     fourteen months after Decedent's death and Brooks'


                   Judge Steve P. Leskinen
           Fayette County Court of Common Pleas
            61 E. Main St. Uniontown PA 15401
                             7
     appointment as Administrator. The home should have

     been on the market long before that date, so the fact that

     it was put on the market shortly thereafter does not

     materially help Brooks' position.]

i.        The Courtt [sic] did not accept testimony that

     Edward Russell frustrated Kenneth L. Brooks' efforts

     by intercepting Decedent's mail. (regarding life

     insurance, stock etc...) [Whether or not this occurred

     does not appear to be very consequential. The personal

     representative had every right to go to the post office on

     the day he was appointed and order that the mail be

     forwarded to him. Evidently this is one of many things he

     failed to perform.]

          The Court did not accept testimony that Kenneth

     L.   Brooks had installed      a   security system at

     Decedent's residence requiring the internet

     (Armstrong Cable in the area.); but rather chastised

     Brooks for incurring the cable bill after death. [The

     testimony may have conflated cable tv service with

     internet service. The Court's ruling was that cable tv




                    Judge Steve P. Leskinen
            Fayette County Court of Common Pleas
             61 E. Main St. Uniontown, PA 15401
                              8
     service was completely unnecessary to the estate

     administration, and should not have been incurred.]

k.      The Court did not accept the testimony the [sic]

     Kenneth L. Brooks, through Kenneth R. Brooks, had

     secured the buyer for the decedent's residence;

     which was finalized through the Real Estate Broker

     seccured [sic] by Kenneth L. Brooks. lit does not

     matter who directed the ultimate buyer to the listing

     agent-the property was ultimately sold twenty months

     after the decedent's death, and only after the Court had

     to appoint a co -administrator to force the administration

     to proceed. Both co -administrators signed the listing

     agreement, and extra credit is not awarded to the person

     who first suggested the particular realtor chosen.J

I.      The Court apparently considered           a   Motion to

     Enforce which was filed after the hearings were

     begun, thereby considering issues not properly

     before the Court. [The Court believes all issues were

     properly considered after notice and an opportunity to be

     heard was given to all persons affected by the decision




                  Judge Steve P. Leskinen
          Fayette County Court of Conunon Pleas
           61 E. Main St. Uniontown, PA 15401
                             9
     of the Court. Responding to this claimed error is difficult

     without reference to any specific issue or issues.]

m.      The Court, without any basis nor testimony in

     support, concluded that the clean up, fix up, auction

     or storage should have been accomplished before

     any of the within litigation commenced. [The time

     delays speak for themselves, and there was no valid

     excuse ever offered for Brooks' failure to administer the

     estate in a good faith and timely fashion.]

n.      The Court, without having any testimony of value

     of anything, concluded that Edward Russell was

     improperly deprived of at least $4,000.00 worth of

     property. [This damages figure is an estimate based on_

     the photos and descriptions of the misappropriated

     property, the damages described to the guns and the

     value attributed to the lost and damaged property by the

     appraiser and Mr. Edward Russell. Had the estate been

     administered in   a   good faith and efficient manner, there

     would have been no loss to recoup at all.]

o.       The Court, over testimony that the Co -

     Administrators, [sic] agreed to continue a $100.00

                   Judge Steve P. Leskinen
           Fayette County Court of Common Pleas
            61 E. Main St. Uniontown, PA 15401
                             10
      yarrly [sic] donation to the local volunteer fire

      department servicing the decedent's residence,

     erroneously attributed the decision to Kenneth L.

      Brooks alone. [Again, the decisions made by Jack Hann

     were not challenged, so he was not forced to defend his

     role,   if any.   The donation was presented as a charitable

     donation. As worthy a charity as the fire department is, a

     personal representative has no legal authority to make

     charitable donations not authorized by any testamentary

     document. Donations to volunteer fire companies could

     arguably be considered a payment to secure their

     services, but only      if the legislature authorized such

     treatment.]

P.      The Court erroneously determined that Kenneth L.

     Brooks was retired and not workeing [sic]; when, in

     fact, Kenneth L. Brooks, during all times relevant

     herein, was and is employed by the Connellsville

     School District during regular business hours.

     [Whether or not Brooks was retired is a detail that was

     not material, and perhaps should not have been

     included. A personal representative is required to to


                     Judge Steve P. Leskinen
             Fayette County Court of Common Pleas
              61 E. Main St. Uniontown, PA 15401
                               11
       exercise reasonable diligence in performing the duties

       required by their oath whether or not they are employed

       elsewhere.]

 q.       The Court erroneously determined that Jack Hann

       did not have access to the Decedent's residence;

       when, in fact, Jack Hann had full access to the

      decedent's residence by having the alarm code on

      the alarm systen [sic] to gain access to the

      residence. [This Court will rely on the record of

      testimony. Hann had no access until he was appointed

      Co -administrator, and may or may not have been as

      assertive as he should have been after he was

      appointed.]

r.       The Court erroneously determined that Jack Hann

      did not have access to the Decedent's property;

      when in fact, Jack Hann had access to all of the

      decedent's property, as he was listed on the Estate

      bank account with full access. [Same response.]

s.       The Court determined that since Brooks was

      completely removed in September 2015, the Estate

      Administration has improved dramatically; when, in

                  Judge Steve P. Leskinen
          Fayette County Court of Common Pleas
           61 E. Main St. 'Uniontown, PA 15401
                            12
     fact, Administration was completed by Kenneth                  R.

     Brooks assisting Kenneth          L.   Brooks locating   a    buyer

     for the decedent's residence; and, when the Court

     received no evidence of any Administration after

     Kenneth L. Brooks' removal. [The house was listed

     after Hann was appointed and sold after Brooks was

     finally removed, and that alone was a dramatic

     improvement over the first fourteen months of

     administration. As noted above, whether or not the

     ultimate buyer spoke to someone before talking to the

     realtor is immaterial.]

f.      The Court erred by not considering the detailed,

     dated, billing of services provided pursuant to the

     Authorization to Represent. The detailed billing, as

     submitted by counsel forte [sic] movant will speak

     for itself;_Konneth L. Brooks neither wrote nor fully----               _




     understood the billing-as he testified. Kenneth L..

     [sic] Brooks testified that he knew there was            a   bill   -




     and it would be addressed after this was over. [Again,

     the issue with the attorney's fees is not the amount of

     time spent or the reasonable hourly rate-although there


                  Judge Steve P. Leskinen
          Fayette County Court of Common Pleas
           61 E. Main St. Uniontown, PA 15401
                            13
                             was evidence that hours were exaggerated and/or not

                            reasonably necessary-the Court found that there would

                            have been no need for litigation      if proper legal advice
                            was given and the estate was diligently administered in

                            good faith. Moreover, securing a $24,000.00 advance

                            "retainer" for litigation in an estate then valued at just

                            over $200,000 is facially unreasonable, more particularly

                            so when the incorrect and obdurate legal positions taken

                           by counsel were the primary reason for the lititgation.]

               2.       The Court erred by not following contempt procedures.

                    [This Court is unable to discern what this alleged error

                    specifically refers to. All parties adversely affected by the

                    Court's rulings had fair notice and an extended opportunity for a

                    hearing on all issues.]




                                                      BY THE COURT:
ATTEST:



                                                         EVE P. LESKINEN, JUDGE
CLERK OF ORPHANS COURT

      CO
 Co




                                       Judge Steve P. Leskinen
                               Fayette County Court of Common Pleas
      C   -J                    61 E. Main St. Uniontown, PA 15401
                                                 14
