J-S02031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF NEVA OESCHGER,                      IN THE SUPERIOR COURT OF
DECEASED                                                   PENNSYLVANIA



                       v.

APPEAL OF: WILLIAM OESCHGER

                                                          No. 1079 EDA 2015


                Appeal from the Decree entered March 10, 2015
               In the Court of Common Pleas of Delaware County
                       Orphans' Court at No: 685 of 2005


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                                    FILED MAY 24, 2016

        William Oeschger (“Appellant”) appeals pro se from the March 10,

2015 decree entered in the Orphans’ Court Division of the Delaware County

Court of Common Pleas, denying his exceptions to that court’s adjudication

dated    November      10,   2014.       The   adjudication   dismissed   Appellant’s

objections to the account and proposed distribution of the estate of his

mother, Neva Oeschger (“Decedent”).1 Following review, we affirm.

____________________________________________


1
  Decedent was adjudicated an incapacitated person on December 19, 2005.
F. Michael Friedman (“Friedman”) was appointed the plenary guardian of the
person and estate and continued in that capacity until Decedent’s 2008
death. In 2009, Friedman filed a First and Final Account for the estate.
Appellant filed objections, which the court dismissed by order dated October
11, 2012. An appeal was taken to this Court and, on July 31, 2013, we
affirmed the trial court’s order. In re Estate of Neva Oeschger, 2013 WL
(Footnote Continued Next Page)
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      Our summary of the factual and procedural background of the case is

gleaned from our review of the record. From that review, we are aware that

Decedent died testate on July 18, 2008.              Her daughter, Beverly Lewis

(“Lewis” or “Executrix”), was appointed executrix in accordance with the

terms of Decedent’s Will. On June 3, 2014, Executrix, through her counsel,

filed her First and Final Account.          On June 13, 2014, she filed a Second

Amended Petition for Adjudication/Statement of Proposed Distribution. On

July 7, 2014, Appellant filed objections to both filings.

      By decree entered on the docket on November 6, 2014, the trial court

approved the account and granted the petition for adjudication/proposed

distribution.   By adjudication dated November 10, 2014, the trial court

dismissed Appellant’s objections and confirmed and approved the account

and the petition for adjudication/proposed distribution. Per the terms of the

adjudication, the trial court awarded Appellant and Executrix 50% each of

Decedent’s estate in conformance with Decedent’s Will and the Statement of

Distribution.

      On December 3, 2014, Appellant filed exceptions to the November 10,

2014 adjudication, listing 22 separate allegations of error and reserving the

right to file supplemental exceptions. Appellant sought, inter alia, to vacate

                       _______________________
(Footnote Continued)

11260425 (Pa. Super. July 31, 2013), appeal denied, 87 A.3d 321 (Table)
(Pa. March 4, 2014). See also Appellant’s Brief at 8-11.




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the adjudication and stay distributions, and requested a new hearing.      In

response, counsel for the estate filed cross-exceptions. Following a hearing

on January 21, 2015, the court entered a decree dated February 17, 2015

denying and dismissing the exceptions and cross-exceptions.       This timely

appeal followed.2

       In response to the trial court’s Rule 1925(b) order, Appellant filed a

statement of errors complained of on appeal that included a preface and 30

alleged errors. The trial court issued its Rule 1925(a) opinion on May 26,

2015, addressing each of the alleged errors and finding them meritless.

       On appeal to this Court, Appellant presents two issues for our

consideration:

       A. Whether the lower court abused its discretion in denying a
          continuance where the Appellant had a documented medical
          emergency and the continuance would not have caused any
          prejudice to the estate?

       B. Whether the lower court erred in accepting the first and final
          account which included unreasonable additional fees to the
          guardian and excluded fees/reimbursements owed to the
          Appellant?

Appellant’s Brief at 7.



____________________________________________


2
  The February 17, 2015 decree was not simultaneously entered on the
docket, prompting this Court to issue an order directing Appellant to
praecipe the trial court prothonotary to enter the final decree on the trial
court docket. The trial court docket reflects entry of the decree on March
10, 2015.



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     We begin by setting forth our standard of review.         This Court has

recognized:

     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 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 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)).

     In his first issue, Appellant contends that the trial court abused its

discretion by denying a continuance of the October 1, 2014 hearing despite

medical issues involving Appellant’s significant other, Carol Brown.      He

claims a continuance would not have caused prejudice to the estate. This

issue was preserved in Paragraphs 5 through 8 of Appellant’s 1925(b)

statement.

     This Court reviews a trial court’s decision to grant or deny a

continuance for an abuse of discretion.     Baysmore v. Brownstein, 771

A.2d 54, 57 (Pa. Super. 2001). “An abuse of discretion is more than just an

error in judgment and, on appeal, the trial court will not be found to have

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abused its discretion unless the record discloses that the judgment exercised

was manifestly unreasonable, or the results of partiality, prejudice, bias or

ill-will.” Id. Matters of a continuance are not specifically addressed in the

Orphans’ Court Rules.    Therefore, we review Appellant’s claim in light of

Pa.R.C.P. No. 216, which provides, in pertinent part:

      Rule 216. Grounds for Continuance

      (A)   The following are grounds for a continuance:

            (1)   Agreement of all parties or their attorneys, if
                  approved by the Court;

            (2)   Illness of counsel of record, a material witness, or a
                  party. If requested a certificate of a physician shall
                  be furnished, stating that such illness will probably
                  be of sufficient duration to prevent the ill person
                  from participating in the trial;

                  ...

            (4)   Such special ground as may be allowed in the
                  discretion of the court[.]

Pa.R.C.P. No. 216.

      Although Appellant cites case law and the appropriate “abuse of

discretion” standard, he does not cite any procedural rule, such as Rule 216,

applicable to requesting a continuance. He simply contends the trial court

abused its discretion because Appellant’s appearance and testimony at the

October 2014 hearing were essential and he was prejudiced because he and

his “primary witness” were not present at the hearing. Appellant’s Brief at

24.   Thus, in essence, he is relying on the gist of Rule 216(A)(2) without


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citing it.   However, as reflected in the trial court’s Rule 1925(a) opinion,

Appellant’s contentions are unsupported in the record. Further, his actions

were not in compliance with Rule 216(C), which sets forth the procedure for

requesting a continuance. In its opinion, the trial court explained:

      Appellant[] complain[s] of his absence from the hearing . . .
      that occurred on October 1, 2014 and suggest[s] that his
      absence was for good cause and that he was denied a fair and
      impartial hearing.

      On July 22, 2014, the [t]rial [c]ourt published a Decree
      scheduling a hearing of William Oeschger’s Objections to occur
      on August 20, 2014 and continuing into August 21, 2014 and
      August 22, 2014, if necessary. In the same Decree all parties
      were advised that any motions for a continuance must be filed
      no later than August 6, 2014. William Oeschger filed a Motion
      for a Continuance on August 6, 2014 requesting a continuance
      citing as reasons for the continuance a pre-planned vacation;
      attempts to settle the litigation without the need for a court
      hearing and also indicating that critical witnesses ". . . may have
      difficulty attending[.”] William Oeschger did not identify who
      were the critical witnesses and if[,] in fact, they could not attend
      the hearing because of a conflict with their professional or
      personal calendars. Nevertheless, by Decree dated August 12,
      2014, the [t]rial [c]ourt granted William Oeschger’s request for a
      continuance and scheduled the hearing to commence on
      September 23, 2014 and continuing into September 24, 2014, if
      necessary. Again all parties were advised that any motion for a
      continuance of the September dates must be filed on or before
      August 23, 2014.

      Thereafter, William Oeschger commenced to conduct ex parte
      conversations with [the trial court] by e-mail on August 25,
      2014, September 23, 2014, September 29, 2014 and September
      30, 2015. In each of the e-mails, William Oeschger's complaint
      was the scheduled hearing date established by the [t]rial [c]ourt
      for the hearing on his objections. Despite[] this [c]ourt's one
      response which was addressed to all parties indicating that the
      [t]rial [c]ourt did not grant relief in response to e-mail
      communication and was transmitted on August 25, 2014,
      William Oeschger continually ignored the [t]rial [c]ourt's

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     admonishments on the only acceptable manner in which to
     obtain relief by continuance.

     While the [t]rial [j]udge was on vacation and out of the office,
     William Oeschger contacted chambers and insisted that the
     September 23, 2014 date be continued because his significant
     other was having a medical procedure on September 24, 2014
     and had to attend to pre-admission matters on September 23,
     2014. In a faxed letter to chambers William Oeschger suggested
     that his significant other would be unavailable to attend the
     September 23 and September 24 hearings and she would be
     unavailable as a witness because of the medical matter. William
     Oeschger did not explain what relevance or competence that his
     significant other might present as a witness in the
     correspondence.       The [t]rial [c]ourt upon receiving this
     information from his chambers postponed the hearing scheduled
     for September 23, 2014 and scheduled it to occur on October 1,
     2014.

     Thereafter, William Oeschger bombarded the [t]rial [c]ourt with
     e-mails on September 18, 23 and 29 asking for a further
     postponement of the hearing on his objections. The [t]rial
     [c]ourt chose to ignore these improper and inappropriate forms
     of ex parte communications and proceeded with the hearing on
     October 1, 2014. William Oeschger did not attend the hearing
     on his Objections on October 1, 2014 preferring to assume that
     the [t]rial [c]ourt's silence with regard to his repeated e-mails
     indicated that the [t]rial [c]ourt had postponed the October 1,
     2014 hearing date.

     Pa.R.C.P. 216(C) established the appropriate method for
     obtaining a continuance and William Oeschger failed to follow
     that prescription despite being so advised by the [t]rial [c]ourt in
     its Decrees dated July 22, 2014 and August 12, 2014.
     Additionally, the decision whether to grant or deny a request for
     a continuance rests within the sound discretion of the [t]rial
     [c]ourt and that decision will not be disturbed unless there is an
     abuse of discretion on the part of the [t]rial [c]ourt.

     William Oeschger’s claim for appellate relief on these grounds is
     completely without merit.

     ...


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      [With regard to his significant other’s medical issues,] William
      Oeschger presented no evidence of record on the length or
      seriousness of surgery nor did he admit evidence of any
      Surgeon’s directive. William Oeschger’s own decision to absent
      himself from the October 1, 2014 hearing was the sole reason
      that William Oeschger did not participate at the October 1, 2014
      hearing.

      ...

      William Oeschger has never demonstrated whether Carol F.
      Brown would have been a competent witness or whether the
      content of her testimony would have been relevant.

Trial Court Opinion, 5/26/15, at 4-6 (citation omitted). See also id. at 1-2.

      We agree with the trial court’s disposition of the continuance issue.

Appellant failed to follow the appropriate methods for seeking a continuance

despite instruction from the trial court on the proper procedure. Clearly, ex

parte communications with the trial court are not an acceptable substitute

for an extension request that complies with Pa.R.C.P. 216.         Appellant’s

suggestion that “[u]rgent requests for continuance . . . are normally

accepted ex parte practice,” Appellant’s Reply Brief at 4, is simply wrong.

Appellant’s failure to comply with the rules is not saved by his assertion that

he is pro se and lacks a legal staff to prepare formal continuances. Id.   Pro

se status generally confers no special benefit upon a party.       See, e.g.,

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003).

Appellant’s first issue fails for lack of merit.

      In his second issue, Appellant argues the trial court erred in accepting

the first and final account because, he contends, it included “unreasonable


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additional fees to the guardian and excluded fees/reimbursements owed to

the Appellant.” Appellant’s Brief at 7. Appellant’s assertions were preserved

in, inter alia, Paragraphs 12 through 29 of his Rule 1925(b) statement.

      In   his   brief,    Appellant   provides   examples   of   the   “salient

misappropriations of Estate assets” including:

      [T]he Executrix sold the real estate and its contents for less than
      the court approved amount; removed personal property from the
      real estate without notice; failed to credit the Appellant for
      $10,000.00 for down payment; failed to account for loss and
      damage; failed to credit that Appellant for out of pocket
      expenses for the sale of the property; allowing the sister’s
      attorney to be paid from the estate while the Appellant has
      represented himself pro-se or has paid his previous attorney
      directly; failed to credit the Appellant for storage costs and
      moving expenses; approved expenses that were not presented
      in open court; [and] failed to compensate the Appellant for the
      role as executor of his father’s estate.

Appellant’s Brief at 35.

      Appellant’s second issue lacks merit.          As Lewis and Friedman

(collectively “Appellees”) correctly state in their joint brief, “[i]t is well

established that whenever there is an unsuccessful attempt by a beneficiary

to surcharge a fiduciary the latter is entitled to an allowance out of the

estate to pay for counsel fees and necessary expenditures in defending

himself against the attack.”      Appellees’ Brief at 11 (quoting Estate of

Browarsky, 263 A.2d 365, 366 (Pa. 1970) (additional citations omitted)).

      Appellant suggests that he is being “punished for protecting the assets

of the Estate.” Appellant’s Brief at 27. That is not the case. As Appellees

counter, “[s]trictly speaking, it is a claim for additional compensation by a

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fiduciary for having had to defend a first and final account and incur

attorney’s fees and costs in that defense.” Appellees’ Brief at 11. A review

of some of the alleged “salient misappropriations” illustrates this point.

      With regard to the real estate, which is the subject of the first five of

Appellant’s enumerated “misappropriations,” the trial court explained it

initially denied Lewis’ request for declaratory relief seeking to nullify the

agreement of sale for the real estate and gave Appellant an extension of

time to settle on the property. Trial Court Opinion, 5/26/15, at 6. Appellant

failed to settle within the prescribed time. Therefore, the trial court declared

the agreement of sale a nullity. Id. “[Appellant] unsuccessfully appealed.

All issues concerning the real estate . . . and [Appellant’s] feeble attempts to

purchase same have been litigated by [Appellant] and have been appealed

unsuccessfully by [Appellant.]”     Id. at 6-7.    Further, because Appellant

breached the agreement of sale for the real estate, the $10,000 down

payment became an estate asset as liquidated damages. As for any claims

regarding Appellant’s possessions, the trial court properly noted that

Appellant never filed a single claim against the estate, instead raising the

claims for the first time on appeal. Id. at 7. Therefore, those claims must

be denied.

      With regard to Appellant’s claim for attorney fees for his service as

executor for his father’s estate, the trial court observed:

      This ground is completely without merit since this is a claim that
      should have been brought against the estate of Fred H.

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      Oeschger. It is not properly brought against the estate of
      [Decedent] since [Appellant] was not the personal representative
      of [Decedent’s] estate. It is interesting to note that [Appellant]
      as Executor for the Estate of his father, Fred H. Oeschger filed
      an inheritance tax return indicating no assets in the estate of
      Fred H. Oeschger since as [Appellant] claimed on August 31,
      2005 one hundred percent of the estate of Fred H. Oeschger was
      distributable upon Fred H. Oeschger[’s] death to his wife,
      [Decedent]. It is remarkable to the [t]rial [c]ourt that
      [Appellant] would brazenly claim that he earned [] $20,000.00
      from [an] estate that had no assets.

Id. at 10.

      With regard to Appellant’s second issue, we defer to the findings of the

trial court. In re Estate of Miller, 18 A.3d at 1169. Our review leads us to

conclude that the record is free from legal error and that the trial court’s

factual findings are supported by the evidence.        We find no basis for

disturbing the trial court’s decree denying Appellant’s exceptions to the First

and Final Account or, more particularly, with its findings regarding fees or

reimbursements necessitated by Appellant’s actions.        Appellant’s second

issue fails for lack of merit.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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