J-A17010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF: BORIS KRICHMAR, DEC'D.             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA




APPEAL OF: GALINA KRICHMAR AND
DANIEL KRICHMAR

                                                   No. 1511 EDA 2014


                Appeal from the Decree April 28, 2014
         In the Court of Common Pleas of Philadelphia County
              Orphans' Court at No(s): 1788 DE of 2006
_____________________________________________________________

IN RE: ESTATE OF: BORIS KRICHMAR,             IN THE SUPERIOR COURT OF
DEC'D.                                              PENNSYLVANIA




APPEAL OF: MANUEL SPIGLER

                                                   No. 1753 EDA 2014


                   Appeal from the Order April 28, 2014
           In the Court of Common Pleas of Philadelphia County
                Orphans' Court at No(s): 1788 DE of 2006


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.:                        FILED DECEMBER 01, 2015

     This appeal, brought by Galina and Daniel Krichmar (“Galina” or

“Daniel,” individually, or “the Krichmars,” collectively), and cross appeal,

brought by Manuel Spigler, arise from the final decree entered April 28,
J-A17010-15



2014, in the Court of Common Pleas of Philadelphia County, that denied by

operation of law exceptions to adjudications entered by the orphans’ court

on November 27, 2013. The case arises from the death of Boris Krichmar,

who died on January 31, 2005, in a fire that also took the life of his only

issue, his son Valeriy. Both Boris and Valeriy died intestate. 1 Appellant

Daniel Krichmar is the brother of Boris, uncle of Valeriy, and intestate heir of

the Estate of Valeriy Krichmar.2 Appellant Galina Krichmar is the daughter

of Daniel, is the former administratrix of the Estate of Boris Krichmar, and is

administratrix of the Estate of Valeriy Krichmar.      Cross-appellant Manuel

Spigler is the former attorney of Anna Guettel, who is the surviving spouse

of Boris,3 and administratrix D.B.N. of the Estate of Boris Krichmar.    Based

upon the following, we reverse the decree and remand for further



____________________________________________


1
  In the orphans’ court, both estates were considered together at one
hearing. The appeals in these cases were listed consecutively, and have
been likewise considered together.      The companion appeal concerning
Valeriy’s estate is In re Estate of Valeriy Krichmar, ___ A.3d ___ [1510
EDA 2014] (Pa. Super. 2015) (unpublished memorandum).
2
  Under 20 Pa.C.S. § 2103(5), Daniel is an intestate heir of Valeriy’s estate
as is his daughter, Appellant Galina Krichmar, but under 20 Pa.C.S. §
2104(1) Daniel receives the entire share as long as he is living.
3
  On June 23, 2011, this Court held that a valid marriage existed between
Guettel and Boris, and that Guettel did not desert Boris prior to his death.
See Estate of Boris Krichmar, 31 A.3d 752 (Pa. Super. 2011)
(unpublished memorandum).




                                           -2-
J-A17010-15



proceedings consistent with this memorandum.         We dismiss the cross-

appeal.

       The orphans’ court, which addressed the estate of Boris and the estate

of Valeriy together at one hearing, has provided a thorough summary of the

background of this case:

             Boris Krichmar and his only issue, a son named Valeriy
       Krichmar, died on January 31, 2005 as the result of a fire which
       ravaged their residence at 9276B Jamison Avenue, Philadelphia,
       Pennsylvania. At the time of their deaths neither Boris nor
       Valeriy was known to have a will.

             On February 8, 2005, Daniel Krichmar, brother of Boris
       Krichmar, renounced his right to serve as administrator of the
       estate of Boris and requested that the Register of Wills grant
       Letters of Administration to Daniel’s daughter, a niece of Boris,
       named Galina Krichmar. On February 11, 2005, the Register of
       Wills appointed Galina Krichmar to serve as Administratrix of the
       Estate of Boris Krichmar.

             On June 15, 2005, Anna Guettel filed a Petition with the
       Register of Wills in which Petition Anna claimed to be the wife
       and sole heir of Boris Krichmar and asked the Register to revoke
       the Letters of Administration which had been issued to Galina
       Krichmar. After holding Hearings on May 17, 2006 and August 9,
       2006, the Register issued a Decree dated October 20, 2006
       wherein the Register revoked the Letters of Administration which
       had been issued to Galina Krichmar and stated that he would
       issue Letters of Administration D.B.N. to Anna Guettel as the
       spouse and sole intestate heir of Boris Krichmar.[4]
____________________________________________


4
  Technically, the Register of Wills’ determination that Guettel was the “sole
intestate heir” was premature. Whether Guettel is the sole intestate heir
depends upon whether Valeriy survived Boris. See 20 Pa.C.S. § 2102(4)
(“The intestate share of a decedent’s surviving spouse is: … If there are
surviving issue of the decedent one or more of whom are not issue of the
surviving spouse, one-half of the intestate estate.”).



                                           -3-
J-A17010-15



          On December 20, 2006, the Register of Wills issued a
     Decree whereby he appointed Anna Guettel to serve as
     Administratrix D.B.N. of the Estate of Boris Krichmar, Deceased.

           On February 20, 2007, the Register of Wills issued a
     Decree whereby he appointed Galina Krichmar to serve as
     Administratrix of the Estate of Valeriy Krichmar, Deceased.

            After holding hearings between January 27, 2009 and
     February 9, 2009, [the court] issued an Opinion and 4 Decrees
     dated November 16, 2009, wherein [the court] Dismissed the
     Appeal of Daniel and Galina Krichmar from the Decree of the
     Register of Wills dated October 20, 2006; [the court] Denied an
     Amended Petition For Declaratory Judgment filed by Daniel and
     Galina Krichmar seeking a Declaration that Anna Guettel had
     forfeited her spousal rights; [the court] Denied a Petition filed by
     Daniel and Galina Krichmar seeking to Remove Anna Guettel
     from her Office of Administratrix D.B.N. of the Estate of Boris
     Krichmar, Deceased; [the court] Ordered Anna Guettel,
     Administratrix D.B.N., to file an Account of her administration of
     the Estate of Boris Krichmar, Deceased; [the court] Ordered
     Galina Krichmar, Former Administratrix, to file an Account of her
     Administration of the Estate of Boris Krichmar, Deceased; and,
     [the court] Ordered Jeffrey R. Solar, Esquire, Former Counsel to
     Galina Krichmar, Former Administratrix as aforesaid, to file an
     Account of all assets he received from the Estate of Boris
     Krichmar, Deceased.

           By separate Decree dated April 19, 2011, [the court]
     Ordered Galina Krichmar, Administratrix of the Estate of Valeriy
     Krichmar, Deceased, to file an Account of her Administration of
     the Estate of Valeriy Krichmar, Deceased.

           On June 23, 2011, a panel of our Superior Court affirmed
     [the court’s] Decrees dated November 16, 2009. [See Estate
     of Krichmar, 31 A.3d 752 (Pa. Super. 2011) (unpublished
     memorandum)].

          The First And Final Account of Anna Guettel, Administratrix
     D.B.N. of the Estate of Boris Krichmar, Deceased, was filed on
     December 29, 2009; bears Control Number 095450; and,
     appeared as Number 2 on my Audit List of February 1, 2010.
     Objections to said Account were filed by Daniel Krichmar,

                                    -4-
J-A17010-15


     individually, and, by Galina Krichmar as Administratrix of the
     Estate of Valeriy Krichmar, Deceased. Daniel Krichmar also filed
     a Claim against the Estate of Boris Krichmar, Deceased, in the
     amount of $66,650.00. Galina, in her capacity as Administratrix
     of the Estate of Valeriy Krichmar, Deceased, also filed a Claim
     against the Estate of Boris Krichmar, Deceased, in the amount of
     $ 50,928.48.

           The First And Final Account of Galina Krichmar, Former
     Administratrix of the Estate of Boris Krichmar, Deceased, was
     filed on April 18, 2011; bears Control Number 115128; and,
     appeared as Number 3 on my Audit List of June 6, 2011.
     Objections to said Account were filed by Anna Guettel,
     Individually and as Administratrix D.B.N. of the Estate of Boris
     Krichmar, Deceased.

           The First And Final Account of Jeffrey R. Solar, Esquire,
     Former Counsel to Galina Krichmar, Former Administratrix as
     aforesaid, was filed on January 4, 2010; bears Control Number
     105000; and, appeared as Number 3 on my Audit List of
     February 1, 2010. Objections to said Account were filed by Anna
     Guettel, Individually and as Administratrix D.B.N. of the Estate
     of Boris Krichmar, Deceased.

           The Account of Galina Krichmar, Administratrix of the
     Estate of Valeriy Krichmar, Deceased, was filed on May 3, 2011;
     bears Orphans Court Number 545 DE of 2011; bears Control
     Number 111224; and, appeared as Number 2 on my Audit List of
     June 6, 2011. Objections to said Account were filed by Anna
     Guettel, Individually and as Administratrix D.B.N. of the Estate
     of Boris Krichmar, Deceased.

           On April 10, 2012, Anna Guettel filed an “Amended Petition
     For Citation Directed To Galina Krichmar, Former Administratrix
     Of The Estate Of Boris Krichmar, Dec’d And Daniel Krichmar To
     Show Cause Why The Record And Non-Record Costs Of Anna
     Guettel Should Not Be Taxed Against Them”. Said Petition bears
     Control Number 121083. Daniel and Galina Krichmar filed an
     Answer to said Amended Petition.

           In early September 2012, disagreements between Anna
     Guettel and her Counsel, Manuel A. Spigler, Esquire, resulted in
     the withdrawal of Mr. Spigler as Counsel for Anna.


                                  -5-
J-A17010-15


            On December 13, 2012, Mr. Spigler filed a “Petition For
      Leave To Intervene And Interplead” which bears Control Number
      123870. In said Petition, Mr. Spigler seeks to intervene as a
      creditor of the Estate of Boris Krichmar. Daniel and Galina
      Krichmar filed an Answer to said Petition.

            On December 14, 2012, Mr. Spigler filed a “Petition For
      Counsel Fees And Costs” which bears Control Number 123884.
      In said Petition, Mr. Spigler seeks approval of counsel fees and
      costs for his representation of Anna Guettel as Administratrix of
      the Estate of Boris Krichmar. Daniel and Galina Krichmar filed
      Objections and a Response to said Amended Petition.

             Beginning on February 4, 2013 and ending on February 8,
      2013, hearings were held on the aforementioned Accounts and
      Petitions. At said hearings [the court] heard the testimony of
      Manuel Spigler, Esquire; Jeffrey Solar, Esquire; Galina Krichmar;
      JoAnn Conti; and, Anna Guettel.

            Manuel A. Spigler, Esquire, offered 40 exhibits which were
      marked Exhibit “Spigler 1” through Exhibit “Spigier 39”, and,
      Exhibit S-1. Daniel and Galina Krichmar offered 20 exhibits
      which were marked as Exhibit “K-1” through “K-20”. Although all
      parties were required to attend the hearings per my Decree,
      Daniel Krichmar did not attend the hearings. On February 8,
      2013, Galina Krichmar appeared before this Court pro se as her
      Counsel, Ms. Kamenitz, did not attend the hearing.

            On February 4, 2013, during the first day of the hearings,
      after considering the testimony and exhibits presented on the
      issue, [the court] granted Mr. Spigler’s petition to intervene as a
      creditor of the Estate of Boris Krichmar.

Orphans’ Court Opinion, 11/27/2013, at 1–5. On November 27, 2013, the

orphans’ court issued an opinion together with adjudications and decrees in

both the estate of Boris and the estate of Valeriy.

                 ORPHANS’ COURT’S DETERMINATIONS

      In its opinion, the orphans’ court addressed four issues:




                                     -6-
J-A17010-15


       (1) whether certain life insurance proceeds are an asset of Boris
       or Valeriy’s estate?; (2) whether certain fire loss proceeds, both
       for personal property loss and damage to real property, are an
       asset of Boris or Valeriy’s estate?; (3) whether Mr. Spigler’s
       claim for counsel fees and costs should be approved?; and (4)
       whether docket and non-docket costs, as well as counsel fees,
       should be taxed against Daniel and Galina Krichmar?

Orphans’ Court Opinion, 11/27/2013, at 5–6.      The court determined:

       (1)    Life insurance proceeds, in the amount of $140,915.00,
              that had been deposited by Galina into the account for
              Boris’ estate, but which she maintained were an asset of
              Valeriy’s estate, were solely an asset of Boris’ estate;

       (2)    Real property fire loss proceeds, in the amount of
              $78,464.09, were to be divided equally between Boris’ and
              Valeriy’s estates, as well as fire loss proceeds of
              $14,000.00, held in escrow by the City of Philadelphia;
              personal property fire loss proceeds, in the amount of
              $57,000.00, were to be divided equally between Boris’ and
              Valeriy’s estates;5

       (3)    Spigler was entitled to counsel fees in the amount of one-
              third of the gross estate of Boris, plus costs; and

       (4)    Guettel was entitled to taxed costs (docket and non-docket
              costs) against the Krichmars,6 and taxed costs in the form

____________________________________________


5
  We note this appeal does not concern the orphans’ court’s determinations
regarding real property fire insurance proceeds and personal property fire
insurance proceeds.    Spigler’s cross appeal does challenge the court’s
determinations regarding these fire loss proceeds.
6
  Specifically, the court determined Guettel was entitled to taxed costs
against the Krichmars for their appeal from the decree of the Register of
Wills and their declaratory judgment action, and awarded $695.00 for docket
costs and $2,939.58 for non-docket costs. See Orphans’ Court Opinion,
11/27/2013, at 18.




                                           -7-
J-A17010-15


              of counsel fees for the Krichmars’ efforts to probate a
              fraudulent will.7

See Orphans’ Court Opinion, 11/27/2013, at 6–21.

        In conjunction with this Opinion, the court issued four Adjudications.

The court (1) confirmed, as modified, the first and final account of Anna

Guettel, administratrix D.B.N. for the Estate of Boris Krichmar, (2)

confirmed, as modified, the first and final account of Galina Krichmar, former

administratrix for the Estate of Boris Krichmar,8 (3) confirmed the first and

final account of Jeffrey R. Solar, Esquire, for the Estate of Boris Krichmar,9

and     (4)   confirmed,    as   modified,     the   account   of   Galina   Krichmar,

administratrix of the Estate of Valeriy Krichmar.10



____________________________________________


7
  The court determined Guettel was entitled to $6,720.00 against the
Krichmars as taxed costs in the form of counsel fees. Id. at 20–21.
8
  In its adjudication confirming, as modified, Galina’s first and final account
of Boris’ estate, the court surcharged Galina as follows: $140,915.00 for
omitted life insurance proceeds, $62,063.71 for stricken disbursements,
$25,773.17 for stricken mortgage payments, $14,023.00 for stricken
counsel fees of Jeffrey Solar, Esquire, and $5,946.00 for stricken inheritance
tax. See Adjudication of Estate of Boris Krichmar, Deceased, Sur account
entitled First and Final Account of Galina Krichmar, Administratrix,
11/27/2013, at 6.
9
    This adjudication is not a subject this appeal.
10
  This adjudication is the subject of the companion appeal, In re Estate of
Valeriy Krichmar, ___ A.3d ___ [1510 EDA 2014] (Pa. Super. 2015)
(unpublished memorandum).




                                           -8-
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     Further, by decree, the court formally granted the petition of Manuel

Spigler to intervene, which the court had orally granted at the hearing on

February 4, 2013. In addition, the court issued three decrees that dismissed

as moot three petitions “because appropriate Relief had been Granted by

separate     Opinion   and    Adjudications   bearing   even    date   herewith.”

Specifically, these petitions were: (1) Guettel’s petition for citation for

taxation of record and non-record costs directed to the Krichmars, (2)

Guettel’s motion for leave to amend petition for citation for taxed costs and

non-record costs directed to the Krichmars, and (3) Spigler’s petition for

counsel fees and costs, which was filed against Guettel.

                             APPEAL AT 1511 EDA 2014

     At the outset, we state our standard of review:

     When an appellant challenges a decree entered by the Orphans’
     Court, our standard of review “requires that we be deferential to
     the findings of the Orphans’ Court.”

            [We] 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.

Estate of Brown, 30 A.3d 1200, 1206 (Pa. Super. 2011) (citations

omitted).

  In their appeal, the Krichmars raise five questions, as follows:

                                       -9-
J-A17010-15


     1. Did the lower court err by permitting Manuel Spigler, Esq., to
        intervene and by charging the Estate of Boris Krichmar with his
        counsel fees?[11]

     2. Did the lower court err by capriciously and deliberately
        disallowing undisputed disbursements that a person of ordinary
        intelligence could not ignore, discount or disapprove and by
        surcharging her for said items?

     3. Did the lower court err when it taxed costs and counsel fees
        against [the Krichmars] as a sanction for their efforts to probate
        a will that they immediately disavowed after a handwriting
        expert they hired declined to endorse it?

     4. Did the lower court properly hold that life insurance proceeds
        were the property of the estate of the insured, who, according to
        the certified death certificate, died before the beneficiary?

     5. Did the lower court err when it overruled objections to Guettel’s
        undocumented administration expenses?

The Krichmars’ Brief at 9–10.

        From the above claims, we have distilled the key issue, namely, the

fourth issue involving life insurance proceeds. The Krichmars’ challenge to
____________________________________________


11
  In connection with the adjudication of Galina’s account, the orphans’ court
surcharged Galina, and from the surcharges awarded Spigler counsel fees of
$52,330.01, finding Spigler was entitled to receive counsel fees in the
amount of one-third of the gross estate of Boris less $20,000.00 paid on
account, plus $9,699.73 in costs. See Adjudication of Estate of Boris
Krichmar, Deceased, Sur account entitled First and Final Account of Galina
Krichmar, Administratrix, 11/27/2013, at 6–7.

      In calculating one-third of Boris’ estate, the orphans’ court used the
following sums: $140,915.00 in life insurance proceeds, $46,232.04 in fire
insurance proceeds for real property, $28,500.00 in fire insurance proceeds
for personal property, $840.00 in value of cars, $503.00 in Social Security
Benefits, $20,000.00 in one-half value of premises 9276B Jamison Avenue.
See id. at 6.




                                          - 10 -
J-A17010-15


the orphans’ court’s ruling that Boris’ estate is entitled to the life insurance

proceeds, in the amount of $140,915.00, is of central importance and affects

the determination of Galina’s surcharge, Spigler’s attorney fees, and the

administration of Valeriy’s estate. Therefore, we will consider this issue first.

                           LIFE INSURANCE PROCEEDS


      Initially, we note that because Boris, who was the insured, and Valeriy,

who was the beneficiary, died on the same day, the order of death has

critical significance to the question of entitlement to the life insurance

proceeds. We further note, preliminarily to our discussion, that a certified

death certificate “shall constitute prima facie evidence of its contents.” 35

P.S. § 450.810.       However, “it is always open to explanation and

contradiction.” Kubacki v. Metropolitan Life Ins. Co., 164 A.2d 48, 53

(Pa. Super. 1960), citing Griffin v. National Mining Co., 193 A. 447 (Pa.

Super. 1937).

      Boris owned a life insurance policy with Principal Life Insurance with a

death benefit in the amount of $140,915.00. The beneficiary was “Valeriy

Krichmar, son, if living, otherwise to the Estate of Boris Krichmar.”       See

Exhibit K-3. During the hearing, the death certificates of Boris and Valeriy

were introduced into evidence by the Krichmars.        The death certificate of

Boris indicates he died at the residence at 6:10 a.m. The death certificate of

Valeriy reflects that he was pronounced dead at the hospital at 6:17 a.m.

Galina, believing Valeriy survived Boris and was entitled to the life insurance



                                     - 11 -
J-A17010-15



proceeds as beneficiary, did not include this asset in her account of Boris’

estate.   Rather, she included the life insurance proceeds in her account for

Valeriy’s estate.

      At the hearing, Spigler, on his own behalf and not as attorney for

Guettel, presented the testimony of Emergency Medical Technical (EMT)

JoAnn Conti to refute the time of death recorded on Valeriy’s death

certificate. The orphans’ court summarized Conti’s testimony as follows:

             Emergency Medical Technician JoAnn Conti (“EMT Conti”)
      testified that she arrived on the scene at 5:30 a.m. to tend to a
      male body later determined to be Valeriy Krichmar. EMT Conti
      testified that she determined Valeriy to be dead at or before
      5:31 a.m. and this was confirmed during a telephone call with a
      physician at the University of Pennsylvania Hospital. The time of
      death recorded on Valeriy’s death certificate, 6:17 a.m., was
      registered upon his body’s arrival at the hospital, forty five
      minutes after EMT Conti had pronounced Valeriy dead at the
      scene. EMT Conti admitted that she could not determine an
      exact time of death for Valeriy because “[h]e was involved in a
      fire” but when she examined his body at the scene she
      concluded he had been dead for at least several minutes.

            EMT Conti also testified that at the time she arrived on the
      scene and tended to Valeriy’s body there was still another male
      body in the fire. Police reports indicate that Boris’s body was
      transported directly from the scene to the Philadelphia morgue
      at 7:50 a.m. and the time of death indicated on both the police
      report and death certificate is 6:10 a.m. (Exhibits K-2, K-4)

Orphans’ Court Opinion, 11/27/2013, at 8–9 (record citations omitted).

      The Krichmars did not present any evidence to contradict Conti’s

testimony.

      Based solely on Conti’s testimony, the orphans’ court found that

“Galina and Daniel have not met their burden of proof to demonstrate that

                                    - 12 -
J-A17010-15



Valeriy survived Boris or that they died other than simultaneously.” Id. at

9.   Therefore, the court applied Pennsylvania’s Simultaneous Death Act,

which provides:

      Where the insured and the beneficiary in a policy of life or
      accident insurance have died and there is no sufficient evidence
      that they have died otherwise than simultaneously, the proceeds
      of the policy shall be distributed as if the insured had survived
      the beneficiary.

20 Pa.C.S. § 8504.     Accordingly, the orphans’ court ruled that the life

insurance proceeds were an asset of Boris’ estate. Because Galina Krichmar

had omitted the life insurance proceeds from her account of Boris’ estate,

the orphans’ court surcharged her $140,915.00.

      In this appeal, the Krichmars present three arguments challenging the

court’s holding that the life insurance proceeds were the property of Boris’

estate. The Krichmars argue: (1) Spigler had no standing to call a witness

or advocate a position on the issue, (2) Conti’s testimony was incompetent

and, therefore, insufficient to raise an issue, and (3) the court erroneously

conducted a final hearing and closed the record in the absence of counsel,

although she could not attend.      We address each of these arguments

sequentially.

                             SPIGLER’S STANDING

      In support of their argument that Spigler had no standing to call

witnesses and make arguments on the issue of life insurance proceeds, the

Krichmars maintain the court erred in permitting Spigler, a mere creditor of



                                   - 13 -
J-A17010-15



an heir, to call witnesses and make arguments. The Krichmars assert that

the court erred when it allowed Spigler to be a party.

        By way of background, Spigler had represented Guettel, Boris’

surviving spouse, who executed two fee agreements.                 The first fee

agreement was a contingency fee agreement wherein Guettel retained

Spigler to provide legal services to her individually, in her effort to establish

herself as surviving spouse of Boris Krichmar.12         Later, Guettell, in her

capacity as personal representative of Boris’ estate, entered into a second,

hourly fee agreement, for services on behalf of the estate and on behalf of

her as administratrix D.B.N. of the estate.13
____________________________________________


12
     The May 2, 2005 fee agreement, provided:

        I agree to pay the said attorney as legal fees one-third of the
        gross value of the estate or any portion thereof to which I
        become entitled either by way of verdict or settlement.
        Thereafter, the expenses of suit, pre-trial discovery,
        investigation, and reports, and the fees of witnesses, if any, shall
        then be reimbursed to the said attorney.

Fee Agreement, 5/2/2005 (emphasis added).
13
     The January 23, 2009, fee agreement stated:

        On behalf of the Estate, I agree that the Estate shall pay my
        attorneys Three Hundred ($300.00) per hour for past and future
        legal services on behalf of the Estate and on behalf of me as
        Administratrix of the Estate; provided, however, such fees
        shall not exceed one-third (1/3) of the gross value of the
        Estate and shall not be duplicative of nor in addition to
        any fees payable by the my [sic] personally under any
        agreement relating to representation of me as an heir of
        the Estate, … .
(Footnote Continued Next Page)


                                          - 14 -
J-A17010-15



      Thereafter, Spigler and Guettel had differences that led Spigler to file a

petition for leave to withdraw from representation, which was granted on

November 16, 2012. Spigler then filed a petition for leave to intervene as a

creditor of the Estate of Boris Krichmar, asserting intervention under

Pennsylvania Rule of Civil Procedure 2327(4) was appropriate because the

court’s determination of his petition for counsel fees and costs and

determinations of the accounts and objections to accounts pending before

the court would “affect a legally enforceable interest of Petitioner.”14

Spigler’s Petition to Intervene, 12/13/2012, at ¶35.      The orphans’ court,

after hearing argument, allowed Spigler to intervene “as a creditor of the

Estate of Boris Krichmar.”15 Orphans’ Court Opinion, 11/27/2013, at 5. See

also N.T., 2/4/2013, at 92, 94.

      However, we find Spigler has no “legally enforceable interest” in the

Estate of Boris Krichmar, as required by Rule 2327(4), that would entitle him

to intervene as a party. To the contrary, under the first fee agreement,
                       _______________________
(Footnote Continued)


Fee Agreement, 1/23/2009 (emphasis added).
14
   See Pa.R.C.P. 2327(4) (“At any time during the pendency of an action, a
person not a party thereto shall be permitted to intervene therein, subject to
these rules if … the determination of such action may affect any legally
enforceable interest of such person whether or not he may be bound by a
judgment in the action.”) (emphasis added).
15
   Following the court’s grant of his petition to intervene, Spigler was
represented by his partner, Steven Gross, Esquire.



                                           - 15 -
J-A17010-15


Spigler is a creditor of Guettel, individually.   In this regard, we note this

Court, in In re Luongo, 823 A.2d 942 (Pa. Super. 2003), held that

“creditors of an heir are not proper parties to maintain an appeal from

probate of a decedent’s will; ‘that one of the heirs owes money to a stranger

to the [decedent] does not make the stranger a party interested in the will

[of the decedent].’”    Id. at 954 (citation omitted).     The Luongo Court

explained: “In such circumstances, the heir’s creditors are said to have no

tangible interest in the estate that would confer the right to contest the

decedent’s will.” Id. This principle applies herein.

      Furthermore, contrary to Spigler’s position, Spigler is not a creditor of

Boris’ estate under the second fee agreement with Guettel.       Here, Spigler

has no claim against the decedent that makes him a creditor of the estate.

Rather, any claim of Spigler with regard to the estate is against the personal

representative, Guettel, for representing her in that capacity, and these

attorney fees are allowable as administrative expenses of the estate. See

generally, 20 Pa.C.S. § 3392. We find Spigler’s attorney fee arrangement

based upon the gross value of Boris’ estate was a means to determine the

amount of his fee, not a means to give him an interest in Boris’ estate. In

this regard, we have located no relevant legal authority that supports

Spigler’s position that his claim for attorney fees for services rendered on

behalf of the administratrix permits him to intervene as a party.   Therefore,




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we conclude the court erred in ruling Spigler had standing.16 Furthermore,

we find the court’s erroneous decision allowed Spigler to present substantive

evidence on the life insurance proceeds that would not otherwise have been

before the orphans’ court judge.

       We point out that although Guettel, while represented by Spigler, had

filed objections to Galina’s account of her administration of Boris’ estate, and

had filed petitions seeking taxed costs and taxed costs in the form of counsel

fees against the Krichmars, Guettel indicated at the hearing she wished to

settle the matter.17       In fact, the record reflects that Galina and Guettel

attempted to put on the record their agreement to withdraw all of their

objections to one another’s accounts as well as any other outstanding

petitions against one another, but were prevented from doing so because




____________________________________________


16
   It should be noted that Spigler’s petition for counsel fees, filed December
17, 2013, was pending before the orphans’ court at the time Spigler was
permitted to intervene. Furthermore, Guettel’s first and final account of the
Estate of Boris Krichmar, also pending before the court, reflected a
disbursement of $20,000.00 to Spigler after she was appointed
administratrix D.B.N. See Guettel’s First and Final Account, p. 6. Guettel
also identified Spigler as a claimant and requested a reserve amount of
$30,659.18 for counsel fees and costs.            See Guettel’s Petition for
Adjudication, p. 8.
17
  From the time Spigler was granted leave to withdraw, Guettel proceeded
pro se.




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Spigler was improperly considered by the court to be a necessary party to

the agreement.18 See N.T., 2/7/2013, at 5–8.

       In summary, we conclude that Spigler did not have standing to call

Conti as a witness.      Therefore, the issue of life insurance proceeds and the

underlying issue of the order of death must be readdressed by the orphans’

court. Since Conti’s testimony may yet be presented to the orphans’ court

by a party with standing, we proceed to address the Krichmars’ challenge

regarding her testimony.

                                   CONTI’S TESTIMONY

       The Krichmars contend that Conti’s testimony was incompetent.

Specifically, the Krichmars argue that “Conti could not testify with any

reasonable degree of medical certainty what time the person she examined

was deceased” and that “she could not even identify the body.” The

Krichmars’ Brief at 66.

       Pennsylvania Rule of Evidence 601 provides that “Every person is

competent to be a witness except as otherwise provided by statute or in

these rules.” Pa.R.E. 601(a). EMT’s Conti’s testimony was summarized by

the orphans’ court, and is quoted in the discussion above. She testified she
____________________________________________


18
   We do not intend to overstate the testimony of Guettel regarding a
settlement agreement, since she did allude to new, undiscussed condition,
see N.T., 2/7/2013, at 11, but there appeared to be ongoing negotiations.
However, the court incorrectly determined that there were three parties in
this case. Absent Spigler as a party, we cannot say that negotiations would
not have resulted in a resolution of the objections.



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J-A17010-15


transported the body to Frankford Torresdale Hospital where a doctor in the

emergency room made a pronouncement of death. N.T., 2/5/2013, at 119–

121.   When shown a copy of Valeriy’s death certificate indicating he was

“DOA” at the “Hospital,” she identified the person she had transported to be

Valeriy. Id. at 123 (“Yes, I guess.”).

       Here, Conti was present at the scene and could properly testify to her

observations.    As such, we conclude that Conti’s testimony is competent

and, on remand, may be presented by a party with standing.       It is then for

the orphans’ court to make its own credibility and weight determinations.

See Lux’s Estate, 389 A.2d 1053, 1056 (Pa. 1978) (“The credibility of the

witnesses and the weight to be given their testimony is in the first instance

to be determined by the auditing judge.).

                                 FINAL HEARING


       The third argument presented by the Krichmars regarding the life

insurance proceeds issue is that the court should not have conducted the

final day of the hearing after counsel advised the court that she could not be

present, and closed the record in the absence of counsel.

       Preliminarily, we note:

       The trial court is vested with broad discretion in the
       determination of whether a request for a continuance should be
       granted, and an appellate court should not disturb such a
       decision unless an abuse of that discretion is apparent. An abuse
       of discretion is more than just an error in judgment and, on
       appeal, the trial court will not be found to have abused its
       discretion unless the record discloses that the judgment


                                    - 19 -
J-A17010-15


      exercised was manifestly unreasonable, or         the   results    of
      partiality, prejudice, bias or ill-will.

Corrado v. Thomas Jefferson University Hospital, 790 A.2d 1022, 1035

(Pa. Super. 2001) (citations omitted).

      The court’s scheduling orders stated that the hearings on the Estate of

Boris Krichmar would be held on “MONDAY AND TUESDAY, FEBRUARY 4 and

5, 2013.” Decrees, 1/22/2013 (underlining omitted). At the end of the day

on Tuesday, the court advised that the proceedings would continue the next

day at 10:30 a.m. See N.T., 2/5/2013, at 198. On Wednesday, at the end

of the day, the court advised that the hearing would resume the next day at

3:00 p.m. See N.T., 2/6/2013, at 198. On Thursday, at the end of the day,

the court advised the parties “we’ll see you tomorrow at 10:00.”              N.T.,

2/7/2013, at 68. The Krichmars’ counsel stated on the record she was not

able to attend the hearing the next day due to a doctor’s appointment for

her daughter that could not be rescheduled.      See id. at 68.         The court

responded that it already had granted enough continuances and that the

case would go on. Id. at 71–72. The court added that the case would finish

tomorrow. Id. at 72.

      The court’s decisions to deny a continuance and close the record in the

absence of counsel foreclosed the Krichmars’ counsel from presenting any

additional evidence or witnesses to refute Conti’s testimony. In light of the

fact that Conti’s testimony went to the issue most critical to the adjudication

of Boris’ and Valeriy’s estates, we conclude the court’s ruling was an abuse

of discretion.

                                    - 20 -
J-A17010-15




                                        CONCLUSION

       In this case, the question of order of death with respect to the life

insurance proceeds has a domino effect upon the remaining issues raised in

this appeal. Resolution of this question affects the surcharge against Galina

for omitting the life insurance proceeds from her account and placing this

asset in Valeriy’s estate (Issue #2). Resolution of this question affects the

issue of the Krichmars’ standing to challenge Guettel’s administration of

Boris’ estate (Issue #5).19 Resolution of this question also affects the gross

value of Boris’ estate and Spigler’s claim for attorney fees (Issue #1). While

issues regarding other surcharges imposed against Galina for disallowed

disbursements (Issue #2) and taxed costs and taxed costs in the form of

counsel fees against the Krichmars (Issue #3) are not so affected, until the

question of the order of death vis à vis the issue of life insurance proceeds is

properly resolved in the orphans’ court, it is premature for this Court to

address these issues because the accounts may have to be restated.


____________________________________________


19
   If Valeriy survived Boris, Valeriy would be an heir of Boris’ estate along
with Guettel.     See 20 Pa.C.S. § 2102(4) (“The intestate share of a
decedent’s surviving spouse is: … If there are surviving issue of the
decedent one or more of whom are not issue of the surviving spouse, one-
half of the intestate estate.”).     Therefore, Galina, as administratrix of
Valeriy’s estate, and Daniel, as Valeriy’s heir, would have standing to
challenge the administration of Boris’ estate.




                                          - 21 -
J-A17010-15


         Accordingly, we reverse the orphans’ court’s decree and remand for a

determination whether the life insurance proceeds are an asset of Boris’

estate    or   Valeriy’s   estate.   In    considering   the   applicability   of   the

Simultaneous Death Act, 20 Pa.C.S. § 8504, the court should do so without

reference to Conti’s testimony, unless presented by a party with standing.

     Thereafter, the orphans’ court should determine if any amended or

restated accounts should be filed, if the parties are unable to reach the

settlement suggested at the February 7, 2013, hearing.


                      CROSS APPEAL AT 1753 EDA 2014

     In his cross appeal, Spigler raises the following five issues:

         A. Where the Orphans’ Court awarded counsel fees based on
            the gross value of the estate, did the court err in the
            valuation of the estate thereby denying counsel of the
            fees to which he was entitled?

         B. Did the Orphans’ Court err in denying decedent’s estate
            the full amount of fire loss proceeds for damage to
            personal property where the decedent was the sole
            named insured, the proceeds were paid to decedent’s
            estate and there is no evidence to support a claim of
            ownership of the personal property by the objector?

         C. Did the Orphans’ Court err in denying decedent’s estate
            the full amount of fire loss proceeds for damages to real
            property owned by the decedent as a tenant in common
            where the decedent was the sole named insured?

         D. Did the Orphans’ Court make factual findings as to the
            value of decedent’s assets that were not supported by the
            record and contrary to law as to:

          1. The value of decedent’s interest in real property?



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J-A17010-15


          2. Proceeds   recovered    from          the     Pennsylvania
             Department of Treasury?

          3. The value of decedent’s motor vehicles?

       E. Did the Orphans’ Court err in failing to award interest [on the
          surcharges]?

Spigler’s Brief at 3–4.

       The first four issues raised by Spigler are substantive arguments

regarding the gross value of Boris’ estate.20            In his final issue, Spigler

contends the Krichmars should be surcharged with interest. As discussed in
____________________________________________


20
   As mentioned in Footnote 11, supra, the orphans’ court surcharged
Galina and from the surcharges awarded Spigler counsel fees of $52,330.01.
We note that Guettel’s account reflects that Spigler was paid $20,000.00,
and that the court credited this amount when calculating Spigler’s fee.
Nevertheless, it is unclear whether the court’s fee determination of one-third
of the gross value of Boris’ estate was based upon Spigler’s representation
of Guettel as an heir, or Spigler’s representation of Guettel as administratrix
D.B.N. of Boris’ estate.

       If, in fact, the fee was for Spigler’s representation of Guettel,
individually, the gross value of Boris’ estate cannot be ascertained until the
orphans’ court resolves the issue of life insurance proceeds upon remand. If
the fee was for Spigler’s services to Guttel as administratrix D.B.N., then
$20,000.00 appears to be an appropriate fee, as of the time Spigler
withdrew from representation of Guettel. While Guettel’s account reflects a
payment of $20,000.00 to Spigler, her account does not reflect the date of
payment, and it is unclear whether this payment was made with regard to
her obligation to Spigler as heir or as administratrix. While we presume,
since Guettel included the payment in her first and final account, that the
$20,000.00 was for Spigler’s services to Guettel in her capacity as
administratrix, Spigler has commingled his entitlement to fees by referring
to both the fee agreements for his representation of Guettel as heir, and the
fee agreement for his representation of her as administratrix, in his petition
for counsel fees.




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the appeal at 1511 EDA 2014, we have concluded that Spigler had no

standing to intervene in these proceedings.            Accordingly, Spigler has no

standing to raise these issues on appeal.          Consequently, we dismiss the

cross-appeal.

      At Docket No. 1511 EDA 2014, Decree reversed. Case remanded for

further   proceedings     consistent   with     this   memorandum.     Jurisdiction

relinquished.

      At Docket No. 1753 EDA 2014.Cross-appeal dismissed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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