Estate of Vossburg, J., Vossburg, K. v. Vossburg R

J-A29022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF JAMES FRANCIS IN THE SUPERIOR COURT OF VOSSBURG, SR., ALSO KNOWN AS PENNSYLVANIA JAMES F. VOSSBURG, SR., DECEASED,

KATHY VOSSBURG

Appellee

v.

RANDY J. VOSSBURG, INDIVIDUALLY AND AS ADMINISTRATOR D.B.N.C.T.A., OF THE ESTATE OF JAMES F. VOSSBURG, SR.,

Appellant No. 260 WDA 2014

Appeal from the Order entered January 14, 2014, in the Court of Common Pleas of Clarion County, Orphans' Court, at No(s): 21 O.C. 1997

BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ. MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 06, 2014

Randy J. Vossburg, (“Appellant”), appeals from the trial court’s order which determined that he was liable to the estate of his grandfather, James Francis Vossburg, Sr., a.k.a. James F. Vossburg, Sr., (alternatively “Estate” or “Decedent”), for $21,687.68 dollars, and which removed Appellant as the Estate’s administrator as a result of Appellant’s violations of his fiduciary duty to the Estate.

Appellant presents the following issues for our review:

• • Retired Senior Judge assigned to the Superior Court.

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1. Did the Orphans’ Court err as a matter of law in determining that the Court Order dated December 9, 2010, served as a renewal of the statute of limitations, and also when it appears in the Court's opinion that the statute of limitations was deemed renewed by the "admission" of [Appellant’s] counsel during legal argument on October 11, 2013 or in [Appellant’s] "briefs”?

2. Irrespective of whether or not the acknowledgement doctrine revived the time-barred debt against [Appellant] in December 2010, did the Orphans' Court err as a matter of law in finding [Appellant] liable for repayment when the applicable two-year statute of limitations for conversion claims ran on any such revived claims in December 2012?

3. Did the Orphans' Court err as a matter of law and abuse its discretion in determining [Appellant], “is in breach of his fiduciary duty as an administrator to collect all debts of the estate” and has a conflict of interest and must be removed as administrator, when the Court based such alleged breach of duty and conflict of interest on a debt which is time-barred under Pennsylvania law?

4. Did the Orphans’ Court err as a matter of law and abuse its discretion in appearing to find [Appellant] should be removed as administrator because his account “shows that [Appellant] has done absolutely nothing as administrator d.b.n.c.t.a.,” when in fact the record shows substantial orders, negotiations, letters and documentation with the court in furtherance of attempts to reduce a department of public welfare lien that put any activity for said account on hold during [Appellant’s] accounting?

Appellant’s Brief at 10-11.

Initially, we recognize:

“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.” In re Estate of Presutti, 783 A.2d 803, 805 (Pa. Super. 2001) (quoting In re Estate of Angle, 777 A.2d 114, 122– 23 (Pa. Super. 2001)). “If the court's findings are properly supported, we may reverse its decision only if the rules of law on which it relied are palpably wrong or clearly inapplicable.”

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Owens v. Mazzei, 847 A.2d 700, 706 (Pa. Super. 2004) (citing In re Estate of Harrison, 745 A.2d 676, 678–79 (Pa. Super. 2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000)).

In re Estate of Fritts, 906 A.2d 601, 606 (Pa. Super. 2006).

Mindful of our standard of review applicable to Appellant’s issues, we carefully examined the record and found Appellant’s claims of error to be unavailing. The Honorable Paul H. Millin, Senior Judge, who presided over this matter, filed a well-written opinion, which we adopt as our own, with only one departure in rationale, which we explain more fully below. Judge Millin, citing prevailing and applicable case law, cogently addressed Appellant’s challenges regarding the monies Appellant owed to the Estate, Appellant’s violations of his fiduciary duty regarding the Estate, and Appellant’s removal as the Estate’s administrator, such that further analysis by this Court would be redundant. We therefore adopt the trial court’s January 14, 2014 opinion as our own in affirming the trial court’s order of the same date.

Our affirmance reflects our agreement with the trial court’s determination that Appellant is liable to the Decedent’s estate for $21,687.68 dollars. See In re Novosielski, 992 A.2d 89, 104 (Pa. 2010) (“Absent extraordinary circumstances, an appellate court will not substitute its judgment for that of the fact finder.”); see Fritts, supra, at 606 (“If the court's findings are properly supported, we may reverse its decision only if the rules of law on which it relied are palpably wrong or clearly inapplicable.”); The Morning Call vs. Bell Atlantic-Pennsylvania, Inc.,

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761 A.2d 139, 141 (Pa. Super. 2000) (“Findings of fact made by the [trial court] will not be disturbed unless they are unsupported by competent evidence or are demonstrably capricious.”).

Our only departure from the trial court’s rationale is that we do not find that the March 11, 1997 order was unenforceable due to the passage of time. We find that Appellant had, and still has, a duty to comply and abide by the trial court’s March 11, 1997 order directing him to “begin immediately to return the assets” to the Estate, consisting of the debt of $21,687.68 dollars “which [Appellant] concedes belongs to [Decedent].” Order, 3/11/97, at 2. See Bullock v. Bullock, 639 A.2d 826, 829-830 (Pa. Super. 1994) (internal citation omitted) (passage of time did not preclude a 33 year old support order from being enforced where: 1) the order was duly entered and of record; 2) “appellant's duty to provide support … had been established by court order, and his failure to comply therewith was clearly established by judicial records” such that “[u]nder these circumstances, [appellant] cannot complain that enforcement was delayed”; and 3) where the trial court did not err in enforcing the order since “[appellant’s] support requirements result[ed] from a court order rather than an agreement, [such that] the trial court had the primary responsibility to implement (by operation of law) the plaintiff's right to support pursuant to the 1959 order”); see also Miller v. Bistransky, 679 A.2d 1300, 1302 (Pa. Super. 1996) (affirming the enforcement of a 50 year old support order despite the passage of time, and finding that the order’s enforcement was not barred by

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the doctrine of laches). We do not find that the cases cited by the trial court disallowing the recovery of stale claims against a decedent’s estate to be dispositive of, or applicable in this matter, because the monies sought to be recovered are for the benefit of, and in favor, of the Estate. See Trial Court Opinion, 1/14/14, at 4-5.

Even assuming arguendo that Appellant’s debt was subject to an expired statute of limitations, we agree with the trial court that the debt was revived by Appellant’s acknowledgement of the debt. See Trial Court Opinion, 1/14/14, at 1-5; See Makozy v. Makozy, 874 A.2d 1160, 1170-1171 (Pa. Super. 2005) (acknowledgement doctrine may be invoked to toll or remove the bar regarding a statute of limitations concerning a debt where there is “[a] clear, distinct, and unequivocal acknowledgment of a debt” by the debtor “of an existing obligation, such as is consistent with a promise to pay” the debt).

Likewise, our review of the record and applicable case law comports with the trial court’s determination that Appellant owed a fiduciary duty to the Estate to collect all debts that were owed to the Estate, including his own debt, and that Appellant’s failure to do so constituted a violation of Appellant’s fiduciary duty to the Estate, compelling Appellant’s removal as the Estate’s administrator. See Trial Court Opinion, 1/14/14, at 5-6; see also In re Estate of Andrews, 92 A.3d 1226, 1231 (Pa. Super. 2014) (personal representative owes estate fiduciary duty to collect the estate’s assets, including any monies owed to estate); In re Estate of Westin, 874

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A.2d 139, 143 (Pa. Super. 2005) (conflict of interest warranting removal of estate’s executor was “readily apparent” where executor’s law firm owed money to the estate, “the record reveals no evidence of any attempts by the executor to recover these funds for the estate,” the estate “[b]y any reasonable measure, … has grounds to file a claim against [executor’s law firm] to recover its assets,” and the executor “would then be in the position of representing the estate, in his capacity as executor, in a claim against himself and his law firm”).

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/6/2014

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