In re R.C.A.

1

IN RE: R.C.A., JR. APPEAL OF: R.C.A., JR.

No. 1850 EDA 2022

No. J-A17035-23

Superior Court of Pennsylvania

November 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Decree Entered June 20, 2022 In the Court of Common Pleas of Delaware County Orphans' Court at No(s) 0452-2021-O

BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J. ^*[]

MEMORANDUM

KING J.

Appellant R.C.A., Jr., appeals from the decree entered in the Delaware County Court of Common Pleas Orphans' Court, which granted the petition for payment of counsel fees filed by Appellee, J. Michael Considine, Jr. We affirm.

The Orphans' Court opinion set forth the relevant facts and procedural history of this appeal as follows:

On September 15, 2021, Douglas Oakford, Executor of the Estate of [M.A.] ("Decedent"), filed a petition to adjudicate [Appellant] incapacitated and to appoint a plenary guardian.^[1] [Appellant] is the son of Decedent. Decedent passed away on September 9, 2020. At the time of Decedent's death, she owned a residence located at 1608 Winton Avenue in Havertown, PA 19038 ("the Property"). According to Decedent's will, her home was to be sold six months after her death and the proceeds were to go into a trust for Appellant's benefit. Mr. Oakford was also the trustee of the testamentary trust created for the benefit of Appellant.

During his entire life and after Decedent's death, Appellant resided in the Property. According to the guardianship petition, Appellant was refusing to leave the Property, refusing to grant access to anyone, including professional social workers, and refusing to cooperate in the process of selling the home and relocating. Appellant was also in a living situation that appeared to involve extreme hoarding over decades. [Appellee] was initially retained on April 13, 2021 by Appellant to represent him in the matter involving his mother's estate. The guardianship petition stated that [Appellee] was retained to establish a logical distribution of the inheritance and to relocate Appellant into a new financially sound home using the inheritance funds. [Appellee] attempted to work with Appellant, despite his refusal to cooperate, and in doing so, [Appellee] became concerned for his welfare and that he would be susceptible to financial exploitation. During his representation of Appellant, [Appellee] suggested that Appellant be examined by an expert to see if a guardian of his person and/or estate would be necessary. The guardianship petition was then filed by the executor of the estate on September 15, 2021, and a hearing on the petition was scheduled for October 25, 2021. In addition, a guardian ad litem ("GAL"), Ms. Jacquelyn Goffney, was appointed on behalf of Appellant on October 19, 2021. GAL Goffney and the executor's attorney have acknowledged that there was a need for Appellant to vacate the Property.

Attorney James Cunilio entered his appearance on October 20, 2021 for representation of Appellant in the guardianship matter and filed an answer to the guardianship petition on October 22, 2021. A continuance request of the October 25^th court date was granted for the parties to have additional time in working out the matter and due to an alleged dispute over whether [Appellee] was in fact discharged from further representation of Appellant. Appellant signed a letter dated November 18, 2021 to be sent to [Appellee] to discharge him from his duties, as Appellant's attorney. [Appellee] denied that he received said letter.^2[] [Appellee] filed an answer to the guardianship petition on November 22, 2021, on the same date as the second hearing, and agreed to do no further work. At the hearing held on November 22, 2021, GAL Goffney confirmed that Appellant has selected who he wants to be his attorney and has released other counsel.

On April 26, 2022, [Appellee] filed a petition for counsel fees in the guardianship matter. Monthly invoices were included as exhibits to his petition for counsel fees in which he calculated his attorney's fees and costs to total $6,384.99.^[3] A hearing was held on June 20, 2022 to address the petition for counsel fees. Upon review, the Orphans' Court properly concluded that the fees and costs incurred up until [Appellee] learned that he was discharged as Appellant's attorney were reasonable and the award of $6,202.03 was equitable.^[4]

When [Appellee] was asked by the court why he believes he should be paid for legal fees pursuant to the retainer agreement, he stated the following:

I tried to represent this client's best interest. We did many things at his house to try to get him to cooperate with the will. He wouldn't do it. We brought in a social worker. There is over $200,000 [in an] account that he had a right to. He wanted me to do bills. He wanted me to do a lot of things. I did all that.

The work that [Appellee] completed for Appellant is reported in his multiple invoices attached to the petition for counsel fees. At the June 20^th hearing, [Appellee] testified that after the filing of the guardianship petition, [Appellee] wanted to have Appellant evaluated by an expert. Before this could be done, [Appellee] was discharged from representing Appellant, and he "did not do anything more in the case because [he] didn't want to run up the hours unnecessarily."

At the hearing, [Attorney] Cunilio alleged that most of the charges from [Appellee] were for the guardianship matter. While [Appellee] argued that the estate matter and the guardianship matter are one matter, [Attorney] Cunilio argued that they are two separate matters. [Appellee] offered the retainer agreement signed by Appellant on April 13, 2021 into evidence during the hearing held on June 20, 2022.^[5] [Attorney] Cunilio claimed that Appellant only hired [Appellee] in the estate matter and not in the guardianship matter.

Appellant testified at the hearing held on June 20, 2022. Appellant moved out of the Winton Avenue Property and moved into his own apartment on or about May 13, 2022. Appellant testified that he originally retained [Appellee] to represent him regarding his mother's estate matter. Appellant wanted assistance in determining what the trust was and how much was supposed to go into it, as well as what his legal rights were. There were several insurance annuities that were going to be deposited into the trust, and Appellant sought out [Appellee] to retrieve copies of said annuities. Appellant testified that [Appellee] did not complete what he believed he had asked [Appellee] to complete. Appellant testified that he had this belief because [Appellee] was providing him with inaccurate amounts of money to be distributed to him and his siblings. Appellant testified that he had never authorized [Appellee] to represent him in the guardianship matter.

* * *

On June 20, 2022, the court determined that [Appellee] is to be awarded for all of his work done in representing Appellant up until he learned that Appellant was discharging him as his attorney at the November 22, 2021 hearing. [Appellee] confirmed that $6,202.[03] was the total amount due up until November 22, 2021 when he filed his answer and agreed to do no more work for Appellant.

(Orphans' Court Opinion, filed 2/28/23, at 1-6) (internal record citations and some capitalization omitted).

Appellant timely filed a notice of appeal on July 14, 2022. On July 26, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely filed his Rule 1925(b) statement on August 2, 2022.^6[]

Appellant now raises six issues for this Court's review:

Did Appellant … waive the 13 issues set forth in his concise statement of matters complain[ed] of on appeal when the trial court addressed each of these issues separately and noted that the other 32 paragraphs of the statement are mere statements which require no response?

Notwithstanding the holding in Hempstead v. Meadville Theological School, [286 Pa. 493, 134 A. 103 (1926),] can an Orphans' Court award counsel fees when the attorney's services did not protect a common fund for distribution or administration of the court?

Did the trial court have authority to award counsel fees pursuant to Pennsylvania Rule of Orphans' Court Rule 14.4 and Delaware County Orphans' Court Rule 14.2 when an incapacitated person's estate was never created?

Did the trial court abuse its discretion by finding that [Appellee's] fees were reasonable?

Did the retainer agreement signed by [Appellant] for [Appellee's] services in [Decedent's] estate [case], five months before the guardianship petition was filed, satisfy the requirements of Pennsylvania Rule of Orphans' Court Rule 14.4?

Were the fees awarded to [Appellee] proper when [Appellee] never claimed he was retained by [Appellant] to represent him in the guardianship matter?

(Appellant's Brief at 5-6) (issues reordered for ease of disposition; some capitalization and quotation marks omitted).

In his first issue, Appellant complains about the court's conclusion that Appellant's prolix Rule 1925(b) statement did not preserve any issues for appellate review. Appellant insists that the "court was able to address the thirteen issues it recognized," and Appellant subsequently "narrowed the appeal issues from the thirteen identified in his Rule 1925(b) statement to six issues in his … brief." (Id. at 34). We agree with Appellant as our review of the record does not reveal a basis to support waiver. See Eiser v. Brown & Williamson Tobacco Corp., 595 Pa. 366, 383, 938 A.2d 417, 427-28 (2007) (encouraging lower courts to recognize that on rare occasions party may, in good faith, believe that large number of issues are worthy of pursuing on appeal; explaining that number of issues raised in Rule 1925 (b) statement does not,...