In re Tomcik

286 A.3d 748

IN RE: ESTATE OF Coleen TOMCIK

Appeal of: Jeffrey Tomcik

No. 984 WDA 2021

Superior Court of Pennsylvania.

Submitted August 22, 2022

Filed November 15, 2022

Reargument Denied January 19, 2023

Todd T. Jordan, Pittsburgh, for appellant.

Joseph M. Gaydos Jr., White Oak, for appellee.

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.^*

OPINION BY MURRAY, J.:

Jeffrey Tomcik (Appellant) appeals from the orphans’ court's order clarifying prior orders, imposing sanctions, and directing Appellant to pay to the Estate of Colleen Tomcik (the Estate), the previously agreed-upon settlement or face further sanctions. We affirm. In addition, we award additional counsel fees and costs to the Estate due to Appellant's obdurate, dilatory and vexatious conduct.

CASE HISTORY

The orphans’ court recited the underlying facts and procedural history as follows:

Coleen S. Tomcik (hereinafter the "Decedent"), died testate on November 17, 2017, late of Peters Township, Washington County, Pennsylvania. At the time of her death, the Decedent resided with her husband, [Appellant], whom she had married on October 31, 2014, and her two minor children from her prior marriage, R.W. and M.W. [(collectively, children)]. The Decedent's will was admitted to probate on December 7, 2017, naming her sister, Kelly Gaydos (hereinafter the "Executrix"), as her executrix, and testamentary letters were issued to her. By her will, the Decedent left all of her tangible property to her children, and left the residuary of her estate to be divided equally between her children and [Appellant].

Irrespective of the clear provisions of Decedent's will, shortly after her death, [Appellant] changed the locks to the residence and would not allow access to the personal tangible property of the Decedent to the Executrix, or the Decedent's children. This included the personal property belonging to the children, the Decedent's jewelry and the children's dog. On March 2, 2018, the Executrix filed a Petition to Compel [Appellant] to release the Decedent's personal property to the children in accordance with the Decedent's will. The court entered a preliminary order directing [Appellant] to show cause why he should not be required to release the Decedent's personal property and other personalty to the children and/or the Estate.

On March 29, 2018, the Executrix filed a Petition for Rule to Show Cause why [Appellant] should not be surcharged for violating his fiduciary duty under a Power of Attorney for the Decedent. This petition arose out of allegations that [Appellant], after securing the Decedent's Power of Attorney on October 22, 2017, abused his authority and changed the beneficiary designations of Decedent's retirement accounts, just prior to her death on November 17, 2017, removing Decedent's children as beneficiaries and making himself the sole beneficiary of the accounts. The court issued a preliminary order directing [Appellant] to appear and demonstrate why he should not be surcharged.

On April 18, 2018, the court ordered [Appellant] to grant the Decedent's children ... access to [their former] residence at 227 Timberlake Drive[, Venetia, Pennsylvania,] to remove all tangible property that belonged to them or the Decedent remaining therein. [Appellant] was further ordered to prepare and file an accounting for his activities as Power of Attorney, which he filed on April 27, 2018. Thereafter, the Executrix filed her exceptions to the accounting on May 9, 2018.

* * *

On June 17, 2019, during a pretrial conference, counsel for the parties informed the court that a settlement agreement [(settlement agreement)] had been reached regarding the assets of the [E]state. The terms of the agreement were placed on the record and the Executrix and [Appellant], while under oath and with counsel, acknowledged their acceptance of the terms. The agreement provided , inter alia , that the Decedent's retirement accounts [, discussed infra ,] would be split 50% to the children and 50% to [Appellant ]. The attorneys agreed to have the agreement formally drafted and submitted thereafter. On August 18, 2020, over one year later, the Executrix filed a Motion to Compel [Appellant] to comply with the settlement agreement of June 17, 2019, as well as a motion for sanctions. A hearing was held on October 8, 2020, to address the matter. At the conclusion of the hearing, the court ordered [Appellant] to facilitate the settlement agreement and provide documentation regarding Decedent's Highmark Retirement Plan and her Highmark Investment account [(collectively, the Highmark accounts).] Because [Appellant] had refused to provide the necessary documentation for these accounts, and because, as discovered later, [Appellant] had re-titled the [Highmark] accounts in his name, the Executrix could not facilitate the terms of the settlement agreement of June 17, 2019. The court further ordered that [Appellant] be sanctioned in the amount of $16,330 in attorney's fees for the Decedent as a result of his obdurate, dilatory and vexatious conduct and refusal to comply with the settlement agreement. No appeal was taken from this order.

On December 21, 2020, the court held a hearing to review [Appellant's] compliance with the order of October 8, 2020. At the conclusion of the hearing, the court ordered [Appellant's] counsel, Michael McCague, Esquire, to provide the necessary documentation for the various accounts so that information could be released to the Executrix to facilitate the settlement agreement.

On March 15, 2021, the court held a hearing to further review [Appellant's] compliance with the settlement agreement, at which time the court was informed that all necessary documentation had finally been released to the Executrix. [Appellant] was represented at this hearing by Attorney Todd Jordan, Esquire [(Mr. Jordan)]. The court further ordered that the settlement be facilitated within thirty (30) days and that [Appellant] pay attorney's fees to the [E]state in the amount of $29,404, and warned [Appellant] that further sanctions could be levied should the settlement agreement not be facilitated. On April 21, 2021, the Executrix filed a Motion for Contempt and Sanctions as [Appellant] did not comply with the court's order and had not facilitated the settlement agreement. The court ordered that a contempt hearing be scheduled, which was eventually held on August 6, 2021.

On April 22, 2021, [Appellant] filed a notice of appeal from the order of March 15, 2021. [The Superior Court quashed the appeal. See Order, 11/8/21 (stating the order was "not an appealable contempt order because it made no present finding of contempt.").]

Orphans’ Court Opinion, 3/4/22, at 1-5 (emphasis added; footnotes omitted).

On May 10, 2021, Appellant filed two separate motions to dismiss the Estate's objections with respect to Decedent's Highmark accounts: one motion claimed the Estate lacked standing, and the other claimed the orphans’ court lacked subject matter jurisdiction (collectively, motions to dismiss). Appellant argued that because the Estate was not a named beneficiary on Decedent's retirement accounts, it "does not have standing to pursue the Exceptions as the Estate is not [an] aggrieved party." Motion to Dismiss for Lack of Standing, 5/10/21, ¶ 13. As to jurisdiction, Appellant argued the Highmark accounts are governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. § 1001 et seq. , which preempts state law. Motion to Dismiss for Lack of Jurisdiction, 5/10/21, ¶¶ 6-8. Appellant maintained that under ERISA, the surviving spouse is by law the named beneficiary of the account; thus, Appellant was the beneficiary of the Highmark accounts and the orphans’ court lacked jurisdiction. Id. ¶¶ 9, 13.

The orphans’ court denied Appellant's motions to dismiss in separate orders dated April 26, 2021 (April 2021 Orders).¹ The wording of the April 2021 Orders is pertinent to this appeal. The orphans’ court explained it utilized the two proposed orders drafted and submitted to the court by Appellant's counsel. N.T., 8/6/21, at 6. The printed text reads:

AND NOW, this 26^th day of April, 2021, upon consideration of the motion to dismiss for lack of standing, it is hereby ORDERED that the Exceptions filed by the Estate to the two (2) Highmark Accounts and the American Funds Account are dismissed for lack of standing.

AND NOW, this 26^th day of April, 2021, upon consideration of the motion to dismiss for lack of jurisdiction, it is hereby ORDERED that the Exceptions filed by the Estate to the two (2) Highmark Accounts are dismissed as this Court lacks subject matter jurisdiction over those two (2) accounts as those accounts are governed by ERISA.

The orphans’ court crossed out Appellant's proposed language by hand, and in both orders, above the stricken language, handwrote "DENIED."

The orphans’ court and Appellant's counsel discussed the April 2021 Orders a few months later at the August 6, 2021 contempt hearing:

MR. JORDAN: ... [T]he court ... issued two orders on [Appellant's] Motion to Dismiss for Lack of Standing and Motion to Dismiss for Lack of Jurisdiction. And this court denied the exceptions filed by the Estate. So I think because of that, this matter is concluded.

THE COURT: You mean I granted the motion to dismiss?

MR. JORDAN: In essence, you did, Your Honor . I have a copy.

* * *

THE COURT: I was denying [Appellant's] motions , if that wasn't clear. You had a proposed order dismissing for lack of standing.

MR. JORDAN: It says that the exceptions filed by the estate are denied on both orders.

THE COURT: Well, that wasn't what I intended . You thought I was agreeing with you?

MR. JORDAN: I did, Your Honor.

THE COURT: Then why would I have scratched that [proposed language] out?

MR. JORDAN: I don't know. Maybe you thought it was superfluous.

THE COURT: Wow. That is so cute, Mr. Jordan. I can't even believe it.

MR. JORDAN: I'm not trying to be cute, Your Honor. I'm reading what is in the order.

THE COURT: That's the fair

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