Public Notices, December 4, 2019

Volume 57, No. 18

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

 

 

TABLE OF CONTENTS

Amy Baccellieri and Adam Smith, Individually, and Amy Baccellieri, Executrix of the Estate of Karla W. Smith, v. Mahalaleel Marrero, a/k/a Mike Marrero

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF SAMUEL M. BLACK, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Alicia Black-Kirby, Executrix

c/o C. Thomas Work, Esquire

 

1. Thomas Work, Esquire

Stevens & Lee

P.O. Box 679

Reading, PA 19603

 

ESTATE OF NANCY A. ROGERS a/k/a NANCY ANNE ROGERS, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

David C. Rogers, Co-Executor

430 Orchard Lane

Manheim, PA 17545

 

Martha A. Gingrich, Co-Executrix

240 Freeport Road

Lebanon, PA 17046

 

Frederick D. Rogers, Co-Executor

547A Hershey Road

Hummelstown, PA 17036

 

Johnathan B. Batdorf, Esquire

317 East Lancaster Avenue

Shillington, PA 19607

 

ESTATE OF JOHN T. GABRIEL, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Thomas J. Gabriel, Executor

 

George E. Christianson, Esquire

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF MARK S. TICE, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

William F. Seifert, Executor

207 N. Locust Street

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steinder & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF HAROLD L. YOHN, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Amy Shirk, Executrix

104 Beech Avenue

Fredericksburg, PA 17026

 

Kari E. Panza, Esquire

R.J. Marzella & Associates

3513 North Front Street

Harrisburg, PA 17110

 

SECOND PUBLICATION

 

ESTATE OF TINA J. TIENE, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Traci M. Bookbinder, Executrix

 

Anthony J. Fitzgibbons, Esquire

279 North Zinns Mill Road

Lebanon, PA 17042

 

ESTATE OF ANNA B. ALBERT, a/k/a ANNA E. ALBERT, a/k/a ANNIE E. ALBERT, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Mary A. College, Executrix

 

Gerald J. Brinser, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF SUSAN J. MURRAY, late of North Londonderry Township, Lebanon County Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Jennifer S. Beard, Administratrix

5816 Mayfair Drive

Harrisburg, Pa 17112

 

Kenneth F. Lewis, Esquire

1101 N. Front Street

First Floor

Harrisburg, PA 17102

 

ESTATE OF RONALD R. LOUSER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Faye R. Louser, Administratrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF V. CARL GACONO, a/k/a VENICE CARL GACONO, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Rebecca Gacono Harlan, Co-Executrix

Mary Ann Gacono Darok, Co-Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF PATRICIA A. SCHOOLS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Diane K. Stevens, Co-Executrix

356 Kalmia St.

Warminster, PA 18974

 

James A. Schools, Co-Executor

47 Brown Road

Wyalusing, PA 18853

 

Daryl J. Gerber, Esquire

The Law Office of Daryl J. Gerber

46 E. Main Street

Palmyra, PA 17078

 

ESTATE OF GUY R. FESSLER, SR., a/k/a GUY R. FESSLER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Vickie Lee Hocker, Co-Executrix

Jaqueline V. Dullebawn-Mease, Co-Executrix

 

Kevin M. Dugan, Esquire

Feather and Feather, P.C.,

22 West Main Street

Annville, 17003

 

ESTATE OF BETTY L. KEISER, late of Annville, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Stephanie Keiser, Executrix

 

John E. Feather, Jr., Esquire

Feather and Feather, P.C.,

22 West Main Street

Annville, 17003

 

ESTATE OF GEORGE C. POTASH, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

George C. Potash, III, Executor

 

Estate of George C. Potash

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ROBERT J. LILLIE, a/k/a ROBERT JONES LILLIE, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathryn J. Lillie, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

THIRD PUBLICATION

 

ESTATE OF RONALD J. FRANZONE, SR. aka RONALD JOSEPH FRANZONE, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John M. Zimmerman, Executor

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF SHIRLEY A. BINNER, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Charles H. Binner, III, Executor

 

Caleb J. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF ARLENE J. CROUSE, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jeffrey L. Crouse, Executor

 

James R. Clark, Esquire

277 Millwood Road

Lancaster, PA 17603

 

ESTATE OF EARL S. MILLER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Linda L. Houser, Executrix

PO Box 264

Bethel, PA 19507

William H. Sturm, Jr., Esquire

Steiner & Sandoe, Attorneys

36 W. Main Avenue

Myerstown, PA 17067

 

ESTATE OF ARLENE S. ZEITERS, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathleen McFeaters, Executrix

 

Estate of Arlene S. Zeiters

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF JANE B. LONG, late Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Dale E. Long, Executor

 

George E. Christianson, Esquire

411 Chestnut Street

Lebanon, PA 17042

 

 

Amy Baccellieri and Adam Smith, Individually, and Amy Baccellieri, Executrix of the Estate of Karla W. Smith, v. Mahalaleel Marrero, a/k/a Mike Marrero

 

Civil Action-Law-Orphans’ Court Division-Decedent’s Estate-Preliminary Objections-Subject Matter Jurisdiction-Annuity Proceeds

 

Amy Baccellieri and Adam Smith, the children and beneficiaries of the Estate of decedent Karla W. Smith (“Decedent”) with Amy Baccellieri also serving as the Executor of Decedent’s Estate, filed a Petition for the Turnover of Assets against Respondent seeking proceeds and ownership of remaining annuity funds for administration and distribution pursuant to Decedent’s Will. Respondent was a family friend of Decedent’s pre-deceased husband and was named beneficiary of several annuities prior to Decedent’s death. Respondent filed a Preliminary Objection on the basis that the Orphans’ Court Division of the Lebanon County Court of Common Pleas lacks subject matter over the proceeds of the annuities with the Civil Court Division having jurisdiction regarding the dispute over the annuity funds based upon the law of contracts.

 

1. In disposing of preliminary objections, the court is constrained to accept as true all well pleaded material facts set forth in the pleadings and all reasonable inferences that may be drawn from those facts.

 

2. When sustained preliminary objections would result in the dismissal of an action, the court may do so only in cases that are free and clear from doubt.

 

3. Title 20 Pa.C.S. § 711 indicates that the Orphans’ Court Division has jurisdiction over proceedings for the enforcement of legacies, annuities and charges placed upon real or personal property by will, inter vivos trust or decree of the Orphans’ Court or for the discharge of a lien thereof, as well disputes concerning the title and rightful possession of a decedent’s property.

 

4. An annuity designates a bequeathed, donated or purchased fixed right to receive fixed, periodic payments, either for life or for a number of years. The determining factor of an annuity is that the annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be derived.

 

5. The Civil and Orphans’ Court Divisions have concurrent jurisdiction pursuant to Title 20 Pa.C.S. § 712(3) over cases where there are substantial questions concerning matters enumerated in § 711 and matters not enumerated in that Section, which is intended to avoid multiple actions in different court divisions in a case involving two (2) or more questions.

 

6. Since the annuities were Decedent’s property at the time of her death and the Orphans’ Court Division is charged with the administration and distribution of real and personal property of decedents’ estates, the Orphans’ Court Division has subject matter jurisdiction over the distribution of the annuities’ proceeds.

 

L.C.C.C.P. No. 2017-00353, Opinion by John C. Tylwalk, President Judge, January 17, 2019.

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

ORPHANS’ COURT DIVISION

 

AMY BACCELLIERI and ADAM SMITH,  :           NO. 2017-353

Individually and AMY BACCELLIERI,      :

Executrix of THE ESTATE OF                    :

KARLA W. SMITH,                                      :

Petitioners                            :

:

1. :

:

MAHALALEEL MARRERO, a/k/a              :

MIKE MARRERO,                                        :

Respondent                         :

 

APPEARANCES:

 

ANDREW J. RACE, ESQUIRE                    FOR PETITIONERS

REILLY WOLFSON

 

HEATHER EGGERT, ESQUIRE                  FOR RESPONDENT

HENRY & BEAVER LLP

 

OPINION, TYLWALK, P.J., JANUARY 17, 2019.

 

Before us are the Preliminary Objections of Respondent Mahalaleel Marrero a/k/a Mike Marrero to the Petition for the Turnover of Assets filed by Petitioners Amy Baccellieri and Adam Smith in the Orphans’ Court Division of this Court. In the Preliminary Objections, Respondent challenges the subject matter jurisdiction of the Orphans’ Court Division and seeks dismissal of the Petition.

In disposing of the Preliminary Objections, we are constrained to accept as true all well-pleaded material facts set forth in the Petition and all reasonable inferences which may be drawn from those facts. Estate of Gentry v. Diamond Rock Hill Realty, LLC, 111 A.3d 194, 198 (Pa. Super. 2015), quoting Filipovich v. J.T. Imports, Inc., 637 A.2d 314, 316 (Pa. Super. 1994). When sustaining preliminary objections would result in the dismissal of an action, we may do so only in cases that are clear and free from doubt. Ellenbogen v. PNC Bank, N.A., 731 A.2d 175, 181 (Pa.Super.1999). “Any doubt should be resolved by a refusal to sustain the objections.” Id.

The Petition alleges that Baccellieri and Smith are the children of decedent Karla W. Smith (“Decedent”) who died on April 25, 2017 and the beneficiaries of her Estate.   Respondent was a family friend of Decedent’s pre-deceased husband who became reacquainted with Decedent in 2013 and provided aid to her until her death.

Petitioners explain that Decedent suffered a stroke in June 2012 and had a pacemaker implanted in or about September 2013. She was also legally blind and began to suffer early onset dementia around that time period. Baccallieri was Decedent’s designated agent pursuant to a Power of Attorney. In 2013, she moved from her home in Delaware to Lebanon to care for her mother.   However, in late 2013, Decedent and Baccellieri had a “falling out” and Baccellieri returned to live in Delaware.

Respondent had been a family friend of Decedent’s husband. After Decedent’s husband passed away, Respondent began taking Decedent to her medical appointments, wrote checks on her behalf, and performed other similar duties. On April 27, 2015, Decedent purchased a Symetra Annuity in the amount of $70,000.00 (No. **75), naming Respondent as the beneficiary. (Exhibit “C” to Petition to Turnover of Assets) Under the terms of that annuity, Decedent began receiving payments on May 8, 2015 which were to continue until a total of sixty (60) payments had been made. On November 20, 2015, Decedent purchased a Symetra Annuity in the amount of $38,823.37 (No. **02) on which Respondent was also designated as beneficiary. (Exhibit “D” to Petition to Turnover of Assets) Under this annuity, Decedent was to receive monthly payments beginning on November 30, 2015 to continue until sixty (60) payments had been made. In addition, Decedent also owned two other Symetra Annuities (Nos. **9651 and **9673) on which Respondent was named annuitant.

After Decedent’s death on April 25, 2017, Marrero surrendered **9651 and **9673 for their cash value and he was issued a check in the amount of $149,338.75 on December 16, 2016. Marrero ultimately turned over those funds to Decedent’s Estate, but remained the beneficiary on the other annuities.

Petitioners allege that after Baccelieri and Decedent had their “falling out” in 2013, Marrero controlled Decedent’s financial matters. Despite no Power of Attorney designating him as Decedent’s agent, he wrote checks on Decedent’s behalf and either sold or assisted Decedent in selling her home at below market value. It is alleged that he failed to disclose the sale of the home to Baccellieri upon her inquiry. After Decedent’s death on April 25, 2017, Respondent refused to turn over the annuities despite Baccellieri’s demand that he do so. Respondent has retained the $69,009.42 remaining value of the annuities.

On August 3, 2018, the Petitioners filed the Petition for the Turnover of Assets in the Orphan’s Court Division requesting that we direct Respondent to turn over the proceeds and ownership of the remaining Symetra Annuities for administration and distribution in accordance with Decedent’s Will. Petitioners allege that the Symetra Annuities beneficiary designations are invalid and should be set aside due to Respondent’s exercise of undue influence over Decedent as Decedent suffered from a weakened mental intellect and Respondent occupied a confidential relationship with her at the time she made the beneficiary designations on Annuity Nos. **75 and **02. Respondent seeks dismissal of the Petition, arguing that the Orphans’ Court Division lacks subject matter jurisdiction over the annuities and that this matter should be decided in the Civil Division of the Court because disputes regarding annuities must be determined on the basis of the law of contracts.

We first note that Petitioners’ claims do not challenge the terms of the annuities. Instead, Petitioners challenge the manner in which Respondent became the designated beneficiary of the annuities.

Petitioners counter that Section 711 provides for the orphans’ court mandatory jurisdiction of annuities belonging to a decedent:

• 711. Mandatory exercise of jurisdiction through orphans’ court division in

general

 

Except as provided in section 712 (relating to nonmandatory exercise of jurisdiction through the orphans’ court division) and section 713 (relating to special provisions for Philadelphia County), the jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division:

 

(14) Legacies, annuities and charges.–Proceedings for the enforcement of legacies, annuities and charges placed on real or personal property by will, inter vivos trust, or decree of an orphans’ court or orphans’ court division or for the discharge of the lien thereof.

 

20 Pa.C.S.A. §711(14).

 

Under this provision, where an annuity is charged on lands, the orphans’ court has jurisdiction to make a decree for the payment thereof, by an alienee of the devisee, which will bind him personally. Appeal of Mohler, 8 Pa. 26, 1848 WL 5428 (Pa. 1848). This is not the case here.

However, Section §711 also requires that the orphans’ court adjudicate disputes concerning the title and rightful possession of a decedent’s property:

(17) Title to personal property.–The adjudication of the title to personal property in the possession of the personal representative, or registered in the name of the decedent or his nominee, or alleged by the personal representative to have been in the possession of the decedent at the time of his death.

 

20 Pa.C.S.A. §711(17).

 

In Estate of Sauers, 32 A.3d 1241 (Pa. 2011), the decedent’s former spouse was designated primary beneficiary on his life insurance policy and his nephew was designated contingent beneficiary. The insurance policy was issued pursuant to an employee group benefit plan and was subject to the provisions of the Employee Retirement Income Security Act, 29 U.S.C. §1001 et seq (“ERISA”).

The administrator of the decedent’s estate filed a petition in the Orphans’ Court division on behalf of the contingent beneficiary seeking to have the primary beneficiary surrender all interest in the proceeds of the policy under the statute governing the effect of divorce on designation of beneficiaries.[1] The primary beneficiary filed preliminary objections, objecting to the orphans’ courts’ subject matter jurisdiction to entertain the petition and contending that the administrator did not have the authority to seek relief in a county orphans’ court on behalf of the third party contingent beneficiary.   The primary beneficiary argued that because the insurance policy was not a testamentary document and thus had no bearing on the administration of an estate, it was improper for an administrator of an estate, or a court charged with supervision of that estate, to concern themselves with the policy or its proceeds. The lower court ordered the former spouse to surrender the proceeds. The Superior Court upheld the lower court’s order. On appeal, the Pennsylvania Supreme Court found that the administrator had the authority to file the petition and that the orphans’ court had jurisdiction to entertain it. In addressing the primary beneficiary’s challenge to the Orphans’ Court’s authority, the Supreme Court explained:

The Orphans’ Court divisions of the various courts of common pleas are charged with the “administration and distribution of the real and personal property of decedents’ estates….” 20 Pa.C.S. § 711(1). Orphans’ Courts must also adjudicate disputes concerning the title and rightful possession of a decedent’s property. Id. While life insurance benefits are not estate assets, see id. § 6108, Pennsylvania courts have previously held that the life insurance policies from which proceeds are distributed are the decedent’s personal property at the time of his death. See Henderson’s Estate, 149 A.2d 892; In re Shahan, 429 Pa.Super. 91, 631 A.2d 1298 (1993). Thus, administrators of estates are charged with taking possession of, maintaining, and administering these assets, see 20 Pa.C.S. § 3311(a), and the Orphans’ Courts are vested with the authority to ensure the proper distribution of insurance proceeds. Henderson’s Estate; Shahan. Therefore, Administrator, as the representative of Decedent’s estate, certainly held the authority, and thus possessed the capacity, to file the petition for rule to show cause in the York County Orphans’ Court seeking the proper distribution of Decedent’s personal property. Accordingly, we find no error by the courts below in overruling Ex–Spouse’s preliminary objection.

 

Estate of Sauers, 32 A.3d at 1249.[2]

Generally speaking, an annuity “designates a right-bequeathed, donated or purchased-to receive fixed, periodical payments, either for life or a number of years. Its determining characteristic is that the annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be derived’. In re Dwight’s Estate, 134 A.2d 45, 49-50 (Pa. 1957). Like life insurance policy proceeds, annuity proceeds are not estate assets pursuant to 20 Pa.C.S.A. §6108(a). We believe that, like life insurance policies from which proceeds are distributed, these annuities were Decedent’s personal property at the time of her death. The two annuities at issue here were income-producing contractual rights which were under Decedent’s control when she died. She was receiving monthly disbursements of funds prior to and at the time of her death. Moreover, the designation of a revocable … beneficiary is neither an inter vivos nor a testamentary conveyance, vesting nothing in the beneficiary. Jackson Life Insurance Company v. Heyser, 2013 WL 5278340 (M.D. Pa. 2013) (dealing with challenge to change of beneficiary designation on a decedent’s annuity), citing Manhattan Life Insurance Company of New York, N.Y. v. Evanek, 762 F.2d 319, 322 (3d Cir. 1985). Here, there is no indication that that the beneficiary designation of the annuities was irrevocable.   Also, pursuant to Pennsylvania Department of Revenue Regulations, an annuity is nonprobate intangible personal property which is subject to inheritance tax. See 61 Pa. Code §93.141.

Since this asset was property in Decedent’s possession at the time of her death, Baccellieri, as the executrix, is charged with ensuring appropriate distribution of this property. If she believes that she is in possession of proof that Respondent achieved the status of designated beneficiary by means of undue influence exerted on Decedent, it is incumbent upon Baccelieri to determine ownership of and protect the asset in order to ensure proper distribution. Thus, pursuant to Section 711(17), this action properly lies in the Orphans’ Court division.

We also note that the Civil Division and the Orphans’ Court Division of this Court have concurrent jurisdiction pursuant to Section 712 of the Probate Code which provides that “[t]he jurisdiction of the court of common pleas over the following may be exercised through either its orphans’ court division or other appropriate division: … The disposition of any case where there are substantial questions concerning matters enumerated in section 711 (relating to mandatory exercise of jurisdiction through orphans’ court division in general) and also matters not enumerated in that section.” 20 Pa.C.S. § 712(3) (emphasis added).

This section, which grants non-mandatory jurisdiction to the orphans’ court division to exercise jurisdiction of the court in “other matters,” is “intended to avoid multiple actions in different divisions in a case involving two or more questions, one of which would ordinarily be decided by the orphans’ court division and the other by the trial or family division.” Baskin & Sears v. Edward J. Boyle Co., supra, — Pa. at —-, 483 A.2d at 1367 (quoting the commentary to 20 Pa.C.S. § 712). Since the orphans’ court division had jurisdiction to determine the ownership of jointly owned accounts and this required an examination of the relationship between appellant and decedent and a determination of whether there was a confidential relationship and/or the exercise of undue influence, the orphans’ court division could also exercise jurisdiction to determine whether undue influence had tainted the transfer of assets into the name of appellant alone. …

 

Estate of Gilbert, 492 A.2d 401, 403-404 (Pa. Super. 1985). Since this proceeding

involves the determination ownership of Decedent’s property at issue, the

Orphans’ Court may properly exercise jurisdiction to determine whether

Respondentexercise undue influence in attaining the status of the designated

beneficiary of those annuities.

Petitioners point out that the Orphans’ Court Division of Allegheny County handled a notably similar situation involving allegations of undue influence in beneficiary designations in a decedent’s annuities in Estate of Carratura, 2017 WL 75873 (Pa. Super. 2017). We further note that a scenario involving a question of the propriety of a beneficiary designation under a decedent’s annuity was also before the Orphans’ Court Division of Franklin County in Estate of Scutchall, 2016 WL 5419660 (Pa. Super. 2016).

For these reasons, we find that the Orphans’ Court Division has subject

matter jurisdiction.

 

 

 

[1] Pursuant to 20 Pa.C.S.A. §6111.2, “any designation in favor of [a decedent’s] former spouse which was revocable by [the decedent] after the divorce shall become ineffective for all purposes and shall be construed as if such former spouse had predeceased [decedent.] 20 Pa.C.S.A. §6111.2.

[2] The Supreme Court reversed and remanded, also finding that Section 6111.2 was preempted by ERISA.