Appeals court criticizes Mahoney’s court

The judge declined to comment because the matter involves pending litigation.

By ED RUNYAN

VINDICATOR STAFF WRITER

YOUNGSTOWN — An appeals court ruling calls “appalling” the behavior of two Mahoning County Probate Court magistrates and “arbitrary and puzzling” the actions of the court toward four beneficiaries of a Boardman man while they were trying to settle their father’s estate shortly after his 2005 death.

The comments were contained in a decision this week by the 7th District Court of Appeals, which said Judge Timothy P. Maloney’s court had improperly established a rule requiring that an attorney be hired to settle an estate in cases where the deceased has more than one surviving child. It said the court also improperly established a rule requiring a surety bond in all estate cases.

A county probate court is charged with distributing the assets of a deceased person according to the terms of a will, or when no will is present.

The appeals court decision came in response to an appeal filed by Norman C. Usiak of Boonsboro, Md., an attorney; his brother Frank J. Usiak of Weddingtown, N.C.; and sisters Rita McNamara of Canfield and Susan M. Harchelroad of Pittsburgh. The estate belonged to their late father, Norman J. Usiak of Boardman.

Based on the errors of the court, the decision said, the court’s judgment in the case was overturned and the case sent back to the probate court for further proceedings.

The decision says Norman C. Usiak and his sister, Rita McNamara, first visited the probate court the day after their father’s funeral May 18, 2005. Usiak did not wish to act as an attorney in the estate, only to act as administrator of the estate.

Requiring an attorney

The two first talked with Magistrate Richard Machuga, who told Usiak that he needed to have the services of an attorney because handling the estate himself would constitute practicing law in Ohio without a license. Usiak protested the requirement and at one point called Machuga an “idiot,” the ruling said.

Next, Usiak and his sister talked to Magistrate Richard Burgess, who repeated Machuga’s statement that the court’s rules required an attorney. He also told them they would have to file a bond, which insures against the administrator stealing the assets of the estate. Usiak argued that the will specifically said no bond was required.

Eventually, the two were allowed to file an application to settle the estate, and a hearing was held July 14, 2005.

After the hearing, Judge Timothy P. Maloney overruled Norman C. Usiak’s application to administer the estate and appointed Atty. Andrew Bresko of Boardman to the case.

A clear error

“It is clearly error for any member of the court or its staff to assert that a personal representative must engage the services of an attorney or else will be guilty of practicing law without a license,” the appeals court decision says. “Furthermore, the probate court’s local rules do not contain these requirements, and it is unclear why two magistrates and the probate judge repeatedly insisted that such rules existed.”

Judge Maloney said he had no comment because the matter involves pending litigation. When asked whether he would appeal the decision, he said, “I have 30 days” to appeal.

Judge Maloney announced last Thursday that he is retiring on or about Sept. 30 after 10 years as probate judge and nine years as probate court magistrate.

“We are mystified, to say the least, why the probate court would have a ‘policy’ or unwritten rule that bond is required in absolutely every probate case when the aforementioned statutes clearly indicate that no bond is required when the will dispenses with the bond,” the appeals court decision said.

runyan@vindy.com