J-A33042-14


                                   2015 PA Super 40

THE ESTATE OF PATRICIA AMELIE                     IN THE SUPERIOR COURT OF
LOGAN GENTRY, DECEASED                                  PENNSYLVANIA

                            Appellant

                       v.

DIAMOND ROCK HILL REALTY, LLC

                            Appellee                  No. 2020 EDA 2014


                Appeal from the Order Entered on June 19, 2014
                 In the Court of Common Pleas of Bucks County
                  Orphans’ Court at No.: O.C. No. 2013-E0427


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY WECHT, J.:                             FILED FEBRUARY 20, 2015

       John Devlin (“Devlin”), executor of the Estate of Patricia Amelie Logan

Gentry, appeals a June 19, 2014 order entered by the orphans’ court.       In

that order, the learned orphans’ court sustained the preliminary objections

of Diamond Rock Hill Realty, LLC (“Diamond”), to Devlin’s petition for

citation to show cause why Diamond should not return real property to the

Estate or why a judgment should not be entered against Diamond.           We

reverse.

       Patricia Amelie Logan Gentry (“Decedent”), a resident of Robeson

County, North Carolina, died testate on July 17, 2011. At the time of her

death, Decedent owned real property located at 523 Parkway Drive in Bucks
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A33042-14



County, Pennsylvania (“the Property”). Pursuant to Decedent’s Will, which

she executed on May 14, 2011, Decedent nominated Devlin as executor of

her Estate and directed Devlin “in his unbridled discretion” to “cause [the

Property] to be sold by private or public sale.”           Orphans’ Court Opinion

(“O.C.O.”), 8/11/2014, at 1-2.           Under the terms of the Will, Decedent’s

granddaughter, Cynthia Gentry, was to receive $20,000.00 from the

Property’s net sale proceeds.

       On August 17, 2011, the Decedent allegedly executed a deed

conveying the Property to Diamond.               The deed was prepared by Alpert

Abstract, LLC (“Alpert”), a title insurance company. On the final page of the

instrument, a Robeson County, North Carolina notary public certified that

Decedent personally appeared before her and executed the deed on August

17, 2011. And yet, the Decedent unquestionably could not have conveyed

the Property to Diamond on August 17, 2011.               How do we know this?

Decedent had died thirty-one days earlier.

       On October 19, 2011, a North Carolina court probated Decedent’s Will

and appointed Devlin as executor of the Estate. On July 17, 2013, Devlin

filed a petition for citation in the orphans’ court division of the Court of

Common Pleas of Bucks County.1 Therein, Devlin requested that a citation


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1
      Section 4101 of the Probate, Estates, and Fiduciaries code provides
generally that a foreign fiduciary may institute and maintain proceedings
within the Commonwealth. 20 Pa.C.S. § 4101.



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be issued compelling Diamond and Alpert to show cause why they should not

return the Property to Decedent’s Estate, or, in the alternative, why

judgment should not be entered against them for $85,000.00. Specifically,

Devlin averred that the August 17, 2011 conveyance was “patently void on

its face and fraudulent,” and sought to have title to the property (or

monetary damages) returned to the Estate.       Devlin’s Petition for Citation,

7/17/2013, at 2.   The petition further alleged that neither the Estate, nor

Devlin on its behalf, received any proceeds from the sale of the Property,

and that Devlin made no distribution arising from the sale of the Property, as

was required under the terms of Decedent’s Will.

      On September 24, 2013, the orphans’ court directed Diamond and

Alpert to respond to the petition’s averments by October 21, 2013.          On

October 21, 2013, both Alpert and Diamond filed preliminary objections to

Devlin’s petition. On January 23, 2014, the orphans’ court sustained Alpert’s

preliminary objections upon the basis that the orphans’ court lacked subject

matter jurisdiction over Devlin’s claims, and dismissed the petition as to

Alpert.   On June 19, 2014, following a hearing on Diamond’s preliminary

objections, the orphans’ court similarly dismissed Devlin’s petition as to

Diamond for want of subject matter jurisdiction.

      On July 17, 2014, Devlin timely filed a notice of appeal. The orphans’

court ordered Devlin to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).      On July 21, 2014, Devlin timely




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complied.   On August 11, 2014, the orphans’ court issued an opinion

pursuant to Pa.R.A.P. 1925(a).

     Devlin presents five issues for our review:

     1. Whether the [orphans’ court] erred in dismissing [Devlin’s]
        action against [Diamond] for lack of subject matter
        jurisdiction pursuant to 20 P.S. [§§ 711 and 712]?

     2. Whether the [orphans’ court] erred in determin[ing] that
        subject matter jurisdiction under 20 P.S. [§] 711(1) is limited
        to persons entitled to real estate of a decedent[?] The
        [c]ourt’s jurisdiction in 20 P.S. [§] 711 covers the
        administration and distribution of real and personal property
        of decedents’ estates[.]

     3. Whether the [orphans’ court] erred in not taking mandatory
        jurisdiction of this Estate pursuant to 20 P.S. [§] 711 or
        taking [nonmandatory] jurisdiction pursuant to 20 P.S.
        [§] 712?

     4. Whether the [orphans’ court] erred in not retaining
        jurisdiction and permitting discovery to determine if there
        were any necessary or indispensable parties that would need
        to be joined to [Devlin’s] action?

     5. Whether the [orphans’ court] erred in not retaining
        jurisdiction and permitting discovery to determine the facts
        and circumstances of who was responsible for executing the
        deed one month after the death of the owner conveying the
        property to [Diamond]?

Brief for Devlin at 4 (numbering modified).

     We address Devlin’s first three issues collectively, as each of them

challenges the orphans’ court’s determination that it lacked the requisite




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subject matter jurisdiction over Devlin’s claims against Diamond. 2      Devlin

principally argues that the orphans’ court had mandatory and exclusive

jurisdiction over the administration and distribution of the real property of

the Decedent’s Estate. Id. at 8. We agree.

       Our analysis begins with a recitation of the applicable legal standards:

       Our standard of review of an order of the trial court overruling
       [or granting] preliminary objections is to determine whether the
       trial court committed an error of law. When considering the
       appropriateness of a ruling on preliminary objections, the
       appellate court must apply the same standard as the trial court.

De Lage Landen Fin. Servs., Inc. v. Urban P’ship, LLC, 903 A.2d 586,

589 (Pa. Super. 2006).             “On an appeal from an [o]rder sustaining

preliminary objections, we accept as true all well-pleaded material facts set

forth in the appellant’s complaint and all reasonable inferences which may

be drawn from those facts.”          Filipovich v. J.T. Imports, Inc., 637 A.2d

314, 316 (Pa. Super. 1994).               “Where, as here, upholding sustained

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




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2
       Because Devlin appeals only the trial court’s order sustaining
Diamond’s preliminary objections and dismissing Devlin’s petition for want of
subject matter jurisdiction, the instant appeal has no impact upon the
orphans’ court’s earlier order sustaining Alpert’s preliminary objections on
identical grounds. Devlin has declined to challenge that order despite the
fact that it, too, was appealable.



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Bank, N.A., 731 A.2d 175, 181 (Pa. Super. 1999). “Any doubt should be

resolved by a refusal to sustain the objections.” Id.

      “[I]t is well-settled that the question of subject matter jurisdiction may

be raised at any time, by any party, or by the court sua sponte.” B.J.D. v.

D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011) (quoting Grom v. Burgoon,

672 A.2d 823, 824-25 (Pa. Super. 1996)).        Our standard of review is de

novo, and our scope of review is plenary. Id. “Generally, subject matter

jurisdiction has been defined as the court’s power to hear cases of the class

to which the case at issue belongs.” Verholek v. Verholek, 741 A.2d 792,

798 (Pa. Super. 1999).

      Jurisdiction is the capacity to pronounce a judgment of the law
      on an issue brought before the court through due process of law.
      It is the right to adjudicate concerning the subject matter in a
      given case . . . . Without such jurisdiction, there is no authority
      to give judgment and one so entered is without force or effect.
      The trial court has jurisdiction if it is competent to hear or
      determine controversies of the general nature of the matter
      involved sub judice. Jurisdiction lies if the court had power to
      enter upon the inquiry, not whether it might ultimately decide
      that it could not give relief in the particular case.

Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568 (Pa. Super. 2001)

(quoting Bernhard v. Bernhard, 668 A.2d 546, 548 (Pa. Super. 1995)).

      Jurisdiction over decedents’ estates and their fiduciaries is vested, by

statute, solely in the orphans’ court division of the various courts of common

pleas. 20 Pa.C.S. § 711. Instantly, the orphans’ court held that it lacked

mandatory subject matter jurisdiction over Devlin’s claims pursuant to

Section 711 of the Probate, Estates, and Fiduciaries Code (“PEF Code”). The

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court similarly held that it lacked permissive jurisdiction over Devlin’s claims

pursuant to Section 712 of the PEF Code.

       Our analysis begins and ends with Section 711, which provides, in

relevant part, as follows:

       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:

          (1) Decedents’ estates.           The administration and
          distribution of the real and personal property of decedents’
          estates . . . .

Id.

       Commentary to the PEF Code provides that a personal representative3

has “the duty as well as the right to control real estate until it is sold or

distributed by decree or until control is relinquished to the heir or devisee

because it is not needed for administration.” 20 Pa.C.S. § 3311, cmt.

       A personal representative shall have the right to and shall take
       possession of, maintain and administer all the real and personal
       estate of the decedent . . . . He shall collect the rents and
       income from each asset in his possession until it is sold or
       distributed, and, during the administration of the estate, shall
       have the right to maintain any action with respect to it and
       shall make all reasonable expenditures necessary to preserve it.

20 Pa.C.S. § 3311(a) (emphasis added).

____________________________________________


3
      The term “personal representative,” as used in the PEF Code, refers to
“an executor or administrator of any description.” 20 Pa.C.S. § 102.



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      As explained supra, Subsection 711(1) grants the orphans’ court

mandatory    and    exclusive   jurisdiction   over   “[t]he   administration   and

distribution of the real and personal property of decedents’ estates.”          20

Pa.C.S. § 711(1).      The orphans’ court “must also adjudicate disputes

concerning the title and rightful possession of a decedent’s property.” In re

Estate of Sauers, 32 A.3d 1241, 1249 (Pa. 2011). Moreover, Section 711

indicates a clear legislative intent to “obviate, whenever possible, a

preliminary dispute as to whether the orphans’ court has jurisdiction to

determine the title to the disputed property.” 20 Pa.C.S. § 711, cmt.

      Here, in his petition for citation, Devlin alleged that Diamond obtained

title to the Property, which belonged to the Estate, by way of a facially

fraudulent conveyance that was, therefore, void.         See Devlin’s Petition for

Citation, 7/17/2013, at 1-2. Devlin further averred that the proceeds from

the sale of the Property had not been distributed to Cynthia Gentry, as was

required under the terms of Decedent’s Will. These facts speak directly to

“[t]he administration and distribution of the real . . . property of

[Decedent’s] estate[.]” 20 Pa.C.S. § 711(1).

      It is undisputed that Decedent held title to the Property at the time of

her death. Pursuant to Decedent’s Will, title to the Property then passed to

the Estate. As the personal representative of Decedent’s Estate, Devlin then

was charged with maintaining, preserving, and administering the Property.

20 Pa.C.S. § 3311(a); see also 20 Pa.C.S. § 301 (“Legal title to all real

estate of a decedent shall pass at his death to his heirs or devisees, subject,

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J-A33042-14



however, to all the powers granted to the personal representative by this

code and lawfully by the will and to all orders of the court.”). Stated simply,

Devlin    was    charged      with   taking    possession   of,   maintaining,   and

administering the Estate assets, and the orphans’ court was vested with the

authority to ensure the proper administration and distribution of those

assets.    20 Pa.C.S. §§ 3311(a), 711(1).         As such, Devlin’s claim against

Diamond falls within the orphans’ court division’s exclusive jurisdiction.4

       In holding otherwise, the orphans’ court reasoned that “if [Devlin] had

requested that a citation be awarded and directed to those individuals or

entities that allegedly sold the property after Decedent’s death . . . [the

court] would have been able to assume [subject matter] jurisdiction.”

O.C.O. at 5.     The orphans’ court also held that subject matter jurisdiction

was lacking because Devlin “did not plead that [Diamond] was the current

owner of the Property,” and because Devlin failed “specifically [to] deny

[Diamond’s] averment that [it] did not presently own title to the Property.”
____________________________________________


4
        Our holding is unhindered by Section 712 of the PEF Code, which
provides for non-mandatory orphans’ court jurisdiction over “[t]he
determination of the persons to whom the title to real estate of a decedent
. . . has passed by devise or descent . . . where jurisdiction of such estate
. . . is exercised through the orphans’ court division.” 20 Pa.C.S. § 712(1).
Nothing in Section 712 “restrict[s] the provisions of section 711 (relating to
mandatory exercise of jurisdiction through orphans’ court division in general)
relating to distribution of real estate in an estate or trust.”            Id.
Furthermore, the instant dispute does not concern the passing of title of the
property under Decedent’s Will. It is clear that Decedent’s Will authorized
Devlin to sell the property, and devised $20,000.00 from the net proceeds of
that sale to Decedent’s granddaughter. O.C.O. at 2.



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Id. In this regard, the court’s analysis hinged primarily upon the sufficiency

of Devlin’s pleading rather than the orphans’ court’s jurisdiction over it. See

e.g., id. at 6 (“[Devlin] made no specific averment in the [p]etition that

[Diamond] perpetrated a fraud or was a bad faith purchaser.”).            This

reasoning obscures the relevant inquiry. Subject matter jurisdiction arises

from a court’s “power to enter upon the inquiry, not whether it might

ultimately decide that it could not give relief in the particular case.”

Aronson, 767 A.2d at 568.

      Our review of the record demonstrates that the orphans’ court

dismissed as moot Diamond’s preliminary objection in the nature of a

demurrer. Order, 6/19/2014, at 1. Assuming, arguendo, that the defects of

Devlin’s petition noted by the orphans’ court provided a sufficient alternative

basis for sustaining Diamond’s preliminary objections, the court nevertheless

would err if it dismissed Devlin’s petition without granting leave to amend.

      Rule 1033 of the Pennsylvania Rules of Civil Procedure provides as

follows:

      A party either by filed consent of the adverse party or by leave
      of court, may at any time change the form of action, correct the
      name of a party or amend his pleading. The amended pleading
      may aver transactions or occurrences which have happened
      before or after the filing of the original pleading, even though
      they give rise to a new cause of action or defense.           An
      amendment may be made to conform the pleading to the
      evidence offered or admitted.

Pa.R.C.P. 1033.

      With respect to the right to amend a pleading, we have held:

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      Even where a trial court sustains preliminary objections on their
      merits, it is generally an abuse of discretion to dismiss a
      complaint without leave to amend. There may, of course, be
      cases where it is clear that amendment is impossible and where
      to extend leave to amend would be futile. . . . [However, t]he
      right to amend should not be withheld where there is some
      reasonable possibility that amendment can be accomplished
      successfully. In the event a demurrer is sustained because a
      complaint is defective in stating a cause of action, if it is evident
      that the pleading can be cured by amendment, a court may not
      enter a final judgment, but must give the pleader an opportunity
      to file an amended [pleading.]

In re Estate of Luongo, 823 A.2d 942, 969 (Pa. Super. 2003).

      In its opinion, the orphans’ court described a litany of pleading

deficiencies within Devlin’s petition. See e.g., O.C.O. at 6 (“[Devlin] made

no specific averment in the [p]etition that [Diamond] perpetrated a fraud or

was a bad faith purchaser.”).       While these defects potentially call into

question the legal sufficiency of Devlin’s claims, the orphans’ court dismissed

Diamond’s preliminary objection in the nature of a demurrer as moot in light

of its erroneous conclusion that the court lacked the requisite subject matter

jurisdiction. Had the orphans’ court sustained Diamond’s demurrer, instead

of dismissing Devlin’s petition for want of subject matter jurisdiction, Devlin

would have been afforded an opportunity to amend his petition pursuant to

Pa.R.C.P. 1033.   Thus, we cannot affirm the orphans’ court’s dismissal of

Devlin’s petition under the auspices of sustaining Diamond’s preliminary

objection in the nature of a demurrer.

      For the foregoing reasons, the orphans’ court erred in sustaining

Diamond’s preliminary objections upon the basis that it lacked subject


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matter jurisdiction over Devlin’s petition for citation.5   Accordingly, we

vacate the orphans’ court’s June 19, 2014 order sustaining Diamond’s

preliminary objections and dismissing Devlin’s petition, and we remand for

further proceedings consistent with this opinion.

       Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015



____________________________________________


5
       In his remaining issues, Devlin asserts generally that the orphans’
court erred in failing to allow the parties to take evidence by depositions
pursuant to Pennsylvania Rule of Civil Procedure 1028(c)(2). Pa.R.C.P.
1028(c)(2) (stating that “the court shall consider evidence by depositions or
otherwise” before ruling on a preliminary objection that raises an issue of
fact).    Although Devlin argues that the orphans’ court “should have
permitted the parties to take evidence by depositions or otherwise to
determine the facts and circumstances surrounding the diversion of the real
estate of the decedent,” he does not allege that such factual questions were
raised by Diamond’s preliminary objections. Brief for Devlin at 10. Instead,
Devlin raises only broad factual questions surrounding the underlying
transaction, which are entirely outside of the scope of Diamond’s preliminary
objections. See id. at 9-10 (“[W]ho signed the deed masquerading as
[Decedent?],” “[W]hat happened to the $85,000[?],” and “[W]ho negotiated
the check[?]”). In any event, the orphans’ court’s jurisdictional ruling
effectively mooted these issues unless and until they arise in due course
upon remand.



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