J-S45016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF SHIRLEY M. EPPLEY,                      IN THE SUPERIOR COURT OF
DECEASED                                                PENNSYLVANIA



APPEAL OF: JOHN STULL
                                                      No. 1968 MDA 2014


             Appeal from the Order Entered on November 13, 2014
                 In the Court of Common Pleas of York County
                       Orphans’ Court at No.: 6713-0178


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                        FILED SEPTEMBER 28, 2015

       John Stull (“Appellant”) appeals the orphans’ court’s October 27, 2014

order confirming the first and final accounts of Daryl Stull, II, serving as

executor of the estate and successor trustee of the revocable inter vivos

trust of Shirley M. Eppley (“Decedent”).       For the reasons that follow, we

affirm.

       The orphans’ court has provided the following account of this case’s

factual background and procedural history:

       [Decedent] died January 23, 2013, leaving a Last Will and
       Testament dated April 8, 2005. Decedent was predeceased by
       her husband, Phillip Eppley, who died June 20, 2008.1 Decedent
       was survived by her two children, Daryl Stull, II[,] and
       [Appellant]. Articles II and III of Decedent’s Last Will and
       Testament provide for an equal distribution of her entire estate
       to her two children. Article VI appoints Daryl Stull, II[,] as the
       sole executor.
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*
       Former Justice specially assigned to the Superior Court.
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       __________________________
          1
             We note [that] Phillip Eppley left a Last Will and
          Testament dated April 8, 2005[,] in which he left his entire
          estate to Decedent.      Decedent was granted Letters
          Testamentary to administer said estate.

       The York County Register of Wills granted Letters Testamentary
       to Daryl Stull, II (the “Executor”)[,] on January 30, 2013. The
       Executor subsequently filed a Petition for Adjudication and First
       and Final Accounting [on] June 4, 2014.             His brother,
       [Appellant], filed objections [on] August 6, 2014. Appellant’s six
       objections challenged Executor’s accounting of Decedent’s
       personal property and took issue with the inheritance tax
       positions taken by the Executor. The Executor filed an Answer
       to the Objections on August 22, 2014[,] maintaining that his
       actions were appropriate and in accordance with law.

       A status conference was held on August 25, 2014, followed by
       an evidentiary hearing on October 27, 2014, at which time [the
       orphans’ court] dismissed all of Appellant’s [o]bjections and
       signed the proposed [a]djudication. Appellant proceeded to file
       [e]xceptions on November 6, 2014, alleging [that the orphans’
       court] erred by denying Appellant’s objections with respect to a
       particular item of personal property—specifically, a Flying Tigers
       World War II jacket (the “Jacket”). [The court] denied the
       [e]xceptions on November 13, 2014, and the instant appeal
       followed.

       Although at least six distinct issues were presented in Appellant’s
       [o]bjections, his [concise statement of the errors complained of
       on appeal pursuant to Pa.R.A.P. 1925(b)1] indicates he intends
       to pursue only one of those claims on appeal. The appeal is
       therefore limited to [the orphans’ court’s] ruling with respect to
       the Jacket. Appellant alleges [that the orphans’ court] erred by
       (i) finding the Jacket was an asset of the Decedent’s estate;
       (ii) accepting the Executor’s valuation of the Jacket; and (iii)
       finding the Executor properly reported the Jacket to the
       Department of Revenue for inheritance tax purposes.

____________________________________________


1
      The trial court issued its Rule 1925 order on November 25, 2014.
Appellant timely complied on December 15, 2014.



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      The facts surrounding the Jacket are as follows. The Jacket was
      originally issued to and owned by Phillip Eppley, who donned the
      Jacket on flight missions in China during World War II. The
      Jacket has since become valuable memorabilia and is the subject
      of the dispute between the parties. Following Phillip Eppley’s
      death in 2008, the Decedent possessed the Jacket and kept the
      same at her residence. Appellant removed the Jacket from
      Decedent’s residence in November 2012, approximately two
      months prior to the Decedent’s passing. The Appellant retained
      possession of the Jacket for at least one and a half years
      thereafter. The Executor made attempts to effectuate the return
      of the Jacket to no avail.       The Executor then treated the
      Appellant’s continued possession of the Jacket as a de facto
      distribution outside the estate, advising the Department of
      Revenue to bill the Appellant separately for his portion of the
      inheritance tax. After the Department of Revenue assessed
      Appellant for the inheritance tax due on the Jacket, Appellant
      delivered the Jacket to Phillip Eppley, Jr.—the son of the Jacket’s
      original owner. Phillip Eppley, Jr.[,] remains in possession of the
      Jacket.

Orphans’ Court Opinion (“O.C.O.”), 1/15/2015, at 1-3 (citations omitted).

      The orphans’ court rejected Appellant’s objections, primarily because

the court found little in the way of legal argument to support Appellant’s

contentions, and further because Appellant’s arguments primarily consisted

of challenges to the court’s weighing of the evidence.     First, the orphans’

court found that Appellant had failed successfully to establish any basis upon

which the court could conclude that the Jacket was not an estate asset. The

court noted that the Jacket undisputedly was Decedent’s husband’s

possession, and that Decedent’s husband’s will undisputedly left all of the

husband’s assets to Decedent. Thereafter, Decedent took possession of the

Jacket, which was only interrupted nearly five years later, when Appellant

removed it from Decedent’s home shortly before her passing. The orphans’


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court noted that Appellant failed to offer any legal authority to suggest that

the Jacket was not Decedent’s property at the time of her death. Instead,

Appellant merely alluded to certain testimony that the Executor had always

considered the Jacket to be Phillip Eppley, Jr.’s property. The orphans’ court

rejected this proposition:

      We note that the Executor is not trained in the law and cannot
      be expected to fully grasp how property may be transferred by
      operation of law in this context.        Further, the Executor’s
      repeated demands for the return of the [Jacket] demonstrate
      [that] he did in fact consider the Jacket to be part of Decedent’s
      estate.

Id. at 4.

      The orphans’ court also rejected Appellant’s dispute regarding the

valuation of the Jacket for inheritance tax purposes, which the Executor,

relying upon internet research, set at $24,000.    The orphan’s court noted

that Appellant offered no support for his argument beyond criticizing the

Executor’s testimony on this point as too vague.      Appellant provided the

court with no competing valuations or other factors for the court to consider.

As well, the Department of Revenue accepted the Executor’s valuation.

Id. at 5.

      Finally, the orphans’ court also rejected Appellant’s claim that the

court erred in finding that the Executor properly attributed the Jacket to

Appellant in the inheritance tax return:

      As explained above, Appellant was in possession of [the Jacket]
      for approximately one and a half years. Further, he was in
      possession of the Jacket when the inheritance tax return was

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      filed, as well as when the tax was assessed. Appellant now
      attempts to argue he was only in possession of the Jacket for
      such a lengthy time period because he was instructed to ensure
      delivery of the Jacket to Phillip Eppley, Jr. We find [that] this
      proposition is not supported by the record, and we find the
      statement to lack credibility given the circumstances. [The
      orphans’ court] therefore find[s that] the Executor properly
      attributed the $25,000 [sic] Jacket to Appellant, who was in
      possession of the Jacket and was refusing to return it to the
      estate.

Id. at 5-6.

      Before this Court, Appellant presents his lone issue as follows:

“Whether the [orphans’ court] committed an error of law in its determination

that the Flying Tigers Jacket was attributable to the Appellant and that the

value of such jacket was as assessed?” Brief for Appellant at vii.

      Our long-standing scope and standard of review are as follows:

      When reviewing a decree entered by the Orphans’ Court, this
      Court must determine whether the record is free from legal error
      and the court’s factual findings are supported by the evidence.
      In re Estate of Braun, 650 A.2d 73, 75 (Pa. Super. 1994).
      Because the Orphans’ Court sits as the fact-finder, it determines
      the credibility of the witnesses and, on review, we will not
      reverse its credibility determinations absent an abuse of that
      discretion. Id. Moreover, although our review of the court’s
      factual findings is limited to considering whether those findings
      have support in the record, we are not constrained to give the
      same deference to any resulting legal conclusions. Id. at 76.

In re Estate of Geniviva, 675 A.2d 306, 310 (Pa. Super. 1996). However,

we begin by addressing certain deficiencies in Appellants’ brief before this

Court, which echo the deficiencies noted by the orphans’ court.

      Rule 2101 underscores the seriousness with which we take deviations

from our rules of procedure.

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     Briefs . . . shall conform in all material respects with the
     requirements of these rules as nearly as the circumstances of
     the particular case will admit, otherwise they may be
     suppressed, and, if the defects are in the brief . . . of the
     appellant and are substantial, the appeal or other matter may be
     quashed or dismissed.

Pa.R.A.P. 2101;   see   Commonwealth       v.   Atwood,    547   A.2d   1257

(Pa. Super. 1988) (dismissing appeal for over-long statement of the case

and omission of summary of argument). We have held time and again that

“[t]his Court will not act as counsel” for an appellant who has not

substantially complied with our rules. Bombary v. W. Am. Ins. Co., 932

A.2d 78, 93 (Pa. Super. 2007).

     Rule 2111 sets forth those sections that must be included in a primary

brief before this Court, and in form if not in substance Appellant has

provided the requisite sections. However, there is more to an effective brief

than merely checking off boxes.

     For example, Appellant’s statement of the case is so deficient that, if

we did not have the benefit of the orphans’ court’s account of the facts and

procedural history, we would be forced to fill considerable gaps left by

Appellant’s account. Rule of Appellate Procedure 2117 provides as follows:

     (a) General rule. The statement of the case shall contain, in
     the following order:

        (1)      A statement of the form of action, followed by a
        brief procedural history of the case.

                                  ****

        (4)      A closely condensed chronological statement, in
        narrative form, of all the facts which are necessary to be


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           known    in    order       to     determine       the    points     in
           controversy . . . .

      (b) All argument to be excluded. The statement of the
      case shall not contain any argument. It is the responsibility of
      appellant to present in the statement of the case a balanced
      presentation of the history of the proceedings and the respective
      contentions of the parties.

Pa.R.A.P. 2117.

      Appellant’s factual account provides no information regarding the

procedural history of this case.           Moreover, Appellant’s abridged, selective,

and argumentative review of the “facts” relied upon in his argument

provides little guidance regarding the circumstances underlying the instant

dispute.    Indeed, fully half of Appellant’s account is duplicative of the

argument section of his brief.

      As    or   more   critically,   Appellant’s     argument,      which    consists   of

approximately     two   conclusory         pages,    does    not   satisfy   Rule   2119’s

requirements. To facilitate appellate review, our rules require an appellant

to provide in his brief “such discussion and citation of authorities as are

deemed pertinent.” Pa.R.A.P. 2119(a). We have held as follows:

           This Court is neither obliged, nor even particularly
           equipped, to develop an argument for a party.
           Commonwealth v. Williams, 782 A.2d 517, 532
           (Pa. 2001) (Castille, J., concurring). To do so places the
           Court in the conflicting roles of advocate and neutral
           arbiter. Id. When an appellant fails to develop his issue
           in an argument and fails to cite any legal authority, the
           issue is waived. Commonwealth v. Luktisch, 680 A.2d
           877, 879 (Pa. Super. 1996).

      Commonwealth       v.           B.D.G.,       959     A.2d    362,     371-72
      (Pa. Super. 2008).

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      Moreover, “mere issue spotting without analysis or legal citation
      to support an assertion precludes our appellate review of a
      matter.”   In re J.B., 39 A.3d 421, 437 (Pa. Super. 2012)
      (quoting Boniella v. Commonwealth, 958 A.2d 1069
      (Pa. Cmwlth. 2008)); see Connor v. Crozer Keystone Health
      Sys., 832 A.2d 1112, 1118 (Pa. Super. 2003) (concluding that
      challenges of a constitutional nature are waived for failure to
      adequately develop the claim).

In re S.T.S., 76 A.3d 24, 42 (Pa. Super. 2013) (citations modified).

      Appellant’s argument herein is devoid of any citations to legal

authority. And although Appellant provides record citations for some of his

assertions, they do not resolve into a coherent legal argument.           They

amount to bald challenges to the orphans’ court’s factual findings, which find

clear support in the certified record.     While we might deem Appellant’s

appeal waived, we will briefly review the arguments we can glean from his

account.

      In effect, Appellant raises two challenges to the orphans’ court’s

decree.     First, Appellant contends that Phillip Eppley, Jr.’s possession of

other Flying Tiger memorabilia that formerly belonged to Phillip Eppley

should have compelled the court to find that Phillip Eppley intended to gift

the Jacket to Phillip Eppley, Jr., such that the Jacket was never Decedent’s

property.    Second, Appellant challenges the court’s reliance upon Phillip

Eppley’s will to establish that the Jacket belonged to Decedent at the time of

her death, noting that Phillip Eppley’s will was never made part of the

certified record. We address these arguments in turn.




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      Phillip Eppley, Jr., undisputedly had possession of the Flying Tiger

memorabilia that complemented the Jacket at the time of Decedent’s death,

just not of the Jacket, itself. The question is whether this established that

Phillip Eppley intended before his death to gift the Jacket to Phillip

Eppley, Jr.

      As noted above, the orphans’ court found insufficient Appellant’s

reliance solely upon the Executor’s testimony indicating that he believed that

the Jacket always belonged to Phillip Eppley, Jr.    It emphasized that the

Executor’s lay opinion regarding the legal ownership of the Jacket was not

conclusive, and noted as well that the Executor’s demands for the Jacket

signaled his contemporaneous belief that the Jacket belonged to the estate.

See O.C.O. at 4.      The orphans’ court also found Appellant’s testimony

incredible in general, noting Appellant’s removal of the Jacket from

Decedent’s possession and the fact that Appellant retained possession

thereafter for approximately a year and a half before gifting it to Phillip

Eppley, Jr., which he did only after the Executor asked the Department of

Revenue to assess Appellant directly for inheritance tax. Id. at 4-5. Further

bolstering this reasoning, even before Appellant took and maintained

possession of the Jacket for a year and a half, beginning months before

Decedent’s death, Decedent had possession of the Jacket for nearly five

years, reinforcing the inference that it was perceived by all to be her

property following Phillip Eppley’s death.




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       The orphans’ court’s findings in this regard are supported by the

record.   As per our standard of review, we will not supplant the orphans’

court’s factual findings so long as there is evidence of record to support

those findings.      Furthermore, Appellant provides no legal argument to

suggest that the orphans’ court’s legal inferences from the evidence were

erroneous. Accordingly, Appellant’s argument in this regard is unpersuasive.

       These observations effectively compel the rejection of Appellant’s

second argument, which focuses upon the orphans’ court’s putative reliance

on Phillip Eppley’s will to establish Decedent’s ownership of the Jacket. See

id. at 3 (“Phillip Eppley left a Last Will and Testament naming the Decedent

as executrix and directing his entire estate to her.”); see also id. at 1 n.1

(same).      The orphans’ court’s opinion makes clear that it found that

evidence entirely independent of that will established Decedent’s ownership

of the Jacket at the time of her passing, such that the Jacket belonged to her

estate. Even if Appellant is correct that the orphans’ court should not have

relied upon Phillip Eppley, Sr.’s will,2 it is not at all clear that the court did

so, and the court’s more detailed discussion of the other evidence in support

of its ruling establishes that the court perceived numerous bases upon which



____________________________________________


2
      The estate argues that the orphans’ court was entitled to take judicial
notice of the will. See Brief for Appellee at 1 n.1 (citing Pa.R.E. 201). For
the reasons cited herein, we need not determine whether the estate is
correct.



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to infer Decedent’s ownership.     Accordingly, this argument, too, is

unavailing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2015




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