J-A16035-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF SOPHIA M.              :    IN THE SUPERIOR COURT OF
KRASINSKI A/K/A SOPHIA                  :          PENNSYLVANIA
KRASINSKI A/K/A SOPHIA                  :
KRASINSKY LATE OF MORRISDALE            :
(COOPER TOWNSHIP), CLEARFIELD           :
COUNTY, PENNSYLVANIA DECEASED           :
NOVEMBER 4, 2006                        :
                                        :
APPEAL OF: ESTATE OF SOPHIA M.          :
KRASINSKI AND ITS EXECUTOR,             :
EDWARD KRASINSKI                        :     No. 1265 WDA 2015

                       Appeal from Order July 16, 2015,
              in the Court of Common Pleas of Clearfield County,
                     Orphans’ Court at No(s): 1707-0003

IN RE: ESTATE OF SOPHIA M.              :    IN THE SUPERIOR COURT OF
KRASINSKI A/K/A SOPHIA                  :          PENNSYLVANIA
KRASINSKI A/K/A SOPHIA                  :
KRASINSKY, LATE OF MORRISDALE           :
(COOPER TOWNSHIP), CLEARFIELD           :
COUNTY, PENNSYLVANIA DECEASED           :
11/04/06                                :
                                        :
APPEAL OF: PATRICIA KRASINSKI-          :
DUNZIK                                  :    No. 1289 WDA 2015

                       Appeal from Order July 16, 2015,
              in the Court of Common Pleas of Clearfield County,
                     Orphans’ Court at No(s): 1707-0003

BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED OCTOBER 5, 2016

     The Estate of Sophia M. Krasinski (the Estate) through its executor,

Edward Krasinski (Edward), appeals from the order entered on July 16,

2015, which granted in part and denied in part exceptions to the order

confirming the first and final accounting of the Estate.   Patricia Krasinski-


* Retired Senior Judge assigned to the Superior Court.
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Dunzik (Patricia) also appeals from that order.         Upon review, we affirm in

part, vacate in part, and remand for proceedings consistent with this

memorandum.

I. Background

        This   matter   arises   from   a   dispute   between   siblings   over   the

distribution of the real property from the Estate of their mother, Sophia M.

Krasinski (the Decedent). The Decedent had four children: Patricia, who is

married to Gary Dunzik (Gary) (collectively, the Dunziks); Eleanor J.

Krasinski (Eleanor); James P. Krasinski (James); and Edward.

        Sophia died testate on November 4, 2006, and the Estate was opened

in 2007. Pursuant to the terms of her will, Edward was named as executor

of the Estate and granted letters testamentary.            The will directed that

Sophia’s debts and funeral expenses be paid from the assets of the Estate,

and that the residue of the Estate be left in equal shares to her four children.

        The primary assets of the Estate included three parcels of real estate.

Those parcels were: 1) 20 acres of property with an appraised value of

$55,000 (Johnny Hoover Place);1 2) a barn and 95 acres of property, which

includes 68 acres of coal rights, with an appraised value of $230,000 (Wicks’




1
    The tax-assessed value of this parcel was $6,798.10.



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Place);2 and 3) a house, buildings, and 98.84 acres with an appraised value

of $200,000 (Homestead Place).3

      On July 7, 2010, Edward, in his capacity as executor of the Estate,

filed a petition to permit the private sale of real estate to heirs.   In that

petition, Edward averred that Patricia was objecting to the distribution of all

three properties because it is her position she already owns them based on a

prior oral agreement between herself and Sophia.         After argument and

briefing, on March 22, 2011, the orphans’ court granted the Estate’s petition

to permit private sale of the real estate.    Specifically, the orphans’ court

concluded that Patricia did not produce a writing to satisfy the requirements

of the statute of frauds to show that she owned these properties.          The

orphans’ court also concluded that Patricia did not present sufficient

evidence to remove the purported oral contract from the statute of frauds.4




2
  The tax-assessed value for this parcel was $40,866.37. This property
surrounds James’ home.     Johnny Hoover Place and Wicks’ Place are
adjoining properties.
3
  The assessed value for this parcel was $35,784.74. The Dunziks built the
house and barn on Homestead Place and reside there. The proposed deeds
for both Johnny Hoover Place and Homestead Place included a provision that
a right of way be established from Johnny Hoover Place through Homestead
Place to give Johnny Hoover Place access to the public road.
4
  The private sale was delayed further after the Dunziks filed a civil
complaint against the Estate. On December 24, 2012, after a non-jury trial,
the trial court found that there was no oral contract between Sophia and
Patricia and dismissed the case.



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      Prior to the sale, letters were sent by the Estate’s attorney to all four

heirs explaining the process by which the sale would occur.5 Included in this

letter was a provision indicating that if the Dunziks did not purchase all of

the property of Homestead Place, there would be steps taken to ensure they

could maintain ownership of the home and barn on the property.

      The private sale was conducted on February 15, 2013.               Edward,

James, and Patricia attended the sale.6      Patricia did not bid on any of the

properties.   James and his wife, Marie, bid $230,000 for Wicks’ Place.

Edward bid $55,000 for Hoover Place. Edward, James, and Marie jointly bid

$120,000 for Homestead Place.

      On March 7, 2013, the Estate petitioned the orphans’ court to approve

the sale of these properties to these heirs for these amounts. The provision

for the Dunziks’ ownership of the house and barn at Homestead Place was

not included in the deeds.      On March 14, 2013, Patricia filed pro se an




5
  The letter explained, inter alia, that all heirs were permitted to utilize their
proportionate shares of the value of the Estate towards the purchase price of
any property with any difference to be paid in cash upon approval by the
orphans’ court.     In other words, each heir walked into the sale with
approximately $121,250 to use toward the purchase of one or more
properties.
6
  Eleanor filed a document disclaiming her rights to the Estate and assigning
her proportionate share to Patricia. Moreover, Patricia contests her presence
at the sale, claiming she stopped in at 2:30 p.m., gave the attorney
Eleanor’s filing, said she would not be selling her half-share, and then left
immediately thereafter.



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objection to the petition.7 On April 30, 2013, after argument, the orphans’

court approved the Estate’s petition.

      On May 30, 2014, the Estate filed a first and final accounting. Patricia,

through counsel, filed six objections. Those objections included: 1) concerns

related to how the private sale was conducted; 2) the failure to include

language about the Dunziks’ residence in the deed after the sale; 3) the

failure to include right-of-way language in the deed for Homestead Place; 4)

a claim that inaccurate appraised values were being used for the properties;

and 5) tax implications related to the differences between the appraised

values and tax assessed values for the properties.8

      A hearing was held on all objections on September 5, 2014.

Testimony and evidence were sparse at this hearing and the majority of the

testimony did not relate to the objections filed by the Dunziks. Furthermore,

Patricia did not appear; however, both Gary and the Dunziks’ attorney

appeared.




7
  This handwritten objection includes a series of complaints about how
James and Edward treated Sophia while she was dying. Patricia also averred
that Edward was taking payments for the gas leases and not giving them to
the Estate. She further claimed both Edward and James have assaulted her
in the past. Finally, she claimed she owned some mineral rights in the
properties. Patricia did not object on the basis that no provision was made
for her house and barn at Homestead Place.
8
  Objection six was a series of miscellaneous objections. The issues related
to objection six are discussed in section III, infra, as they relate solely to the
Estate’s appeal.

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      On September 10, 2014, the orphans’ court ordered Patricia to file a

brief within 30 days, and also provided the Estate 20 days to respond.

Patricia did not file a brief, but the Estate filed answers to the objections on

October 27, 2014.

      On April 22, 2015, the orphans’ court entered an order and opinion in

this matter.   With respect to objections one through four, concerning the

private sale of the properties, the orphans’ court concluded these issues

were waived because they should have been raised in an appeal from the

order confirming the private sale on April 30, 2013, pursuant to Pa.R.A.P.

342. As to objection five, the orphans’ court concluded that the Estate acted

appropriately with respect to the tax implications about which Patricia

complains.     Thus, the orphans’ court overruled these objections.         The

orphans’ court sustained, in part, objection six.

      On May 4, 2015, Patricia filed a motion for reconsideration.9 On May

13, 2015, the orphans’ court granted Patricia’s motion for reconsideration

and set argument on two issues.       Those issues included: 1) whether the

April 30, 2013 order was a final order, and 2) whether the value of timber




9
  A motion for reconsideration was procedurally improper in this case. The
Pennsylvania Orphans’ Court Rules provide for exceptions. See Pa.O.C. Rule
7.1(a) (“[N]o later than twenty (20) days after entry of an order, decree or
adjudication, a party may file exceptions to any order, decree or
adjudication which would become a final appealable order under Pa.R.A.P.
341(b) or Pa.R.A.P. 342 following disposition of the exceptions. If exceptions
are filed, no appeal shall be filed until the disposition of exceptions[.]”).



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removed from the property was included properly in the accounting.10 See

Order, 5/13/2015. On July 15, 2015, the orphans’ court entered an order

concluding that Patricia’s motion for reconsideration would be deemed

exceptions, and then dismissed those exceptions.11 The orphans’ court also

overruled the exceptions filed by the Estate with respect to objection six.

        The Estate timely filed a notice of appeal, and Patricia filed a cross

appeal. The Estate, Patricia, and the orphans’ court complied with Pa.R.A.P.

1925.

        In considering both appeals, we bear in mind our well-settled standard

of review.

        The [o]rphans’ [c]ourt decision will not be reversed unless there
        has been an abuse of discretion or a fundamental error in
        applying the correct principles of law. This Court’s standard of
        review of questions of law is de novo, and the scope of review is
        plenary, as we may review the entire record in making our
        determination. When we review questions of law, our standard
        of review is limited to determining whether the [orphans’] court
        committed an error of law.

In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016) (citations and

quotation marks omitted).

II. Patricia’s Appeal

        We first consider Patricia’s arguments related to the private sale of

property that occurred on February 15, 2013. She argues that the orphans’

10
   The record is not clear as to when any issue with timber was raised for the
first time.
11
  The record does not contain a transcript of a hearing, and it is not clear
whether a hearing was actually held.

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J-A16035-16

court erred in permitting this sale because it “was never intended to and did

not, in fact, maximize the value of the real estate for the benefit of all of the

heirs[.]” Patricia’s Brief at 13. Patricia also argues that she was not given

adequate notice of the sale. Id. at 15. Patricia further contends that there

was no need for a right of way between Johnny Hoover Place and

Homestead Place. Id. at 16.      Patricia also argues that James and Edward

“changed[d] the terms of the sale” by not providing an allowance for the

home and barn owned by the Dunziks. Id. at 19.

      The orphans’ court concluded that Patricia has waived these issues by

failing to appeal from the April 30, 2013 order confirming the private sale

pursuant to Pa.R.A.P. 342.       Orphans’ Court Opinion, 4/22/2015, at 8.

Pennsylvania Rule of Appellate Procedure 342 provides that “[a]n appeal

may be taken as of right from the following orders of the Orphans’ Court

Division: … (6) An order determining an interest in real or personal

property[.]” Pa.R.A.P. 342(a)(6).    Furthermore, the “[f]ailure to appeal an

order that is immediately appealable under paragraphs (a)(1)-(7) of this rule

shall constitute a waiver of all objections to such order and such objections

may not be raised in any subsequent appeal.” Id. at (c).

      Instantly, there can be no dispute that the April 30, 2013 order

determined an interest in real property. In fact, it clearly transferred real

property from the Estate to the heirs.       Accordingly, it was immediately




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appealable, and Patricia’s failure to do so at that juncture renders all issues

related to the sale waived.

      In Patricia’s next two issues, she contends that Edward mishandled the

tax implications of the Estate to her detriment, and the orphans’ court erred

in accepting Edward’s valuations. Patricia’s Brief at 23-32.      In considering

these issues, we bear in mind the following.

             The findings of a judge of the orphans’ court division, sitting
      without a jury, must be accorded the same weight and effect as
      the verdict of a jury, and will not be reversed by an appellate
      court in the absence of an abuse of discretion or a lack of
      evidentiary support. This rule is particularly applicable to findings
      of fact which are predicated upon the credibility of the witnesses,
      whom the judge has had the opportunity to hear and observe,
      and upon the weight given to their testimony. In reviewing the
      [o]rphans’ [c]ourt’s findings, our task is to ensure that the record
      is free from legal error and to determine if the Orphans’ Court’s
      findings are supported by competent and adequate evidence and
      are not predicated upon capricious disbelief of competent and
      credible evidence.

In re Estate of Bechtel, 92 A.3d 833, 837 (Pa. Super. 2014).

      In concluding that these issues are without merit, the orphans’ court

offered the following.

             In regard to Objection No. 5 wherein [Patricia] objects to
      receiving the 1099-S documents as to her sale of the one-half
      interest in the properties thereby incurring a capital gains tax,
      the Estate has acted appropriately. 20 Pa.C.S.A. § 301 entitled
      Title to Real and Personal Estate of the Decedent indicates, in
      part, as follows: (b) Real Estate. - Legal title to all real estate of
      a decedent shall pass at his death to his heirs or devisees,
      subject to all the powers granted to the personal representative
      by this Code and lawfully by the will and to all orders of the
      court.




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            Therefore, while the Estate may have appeared to be the
      owner and seller of the properties, legal title actually was
      immediately vested in Sophia’s four children as of her date of
      death. Since [Eleanor] renounced her right to her one-fourth
      interest to [Patricia], [Patricia] is deemed to have sold her 50%
      interest in the real estate via [Edward], the Executor, who had
      the legal power to do so pursuant to Court Order….

             Since [Patricia] chose not to be involved with the auction,
      she in effect has sold her interest and is subject to a capital gain.
      It would be the same thing if the private sale had been the result
      of a partition action between co-tenants in which some of the co-
      tenants bought, and other of the co-tenants sold, their interests.
      The title would then be held by a smaller list of owners and the
      sellers would then be required to deal with capital gains tax
      considerations….

             This [c]ourt is not learned or trained in complex Internal
      Revenue regulations, statutes, or law. However, it doesn’t take
      an expert to determine that when property is sold there may be
      capital gains tax considerations. Here, even though she did not
      want to, [Patricia] has sold her interest in the properties. The
      Estate has submitted correct paperwork to the Internal Revenue
      Service. As to what [Patricia’s] actual basis is in the property is
      and what if any capital gains tax she must pay, this [c]ourt will
      leave that to the accountants and tax lawyers. The bottom line
      is that the Estate acted correctly in reporting what the sales did.

Orphans’ Court Opinion, 4/22/2015, at 11-12.

      Essentially, Patricia is now arguing that it is the Estate that sold the

real property, and therefore she should not be subjected to any tax

implications. Patricia’s Brief at 27.   However, as the orphans’ court aptly

pointed out, Patricia did indeed own half of these properties upon the

Decedent’s death, and by virtue of her decision not to purchase them from

the Estate, she sold her half-share to her brothers. Any tax consequences




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that may result from this sale are her burden.       Accordingly, she is not

entitled to relief on this basis.

      Finally, to the extent Patricia is arguing the properties are over or

undervalued, any issue as to valuation should have been raised in

relationship to the private sale that was confirmed by the April 30, 2013

order.   Because we determined, supra, that was an appealable order,

Patricia has waived those issues. See Pa.R.A.P. 342.12

III. The Estate’s Objections

      We now turn to the issues raised by the Estate and provide the

following background. Contained within Patricia’s sixth objection to the first

and final accounting was the following:

            41. [Edward] has received and improperly withheld from
      [Patricia] revenues related to gas exploration and leasing in the
      approximate amount of $40,000.00 related to the oil and gas
      contained within and underlying [Homestead Place].

           42. [Patricia] is the owner of the oil & gas interest
      underlying [Homestead Place], by virtue of a deed from Edith
      Nearhood, dated July 9, 2002, and recorded as Instrument No.
      200211242.

12
   In her concurring and dissenting memorandum, Judge Shogan suggests
that the Estate should be responsible for any taxes based upon the language
of Decedent’s will. However, Patricia never set forth this language as a basis
for her argument about who is responsible for taxes. Accordingly, we may
not reverse the orphans’ court order for this reason. See Harber
Philadelphia Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100,
1105 (Pa. Super. 2000) (“The Superior Court, as an error-correcting court,
may not purport to reverse a trial court’s order where the only basis for a
finding of error is a claim that the responsible party never gave the trial
court an opportunity to consider.”).




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Objections to First and Final Accounting, 7/3/2014, at ¶¶ 41-42.

      In sustaining this objection, ruling in favor of Patricia, and ordering the

Estate to pay Patricia $39,536, the orphans’ court stated the following.

             [The aforementioned objection] claims that [Edward]
      improperly withheld gas monies in the amount of $40,000.00
      relating to [Homestead Place]. It states therein that [Patricia] is
      the actual owner of oil and gas interests underlying [Homestead
      Place] by virtue of a deed recorded in Clearfield County as
      Instrument No. 200211242. This deed was not offered as an
      exhibit at [the] time of [the] non-jury trial. Following the non-
      jury trial and receipt of briefs, while preparing the court’s
      opinion, the undersigned went to the recorder of deeds and
      obtained a copy of [the deed which Patricia references]. The
      court hereby takes judicial notice of the deed, and the court has
      caused it to be filed with the record for potential appellate
      review. This 2002 deed is from Edith Nearhood as grantor, to
      [Patricia] as grantee. The deed describes a parcel of 96 acres
      and one hundred and eight perches in Cooper Township,
      Clearfield County, with Tax Map number 110-R2-9, and purports
      to convey coal, gas and oil, and other subsurface rights to
      [Patricia]. [Homestead Place] in the case at bar is identified with
      tax map number 110-R7-9.

                                         ***

            This court can find no testimony from the non-jury trial
      where this issue, being [Patricia’s] claim that she is the full and
      complete owner of the oil and gas interests under this tract, was
      discussed. In fact, no evidence was submitted by either party.

                                         ***

              A close examination of the first and final account shows on
      page 9 under “Other Income” the gas lease payments. By far,
      most of the payments are from [Homestead Place]. (A total of
      $39,536.00). On page 3 under “Receipts of Principal” the Estate
      lists its assets; [Homestead Place] is number 4 under the “Real
      Estate” heading. It is described as “House, buildings, and 98.84
      acres (less 96 A of coal, minerals, gas & oil)….” (Emphasis
      added). The same exclusion of sub-surface rights [appears in


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     other exhibits]. The court, in trying to analyze this mishmash,
     wondered if perhaps the sale of [Homestead Place] was not to
     include the oil and gas rights such that the same could be
     retained in the Estate for the future benefit of all heirs.
     However, a review of the documents describing the terms of the
     private sale provides no reference whatsoever to any oil, gas or
     other sub-surface rights as to [Homestead Place].

            [] Exhibit 27 is a copy of the memorandum of lease dated
     September 15, 2009 wherein [Edward, as executor of the
     Estate,] confirms the Estate has entered into a gas lease (or
     consultant agreement) with Long Consulting Group. This is
     clearly referring to [Homestead Place,] as the property subject to
     the lease is described as Tax Parcel No. 110-R07-9, 98.84 acres
     and in Cooper Township. The court wonders how the executor
     can enter into a gas lease on a property which the first and final
     account (and the inheritance tax return) clearly indicates that
     the oil and gas rights are excluded. (at least 96 acres thereof).

           Based upon a substantial lack of information and a
     severely inadequate record, the court must decide if the Estate
     properly accounted for the gas royalties from [Homestead
     Place]. The court boils it down to the following. [Patricia] has a
     deed purporting to convey to her all sub-surface rights beneath
     the Homestead surface. The Estate in its Inheritance Tax return
     and first and final account clearly indicates it does not own 96
     acres of oil, gas and other sub-surface rights below the
     Homestead surface. The court finds [Patricia] has met her
     burden of proof and finds the Estate erred by including
     Homestead [Place] gas royalties in the amount of $39,536.00 as
     an Estate asset. These monies will be paid to [Patricia] and
     removed from the Estate assets.

Orphans’ Court Opinion, 4/22/2015, at 17-19 (unnecessary capitalization

and some citations omitted omitted).

     Based on the foregoing, the orphans’ court sustained Patricia’s

objections listed in paragraphs 41 and 42, and required the Estate to pay

Patricia $39,536. The Estate filed exceptions, arguing that Patricia was not

the owner of the sub-surface estate at issue, and the orphans’ court erred by


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granting Patricia compensation on this basis. The Estate also contends that

Edith Nearhood never owned the sub-surface estate and that any deed she

granted could not have conveyed what she did not own.

      On July 15, 2015, the orphans’ court denied the Estate’s exceptions,

concluding that the Estate “has attempted to introduce facts and documents

not of record in the present matter” in support of its denial.             Order,

7/15/2015, at ¶ 1. This issue is the basis of the Estate’s appeal.

      The Estate first contends that the orphans’ court erred by purporting

to take judicial notice of the Nearhood deed, then giving it conclusive effect,

and thereby sustaining Patricia’s objections related to the oil and gas

payments. Estate’s Brief at 11-16.

            Pa.R.E. 201(b) governs judicial notice of adjudicative facts.
      The rule states: “A judicially noticed fact must be one not
      subject to reasonable dispute in that it is either (1) generally
      known within the territorial jurisdiction of the trial court or (2)
      capable of accurate and ready determination by resort to sources
      whose accuracy cannot reasonably be questioned.” Pa.R.E.
      201(b). A court may take judicial notice of an indisputable
      adjudicative fact. A fact is indisputable if it is so well established
      as to be a matter of common knowledge. Judicial notice is
      intended to avoid the formal introduction of evidence in limited
      circumstances where the fact sought to be proved is so well
      known that evidence in support thereof is unnecessary.

Kinley v. Bierly, 876 A.2d 419, 421 (Pa. Super. 2005) (some citations and

quotation marks omitted).

      Here, the orphans’ court took judicial notice of a deed filed in the

recorder of deeds office. This, in and of itself, was not error because it is

well settled that “the court has the right to take judicial notice of public


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documents.” Bykowski v. Chesed, Co., 625 A.2d 1256, 1258 n.1 (Pa.

Super. 1993). However, the rule provides that “[o]n timely request, a party

is entitled to be heard on the propriety of taking judicial notice and the

nature of the fact to be noticed. If the court takes judicial notice before

notifying a party, the party, on request, is still entitled to be heard.” Pa.R.E.

201(e).

         Instantly, the Estate became aware of the orphans’ court’s decision to

take judicial notice when it filed its opinion on April 22, 2015. The Estate

timely filed exceptions contesting the implications of the deed on May 12,

2015.     However, the orphans’ court denied these exceptions on the basis

that “the record has previously closed.” Order, 7/15/2015. Thus, it is clear

that the Estate did not have the opportunity to be heard. Where, as here, a

party has made a timely request to be heard after learning of the judicial

notice, the orphans’ court was obliged to entertain it. Pa.R.E. 201(e).

         In this case, the need was even more apparent where the orphans’

court took judicial notice without any request by Patricia or notice to any

party.      The orphans’ court then went on to offer a series of factual

conclusions on this basis. The Nearhood deed may or may not be a valid

deed to the property. However, the orphans’ court should leave it to Patricia

and the Estate to litigate that issue. Accordingly, we vacate the portion of

the orphans’ court’s order granting Patricia’s objection as stated in

paragraphs 41 and 42, and remand to the orphans’ court to conduct a



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hearing on this objection. At that hearing, the burden is on Patricia, as the

party objecting to the first and final accounting, to present evidence of her

right to those oil and gas payments.     We affirm the order of the orphans’

court in all other respects.

       Order affirmed in part, vacated in part, and remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judge Olson concurs in the result.

Judge Shogan files a concurring and dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/5/2016




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