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                               2018 PA Super 272

 IN RE: THE ESTATE OF INGRID               :    IN THE SUPERIOR COURT OF
 HUBER, DECEASED                           :          PENNSYLVANIA
                                           :
                                           :
 APPEAL OF: MICHAEL BERGER,                :
                                           :
                                           :
                                           :
                                           :         No. 1303 MDA 2017

                     Appeal from the Decree July 17, 2017
              in the Court of Common Pleas of Bradford County,
                   Orphans' Court at No(s): 5 Orphans 2017

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:                            FILED OCTOBER 05, 2018

      Michael Berger (“Berger”) appeals from the Decree denying his Motion

to Issue Citation for Appointment of Personal Representative (“Motion for

Appointment”) for the Estate of Ingrid Huber, deceased (“Estate”), granting

the Petition for Grant of Letters of Administration C.T.A. (“Petition for Letters”)

filed by Kathleen Lewis Yarbrough (“Kathleen”), and directing the Register of

Wills to issue Letters of Administration C.T.A. for the Estate to Kathleen. We

vacate the Decree.

      Ingrid Huber (“the Deceased”) died testate on November 25, 2016,

without issue. The Deceased was survived by her sister, Christiane Yarbrough

(“Yarbrough”), as well as Berger and Andrew Linton (“Linton”), her nephews

(Yarbrough’s sons).    The Deceased’s Last Will and Testament (the “Will”),
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dated January 7, 2003, named Yarbrough as her sole beneficiary.1 The Will

named Berger as the alternative residual beneficiary, notwithstanding a

$5,000 specific bequest to Linton. Additionally, the Will designated Yarbrough

as the Executrix of the Estate.

        On April 13, 2017, Berger filed a Motion for Appointment, asserting that

Yarbrough was incapacitated and incapable of performing her duties as

Executrix.2    Berger requested that the Orphans’ Court issue a Citation to

Yarbrough and Linton to show cause why the court should not appoint Berger,

or another competent party, to serve as the personal representative of the

Estate. The Orphans’ Court subsequently issued Citations to Yarbrough and

Linton, directing them to show cause why Berger’s Petition should not be

granted.

        On May 19, 2017, Kathleen, as attorney-in-fact for Yarbrough, filed an

Answer and New Matter, as well as a Petition for Letters, asserting that

Yarbrough had executed a Power of Attorney in Kathleen’s favor before her

incapacitation.     Kathleen stated that Yarbrough, through Kathleen as her

attorney-in-fact, refused to renounce in favor of Berger “under any

circumstances.” Kathleen also stated that she had obtained a renunciation in

her favor from Linton.          Additionally, Kathleen argued that Berger had
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1In his Motion for Appointment, Berger states that the Will was filed in the
Office of the Register of Wills of Bradford County on December 16, 2016.
However, there is nothing in the certified record to confirm when the Will was
admitted to probate.

2   Yarbrough had been diagnosed with dementia.

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subsequently procured Yarbrough’s signature on a Power of Attorney,

appointing him as her attorney-in-fact, despite her incapacity. Kathleen asked

the court to deny Berger’s Motion for Appointment, and requested that the

court direct Berger to show cause why Letters of Administration C.T.A. should

not be issued to her. On May 25, 2017, the Orphans’ Court filed a Preliminary

Decree, directing Berger to show cause why Kathleen should not be issued

Letters of Administration C.T.A. for the Estate. Berger filed an Answer on June

30, 2017.

      By Decree entered on July 17, 2017, the Orphans’ Court denied Berger’s

Motion for Appointment, granted Kathleen’s Petition for Letters, and directed

the Register of Wills to issue Letters of Administration C.T.A. for the Estate to

Kathleen.   Berger filed both a Motion for Reconsideration and a Notice of

Appeal on August 16, 2017.

      On August 24, 2017, the Orphans’ Court entered an Order, indicating

that because Berger filed both his Motion for Reconsideration and his Notice

of Appeal on the thirtieth day after the entry of the Decree, the court did not

have jurisdiction to act on the Motion for Reconsideration.      On August 25,

2017, the Orphans’ Court ordered Berger to file a concise statement of matters

complained of on appeal, pursuant to Pa.R.A.P. 1925(b), within 21 days of the

date of the Order, and instructed him that “[i]ssues not properly included in

the statement timely filed and served pursuant to this [O]rder and Rule




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1925(b) are waived.”         Order, 8/25/17.     Berger did not file his Concise

Statement until September 22, 2017.3, 4

       On appeal, Berger raises the following question for our review:

       Did the [Orphans’ C]ourt err in making findings and failing to hold
       a hearing on [Berger’s] Motion for Citation for Appointment of
       Personal Representative despite the existence of substantial
       factual issues raised in the pleadings?

Brief for Appellant at 1.

       Berger claims that the Orphans’ Court improperly entered its Decree,

without first conducting an evidentiary hearing, and in spite of the following

factual issues:     (1) Yarbrough claimed that Berger is unemployed and a

convicted felon, but he has been employed for 25 years, and had been

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3Berger, through counsel, filed his Concise Statement more than 21 days after
the date of the Orphans’ Court Order instructing him to do so. See Greater
Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225
(Pa. Super. 2014) (en banc) (stating that “[w]henever a trial court orders an
appellant to file a concise statement of errors complained of on appeal
pursuant to Rule 1925(b), the appellant must comply in a timely manner” in
order to preserve issues for our review (emphasis in original; citation and
brackets omitted)). We observe that the certified record contains a copy of
the Notice, dated August 28, 2017, informing Berger that the concise
statement Order had been filed. However, there is no indication from the
docket that service was actually effectuated on that date. Because we are
unable to determine the date of service of the Order due to the lack of
recordation in the docket, we decline to find Berger’s claim waived on this
basis. See Pa.R.C.P. 236(b) (providing that “[t]he prothonotary shall note in
the docket the giving of notice” of the entry of an order).

4 On October 2, 2017, this Court issued an Order indicating that the Decree
had not been entered on the docket, and directing the Orphans’ Court to do
so. The Orphans’ Court timely responded by submitting a time-stamped copy
of the Decree, along with a copy of the docket indicating that the Decree had
been filed on July 17, 2017.

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pardoned for his crime; (2) Yarbrough had no contact with the Deceased for

several years prior to her death; (3) Yarbrough had “effectively blocked” the

Deceased’s cremation, and did not promptly come forward as the personal

representative; (4) there is pending litigation in Florida regarding Kathleen’s

Power of Attorney; and (5) Berger is named as an alternative residual

beneficiary in the Will. Brief for Appellant at 5-7. Berger also argues that, as

a residual beneficiary, he should have been appointed personal representative




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pursuant to 20 Pa.C.S.A. § 3155(b)(1).5 Brief for Appellant at 8-9. Berger

asserts that the Register of Wills should have granted him Letters of

Administration C.T.A., or the Orphans’ Court should have conducted an

evidentiary hearing to make factual findings. Id. at 9.
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5Section 3155(b) prioritizes the various classes of “persons entitled” to letters
of administration as follows:

20 Pa.C.S.A. § 3155. Persons entitled

(b) Letters of administration.-- Letters of administration shall be granted
by the register, in such form as the case shall require, to one or more of those
hereinafter mentioned and, except for good cause, in the following order:

    (1) Those entitled to the residuary estate under the will.

    (2) The surviving spouse.

    (3) Those entitled to the intestate law as the register, in his discretion,
    shall judge will best administer the estate, giving preference, however,
    according to the sizes of the shares of those in this class.

    (4) The principal creditors of the decedent at the time of his death.

    (5) Other fit persons.

    (6) If anyone of the foregoing shall renounce his right to letters of
    administration, the register, in his discretion, may appoint a nominee of
    the person so renouncing in preference to the persons set forth in any
    succeeding paragraph.

    (7) A guardianship support agency serving as guardian of an
    incapacitated person who dies during the guardianship administered
    pursuant to Subchapter F of Chapter 55 (relating to guardianship
    support).

    (8) A redevelopment authority formed pursuant to the act of May 24,
    1945 (P.L. 991, No. 385), known as the Urban Redevelopment Law.

20 Pa.C.S.A. § 3155(b).

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      Initially, we examine whether the Orphans’ Court had the requisite

subject matter jurisdiction to grant Kathleen’s Petition and direct the Register

of Wills to issue to her Letters of Administration C.T.A. for the Estate.

      “It 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, 448 Pa. Super. 616, 672 A.2d 823,
      824-25 (1996)). Our standard of review is de novo, and our scope
      of review is plenary. Id. (citing Commonwealth v. Jones, 593
      Pa. 295, 929 A.2d 205, 211 (2007)). “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) (citing
      Lowenschuss v. Lowenschuss, 396 Pa. Super. 531, 579 A.2d
      377, 380 n.2 (1990)).

            Jurisdiction is the capacity to pronounce a judgment
            of law on an issue brought before the court through
            the 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 the 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. Spring Spectrum, L.P., 767 A.2d 564, 568 (Pa.
      Super. 2001) (quoting Bernhard v. Bernhard, 447 Pa. Super.
      118, 668 A.2d 546, 548 (1995)).

In re Estate of Ciuccarelli, 81 A.3d 953, 958 (Pa. Super. 2013).

      Pursuant to the Decedents, Estates and Fiduciaries Code, jurisdiction

over decedents’ estates and their fiduciaries is vested in the Orphans’ Court

division. See 20 Pa.C.S.A. § 711. However, jurisdiction to grant letters to a


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personal representative is vested in the Register of Wills. Id. § 901 (providing

that “the register shall have jurisdiction of … the grant of letters to a personal

representative”); see also id. § 711(12) (stating that the Orphans’ Court shall

have jurisdiction over, inter alia, the appointment of fiduciaries, “except that

the register shall continue to grant letters testamentary and of

administration to personal representatives as heretofore.” (emphasis

added)); In re Estate of Tigue, 926 A.2d 453, 456 (Pa. Super. 2007) (stating

that “it is the register who has the authority and duty to issue letters.”).

       The Orphans’ Court may, in some instances, exercise jurisdiction over

matters concerning letters of administration. The Orphans’ Court may review

the Register’s decision if a party files an appeal from the Register’s grant of

letters.6 See In re Estate of Tigue, 926 A.2d at 456; see also 20 Pa.C.S.A.

§ 711(18) (providing that the Orphans’ Court has jurisdiction over “[a]ppeals

from and proceedings removed from registers.”).          If the Orphans’ Court

determines that the Register abused its discretion in appointing a particular

administrator, the court may then direct the Register to issue letters of

administration to the appropriate individual. See In re Estate of Simmons-

Carton, 644 A.2d 791, 795 (Pa. Super. 1994). Additionally, the Orphans’

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6  We note that when a party appeals from the Register’s appointment of an
administrator, the Orphans’ Court is not required to conduct an evidentiary
hearing. See generally In re Estate of Tigue, 926 A.2d at 456. However,
if the Orphans’ Court declines to conduct a hearing and receive evidence, this
Court’s subsequent review is limited to determining if the Register, rather
than the Orphans’ Court, abused its discretion. Id.; see also Estate of Fritz
v. Fritz, 798 A.2d 243, 244-45 (Pa. Super. 2002).

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Court has the authority to remove a personal representative.        See In re

Estate of Mumma, 41 A.3d 41, 49 (Pa. Super. 2012); see also 20 Pa.C.S.A.

§ 3183 (providing that “[t]he court on its own motion may, and on the petition

of any party in interest alleging adequate grounds for removal shall, order the

personal representative to appear and show cause why he should not be

removed, or, when necessary to protect the rights of creditors or parties in

interest, may summarily remove him.”); id. § 3182 (setting forth the grounds

for removal of a personal representative). “Upon removal [of a personal

representative], the court may direct the grant of new letters testamentary or

of administration by the register to the person entitled….”       20 Pa.C.S.A.

§ 3183 (emphasis added).

      Here, there is no confirmation in the certified record of when—or even

whether—the Will was admitted to probate. The certified record also lacks

any indication of whether the Register of Wills had, at any time prior to the

filing of Berger’s Motion for Appointment, issued letters testamentary to

Yarbrough, or letters of administration to any other party.           There is

additionally no other indication that an initial Register of Wills determination

was appealed to the Orphans’ Court. Cf. 20 Pa.C.S.A. § 711(18). Further,

although the parties seem to agree that Yarbrough lacks capacity to serve as

Executrix of the Estate, the Orphans’ Court did not remove Yarbrough as

Executrix before issuing Letters of Administration C.T.A. to Kathleen. Cf. id.

§ 3183. Accordingly, this case does not fall within one of the circumstances

in which the Orphans’ Court may direct the Register of Wills to grant new

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letters.   Moreover, it does not appear that the Register of Wills had the

opportunity to consider the parties’ respective statuses and order of priority

under section 3155(b), or to determine whether there was good cause to

deviate from the statutory order of priority, as it is required to do. See In re

Estate of Tigue, 926 A.2d at 459 (vacating the Order of the Orphans’ Court,

which affirmed the register’s appointment of an administrator, where the

register appointed appellee “without any evidence that the register applied

the relevant law, either by following the order of appointees set forth in

[section] 3155(b) or by exercising his discretion to deviate from that order for

good cause.”). Thus, as the Register of Wills, rather than the Orphans’ Court,

had jurisdiction to grant letters of administration in this matter, see 20

Pa.C.S.A. §§ 901, 711(12), we must vacate the Orphans’ Court Decree, which

denied Berger’s Motion for Appointment, granted Kathleen’s Petition for

Letters, and directed the Register of Wills to issue Letters of Administration

C.T.A. for the Estate to Kathleen.

      Decree vacated. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/05/2018



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