J-E02001-17

                             2018 PA Super 130

 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                       :
                                        :
                                        :   No. 1265 WDA 2015
 APPEAL OF: ESTATE OF SOPHIA M.         :
 KRASINSKI AND ITS EXECUTOR,            :
 EDWARD KRASINSKI                       :

                     Appeal from the 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 SOFIA                  :
 KRASINSKY, LATE OF MORRISDALE,         :
 (COOPER TOWNSHIP) CLEARFIELD           :
 COUNTY, PENNSYLVANIA DECEASED          :
 ON 11/04/06                            :
                                        :
                                        :   No. 1289 WDA 2015
 APPEAL OF: PATRICIA KRASINSKI-         :
 DUNZIK                                 :

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


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.

OPINION BY OTT, J.:                                   FILED MAY 15, 2018

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

Edward Krasinski (Edward or the Executor), appeals from the order entered

on July 16, 2015, which granted in part and denied in part exceptions to the
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order confirming the first and final account of the Estate. Patricia Krasinski-

Dunzik (Patricia) also appeals from that order. Upon review, we affirm in part,

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

I. Background

       This matter arises from a dispute among 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.

       Decedent died testate on November 4, 2006, and the Will was probated

and an Estate 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 the Decedent’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 the Decedent’s four children.

       The primary assets of the Estate included three parcels of real estate.1

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



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1 The Executor did not obtain a date-of-death appraisal for the properties.
Instead, the Executor had the properties professionally appraised in 2010 in
conjunction with his petition for private sale. See N.T., 9/5/2014, at 62
(“appraisal done in 2010”).




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

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

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

of $200,000 (Homestead Place).4

        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 was her position she already owns all of them based on

a prior oral agreement between herself and the Decedent. After argument

and briefing, on March 22, 2011, the orphans’ court granted the Executor’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 prove that she owned these

properties. The orphans’ court also concluded that Patricia did not present


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

3 The tax-assessed value for this parcel was $40,866.37. This property
surrounds James’s home. Johnny Hoover Place and Wicks’ Place are adjoining
properties.

4 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.




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sufficient evidence to remove the purported oral contract from the statute of

frauds.5

       Prior to the sale, on February 8, 2013, letters were sent by the Estate’s

attorney to all four heirs explaining the process by which the sale would

occur.6 Included in this letter was a statement 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.    See Plaintiff’s Exhibit 30 (Estate’s Attorney’s Letter, 2/8/2013).

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

and Patricia attended the sale.7 Patricia did not bid on any of the properties.

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5The 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 the Decedent and Patricia
and dismissed the case.

6 The Estate’s attorney’s letter stated, 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. The share of each heir was approximately
$100,000.00. See Trial Court Opinion, 4/22/2015, at 3 n.2.

7 Eleanor filed a document disclaiming her rights to the Estate and assigning
her proportionate share to Patricia. Patricia appeared for the private sale,
gave the Estate’s attorney Eleanor’s filing, said she would not be bidding as
she owned the property, and then left immediately thereafter. See N.T.,
9/5/2014, at 29, 71-22. See also Orphans’ Court Opinion, 4/22/2015, at 2
(“The evidence presented before the Court showed that [Patricia] announced
she was not going to remain at the sale. [Patricia] then provided a copy of a
Relinquishment of Rights to Inherit signed by her sister Eleanor Krasinski and
left [the Estate’s attorney’s] office while making various threats to stop the
sale from going through.”) (footnote omitted).



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James and his wife, Marie, bid $230,000 for Wicks’ Place. Edward bid $55,000

for Johnny Hoover Place. Edward, James, and Marie jointly bid $120,000 for

Homestead Place.

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

the sale of these properties to the residuary heirs for these amounts. Contrary

to the letter of the Estate’s attorney, no provision for Patricia and her

husband’s ownership of the house and barn at Homestead Place was included

in the deeds. On March 14, 2013, Patricia filed pro se an objection to the

petition.8 On April 30, 2013, after argument, the orphans’ court approved the

Executor’s petition.

       On May 30, 2014, the Executor filed a first and final account. Patricia,

through counsel, filed six objections.         Those objections challenged: 1) the

manner in which the private sale was conducted; 2) the failure to include a

limiting condition regarding the Dunziks’ home and barn and underlying land

in the Homestead Place deed; 3) the proposal to sell Homestead Place with a

right-of-way from Johnny Hoover Place; 4) the appraised values of the



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8This handwritten objection, consisting of 5 pages with writing on both sides
except for the last page, includes numerous allegations about how James and
Edward treated Decedent 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 assaulted her in the past.
Additionally, she claimed she owned some mineral rights in the properties.
Patricia did not specifically object on the basis that no provision was made for
ownership of the lands underlying her house and barn at Homestead Place.

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properties as either suppressed or inflated; and 5) tax implications related to

the Executor’s report to the Internal Revenue Service that Patricia sold her

interest in the land, and the Executor’s date of death valuation of the real

estate.   Objection No. 6 was a series of miscellaneous objections, and is

discussed in section III, infra, as that objection relates solely to the Executor’s

appeal.

      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 her husband, Gary, and the Dunziks’ attorney

appeared.

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

brief within 30 days, and also provided the Executor 20 days thereafter to

respond. Patricia did not file a brief, but the Executor filed answers to the

objections on October 27, 2014.

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

this matter. The orphans’ court sustained, in part, Objection No. 6, finding

that natural gas payments received by the Estate for Homestead Place in the

amount of $39,536.00 were the property of Patricia and not the Estate, and

directed the filing of an Amended Account to remove the $39,536.00 from the

Estate. The orphans’ court overruled the remaining objections. With respect

to Objection Nos. 1 through 4, concerning the private sale of the properties,


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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 Pennsylvania Rule of Appellate Procedure

342(a)(6) (order “determining an interest in real … property” appealable as of

right). As to Objection No. 5, tax ramifications, the orphans’ court concluded

that the Executor acted appropriately.

       On May 4, 2015, Patricia filed a motion for reconsideration, contending,

inter alia, the April 30, 2013 order approving the private sale was

interlocutory; the Executor and James and his wife removed a significant

amount of timber from Homestead Place; the party who sold the Decedent’s

real estate was the Executor, and not Patricia; and seeking a revised account

that properly reflected the value of the land on the date of the Decedent’s

death as the appraised value, and retraction of improper tax filing. 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 removed

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9 A motion for reconsideration was procedurally improper in this case. At that
time, the Pennsylvania Orphans’ Court Rules provided for exceptions. See
former 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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from the property was included properly in the account.10 See Order,

5/13/2015. By order entered July 16, 2015, the orphans’ court rescinded the

May 13, 2015, order, construed Patricia’s motion for reconsideration as

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

dismissed the exceptions filed by the Executor concerning ownership of the

gas and oil rights to Homestead Place.

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

appeal.12 A divided panel of this Court affirmed the orphans’ court’s order in

part, vacated in part, and remanded for further proceedings. Thereafter,

Patricia sought en banc review, which this Court granted. The matter is now

ready for our disposition.13

        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
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10 The record is not clear as to when any issue about timber was raised for the
first time.

11The record does not contain a transcript of a hearing, and it is not clear
whether a hearing was actually held.

12   The Executor, Patricia, and the orphans’ court complied with Pa.R.A.P. 1925.

13On May 23, 2017, this Court issued a Rule to Show Cause (RTSC) to both
parties, directing them to show cause as to the basis of this Court’s jurisdiction
over these appeals.

      Based on the parties’ responses to the RTSC, we are satisfied that this
Court has jurisdiction and the RTSC is hereby discharged.

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      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). For ease of discussion, we begin with Patricia’s

appeal.

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’

court erred in permitting the private sale that only allowed the heirs to

participate in the bidding 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 the Executor to offer Homestead Place for sale with a right of way in favor

of Johnny Hoover Place, except to serve as an impediment and deterrent to

her and her husband’s purchase of Homestead Place. Id. at 16-17. Patricia

also argues that James and Edward “changed[d] the terms of the sale” of

Homestead Place by failing to recognize ownership by Patricia and her

husband of the home and barn, the lands underlying the home and barn, and

the appurtenant facilities servicing them in the deed. Id. at 18.




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

to appeal from the April 30, 2013 order confirming and approving the private

sale, as required by Pennsylvania Rule of Appellate Procedure 342.           See

Orphans’ Court Opinion, 4/22/2015, at 8, citing Pa.R.A.P. 342(a)(6) and (c).

As more fully discussed below, we agree with the orphans’ court’s

determination.

        Effective February 12, 2012, Pa.R.A.P. 342 provides, in relevant part:

        (a) General rule. An 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;
        ….

                                           ****

         (c) Waiver of objections. Failure 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.

Pa.R.A.P. 342(a)(6), (c).

        At the outset, it is important to recognize that the Executor had the

authority to sell the Decedent’s real estate, pursuant to Sections 3311(a) and

3351 of the Probate, Estate and Fiduciaries (PEF) Code. 14 Furthermore, the

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14   Specifically, Section 3311(a) of the PEF Code provides:


        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, except real estate occupied at the time of



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orphans’ court authorized the Executor to sell the real estate by private sale

to the heirs by order entered March 22, 2011. The private sale took place on

February 15, 2013.         Thereafter, on April 30, 2013, the orphans’ court

approved the sale and ordered the properties conveyed to the grantees. See

Order, 4/30/2013.

       By way of background to the adoption of current Rule 342, we begin

with the Pennsylvania Supreme Court’s decision in In re Estate of Stricker,

977 A.2d 1115 (Pa. 2009), which involved the prior version of Rule 342. In

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       death by an heir or devisee with the consent 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. The court may direct the
       personal representative to take possession of, administer and
       maintain real estate so occupied by an heir or a devisee if this is
       necessary to protect the rights of claimants or other parties.
       Nothing in this section shall affect the personal
       representative’s power to sell real estate occupied by an
       heir or devisee.



20 Pa.C.S. § 3311(a) (emphasis added). Additionally, Section 3351 states:


       Except as otherwise provided by the will, if any, the
       personal representative may sell, at public or private sale,
       any personal property whether specifically bequeathed or not, and
       any real property not specifically devised, and with the
       joinder of the specific devisee real property specifically devised. …



20 Pa.C.S. § 3351 (emphasis added).


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Stricker, our Supreme Court held that an orphans’ court’s order directing the

co-executors to sell the estate’s real estate was an interlocutory order that

was not appealable under Rule 342 or Rule 313 (collateral order). At that

time, under Rule 342, the determination of the finality of an order “making a

distribution, or determining an interest in realty or personalty or the status of

individuals or entities” was left to the discretion of the orphans’ court.

Stricker, at 1117-1118. Because the orphans’ court judge had not certified

the order to sell the estate’s real estate as final, the Stricker Court ruled the

order was not appealable under Rule 342. The Stricker Court further

determined the order did not qualify as a collateral order appealable pursuant

to Rule 313.   Therefore, the order of this Court quashing the appeal was

affirmed.

      In a concurring opinion, Mr. Justice Saylor wrote:

             The majority aptly observes that our Rules of Appellate
      Procedure contain a vehicle to address the particularized concerns
      arising from orders determining interests in estate property.
      Specifically, Rule 342 permits an appeal from a distribution order
      or an order determining an interest in estate property to proceed
      as of right, inter alia, upon a determination of finality by the
      orphans’ court. See Pa.R.A.P. 342(1). The majority correctly
      interprets the rule as investing absolute, largely standardless
      discretion in the orphans’ court. I differ, however, with the
      majority’s categorical assessment regarding the wisdom of the
      rule in this regard. See Majority Opinion, slip op. at 4.

            In my view, there are substantial arguments to be made
      that estate administration would be better served by a rule
      providing for the general appealability of estate-related orders
      determining property interests at least in the real property setting.
      Notably, the present “determination of finality” procedure does
      not closely align with the justifications for permitting immediate

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       appeals (facilitating the prompt resolution of potential title
       disputes to benefit purchasers, the estate, and beneficiaries).
       Further, the vesting of absolute, standardless discretion in our
       orphans' courts yields the potential for disparate treatment. …

                                          ****

             … Thus, I believe our Appellate and Orphans' Court
        Procedural Rules Committees should continue to study the
        application of the present rule in practice and make
        recommendations for improvements where appropriate,
        particularly given the troubling implications of maintaining a
        system based on absolute, largely standardless discretion.

Id. at 1120-1121 (Saylor, J., concurring).

       Thereafter, Rule 342 was revised, effective February 12, 2012.         The

revised rule eliminated the requirement that the orphans’ court make a

determination of finality, and identified certain orders that would be

appealable as of right.15 The Rule specifically states that objections to such

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15 As the Pennsylvania Supreme Court recently explained in In re Estate of
Plance, 175 A.3d 249 (Pa. 2017):


       Prior to the most recent revision, [Rule 342] “[did] not require
       that any particular class of orders be treated as final, but instead
       [left] the determination of finality of orders not disposing of all
       claims and all parties up to the Orphans’ Court judge.” In re
       Estate of Stricker, 602 Pa. 54, 977 A.2d 1115, 1118 (Pa. 2009).
       Concurring in Stricker, then-Justice, now Chief Justice, Saylor
       questioned the prudence of this rule, as the case-by-case
       determination of finality procedure could lead to inconsistent
       results in different Orphans’ Courts, and could cause undue delays
       in estate administration. Justice Saylor opined that “allowing
       appeals as of right most frequently would result in a net benefit.”
       Id. at 1121 (Saylor, J., concurring). Following Justice Saylor’s
       recommendation in Stricker, Rule 342 was revised to provide for



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orders must be raised in an immediate appeal, and failure to do so constitutes

waiver. The Comment to Rule 342 states:

               [I]t is difficult to analogize civil litigation to litigation arising
       in estate, trust and guardianship administration. The civil
       proceeding defines the scope of the dispute, but the
       administration of a trust or estate does not define the scope of the
       litigation in Orphans’ Court. Administration of a trust or an estate
       continues over a period of time. Litigation in Orphans’ Court may
       arise at some point during the administration, and when it does
       arise, the dispute needs to be determined promptly and with
       finality so that the guardianship or the estate or
       trust administration can then continue properly and orderly. Thus,
       the traditional notions of finality that are applicable in the context
       of ongoing civil adversarial proceedings do not correspond to
       litigation in Orphans’ Court.

              In order to facilitate orderly administration of estates, trusts
       and guardianships, the 2011 amendments list certain orders that
       will be immediately appealable without any requirement that the
       Orphans' Court make a determination of finality. Orders falling
       within subdivisions (a)(1)-(7) no longer require the lower court to
       make a determination of finality.

             Subdivisions (a)(1)-(7) list orders that are unique to
       Orphans’ Court practice, but closely resemble final orders as
       defined in Rule 341(b).

Pa.R.A.P. 342, Comment.




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       appeals as of right for specified categories of Orphans’ Court
       orders. See Pa.R.A.P. 342(a). The rule explicitly states that
       objections to such orders must be raised in an immediate, timely
       appeal, on pain of waiver. See Pa.R.A.P. 342(c).



Id. at 269.



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      Here, the private sale occurred on February 15, 2013, having been

authorized by the orphans’ court’s March 22, 2011 order. On March 7, 2013,

the Executor filed a Report and Return of Private Sale (Report), seeking court

approval of the private sale.    The Report attached fiduciary deeds for the

properties as Exhibits “1”, “2” and “3”.      The Executor’s fiduciary deed for

Homestead Place contained NO provision regarding the Dunzik’s ownership of

the house and barn, underlying land, and appurtenances. The April 30, 2013

order finalized the sale of the real estate by the Executor and approved the

fiduciary deeds attached to the Report as Exhibits 1, 2, and 3.

      Significantly, the orphans’ court’s April 30, 2013, order explicitly directs

that “the Report of Edward P. Krasinski, Executor of the estate of the above

Decedent, is hereby approved in all regards and the properties described in

Exhibits 1, 2 and 3 of said Report shall be conveyed to the grantees in

accordance with the terms set out in the Report.” Order, 4/30/2013.            As

such, the order clearly “determines an interest in real … property.” Pa.R.A.P.

342(a)(6).    Consequently, the orphans’ court’s April 30, 2013, order was

appealable as of right pursuant to Rule 342. Although Patricia filed pro se

objections, as the orphans’ court noted, she “did not raise the appropriate

issues in her pro se objections,” and the private sale was confirmed. Orphans’

Court Opinion, 4/22/2015, at 10.

      Furthermore, Patricia had challenged ownership of the properties in a

civil action that caused the court to issue a stay on the Executor’s sale of the


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properties.    The civil suit resulted in the trial court’s December 24, 2012,

determination that there was no oral agreement upon which Patricia could

base her claim of ownership of the properties. This Order was never appealed.

See Footnote 5, supra. Therefore, it is evident that Patricia was aware that

her claims of ownership to the properties would be lost upon sale of the

properties.

        When the orphans’ court entered its April 30, 2013, order, approving

the private sale and the fiduciary deeds, Patricia lost her claims of ownership

in Homestead Place and the other properties. Therefore, as the orphans’ court

correctly determined, Patricia’s failure to appeal the April 30, 2013 order

pursuant to Rule 342(a)(6) resulted in waiver.             See Pa.R.A.P. 342(c).

Accordingly, Patricia cannot obtain relief on her claims related to the private

sale.

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

the tax ramifications of the Estate by (1) reporting to the Internal Revenue

Service that Patricia was the seller of her interest in real estate, rather than

the Estate and, (2) improperly valuing the Decedent’s real estate, resulting in

unrealistic appreciation and capital gains.     See Patricia’s Brief at 23-32.

        Our standard of review is well settled:

              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

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      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).

      We begin with Patricia’s contention that it is the Estate that sold the real

property, and not Patricia individually, and therefore she should not have been

subjected to any tax ramifications of the sale.     See Patricia’s Brief at 23-29.

In concluding that this issue was without merit, the orphans’ court opined:

             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.

            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….

Orphans’ Court Opinion, 4/22/2015, at 10-11.

      We disagree with the orphans’ court’s analysis. Because the real estate

was not specifically devised, we conclude the taxable gain from the private




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sale should have been borne by the Estate, as the Executor was the seller of

the real estate.

      Both the orphans’ court and the Executor fail to recognize the import of

the second half of Section 301(b) of the PEF Code, which provides:

      Legal title to all real estate of a decedent shall pass at his death
      to his heirs or devisees, subject however, to all powers
      granted to the personal representative by this title and
      lawfully by the will and to all orders of the court.

20 Pa.C.S. § 301(b) (emphasis added). In this regard, as discussed above,

the Executor had the authority to sell the Decedent’s real estate, which was

not specifically devised, pursuant to Sections 3311(a) and 3351 of the PEF

Code. As already stated, Section 3351 provides:

      Except as otherwise provided by the will, if any, the
      personal representative may sell, at public or private sale,
      any personal property whether specifically bequeathed or not, and
      any real property not specifically devised, and with the
      joinder of the specific devisee real property specifically devised. …

20 Pa.C.S. § 3351 (emphasis added).

      Furthermore, Section 3357(a) provides, in relevant part:

      If the personal representative has given such bond, if any, as shall
      be required in accordance with this title, any sale, mortgage, or
      exchange by him, whether pursuant to a decree or to the exercise
      of a testamentary power or of a power under this title, shall pass
      the full title of the decedent therein, unless otherwise
      specified, discharged from the lien of legacies, from liability for
      all debts and obligations of the decedent, from all liabilities
      incident to the administration of the decedent’s estate, and from
      all claims of distributees and of persons claiming in their right, …

20 Pa.C.S. § 3357 (emphasis added).




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      In Quality Lumber & Millwork Co. v. Andrus, 200 A.2d 754 (Pa.

1964), the Pennsylvania Supreme Court construed several sections of the

Fiduciaries Act, now sections 301(b), 3351 and 3357 of the PEF Code. The

question was whether Mrs. Andrus, the sole heir and personal representative

of the decedent, acquired title in her individual capacity to real estate owned

by the decedent upon the death of the decedent, or not until a later

distribution of real estate from the estate. Our Supreme Court held that title

may pass to heirs upon death, but during the administration of the estate the

title was “expressly subjected to those powers statutorily granted to her in

her capacity of personal representative.” Id. at 756 (emphasis in original).

The Quality Lumber Court concluded: “Until a distribution had been made,

the only proper source of full title of the decedent was the administratrix.” Id.

at 759. Accord Tigue v. Basalyga, 304 A.2d 119 (Pa.            1973) (personal

representative was an indispensable party in plaintiff’s action against heirs to

set aside a deed allegedly obtained by fraudulent acts committed by deceased-

grantee).

      Furthermore, because Patricia is a residuary beneficiary and the real

estate was sold to liquidate the assets for distribution, Item III of the Will is

controlling: “[A]ll taxes that may be assessed in consequence of my death,

of whatever nature, and whatever jurisdiction imposed, shall be paid from my

residuary estate as a part of the expense of the administration of my estate.”

Last Will and Testament, 8/18/1999, at Item III.


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J-E02001-17


      Finally, and significantly, the Executor conveyed the properties by

separate fiduciary deeds, wherein he identified himself as the Grantor.

      Accordingly, based upon the above-cited provisions of the PEF Code, the

holding in Quality Lumber, Item III of the Decedent’s Will, and the fiduciary

deeds, we conclude the Executor was the seller of the Decedent’s real estate,

and not Patricia, who was not specifically devised the real estate. As such, the

Estate was responsible for the taxable gain from the private sale, and Patricia

is entitled to relief on this basis.

      Next, Patricia argues that the Executor did not properly value the

properties on the date of death of the Decedent, which resulted in unrealistic

appreciation and capital gains. Here, the Executor used the real estate tax

assessment value and a factor called the common level ratio to establish

minimal values of the real estate interests on the date of the Decedent’s death.

Patricia points out “the Executor sold four (4) tracts of land, in fee, for a total

consideration of $405,000.00, and experienced a ‘gain’ in value of

$321,620.79 (nearly 500%) over the $83,379.00 reported.” Patricia’s Brief

at 31. Patricia maintains there should have been no gain at all.

      Patricia argues the Internal Revenue Code provides for a “step-up” in

basis pursuant to IRC § 1014(a) when valuing lands and property received

from a decedent’s estate.      Id.     She states the basis of land acquired from a

decedent is equal to the date of death value of the land. Id. She concludes,

“Had the Estate properly placed the value of the lands at or equal to the


                                         - 20 -
J-E02001-17


‘appraised’ value (and assuming that the sales prices still equaled that value)

the [E]state and the beneficiaries would have experienced no gain, and

consequently no income tax when the [E]state sold the lands.” Id. at 31-

32.16

        We find no reason to conclude Patricia is entitled to relief on this claim.

The Executor’s Pennsylvania inheritance tax return, which used the real estate

tax assessment value and the common level ratio to establish the date of

death values, was “accepted as filed” by the Pennsylvania Department of

Revenue. See Commonwealth of Pennsylvania Department of Revenue Notice

of Inheritance Tax Appraisement, Allowance or Disallowance of Deductions

and Assessment of Tax, 6/22/2009. Therefore, Patricia’s argument that the

Executor’s method of determining the value of the real estate on the date of

death was “grossly flawed”17 is unavailing.

        Finally, while Patricia also argues that the properties were overvalued

or undervalued in the appraisals, any issue as to valuation relates to the



____________________________________________


16 The bids for each property were the same as the 2010 appraisal values.
See Orphans’ Court Opinion, 4/22/2015, at 7. While Patricia is correct that
the basis is stepped up to the date of death, she offers no evidence as to the
“proper” value on November 4, 2006, the Decedent’s date of death. It is
highly unlikely that the Internal Revenue Service would accept an appraised
value, as of January 30, 2010, as the date of death value for calculating capital
gains.

17   Patricia’s Brief at 31.



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private sale that was approved by the April 30, 2013 order. Because we have

determined, supra, that order was an appealable order, Patricia has waived

this aspect of her claim.

      In sum, we reverse Paragraph 3 of the orphans’ court’s July 16, 2015

order, to the extent that it dismissed Patricia’s exceptions that sought relief

on her claim that the Estate, and not Patricia, was responsible for the taxable

gain from the private sale. The remaining claims have been waived or warrant

no relief.

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

account 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.

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

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

Executor to pay Patricia $39,536, the orphans’ court stated:

             [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

                                     - 22 -
J-E02001-17


     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 office 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-R7-9, 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
     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

                                    - 23 -
J-E02001-17


     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 [Place]
     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 Objection

No. 6, paragraphs 41 and 42, and required the Executor to pay Patricia

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

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

granting Patricia compensation on this basis. The Executor also contended

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 16, 2015, the orphans’ court dismissed the Executor’s

exceptions, concluding that the Estate “has attempted to introduce facts and




                                    - 24 -
J-E02001-17


documents not of record in the present matter” in support of its dismissal.

Order, 7/16/2015, at ¶1. This issue is the basis of the Estate’s appeal.

      The Executor 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 12-16.

             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

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).

                                      - 25 -
J-E02001-17


      Instantly, the Executor became aware of the orphans’ court’s decision

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

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

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

that “the record has previously closed.” Order, 7/16/2015. Thus, it is clear

that the Executor 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 Executor to

litigate that issue. Accordingly, we vacate Paragraph 1 of the orphans’ court’s

July 16, 2015 order, dismissing the Estate’s exceptions, and we remand to the

orphans’ court to conduct a hearing on this objection. At that hearing, the

burden is on Patricia, as the party objecting to the first and final account, to

present evidence of her right to those oil and gas payments.

      In conclusion, based upon the above discussion concerning the appeals

of Patricia and the Estate, we affirm the orphans’ court’s July 16, 2015, order

in part, reverse in part, vacate in part, and remand for proceedings consistent

with this Opinion.


                                     - 26 -
J-E02001-17


      Order affirmed in part, reversed in part, vacated in part, and remanded

for further proceedings consistent with this Opinion.   Rule to Show Cause

discharged. Jurisdiction relinquished.

      President Judge Gantman, President Judge Emeritus Bender, Judge

Bowes, Judge Lazarus, Judge Olson, Judge Stabile and Judge Dubow join the

majority opinion.

      Judge Shogan files a concurring and dissenting opinion.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2018




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