J-S55020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF: MARIAN FILAR, DECEASED                IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA




APPEAL OF: ESTHER FRENKEL,
INTESTATE HEIR

                        Appellant                   No. 1040 EDA 2018


             Appeal from the Order Entered February 28, 2018
           In the Court of Common Pleas of Montgomery County
                    Orphans' Court at No: 2012-X2740


BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 15, 2018

      Esther Frenkel (“Appellant”) appeals pro se from the February 28, 2018

order entered in the Orphans’ Court Division of the Court of Common Pleas of

Montgomery County that dismissed with prejudice Appellant’s appeal from

probate. Following review, we affirm.

      As reflected in the court’s Rule 1925(a) opinion, and as confirmed by

our review of the record, Appellant was the niece and intestate heir of Marian

Filer (“Decedent”), who died testate on July 10, 2012. Decedent’s September

11, 2006 will (“the Will”) was probated and the Register of Wills issued a

decree on July 31, 2012 granting letters testamentary to Decedent’s named

executor, Charles Birnbaum.     Appellant, who resides in Israel, was not

designated a beneficiary under the Will. On July 31, 2013, the final day for
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registering a challenge, Appellant filed a counseled petition to show cause why

the July 31, 2012 decree should not be set aside under 20 Pa.C.S.A. § 908(a).1

       The    Will’s   beneficiaries    (“Proponents”),   Appellees   herein,   filed

preliminary objections challenging Appellant’s standing, alleging Appellant had

also been disinherited by the Decedent in several previous wills.               The

Proponents agreed to defer resolution of the preliminary objections pending

discovery.

       As the orphans’ court explained:

       After several years of discovery and an unsuccessful settlement
       conference, [Appellant’s] counsel filed a petition for leave to
       withdraw, alleging that the relationship between [Appellant] and
       her counsel had become “irretrievably broken.”       [Appellant]
       opposed this withdrawal.


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1 Section 908 (Appeals) of the Probate, Estates and Fiduciaries (“PEF”) Code
provides, in relevant part, that “[a]ny party in interest seeking to challenge
the probate of a will or who is otherwise aggrieved by a decree of the register,
. . . may appeal therefrom to the court within one year of the decree.”
20 Pa.C.S.A. § 908(a).

Also relevant to this appeal is Section 908(b) of the PEF Code, which provides:

       (b) Bond.--The court, upon cause shown and after such notice, if
       any, as it shall direct, may require a surety bond to be filed by
       anyone appealing from a decree of the register conditioned for the
       payment of any costs or charges that may be decreed against him.
       . . . If a bond in compliance with the final applicable order is not
       filed within ten days thereafter, the appeal shall be considered
       abandoned.

20 Pa.C.S.A. § 908(b).




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       On December 19, 2017, the undersigned sua sponte directed
       [Appellant] to post bond [pursuant to 20 Pa.C.S.A. § 908(b)] in
       the amount of $25,000 within thirty days. After [Appellant] failed
       to post the bond, the proponents filed a motion to declare the
       outstanding petition sur appeal abandoned. On February 28,
       2018, no objections having been filed to the motion, this [c]ourt
       entered an order pursuant to 20 Pa.C.S.A. § 908(b) determining
       that [Appellant] had abandoned her petition and dismissing the
       appeal with prejudice. The outstanding petition by [Appellant’s]
       counsel for leave to withdraw his appearance was perforce mooted
       by this order.

Rule 1925(a) Opinion, 5/23/18, at 2. This timely appeal followed.2

       On March 30, 2018, the court directed Appellant to file a concise

statement of errors complained of on appeal, in accordance with Pa.R.A.P.

1925(b). As the court noted:

       On April 18, 2018, the [c]ourt received a pro se document from
       [Appellant] captioned “AN APPEAL,” which appears to be her
       attempt to fashion a statement of matters complained of. The
       document contains fourteen numbered paragraphs most of which
       outline details of her dispute with her former counsel. Paragraph
       13 of her statement references the $25,000 bond requirement
       which she claims she cannot pay.

       The single issue raised in this appeal is whether this [c]ourt’s order
       issued February 28, 2018 was appropriate.

Id. at 2-3.

       Appellant subsequently filed a document entitled “A Brief.” The two-

page document includes seven numbered paragraphs explaining that her

counsel sought to withdraw his representation of Appellant; that opposing


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2 Appellant’s former counsel filed the notice of appeal on Appellant’s behalf,
but noted he was doing so as “former counsel.” Appellant is proceeding pro
se in this appeal.

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counsel “took advantage of [her] and asked the court to impose a bond on

[her]”; that the court dismissed counsel’s request to withdraw; that opposing

counsel’s request for a bond was based solely on Appellant’s counsel’s request

to withdraw; that Appellant could not afford the bond and the court dismissed

her case because she did not secure the required bond; and that the court’s

rejection of counsel’s request to withdraw has eliminated the reason for

requesting the bond. Appellant’s Brief at 1-2, ¶¶ 1-5. With the exception of

counsel’s request to withdraw, to which Appellant objected, none of the other

matters presented in the first five paragraphs was raised before the trial court.

“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P. 302(a). Therefore, to the extent Appellant

has raised any discernible issues in these paragraphs, we may not consider

them.     As for Appellant’s assertion that counsel attempted to withdraw

representation, that is a statement of fact, supported by the record. However,

the court did not rule on the petition, dismissing it as moot. Order, 2/28/18,

at 1. Therefore, there is no issue for this Court to review.

        In her sixth paragraph, Appellant asks this Court to cancel the bond

requirement and the dismissal of her case. Id. at ¶ 6. In the final paragraph,

she asks this Court to consider an “enclosed page of comments.” Id. at ¶ 7.

However, the only attachments to her filing consist of the orphans’ court’s

February 28, 2018 order, its order directing Appellant to file a Rule 1925(b)

statement, and its Rule 1925(a) opinion.


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       It is clear Appellant’s brief fails to comply with our appellate rules

governing briefs in every respect. In accordance with Pa.R.A.P. 2101, we may

quash or dismiss an appeal if the defects in the brief are substantial.

       In In re Ullman, 995 A.2d 1207 (Pa. Super. 2010), we reiterated that

while “this Court is willing to liberally construe materials filed by a pro se

litigant, pro se status confers no special benefit upon the appellant.” Id. at

1211-12 (citation omitted).           While Appellant’s failure to conform to the

requirements of the rules warrants suppression of her brief and dismissal of

her appeal, here—as in Ullman—we are able to glean the one issue that the

orphans’ court has likewise identified, i.e., whether the court’s February 28,

2018 order dismissing Appellant’s appeal from probate is appropriate.

Therefore, we shall address the issue.3

       Our standard of review of an order or decree of the orphans’ court

requires that we give deference to the court’s findings. We must “determine

whether the record is free from legal error and the court’s factual findings are

supported by the evidence.” In re Staico, 143 A.3d 983, 987 (Pa. Super.

2016 (citations omitted).

       We have already determined that the court’s factual findings are

supported by the record. With regard to its legal conclusion, we look to the


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3We note the Appellant also filed a reply brief, styled “Re: My answer to the
brief of appellees[],” as well as an “Addendum/An Addition to My Brief,”
neither of which complies with our appellate rules and neither of which
presents any argument on issues preserved for appeal.

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language of Section 908(b) of the PEF Code. As reflected above, Section

908(b) authorizes the orphans’ court to require a surety bond upon cause

shown and after notice.       Here, after years of discovery and a settlement

conference that failed to lead to a resolution of the dispute, Appellant’s counsel

filed a motion seeking to withdraw from the case.        The court conducted a

conference on December 5, 2017 in which counsel for the Proponents and

Appellant’s counsel participated.    The court subsequently entered its order

requiring that Appellant post bond in the amount of $25,000 pursuant to

Section 908(b) and giving Appellant thirty days to do so. Order, 12/17/17, at

1. When Appellant failed to comply, counsel for the Proponents filed a motion

on January 18, 2018 seeking a declaration under Section 908(b) that

Appellant’s failure to comply resulted in abandonment of her appeal.

Appellant did not oppose the motion.

      On February 28, 2018, the court entered the order, in accordance with

Section   908(b),   finding   that   Appellant   had   abandoned    her   appeal.

Consequently, the court dismissed the action.

      We find no error in the court’s ruling. The court simply followed the

dictates of Section 908(b), which provide if a contestant fails to file a bond in

compliance with the court’s order, the contestant’s appeal “shall be considered

abandoned.” See Estate of Shelley, 345 A.2d 596, 599 (Pa. 1975) (“in view

of the failure to post the required bond by the parties seeking to appeal the




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decision of the register, we must conclude as the statute mandates that ‘the

appeal shall be considered abandoned.’”).4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/18




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4We note that Shelley applied the provisions of Section 208(b) of the Register
of Wills Act of 1951, 20 P.S. § 208(b), the predecessor to 20 Pa.C.S.A.
§ 908(b). While some of the language of the earlier statute differs from the
current language of Section 908(b), the mandate in question—that failure to
post bond shall be considered an abandonment of the appeal—was carried
over to the current statute.


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