J-A22003-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF ESTATE OF LYDIA              IN THE SUPERIOR COURT OF
F. SHEARLDS, DECEASED                               PENNSYLVANIA




APPEAL OF: DEREE J. NORMAN

                                                    No. 494 EDA 2017


                   Appeal from the Decree January 5, 2017
              In the Court of Common Pleas of Delaware County
                      Orphans' Court at No(s): 384-2015


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 20, 2017

     Deree J. Norman appeals pro se from the January 5, 2017 decree

denying his appeal from the probate of the last will and testament of Lydia

F. Shearlds, deceased.   We affirm.

     Lydia Shearlds died testate on April 4, 2015. On April 22, 2015, the

Register of Wills of Delaware County admitted to probate an April 1, 2015

document as the last will and testament of the decedent, and issued letters

testamentary to the executrix named therein, Maria S. Slocum. Lydia had

been married twice and had four sons, Appellant, Noel Norman, Khalil

Shearlds and Haile Shearlds. Noel Norman predeceased his mother.        The

decedent also had raised Michelle Shearlds.      In her will, Lydia left her

* Retired Senior Judge specially assigned to the Superior Court.
J-A22003-17



residuary estate, in equal shares, to her surviving three sons and to Michelle

Shearlds.   Michelle was identified in the will as Lydia’s child, even though

Michelle was never formally adopted by Lydia.

      The genesis of this appeal lies in an August 1, 2016 petition filed by

Appellant. In that petition, Appellant sought the removal of Maria Slocum as

executrix and to invalidate the probated will. In his petition, Appellant did

not claim that the will was procured by undue influence exercised by Ms.

Slocum. The only grounds that Appellant raised for invalidating the will were

that Ms. Slocum unlawfully altered the document and that Michelle was

improperly designated as a child of the decedent. See Petition to Remove

Maria S. Slocum as Executrix and Contest the Validity of the Will, 8/1/16, at

(unnumbered page) 1.       Specifically, Appellant averred that he had been

named executor in the April 1, 2015 will, but Ms. Slocum inserted her name

for his name.   Appellant additionally alleged that the will was void in that

“Michelle Shearlds (Michelle) is listed as a child of the Decedent by birth or

adoption. . . . However, Michelle is not the Decedent’s biological child nor

was she ever legally adopt[ed] by the Decedent, therefore the improper

relationship classification of child as it pertains to Michelle is grounds to

invalidate the Will.” Id. at (unnumbered page) 5; Id. at 6.

      The orphans’ court granted Appellant’s petition in part and denied it in

part. While the orphans’ court removed Ms. Slocum as executrix, it refused

to invalidate the will, finding that Appellant’s petition challenging its validity

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was an untimely appeal from probate. See 20 Pa.C.S. § 908(a) (emphasis

added) (“Any party in interest seeking to challenge the probate of a will or

who is otherwise aggrieved by a decree of the register, or a fiduciary whose

estate or trust is so aggrieved, may appeal therefrom to the court within

one year of the decree[.]”). No one had raised the untimeliness of the

petition as grounds for denial of relief.    This appeal followed.     Appellant

raises these issues for our consideration:

      1. Did the Trial Court fail to fully analyze, conceptualize and or
         comprehend the impact of Slocum's testimony as to her
         unlawful altering of the Testator's Last Will and Testament by
         inserting her own name as the chosen Executor?

      2. Did the Trial Court fail to fully analyze, conceptualize and or
         comprehend the impact of Slocum's testimony as to her
         coercive and or manipulative actions which included
         confronting the Testator choice of Executor while she was
         hospitalized?

      3. Did the Trial Court act within its reasonable authority by
         asserting the affirmative defense citing a statute of limitations
         violation that should have been introduced in a responsive
         pleading as New Matters in the form of Preliminary Objections
         by the former Executrix.

      4. Did the Trial Court fail to exercise an equal level of latitude in
         its decision by not acknowledging or asserting the two
         available provisions of law that would have granted the
         Petition in its entirety?

Appellant’s brief at 1-2.

      We are duly cognizant of the applicable standard of review in these

matters:




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            Our standard of review of the findings of an Orphans'
            Court is deferential.

            When reviewing a decree entered by the Orphans'
            Court, this Court must determine whether the record
            is free from legal error and the court's factual
            findings are supported by the evidence. Because the
            Orphans' Court sits as the fact-finder, it determines
            the credibility of the witnesses and, on review, we
            will not reverse its credibility determinations absent
            an abuse of that discretion.

            However, we are not constrained to give the same
            deference to any resulting legal conclusions.

     In re Estate of Harrison, 745 A.2d 676, 678–79 (Pa.Super.
     2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000)
     (internal citations and quotation marks omitted). “The Orphans'
     Court decision will not be reversed unless there has been an
     abuse of discretion or a fundamental error in applying the
     correct principles of law.” In re Estate of Luongo, 823 A.2d
     942, 951 (Pa.Super. 2003), appeal denied, 577 Pa. 722, 847
     A.2d 1287 (2003).

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

     Initially, we note our agreement with Appellant’s position that the

orphans’ court improperly denied his request to invalidate the will on the

ground that the petition was untimely. The orphans’ court raised this issue

sua sponte. As we noted in Dash v. Wilap Corp., 495 A.2d 950 (Pa.Super.

1985), a statute-of-limitations defense can be waived and should not be

raised by a trial court on its own. Herein, the period for appeal from probate

set forth in § 908(a) is a time limitation that should not have been

considered unless raised by a party.




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      Appellant’s remaining three issues relate to the validity of the will and

all involve a claim of undue influence.        Specifically, he avers that the

orphans’ court should have invalidated the will as procured by Ms. Slocum’s

“undue influences and unlawful manipulations” of the testatrix. Appellant’s

brief at 5.   We observed in In re Estate of Smaling, 80 A.3d 485, 497

(Pa.Super. 2013) (en banc) (citing In re Ziel's Estate, 59 A.2d 728 (Pa.

1976)), “A party claiming undue influence must establish, by clear and

convincing evidence, that: (1) when the will was executed the testator was

of weakened intellect and (2) that a person in a confidential relationship with

the testator (3) receives a substantial benefit under the will.”

      In his petition to invalidate the will, Appellant did not raise the position

that the will was procured by undue influence.          His sole averments, as

outlined supra, were that it was void since Slocum inserted her name in

place of his as personal representative and since Michelle was improperly

characterized as a child of Lydia.        Hence, Appellant’s claim of undue

influence is waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”); Coulter v.

Ramsden, 94 A.3d 1080 (Pa.Super. 2014) (issue was waived as it was not

presented to trial court).

      Additionally, Appellant’s argument is unsupported by citation to

appropriate authority regarding the legal definition of undue influence. He

further does not refer us to how he established that the will was procured by

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undue influence at the hearing on his petition. Thus, his position that the

will should be struck down as obtained by undue influence exercised by Ms.

Slocum is waived for that additional reason. Pa.R.A.P. 2119(a) (“The

argument [section of an appellate brief] shall be divided into as many parts

as there are questions to be argued; and shall have ... such discussion and

citation of authorities as are deemed pertinent.”); Coulter, supra (issue

waived as it was unsupported by discussion and analysis of relevant legal

authority); Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.Super. 2006)

(“Appellate arguments which fail to adhere to these rules [of appellate

procedure] may be considered waived, and arguments which are not

appropriately developed are waived. Arguments not appropriately developed

include those where the party has failed to cite any authority in support of a

contention.”); Korn v. Epstein, 727 A.2d 1130, 1135 (Pa.Super. 1999)

(citation omitted) (“Where the appellant has failed to cite any authority in

support of a contention, the claim is waived. Appellant’s pro se status does

not absolve him of the responsibility to comply with the rules of appellate

procedure, cite legal authorities, and develop cogent argument on the

pertinent issue. First Union Mortg. Corp. v. Frempong, 744 A.2d 327,

337 (Pa.Super. 1999) (“pro se representation does not relieve appellant of

his duty to properly raise and develop his appealable claims”). The fact that

Ms. Slocum altered the will by inserting her name as personal representative




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does not, to any extent, establish the elements of undue influence, as

outlined above.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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