J-A07044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF WILLIAM M.                          IN THE SUPERIOR COURT OF
JACKSON, A/K/A WILLIAM MARTIN                              PENNSYLVANIA
JACKSON, DECEASED

NOREEN SMITH

                            Appellant

                       v.

VONDA JACKSON

                            Appellee                     No. 1612 WDA 2014


               Appeal from the Order Entered September 5, 2014
               In the Court of Common Pleas of Allegheny County
                   Orphans’ Court at No(s): No. 02-11-07085


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                                   FILED JUNE 26, 2015

       Appellant, Noreen Smith, appeals from the September 5, 2014 order

denying her petition for citation sur appeal from probate and dismissing her

notice of appeal from probate.          The instant appeal concerns the rulings of

the Department of Court Records, Wills/Orphans’ Court Division1 (Register)

and the orphans’ court in relation to the Estate of William Martin Jackson,

deceased (Decedent). After careful review, we affirm.



____________________________________________
1
  Per the home-rule options adopted by the voters of Allegheny County, the
Department of Court Records was created, combining the offices of
Prothonotary, Clerk of Courts, Register of Wills, and Recorder of Deeds
effective January 7, 2008.
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       We summarize the procedural history of this case as follows.

Appellant is the daughter of Decedent’s long-time paramour with whom he

lived prior to and at the time of his death.             Appellee, Vonda Jackson

(Jackson), is a daughter of Decedent and Administratrix of his estate.

Decedent died on September 8, 2011.              On November 28, 2011, letters of

administration for Decedent’s estate were issued to Jackson by the Register.

Notice of the grant of letters was duly published in the Pittsburgh Post-

Gazette and the Pittsburgh Legal Journal. On January 3, 2012, Jackson filed

an inheritance tax return, indicating there were no assets in the estate. She

also filed a status report pursuant to Orphans’ Court Rule 6.12(b), indicating

the administration of the estate was complete.2           No accounting was filed.

According to Appellant, on October 16, 2012, she presented Decedent’s

purported last will and testament to the Register and attempted to file a

petition for probate and grant of letters testamentary. The petition was not

completed or filed.3

       On March 19, 2013, Appellant filed a “Petition for Citation to Show

Cause Why the Will of [Decedent] Should Not Be Admitted to Probate” with
____________________________________________
2
  According to pleadings in this matter, Jackson is pursuing a possible
asbestos claim on behalf of the estate. See Respondent’s Answer and New
Matter, 3/28/13, at 3, ¶ 9.
3
  Appellant’s petition was not docketed or entered into the record. The
partially completed petition was attached as an exhibit to Appellant’s brief in
support of her petition for citation sur appeal from probate. See Appellant’s
Brief in Support of Her Petition for Citation Sur Appeal from Probate, Exhibit
B.


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the Register. Jackson filed an answer and new matter on March 28, 2013,

averring the proffered will was a forgery. A hearing officer presided over a

hearing on the matter on November 12, 2013.           On March 17, 2014, the

hearing officer found that the will was not authentic and entered an order

denying Appellant’s petition.4 On June 3, 2014, Appellant filed a notice of

appeal and a petition for citation sur appeal from the Register’s March 17,

2014 order. Jackson filed an answer and new matter, asserting, inter alia,

the appeal is barred by the statute of limitations imposed by 20 Pa.C.S.A.

§ 908(a).5 The parties briefed their positions and appeared for argument on




____________________________________________
4
 The March 17, 2014 order bore an erroneous caption and a corrected order
was entered by the Register on April 17, 2014.
5
    The statute provides as follows.

              § 908. Appeals

              (a) When allowed.--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:
              Provided, That the executor designated in an
              instrument shall not by virtue of such designation be
              deemed a party in interest who may appeal from a
              decree refusing probate of it. The court, upon
              petition of a party in interest, may limit the time for
              appeal to three months.

20 Pa.C.S.A. § 908(a).



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August 29, 2014, before the orphans’ court.6          On September 5, 2014, the

orphans’    court    entered    a   memorandum     opinion    and   order   denying

Appellant’s petition for citation sur appeal and dismissing her notice of

appeal. Appellant filed a timely notice of appeal on October 6, 2014.7

       On appeal, Appellant raises the followings issues for our consideration.

              I.     Does the record support the orphans’ court
              notation that the parties agreed to permit the
              orphans’ court “to rule on the matter based upon the
              record” from the hearing held before the register of
              wills’ hearing officer and “the filing of additional
              briefs on behalf of the parties[]”[?]

              II.    Did the orphans’ court err in dismissing
              Appellant[]’s appeal from the register of wills, based
              on its finding that Appellant[]s’ intitial [sic] challenge
              to the register of wills’ grant of letters to []
              Appellee[] was untimely, where no hearing was
              permitted on Applellent[]’s [sic] counter[-]allegation
              as to fraud[?]


____________________________________________
6
  The transcript of the August 29, 2014 argument having been received by
this Court as part of the certified record, Appellant’s motion to make the
same part of the reproduced record is granted, and the copy attached to
Appellant’s motion shall be deemed part of the reproduced record.
7
  October 5, 2014, the thirtieth day following the orphans’ court’s order of
dismissal was a Sunday. The notice of appeal, being filed on Monday,
October 6, 2014 is therefore timely. See generally 1 Pa.C.S.A. § 1908.

      We further note, although not ordered to do so, Appellant filed a
concise statement of errors complained of on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) contemporaneously with
her notice of appeal. On October 9, 2014, the orphans’ court entered an
order in accordance with Rule 1925(a), adopting its September 5, 2014
memorandum opinion as expressing the reasons for its ruling.



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            III. Did the orphans[’] court err in finding that
            Appellant[] was not a “party in interest” within the
            meaning of Pennsylvnia’s [sic] Decedants [sic],
            Estates and Fiduciary Code?

            IV.   Did the orphans’ court err in denying []
            Appellant[] a trial de novo on those matters brought
            up on appeal from the order of the register of wills
            denying her attempt to enter into probate the will of
            Decedent[?]

Appellant’s Brief at 5.

       In general, our review of orphans’ court decisions is one of deference.

            When an appellant challenges a decree entered by
            the Orphans’ Court, our standard of review requires
            that we be deferential to the findings of the Orphans’
            Court.

            [We] 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. Where the rules of law
            on which the court relied are palpably wrong or
            clearly inapplicable, we will reverse the court’s
            decree.

In re Estate of Wilner, 92 A.3d 1201, 1206 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

      We elect to first address Appellant’s second issue, as we deem it

dispositive of this appeal.   Appellant does not contest that her March 19,

2013 petition for citation to show cause was filed more than one year from

the Register’s November 28, 2011 grant of letters of administration to

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J-A07044-15


Jackson. Appellant notes, however, that Jackson did not assert the Section

908(a) statute of limitation until after the hearing officer’s decision, in

response to her petition for citation sur appeal. Appellant’s Brief at 14. At

that time, Appellant countered with an allegation of fraud, which she claims

would toll the statute of limitations. Id. Appellant avers the orphans’ court

erred in failing to hold a hearing to allow her to prove the fraud claim and

therefore the timeliness of her challenge. Id.

            In response[to Jackson’s statute of limitations
            defense], [Appellant] then plead fraud on the part of
            [] Jackson, based upon her fraudulent claim that she
            made a proper search for the [w]ill at issue. The
            fraud would toll the apparently applicable statute, 20
            Pa.C.S. § 908, thus making [Appellant’s] challenge
            to the [g]rant of [l]etters timely. The [o]rphans’
            [c]ourt then reviewed the record and made its
            finding that “no credible evidence was presented that
            Administratrix committed fraud.” But no evidence of
            fraud was attempted to be introduced in front of the
            Hearing Officer because timeliness had not been
            previously plead by [] Jackson.

Id.

      With respect to this issue, we note the following additional standard of

review. “[W]hether the statute of limitations has run on a claim is generally

a question of law for the trial judge. … Additionally, the interpretation and

application of a statute is a question of law that compels plenary review to

determine whether the court committed an error of law.”              Wilson v.

Transp. Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005) (internal quotation

marks and citations omitted).


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J-A07044-15


      Instantly, Appellant claims Jackson committed fraud upon the Register

by falsely acknowledging in her petition for grant of letters of administration

that she “after proper search has[] ascertained that Decedent left no Will.”

Appellant’s Brief at 15, quoting Jackson’s Petition for Probate and Grant of

Letters, 11/28/11, at 1, Part B. “The law is clear that fraud or deceit tolls

the statute of limitations until such time as the fraud has been discovered by

the exercise of due diligence.”     J.J. DeLuca Co., Inc. v. Toll Naval

Assocs., 56 A.3d 402, 412 (Pa. Super. 2012), quoting Rothman v.

Fillette, 469 A.2d 543, 546 n. 3 (Pa. 1983) (citations omitted).          “The

burden of proving such fraud or concealment, by evidence which is clear,

precise and convincing, is upon the asserting party.” Lange v. Burd, 800

A.2d 336, 339 (Pa. Super. 2002), appeal denied, 818 A.2d 504 (Pa. 2003),

citing Nesbitt v. Erie Coach Co., 204 A.2d 473 (Pa. 1964).         “Allegations

must be specific in order to compel the court to conduct a hearing.” In re

Estate of Karschner, 919 A.2d 252, 256 (Pa. Super. 2007) (citation

omitted).

            For the doctrine of fraudulent concealment to be
            applicable, [a] defendant must have committed
            some affirmative independent act of concealment
            upon which [a] plaintiff[] justifiably relied. There
            must exist a duty to speak before fraudulent
            concealment can be found.       Mere silence in the
            absence of a duty to speak cannot suffice to prove
            fraudulent concealment.

Krapf v. St. Luke's Hosp,, 4 A.3d 642, 650 (Pa. Super. 2010) (internal

quotation marks and citations omitted).

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J-A07044-15


      Assuming for the sake of argument that Jackson did not properly

ascertain whether or not a will existed despite her acknowledgment, we

nevertheless conclude Appellant failed to assert how she relied upon such

lapse in delaying the filing of her challenge. See id. Appellant claims she

was aware of the existence of Decedent’s will from the date of its purported

signing.   Jackson’s grant of letters of administration was of public record,

and notice of the grant of letters was duly published in a timely fashion.

Because Appellant was not an intestate heir, Jackson, as administratrix of

Decedent’s estate, was not required to give Appellant personal notice. See

Pa.O.C.R. 5.6 (prescribing requirements for notice of estate administration

to beneficiaries and intestate heirs).   Appellant was aware of Decedent’s

death and Decedent’s natural family.          Indeed, Appellant claims she

attempted to probate the will in October 2012.           The orphans’ court

observed, “[a]lthough [Appellant] attempted to probate the alleged Will in

October 2012, which would have been within the one year time period,

inexplicably, she did not file the Petition for Citation to Show Cause Why the

Will of [Decedent] Should Not be Admitted to Probate until March 2013.”

Orphans’ Court Opinion, 9/4/14, at 3.

      In re Kirkander’s Estate, 415 A.2d 26 (Pa. 1980), cited by Appellant

for the proposition that an allegation of fraud practiced on the register of

wills may toll the statute of limitation, is distinguishable.   See generally

Appellant’s Brief at 15. In re Kirkander’s Estate involved a challenge to a


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J-A07044-15


will that had been probated and was alleged to be a forgery. Kirkander’s

Estate, supra at 51.

              “[W]here fraud had been practiced upon the register
              of wills, an appeal could be taken attacking probate
              after the time fixed by the statute for an appeal had
              passed. We recognized that the jurisdiction of the
              register is limited to a determination of the validity
              of the paper presented as the will of the deceased,
              and, if his action has been induced by fraud, the
              order following is void and may be set aside.”

Id. at 27-28, quoting In Culbertson’s Estate, 152 A. 540, 543 (Pa. 1930).

      In   this    case,   relative   to   the   petition   for   grant   of   letters   of

administration, the validity of a document or “paper presented” is not

questioned.       No forgery of a document connected to Jackson’s petition is

alleged here, and Appellant, at all times, claimed knowledge of the existence

of the disputed will, if it indeed existed. Consequently, Kirkander’s Estate

does not apply.

      In light of the foregoing, we conclude Appellant has failed to allege

fraud, which even if proved, would not toll the time limitation for challenging

the Register’s grant of letters testamentary prescribed by Section 908(a).

Accordingly, we conclude the orphans’ court did not err in dismissing

Appellant’s citation sur appeal from probate as violative of Section 908(a)’s

one-year time limitation without conducting a hearing on Appellant’s fraud




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allegation.8    We therefore affirm the orphans’ court’s September 5, 2014

order dismissing Appellant’s appeal.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




____________________________________________
8
  In light of our resolution of Appellant’s second issue, we need not address
her remaining questions on appeal.


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