J-A09038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF:      MARY       G.   H.   DAVIS,      IN THE SUPERIOR COURT OF
DECEASED                                               PENNSYLVANIA



                   v.

APPEAL OF: SUSAN P. TREADWAY,
BETSEY W. DAVIS, MARY G. COOKE AND
JAMES C. TREADWAY

                                                      No. 2551 EDA 2014


                Appeal from the Decree dated July 18, 2014
           In the Court of Common Pleas of Montgomery County
                    Orphans' Court at No: 1990-X1644


BEFORE: BOWES, DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED SEPTEMBER 11, 2015

     This appeal involves a dispute over the estate of Mary G. H. Davis

(“Decedent”). In this regard, her daughters Betsey W. Davis, Mary G. Cooke

and Susan P. Treadway, and her son-in-law and Susan’s husband James C.

Treadway   (individually   “Betsey,”   “Mary,”   “Susan,”   and   “James,”   and

collectively “Appellants”) appeal from the July 18, 2014 decree entered by

the Court of Common Pleas of Montgomery County, Orphans’ Court Division

(“orphans’ court”). The orphans’ court, inter alia, granted Decedent’s son’s,

E. Morris Davis, IV (“Appellee” or “Morris”), summary judgment motion titled

“Motion for Return of Property No Longer in Dispute,” and dismissed

Appellants’ objections to accounting. Upon review, we affirm.
J-A09038-15



      The orphans’ court summarized the facts and procedural history of this

case as follows.

             [Decedent] died on May 26, 1990, leaving a will dated
      September 14, 1989, in which she appointed her son, [Morris],
      and her son-in-law, [James], as co-executors.               Letters
      testamentary were granted by the Montgomery County Register
      of Wills on June 1, 1990. The [e]xecutors filed an [i]nventory
      dated June 19, 1990 and filed a Pennsylvania [i]nheritance tax
      return, as well as a copy of the [f]ederal [e]state [t]ax return in
      1991. The [i]nventory incorporated an appraisal of tangible
      personal property that was located in Decedent’s residence at
      her death.     The Pennsylvania [i]nheritance tax return and
      [f]ederal [e]state tax return also included an appraisal of
      [D]ecedent’s tangible personal property. Apart from a significant
      parcel of real estate, the majority of the estate assets were
      distributed during the first few years of the administration of the
      estate.

             Following the 1990 and 1991 tax filings, no activity
      occurred in the Register of Wills’ office or in the Clerk of the
      Orphans’ Court division until October 12, 2000, at which time an
      agreement entitled “Receipt, Release, Waiver and Agreement of
      Indemnity” was filed, which had been signed by Mary[.] This
      document in paragraph 4 represents that “the only asset
      remaining in the estate is the Lafayette Road property.”
      This refers to the real property that was the home of [Decedent].
      Apparently, complications arose regarding the subdivision of the
      real property and the distribution of the property in shares to the
      three daughters of [D]ecedent], resulting in lengthy delay of
      final distribution under the [w]ill. [Mary] acknowledged in this
      [r]eceipt and [r]elease [d]ocument that “the co-executors have
      made distribution to her of all of the balance of the proceeds of
      the estate” and have “delivered to her the amount distributable
      to her”. See Receipt, Release, Waiver and Indemnity Agreement
      dated October 12, 2000.

            Although there were no proceedings in the [o]rphans’
      [c]ourt during the first ten years following the death of
      [Decedent], there was a dispute litigated in the Civil Division of
      the Court of Common Pleas of Montgomery County among the
      [e]state and Decedent’s daughters, as plaintiffs, and [Morris]
      and his wife as defendants.        This matter was resolved by
      stipulation in open court on February 19, 1991, followed by a
      written stipulation signed by the parties’ attorneys.

             Civil litigation was again commenced in 2010 among
      [Morris] and his sister, Susan [], and his brother-in-law, James
      [], concerning certain disputed articles of personal property and
      certain real estate. The estate of [Decedent] is not party to this
      civil dispute.

                                     -2-
J-A09038-15


            The dispute in the Civil Division of the Montgomery County
     Court of Common Pleas arose in 2010 and concerns a home in
     which [Morris] and his wife, Bridgitta had been living. Susan
     and James [] changed the locks on the home and took
     possession of certain items of tangible personal property that
     was then within the home. The parties commenced two civil
     disputes in which they advanced claims and counterclaims
     regarding possession and use of the real estate, a claim for rent
     for the real estate, and a vigorous dispute over the ownership of
     the items of tangible personal property (hereinafter, collectively,
     the “Disputed Items”).        Upon consideration of preliminary
     objections in this civil action, the claims regarding the tangible
     personal property were transferred to the Orphans’ Court
     division for disposition.[FN1] See Order dated July 7, 2011,
     Docket #2010-15013.

           [FN1:] While the Petition to compel the filing of an
           Account was pending but before the Account had
           been filed, the Honorable William Carpenter issued
           an order dated July 7, 2011 in the civil matter listed
           at docket no. 2010-15013, captioned E. Morris
           Davis, IV v. Susan P. Treadway.            This order
           granted preliminary objections to certain counts in
           that civil matter, (Count I (Conversion), Count II
           (Fraud), Count V (Accounting), Count VI (Injunctive
           Relief) and Count VII (Replevin) of the Amended
           Complaint of E. Morris Davis), and transferred
           jurisdiction over the disputes regarding ownership of
           certain items of tangible personal property to the
           Orphans’ Court division to be raised in conjunction
           with the proceedings in the Estate of Mary G. H.
           David, docket no. 1990-X1644.

           There are several categories of Disputed Items of tangible
     personal property. The parties do not dispute that the Disputed
     Items originally belonged to [Decedent] and her husband during
     their lives. Nor is there any dispute most of that [sic] the
     Disputed Items were in the possession of [Morris] as of March of
     2010. However, there are certain items that [Morris] claims that
     he never possessed and certain other items that [Morris]
     received but sold. [Morris] claims that the remaining Disputed
     Items belong to him and were received by him as gifts from his
     mother during her lifetime. With respect to most of the Disputed
     Items, [Morris] claims that he received them as gifts from his
     mother decades before her death. [Appellants] claim that the
     Disputed Items belonged to [Decedent] and were property of her
     estate at the time of her death, although they acknowledge that
     many of the Disputed Items were in the possession of [Morris] at
     the time of their mother’s death.

            More than two decades after the death of Decedent,
     following the commencement of the civil litigation, Susan [],
     Betsey [], Mary [] and James [] . . . filed on March 8, 2011, a
     [p]etition for citation to show cause why an [a]ccount should not

                                    -3-
J-A09038-15


       be filed, seeking to compel [Morris], one of the two co-executors
       to account for the Disputed Items of tangible property that they
       allege he held in his capacity as [e]xecutor of the [e]state of
       [Decedent]. No [a]ccount had previously been filed by the
       [e]xecutors. [Appellants] assert that in 2010 they discovered
       that [Morris] had in his possession certain items of tangible
       personal property that “they recognized as having been in
       [D]ecedent’s possession at or shortly before the time of her
       death.” See Petition for Citation dated March 8, 2011. [Morris]
       asserts in his [a]nswer that the Disputed Items of personal
       property at issue “were not owned at the time of [D]ecedent’s
       death.” To the contrary, [Morris] asserts that most of the items
       of personal property had been given to him by his mother
       decades before her death.

             Thus, this [instant] controversy was initially brought to the
       attention of the [o]rphans’ [c]ourt division by the filing on March
       8, 2011, of a [p]etition to [c]ompel the filing of an [a]ccount.
       Th[e orphans’ court] ordered [Morris] to file an [a]ccount of his
       administration of the [e]state of [Decedent.]         After several
       extensions of time, [Morris] filed an [a]ccount on November 30,
       2011. [Morris] filed a [l]imited [a]ccount, limited to jewelry and
       tangible personal property with an aggregate value of
       $23,637.50, which he acknowledges were assets of the estate.
       The items listed on this [l]imited [a]ccount were previously
       disclosed on the [i]nventory and [t]ax returns filed by the
       [e]state. [Morris] denie[d] knowledge of the disposition of these
       items and assert[ed] that the disposition of these items [was]
       known only to his co-executor, James[.] On February 3, 2012,
       [o]bjections were filed by [Appellants] . . . to this [a]ccount.
       [Appellants] listed approximately 37 additional items of tangible
       personal property which were not listed in the [l]imited
       [a]ccount filed by [Morris], but which [Appellants] assert[ed]
       actually belonged to Decedent at the time of her death and
       should have been accounted for as part of the [e]state.

             [Morris] has filed in the [o]rphans’ [c]ourt [d]ivision a
       [summary judgment] [m]otion entitled “Motion for Return of
       Property No Longer in Dispute and/or For Which There is Not a
       Substantial Dispute and Overrule All Remaining Objections to the
       Account of E. Morris Davis, IV[.]”[1]     A Rule was issued,
       returnable February 5, 2013. No party appeared to show cause
       why the [m]otion should not be granted, and no response to the
       [m]otion was filed by the opposing parties. [Appellants] filed
       voluminous exhibits, a memorandum and two sworn declarations
       on February 11, 2013, immediately before oral argument.
____________________________________________


1
   Appellants point out Morris’s summary judgment motion was unverified.
We, however, need not address this issue because Appellants did not raise
it before the orphans’ court. See Pa.R.A.P. 302(a).



                                           -4-
J-A09038-15


            The issue in dispute before th[e orphans’ court] with
     respect to this [a]ccount and the [o]bjections, and the [m]otion
     filed by [Morris], is whether the 39 items of tangible personal
     property (plus an automobile) identified by [Appellants] are
     property of Decedent’s estate subject to distribution under her
     [w]ill. [Morris] also seeks to raise a claim to 7 additional items
     of tangible personal property not identified in the [o]bjections.
     Of these 47 items in dispute, [Morris] addresses in his motion
     only 32, although he also takes the position with respect to 11
     items that he does not know their location and that [Appellants]
     should be estopped from asserting a claim with respect to these
     items as well. There are several distinct categories of tangible
     personal property, which the [c]ourt has been at pains to
     categorize, and which are itemized on a [t]able attached hereto
     as Schedule A, with respect to which the parties make slightly
     different claims. The categories of items of tangible personal
     property can be described as follows:
     I. Four Items claimed by [Appellants] to be property of the
     [e]state, in the possession of [Morris] at date of Decedent’s
     death until the present.

     II. Fifteen Items claimed by [Appellants] to be property of the
     [e]state, that were in the possession of [Morris], at Decedent’s
     date of death until 2010, but are now in the possession of Susan
     and James Treadway.

     III. Three Items that were in [Morris’s] possession until 2010 are
     now in possession of Susan and James Treadway, but as to
     which [Appellants] assert they were in Decedent’s residence at
     her date of death.

     IV. Four Items claimed by [Appellants] to be property of the
     [e]state, that were in the possession of [Morris] following
     Decedent’s death but were sold following Decedent’s death and
     before 2010.

     V. Eleven Items claimed by [Appellants] to be property of the
     [e]state, as to which [Morris] claims he does not know the
     whereabouts of these items and does not possess them.

     VI. Seven Items claimed by [Morris] to be his property that are
     now in the possession of Susan and James Treadway, but which
     are not specifically identified by [Appellants] on the [o]bjections
     to the [a]ccount as assets of the [e]state (although the
     [o]bjections include a “catch-all” objection number 4, regarding
     other items not specifically identified by [Appellants] but that
     may belong to the [e]state).

     VII. Decedent’s [a]utomobile and two other items to which
     [Morris] does not refer in his motion, but which were listed in the
     [o]bjections to the [a]ccount.



                                    -5-
J-A09038-15



Orphans’ Court Opinion, 7/18/14, at 1-6 (emphasis added).        On July 18,

2014, the orphans’ court granted Morris’s summary judgment motion and,

as a result, dismissed Appellants’ objections to the account. In granting the

summary judgment motion, the orphans’ court principally applied the

doctrine of laches to conclude Appellants were barred from instituting the

instant action. Appellants timely appealed to this Court.2

       In arguing the orphans’ court erred in granting Morris’s motion for

summary judgment, Appellants raise two issues on appeal. 3                 First,

Appellants argue the orphans’ court erred in applying the affirmative defense
____________________________________________


2
  The orphans’ court did not order Appellants to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The court, however, issued a
Pa.R.A.P. 1925(a) opinion, incorporating the reasons set forth in its July 18,
2014 opinion granting Morris’s summary judgment motion.
3
  Although Appellants present us with the following five issues, we have
consolidated them into two for ease of disposition.

       1. Whether the lower court erred in considering laches as a
       defense to Appellants’ objections to [Morris’s] account as co-
       executor of the Estate of Mary G. H. Davis, given [Morris’s]
       failure to plead it in his answers to Appellants’ petition for an
       account and to their objections to his account.
       2. Whether the lower court properly formulated and applied the
       “undue delay” element of laches.
       3. Whether the lower court erred in holding that the summary
       judgment record demonstrated “undue delay” beyond genuine
       dispute.
       4. Whether the lower court properly formulated and applied the
       “prejudice” element of laches.
       5. Whether the lower court erred in holding that the summary
       judgment record demonstrated “prejudice” beyond genuine
       dispute.
Appellants’ Brief at 4.




                                           -6-
J-A09038-15



of laches sua sponte.        Appellants argue Morris failed to raise laches in his

response     to,   inter   alia,   the   petition   for   accounting.     Second,   and

alternatively, Appellants argue the orphans’ court erred in determining there

were no genuine issues of material fact with respect to the “undue delay”

and “prejudice” elements of laches.

       When reviewing an order granting summary judgment, we must

determine whether the orphans’ court abused its discretion or committed an

error of law.4 See In re Estate of Hooper, 80 A.3d 815, 818 (Pa. Super.

2013); accord Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super.

2013) (citation omitted); Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

347 (Pa. Super. 2006).         Our scope of review is plenary.           See Sevast v.

Kakouras, 915 A.2d 1147, 1152 (Pa. 2007) (citation omitted); accord

Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001).                        In reviewing an

orphans’ court’s grant of summary judgment, we apply the same standard

employed by the orphans’ court, i.e., we review all of the evidence in the

light most favorable to the non-moving party and resolve all doubts as to

the existence of a genuine issue of material fact against the moving party.

See Erie Ins. Exch. v. Weryha, 931 A.2d 739, 741 (Pa. Super. 2007).



____________________________________________


4
  To the extent Morris argues the orphans’ court did not rule on his summary
judgment motion, such argument is belied by the record. As noted earlier,
the orphans’ court expressly granted Morris’s summary judgment motion,
and in so doing, dismissed Appellants’ objections.



                                           -7-
J-A09038-15



“Only when the facts are so clear that reasonable minds could not differ can

a trial court properly enter summary judgment.” Hovis, 64 A.3d at 1081.

     With this standard in mind, we first address Appellants’ argument that

the orphans’ court erred in applying the doctrine of laches sua sponte.

     The doctrine of laches is an equitable bar to the prosecution of stale

claims and is the practical application of the maxim: those who sleep on

their rights must awaken to the consequences that they have disappeared.

Fulton v. Fulton, 106 A.3d 127, 131 (Pa. Super. 2014) (citation and

quotation marks omitted).     Because the application of laches involves a

question of law, we are not bound by the orphans’ court’s ruling on the

issue. Id. As we recently explained, the doctrine of laches:

     is an equitable doctrine which bars relief when the complaining
     party is guilty of want of due diligence in failing to promptly
     institute the action to the prejudice of another. In order to
     prevail on an assertion of laches, respondents must establish: a)
     a delay arising from petitioner’s failure to exercise due diligence;
     and, b) prejudice to the respondents resulting from the delay.
     The question of laches is factual and is determined by examining
     the circumstances of each case. . . . [L]aches is an equitable
     doctrine that should not be applied in favor of a person who has
     failed to take required action on his own.


Vill. of Four Seasons Ass'n, Inc. v. Elk Mountain Ski Resort, Inc., 103

A.3d 814, 823 (Pa. Super. 2014) (citation omitted).       The party asserting

laches as a defense must present evidence demonstrating prejudice from the

lapse of time. Such evidence may include establishing that a witness had

died or become unavailable, that substantiating records were lost or

destroyed, or that the defendant has changed his position in anticipation



                                    -8-
J-A09038-15



that the opposing party has waived his claims.         Fulton, 106 A.3d at 131

(quotation marks and citation omitted).

      Here, our review of the record reveals the orphans’ court did not raise

laches sua sponte.      On the contrary, Morris raised it in his pleadings.    In

particular, Morris asserted in his pro se response to the petition for

accounting      that   Susan   “had   entered   the   property   numerous   times

previously, and had never made a mention, reference, comment or made

any other sign of a contest of ownership of the chattels, despite [Morris’s]

continued and exclusive ownership and customary acts of ownership during

such visits.”    Morris’s Answer to Petition for Accounting, 4/12/11, at ¶ 9.

Moreover, in his response to Appellants’ objections, Morris argued:

      Each of the [Appellants] had personally been in his house and
      seen [Morris’s] in full and outright possession and ownership of
      the majority of the above mentioned items over the last 25+
      years. Upon his father’s passing, [D]ecedent gifted [Morris]
      many items. At no point was possession or ownership ever
      contested or questioned.

Morris’s Response to Objections, 2/27/12, at ¶ 4.         Although we recognize

Morris did not use the term “laches,” he certainly alleged facts to establish

laches as a defense to Appellants’ objections. T here is no need to name an

affirmative defense “if facts sufficient to constitute the defense are pled.”

Iorfida v. Mary Robert Realty Co., 539 A.2d 383, 397 (Pa. Super. 1988)

(finding that a single paragraph of defendant’s new matter sufficiently raised

abandonment as an affirmative defense). Thus, based on the foregoing, we,

like the orphans’ court, construe Morris’s pleadings to include laches. As a

result, we cannot conclude the orphans’ court raised laches sua sponte.

                                        -9-
J-A09038-15



       Having determined laches was properly raised, we now turn to

Appellants’ alternative argument that the orphans’ court erred in concluding

Morris satisfied the undue delay and prejudice elements of laches.

       As noted earlier, to prevail on an assertion of laches, Morris must

establish a delay arising from Appellants’ failure to exercise due diligence

and prejudice to Morris resulting from the delay.       See Elk Mountain,

supra.

       With respect to undue delay, Appellants argue the orphans’ court erred

in concluding they were aware of Morris’s possession of the disputed items

because evidence of awareness was controverted in the record.        In other

words, Appellants argue the existence of genuine issues of material fact

relating to their awareness of the disputed items. Appellants, however, fail

to support their argument with record evidence.     They do not cite to the

record to establish they were unaware of Morris’s possession of the disputed

items.5

       In the argument section of their brief, Appellants do not even appear

to challenge knowledge of possession. On the contrary, they argue only that

“knowledge of possession is NOT necessarily knowledge of an undisclosed

claim of ownership by gift.” Appellants’ Brief at 20 (emphasis added). Thus,

____________________________________________


5
   Our review of the record does not reveal any evidence to support
Appellants’ contention that their awareness of Morris’s possession of the
disputed items was an issue of material fact.




                                          - 10 -
J-A09038-15



Appellants essentially argue Morris failed to provide them notice of his

ownership of the disputed items.6          We, however, need not decide whether

disclosure by Morris occurred here.            For purposes of establishing undue

delay under laches, it is sufficient that Appellants were aware of Morris’s

possession of the disputed items at time of Decedent’s death in 1990.

Indeed, even if they were unaware of Morris’s possession of the items at the

time of Decedent’s death, they certainly were put on notice with respect to

the disputed items when the executors filed the inventory on June 19,

1990.7 Nonetheless, despite their awareness of Morris’s possession, it was

not until March 2011, when Appellants petitioned the orphans’ court to order

Morris to file an account of the estate.

       Here, the orphans’ court recounted the following undisputed facts of

record:

       First, [Appellants] admit in their depositions testimony and
       sworn declarations, that they were aware, both before and after
       Decedent’s death, that [Morris] was in possession of most of the
       Disputed Items. Second, [Morris’s] co-executor, [James], took a
       position as [e]xecutor on [t]ax filings and [i]nventory regarding
       the tangible personal property that was included in the [e]state
       and did not include these Disputed Items. Third, [Appellants]
       never objected to [Morris’s] possession of the Disputed Items
____________________________________________


6
  To buttress this point (lack of disclosure), Appellants refer to Mary’s and
James’s sworn declarations and Susan’s and James’s depositions.
7
   “[A] function and object of an inventory is to fix presumptively the
existence of property in the fiduciary’s possession, and, while the listing
therein does not affect true ownership, it is prima facie evidence of
ownership.’” In re Hendrickson’s Estate, 130 A.2d 143, 146 (Pa. 1957).
The inventory lists property belonging to the estate that is under the control
of the executor.



                                          - 11 -
J-A09038-15


      until 2010. Fourth, [Appellants] did not demand an accounting
      until nearly twenty-one years after Decedent’s death.


Orphans’ Court Opinion, 7/18/14, at 12. Given these undisputed facts, the

court reasoned:

            [Appellants] had an affirmative duty to inquire or object if
      they were concerned about the [e]state’s interest in the
      Disputed Items, including making an inquiry regarding any
      missing items, now missing for more than 20 years. [James] in
      particular, as co-executor, had a duty to determine the nature,
      value and disposition of all of the assets of the [e]state, and
      repeatedly identified the assets of the [e]state on an inventory
      and [f]ederal and [s]tate tax returns, always without any
      reference to the Disputed Items. [Appellants] do not allege that
      [Morris] kept secret from them his possession of the assets.
      Indeed, [Mary] admits she knew [Morris] had possession of
      many of these items long before the Decedent’s death.


Id. at 12-13. We, therefore, agree with the orphans’ court’s determination

that Appellants are guilty of delay in instituting the instant action.

      Appellants next argue the orphans’ court erred in granting Morris’s

summary judgment motion because there existed issues of material fact

regarding whether Morris suffered any prejudice because of Appellants’ delay

in instituting the action.   Again, Appellants provide no record support to

underscore their argument that disputed issues of material fact exist

regarding whether Morris suffered prejudice because of the undue delay.

Indeed, our review of the record yields no facts tending to negate the

orphans’ court’s determination that Morris suffered prejudice as a result of

Appellants’ delay.   Thus, we find no reason to disagree with the court’s

determination with respect to the prejudice element. As the orphans’ court

noted:



                                      - 12 -
J-A09038-15


       [Appellants’] lengthy delay has inevitably impaired the ability of
       the parties to produce evidence regarding the claims of gifts
       made in the 1970s, the specific location or instructions regarding
       certain items of jewelry as to which none of the parties knows
       where they are or who had them last, and many other facts
       relating to these various items of tangible personal property.

Id. at 13.     The orphans’ court also noted that, to dispose of the instant

matter, Morris relied on a 1991 in-court release,8 which he and Appellants

had executed with respect to the 1990 civil action. The court further noted

that the transcript of the release was no longer available. In this regard, the

orphans’ court determined “[t]he fact that the transcript of the proceedings

can now no longer be obtained and appears to have been lost or destroyed

by all of the parties and their counsel, is another confirmation of the

prejudice caused by the lengthy delay in this case.” Id. at 14. Accordingly,

given the circumstances here, the orphans’ court did not err in concluding

Morris suffered prejudice because of Appellants’ delay in bringing this action.

The court, therefore, did not err in granting Morris’s summary judgment

motion based on the equitable doctrine of laches.

____________________________________________


8
  To memorialize the in-court agreement, the parties executed a written
stipulation releasing Morris “of and from any and all claims arising out of
[Decedent’s estate] as well as from any and all claims which has been or
could be brought on behalf of the [e]state for any acts or omissions
involving [Morris and his wife] during the lifetime of [Decedent].” Orphans’
Court Opinion, 7/18/14, at 14 (citing Stipulation and Agreement under
docket nos. 1990-21209 and 1990-20688). The record also indicates that
Mary separately executed a release in 2000, wherein she declared that “the
co-executors have made distribution to her of all of the balance of the
proceeds of the estate” and have “delivered to her the amount distributable
to her.” Id. (citing Receipt, Release, Waiver and Indemnity Agreement
dated October 12, 2000).



                                          - 13 -
J-A09038-15



      To the extent Appellants cite In re Estate of Aiello, 993 A.2d 283

(Pa. Super. 2010), to compel a different outcome, such reliance is

inapposite.   In Aiello, decedent Donald Aiello died testate on March 27,

1977, leaving his entire estate to appellee, his wife.     Under his will, he

named appellee as executrix.       Because appellee was not familiar with

decedent’s financial and business affairs and because English was not her

native language, she renounced her right to serve as the executrix in favor

of appellant, her husband’s brother and successor executor under the will.

In the summer of 2000, upon appellee’s petition, the orphans’ court directed

appellant to file an accounting of his administration of decedent’s estate.

Upon the filing of the account, appellee filed objections, raising numerous

allegations of self-dealing and breach of fiduciary duty on the part of

appellant. The orphans’ court sustained all but one objection.

      On appeal, appellant argued, inter alia, that the orphans’ court erred

in failing to apply laches. In support of his argument, appellant pointed out

that the active administration of the estate had ceased many years ago and

that appellee’s twenty-year delay in petitioning the court for accounting “was

detrimental to him in that bank records and other records [had] been lost,

memories [had] faded and his ability to piece together the specifics of his

administration [had] been generally impeded.”      Aiello, 993 A.2d at 287.

Relying on the orphans’ court’s reasoning, we affirmed its ruling.

            The [orphans’] court concluded that [appellant] failed to
      prove that he had changed his position [to his detriment] as a
      result of the delay.     Furthermore, the court found that
      [appellant] continued to actively administer the estate for

                                    - 14 -
J-A09038-15


       many years after decedent’s death. For example, in 1997 he
       signed a deed, in his capacity as executor, transferring a parcel
       of property owned by the decedent. He signed liquor license
       renewals for a bar owned by the decedent in his capacity as
       executor until 1999, when the bar was sold. Additionally, there
       are 18 shares of St. Mary’s common stock that continue to be
       held in the name of the estate.


Id. (emphasis added). Accordingly, we concluded the orphans’ court did not

err in determining that laches did not bar appellee’s claims. Id. Moreover,

this Court observed in passing that the doctrine of unclean hands 9 also

would bar laches. We remarked:

       [Appellant’s] actions in this case require that he not be allowed
       to benefit from the delay. The evidence shows that [appellee]
       was unsophisticated in financial matters and relied heavily on
       her brother-in-law’s advice, trusting him to act in her best
       interests.    However, [appellant] repeatedly breached his
       fiduciary duty as executor, engaging in numerous transactions
       that had the effect of enriching himself to the detriment of the
       estate and, by extension, [appellee], the sole beneficiary of the
       estate.


Aiello, 993 A.3d at 287-88 (noting appellant continued to actively

administer the estate for many years after decedent’s death).

       Instantly, there is no evidence of record to indicate that Morris actively

administered the estate long after Decedent’s death in 1990.         The record

reveals Morris’s active administration of the estate essentially terminated in

1992, when he disposed of the estate’s tax issues. Thereafter, there was a
____________________________________________


9
  The orphans’ court may invoke the doctrine of unclean hands sua sponte.
In re Bosley, 26 A.3d 1104, 1114 (Pa. Super. 2011). The decision to apply
the unclean hands doctrine against a party is subject to review for abuse of
discretion. In re Vincent J. Fumo Irrevocable Children’s Trust ex rel.
Fumo, 104 A.3d 535, 539 (Pa. Super. 2014) (citation omitted).




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J-A09038-15



general lull on the docket,10 until Appellants filed the instant action in 2011.

Thus, unlike the executor in Aiello who actively administered the estate for

over twenty years, Morris did not actively administer the estate long after

Decedent’s death. Accordingly, the case sub judice is distinguishable from

Aiello and, therefore, inapposite.

       In sum, the orphans’ court did not err in granting Morris’s motion for

summary judgment on the basis of laches, because Morris suffered prejudice

as a result of Appellants’ undue delay in bringing this action.

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2015




____________________________________________


10
  The only notable actively that occurred on the docket was Mary’s release
dated October 12, 2000.



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