J-A08028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF MARION L. DULL,                IN THE SUPERIOR COURT
DECEASED, LATE OF NAPIER                           OF PENNSYLVANIA
TOWNSHIP, BEDFORD COUNTY,
PENNSYLVANIA

JAMES P. DULL AND DIANE L. DULL

                   Appellants

              v.

DONALD W. DULL AND HEATHER R.
HARBERT

                   Appellees                       No. 1431 WDA 2018


                Appeal from the Order Entered June 21, 2018
              In the Court of Common Pleas of Bedford County
                     Orphans’ Court at No: 85 FOR 2016

BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                      FILED AUGUST 27, 2019

     Appellants, James P. Dull and Diane L. Dull, appeal from an order

affirming the decree of the Register of Wills admitting a copy of the

holographic will of Marion L. Dull, deceased (“Decedent”) to probate.    We

conclude that the Orphans’ Court abused its discretion by granting Appellants

leave to appeal to this Court nunc pro tunc, and we therefore quash this

appeal.

     This is a dispute between Decedent’s three children, James, Diane and

Donald Dull (“Appellee”). Decedent died on January 7, 2016. On June 20,

2016, the Bedford County Register of Wills admitted a copy of Decedent’s

holographic will dated December 1, 2011 to probate. On October 27, 2016,
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Appellants appealed the Register’s decision to the Court of Common Pleas of

Bedford County, Orphans’ Court Division. On the same date, Appellants filed

a petition in the Orphans’ Court requesting issuance of a citation to all

interested parties to show cause why the Register’s probate decree should not

be set aside and vacated. On December 7, 2016, Appellee filed an answer to

the petition. On April 11 and 12, 2018, the Orphans’ Court held an evidentiary

hearing concerning the petition.

      In an opinion and order docketed on June 21, 2018, the Orphans’ Court

affirmed the decree of the Register of Wills admitting the copy of the

holographic will to probate. On the same date, the prothonotary noted on the

docket that it sent Pa.R.Civ.P. 236 notice of the order to the parties.

      The Orphans’ Court found the following facts in its opinion:

      [Decedent] died on January 7, 2016. At the time of her death,
      Decedent had three children: [James, Diane] and [Appellee]
      Donald Dull.

      Kayley     Twigg,     [Appellee]’s     daughter     and   Decedent’s
      granddaughter, testified that she lived beside Decedent for the
      first 25 years of her life and visited with her often. Twigg testified
      that, in the spring of 2012, Decedent handed her a manila
      envelope which contained a revoked typewritten will (Exhibit 1)
      and a handwritten holographic will (Exhibit 2). Twigg testified that
      both of these documents were originals. Twigg made copies of
      both documents for Decedent and kept a copy of the wills for
      herself. Twigg testified that Decedent put the original documents
      back into the manila folder and placed the folder into a clothes
      hamper. Twigg did not disclose the existence of either document
      to anyone due to the wishes of Decedent. On January 16, 2016,
      after a family search for Decedent’s will, Twigg searched the
      clothes hamper she saw Decedent place the envelope into back in
      2012. Twigg then informed [Appellee] about the existence of the
      wills and that they were now missing from the hamper. Twigg

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     and [Appellee] viewed pictures from a trail camera they had set
     up in the home. Twigg testified that the pictures from the trail
     camera showed her aunt and [Appellant James’s] wife, Kay Dull,
     holding a folder that was the same size, shape and color that held
     Decedent’s wills.     While Twigg conceded that she did not
     personally observe Decedent write [the holographic will], Twigg
     testified that she could identify [it] as being entirely in Decedent’s
     handwriting and that it was the same as the original she copied in
     2012.

     Kay Dull, [Appellant James’s] wife, testified that, on January 16,
     2018, she found a manila envelope marked “Will,” and removed
     the envelope from the home without telling anyone. Kay kept her
     discovery a secret from everyone until the morning of January 22,
     2018 when she showed her husband the envelope and its
     contents. Kay testified that she kept the will envelope a secret
     because she was hoping [Appellee] would admit to “planting” the
     envelope in the hamper, and because she was concerned over her
     husband’s reaction. When she did open the envelope on January
     22, Kay found the original, revoked typewritten will (Exhibit 11).
     Kay testified that the envelope did not contain the original nor a
     copy of Exhibit 2, which is the purported holographic will. In
     addition, she denied destroying the original of Exhibit 2. Kay
     testified that the body of Exhibit 2 appeared to be in Decedent’s
     handwriting but denied that the date was in Decedent’s
     handwriting.

     [Appellant] James Dull testified that several searches of
     Decedent’s home were done in an attempt to locate a will. After
     the final search, [James’s wife] Kay approached him on January
     22, 2018 with an envelope marked “Will.” James testified that the
     envelope was already opened when he first saw it, but that it had
     just been opened because he “heard” Kay open the envelope
     outside his presence. He testified that he could not say if Kay
     removed anything from the envelope before she gave it to him.
     James testified that the envelope only contained Exhibits 10 and
     11, and that neither the original nor a copy of Exhibit 2 was
     present. James testified that the cursive writing on Exhibit 2 is
     Decedent’s handwriting and that it contains her signature, but he
     denied that the writing above the cursive is Decedent’s
     handwriting.

     [Appellee] Donald Dull testified that he was aware of the envelope
     that contained Decedent’s wills even before she passed away but

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      did not say anything to his siblings due to Decedent’s wishes.
      [Appellee] testified that he retrieved the will envelope from
      Decedent’s hamper after she passed away and placed it into a
      safe. [Appellee] testified that the will envelope produced at the
      Register of Wills hearing (Exhibit 9) was not the same envelope
      he obtained from the hamper, because the will he retrieved had a
      metal clasp and did not open from the side. [Appellee] opened
      the will envelope on two occasions before January 16, 2018 and
      observed that it contained Exhibit 10, Exhibit 11, and the original
      of Exhibit 2. [Appellee] believes Exhibit 2 to be entirely in
      Decedent’s handwriting. [Appellee] testified that he suggested
      that his siblings search the hamper on January 16, 2018 in an
      effort to get someone else to find the will envelope. [Appellee]
      testified that he was unaware that someone found the will
      envelope until he viewed the trail camera pictures depicting Kay
      holding the envelope.

Opinion and Order, 6/21/18, at 1-4. Based on this evidence, the Orphans’

Court determined that Decedent properly executed the original holographic

will. It further held, based on Twigg’s testimony, that the original will and

probated copy of the will are “exactly the same.” Id. at 6. In this regard, the

court wrote:

      Twigg testified that she observed the original holographic will in
      the spring of 2012 and made copies of said instrument at
      Decedent’s request. Twigg also identified Exhibit 2 . . . as a copy
      of the original holographic will given to her by Decedent in 2012 .
      . . Upon our review of all the testimony and our view of the
      witnesses, we find Kayley Twigg to be a reliable and credible
      witness and accept her testimony as fact.

Id. at 6; see also id. at 6 n.2 (court’s description of Twigg as “the most

credible” substantive witness”). Finally, again because of Twigg’s “credible”

testimony, the court determined that the original holographic will was neither

destroyed nor revoked at the time of Decedent’s death. Id. at 5-7.




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      On July 2, 2018, Appellants’ counsel improperly filed post-trial motions

in the Orphans’ Court from the June 21, 2018 order affirming the Register of

Wills’ decree admitting the holographic will to probate. In an order docketed

on July 20, 2018, the Orphans’ Court denied all post-trial motions.

      On August 17, 2018, Appellants, through counsel, filed a petition in the

Orphans’ Court for leave to appeal nunc pro tunc. Counsel acknowledged that

the applicable rules required him to appeal within thirty days of the June 21,

2018 order. Petition, ¶ 31. Nevertheless, he requested leave to appeal nunc

pro tunc by alleging that a “breakdown in the court’s operations” prevented

him from taking a timely appeal. Petition, ¶¶ 20-33. This “breakdown,” said

counsel, consisted of the following:

      1.    On July 2, 2018, the prothonotary accepted Appellants’ post-trial
            motions for filing without informing counsel that post-trial motions
            were not permitted under the Orphans’ Court Rules or that the
            proper procedure was to appeal directly from the June 21, 2018
            order;
      2.    When the Orphans’ Court denied the post-trial motions on July 21,
            2018, it failed to state that post-trial motions were not permitted
            under the Orphans’ Court Rules or that the proper procedure was
            to appeal directly from the June 21, 2018 order;
      3.    On August 14, 2018, counsel learned that post-trial motions were
            not permissible due to amendments to the Orphans’ Court Rules
            that had become effective on September 1, 2016, and that the
            proper procedure was a direct appeal to the Superior Court within
            thirty days of the June 21, 2018 order;
      4.    Upon learning of the proper procedure, counsel promptly
            requested leave to appeal nunc pro tunc.
Id.




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      In an order docketed on September 24, 2018, the Orphans’ Court

granted Appellants leave to appeal to this Court within fifteen days.     On

October 4, 2018, Appellants filed a notice of appeal.

      In this Court, Appellants raise a series of arguments that, reduced to

their essence, contend that the Orphans’ Court (1) improperly determined that

Appellee had the burden of proof, thus enabling him to present damaging

rebuttal testimony from Twigg, and (2) abused its discretion by finding

Appellants’ evidence (particularly Twigg’s testimony) credible.       Before

reaching the merits of these issues, we first address whether this appeal is

timely, an issue that the parties have not mentioned but which we may raise

sua sponte.     In Re Adoption Of W.R., 823 A.2d 1013, 1015 (Pa. Super.

2003) (where Orphans’ Court granted appellant leave to appeal nunc pro tunc,

“although the parties did not challenge the timeliness of this appeal, we may

raise the issue sua sponte since it goes to our jurisdiction to entertain an

appeal”).

      Allowance of an appeal nunc pro tunc “is a recognized exception to the

general rule prohibiting the extension of an appeal deadline.” Union Elec.

Corp. v. Bd. Of Prop. Assessment, Appeals & Review of Allegheny Cty.,

746 A.2d 581, 584 (Pa. 2000). “[A]n appeal nunc pro tunc is intended as a

remedy to vindicate the right to an appeal where that right has been lost due

to certain extraordinary circumstances.” Id. The decision to permit an appeal

nunc pro tunc


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      lies at the sound discretion of the Trial Judge. More is required
      before such an appeal will be permitted than the mere hardship
      imposed upon the appellant if the request is denied. As a general
      matter, a Trial Court may grant an appeal nunc pro tunc when a
      delay in filing [an appeal] is caused by extraordinary
      circumstances involving fraud or some breakdown in the court’s
      operation through a default of its officers. Where an appeal is not
      timely because of non-negligent circumstances, either as they
      relate to appellant or his counsel, and the appeal is filed within a
      short time after the appellant or his counsel learns of and has an
      opportunity to address the untimeliness, and the time period
      which elapses is of very short duration, and appellee is not
      prejudiced by the delay, the court may allow an appeal nunc pro
      tunc.

McKeown v. Bailey, 731 A.2d 628, 630 (Pa. Super. 1999).                  “[T]he

circumstances occasioning the failure to file an appeal,” however, “must not

stem from counsel’s negligence or from a failure to anticipate foreseeable

circumstances.” Adoption of W.R., 832 A.2d at 1016.

      We conclude that the Orphans’ Court abused its discretion by granting

Appellants leave to appeal nunc pro tunc, because the delay in this appeal did

not arise from extraordinary circumstances such as “some breakdown in the

court’s operation through a default of its officers.” McKeown, 731 A.2d at

630. To the contrary, the delay in this appeal took place because Appellants’

counsel failed to follow published rules of procedure.

      Pennsylvania Rule of Appellate Procedure 342, which was last amended

in 2012, provides, inter alia, that an appeal “may be taken as of right” from

an Orphans’ Court order “determining the validity of a will . . .” Pa.R.A.P.




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342(a)(2). Except in circumstances not relevant here,1 an appeal “shall be

filed within thirty days after entry of the order from which the appeal is taken.”

Pa.R.A.P. 903(a). In this case, the appeal period expired on July 23, 2018,2

more than two months before Appellants filed their notice of appeal.

        Appellants did not extend the appeal period by filing post-trial motions,

because the Orphans’ Court Rules prohibit post-trial motions. Orphans’ Court

Rule 8.1, which became effective on September 1, 2016, prior to Appellants’

appeal from the Register of Wills to the Orphans’ Court, provides: “Except as

provided in Rule 8.2, no exceptions or post-trial motions may be filed to any

order or decree of the court.” Orphans’ Court Rule 8.2, which also became

effective on September 1, 2016, provides: “By motion, a party may request

the court to reconsider any order that is final under Pa.R.A.P. 341(b) or 342,

or interlocutory orders subject to immediate appeal under Pa.R.A.P. 311, so

long as the order granting reconsideration is consistent with Pa.R.A.P.

1701(b)(3) [reconsideration].” Orphans’ Court Rule 8.2(a). Rule 8.2 does


____________________________________________


1   See Pa.R.A.P. 903(c).

2 The thirtieth day after June 21, 2018, the date of entry of the order, fell on
Saturday, July 21, 2018. Consequently, the appeal period expired on Monday,
July 23, 2018. Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the Pennsylvania
Consolidated Statutes (rules of construction) so far as not inconsistent with
any express provision of these rules, shall be applicable to the interpretation
of these rules and all amendments hereto to the same extent as if these rules
were enactments of the General Assembly”); 1 Pa.C.S.A. § 1908 (when the
last day of statutory period falls on Saturday or Sunday, such day shall be
omitted from time computation).


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not apply here because the Orphans’ Court did not grant reconsideration of its

June 21, 2018 order.

       Counsel for Appellants disregarded the foregoing rules by filing post-

trial motions. As a result, counsel failed to appeal to this Court within thirty

days after the order affirming the Register of Wills’s decree. The appeal filed

on October 4, 2018, two and a half months after the Orphans’ Court’s order,

was untimely. Johnson v. Johnson, 515 A.2d 960, 961-62 (Pa. Super. 1986)

(appeal filed more than thirty days after entry of judgment in garnishment

action quashed; garnishee was not entitled to file post-trial motions, and filing

such motions did not extend time in which appeal could be filed, where no trial

was held in garnishment case and judgment on the pleadings for creditor was

entered prior to trial).

       W.R. teaches that nunc pro tunc relief is unavailable under these

circumstances.      In that case, on September 25, 2001, the Orphans’ Court

entered an order terminating the appellant’s parental rights. On October 15,

2001, the appellant filed exceptions to the termination order, even though the

Orphans’ Court Rules then in effect prohibited exceptions in involuntary

termination cases.3      On October 30, 2001, the Orphans’ Court denied the



____________________________________________


3 In 2001, Orphans’ Court Rule 7.1(e) provided: “No exceptions shall be filed
to any order in involuntary or adoption matters under the Adoption Act, 23
Pa.C.S. Section 2501 et seq.” Subsequent to W.R., Rule 7.1 was rescinded.
The rules relating to post-trial motions and motions for reconsideration are
now located in Orphans’ Court Rules 8.1 and 8.2.

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exceptions.   On March 19, 2002, almost six months after the termination

order, the appellant filed a petition seeking allowance of appeal nunc pro tunc

on the ground that counsel did not receive the order denying exceptions until

March 14, 2002. On March 21, 2002, the Orphans’ Court granted leave to

appeal nunc pro tunc.     Several days later, the appellant filed a notice of

appeal.

      This Court sua sponte raised the issue of the appeal’s timeliness,

because this question implicated our jurisdiction to entertain the appeal. Id.

at 1015. We declared the appeal untimely:

      [T]he petition for involuntary termination of parental rights was
      filed on August 13, 2001, more than seven months after the
      effective date of amended Orphans’ Court Rule 7.1(e), and the
      hearings on the termination petition were held on September 17
      and 25, 2001, more than nine months beyond the effective date
      of Rule 7.1(e). Thus, the rule precluded the filing of exceptions,
      and [the appellant] should have filed a notice of appeal on or
      before October 25, 2001, the thirtieth day after entry of the order
      terminating her parental rights. See Pa.R.A.P. 903(a).

Id. We held that the Orphans’ Court abused its discretion by granting leave

to appeal nunc pro tunc, because “[t]here clearly was no fraud or breakdown

in the processes of the trial court herein.” Id. at 1016. Instead, the appeal

was untimely because the appellant ignored Rule 7.1(e) and filed exceptions

instead of appealing to this Court. Id. The appeal was quashed. Id.

      Here, similar to W.R., statewide procedural rules that became effective

prior to these Orphans’ Court proceedings required Appellants to appeal within

thirty days after the court’s order instead of filing post-trial motions. However,


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like the appellant in W.R., counsel for Appellants improperly filed post-trial

motions and then filed an appeal after the thirty-day deadline. We see no

fraud or breakdown in the Orphans’ Court’s processes under these

circumstances, Id., and we therefore must quash this appeal.

      Courts of this Commonwealth have awarded nunc pro tunc relief in cases

where parties take untimely appeals as a result of following the directions of

court officials. See, e.g. Department of Labor and Industry, Uninsured

Employers Guaranty Fund v. W.C.A.B. (Gerretz, Reliable Wagon and

Auto Body, Inc.), 142 A.3d 148, 155-56 (Pa. Cmwlth. 2016) (when workers’

compensation judge erroneously included prohibitory language in decision and

order that not only failed to advise litigant of right to appeal, as is customary

in workers’ compensation matters, but rather affirmatively directed litigant

that it may not appeal, litigant may have right to nunc pro tunc relief; case

remanded for further proceedings concerning whether litigant should have

right to appeal nunc pro tunc); Vietri ex rel. Vietri v. Delaware Valley High

School, 63 A.3d 1281, 1287 n.6 (Pa. Super. 2013) (trial court abused its

discretion in denying plaintiff’s request for restoration nunc pro tunc of right

to file direct appeal, where (1) trial court granted summary judgment for

defendants, (2) plaintiff improvidently filed motion for post-trial relief, (3)

Superior Court quashed appeal on ground that post-trial motion remained

pending in trial court, and (4) time for appeal expired during the resolution of

post-trial motion). In this case, however, neither the Orphans’ Court nor the


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prothonotary affirmatively directed Appellants to file post-trial motions or not

to appeal until the court decided the post-trial motions. Counsel for Appellants

alone decided to take these steps. Thus, unlike Gerretz or Vietri, this case

is not a worthy candidate for nunc pro tunc relief.

       Appellants contended in their petition for leave to appeal nunc pro tunc

that when counsel filed post-trial motions, the prothonotary and/or the

Orphans’ Court should have informed him that the proper procedure was to

file an appeal instead. W.R. teaches a much different lesson: counsel must

take care to review the rules himself and acts at his own peril if he fails to do

so. We have written that “counsel is under a high duty of care to learn and

familiarize himself with the local rules of all forums in which he chooses to

practice law.” Ttmar, Inc. v. Sulka, 586 A.2d 1372, 1373 (Pa. Super. 1991).

It should come as no surprise that the same duty exists with regard to

statewide rules such as the Orphans’ Court Rules and Rules of Appellate

Procedure.4

____________________________________________


4In Cubano v. Sheehan, 146 A.3d 791 (Pa. Super. 2016), in the course of
quashing an appeal, we briefly explained why the appellant’s argument in her
appeal would not have resulted in relief. Id. at 795 n.7. Following Cubano’s
example, we observe that even if we did not quash this appeal, Appellants
would not have obtained relief because none of their arguments have merit.

Appellants insist that Twigg’s testimony contradicted a binding admission in
Appellee’s pleadings, Appellants’ Brief at 32, but Appellants fail to
demonstrate that they objected to Twigg’s testimony on this ground during
trial. More importantly, we do not believe that Twigg’s testimony conflicted
with Appellee’s averments in the pleadings. In his answer to Appellants’



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       Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2019




____________________________________________


petition, Appellee admitted that on January 16, 2018, Kay Dull looked in
Decedent’s hamper and found a large manila envelope marked “Will” on the
outside. Twigg’s testimony did not conflict with Appellee’s admission. Twigg
merely testified that the envelope that Kay Dull removed from the hamper
was different from the envelope that she, Twigg, saw Decedent place in the
hamper in 2012.

Appellants argue that the Orphans’ Court overlooked or failed to give proper
weight to various items of evidence. As the factfinder, the Orphans’ Court
was free to believe all, part, or none of the evidence. Appellants would have
us reweigh the evidence in their favor, which we are not willing or able to do.

Next, Appellants argue that they had the burden of proof instead of Appellee,
but the Orphans’ Court treated Appellee as having the burden of proof, thus
enabling Appellee to present his case first and then present Twigg’s damaging
rebuttal testimony following the conclusion of Appellants’ defense. In our
view, even if the court erroneously assigned the burden of proof to Appellee,
this error was non-prejudicial. Had the court assigned Appellants the burden
of proof, thus enabling Appellants to present their case first, Appellee would
have presented the same testimony by Twigg in his defense instead of in
rebuttal.

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