J-S56017-14

                                   2015 PA Super 52

ESTATE OF VIRGINIA A. CHERRY                      IN THE SUPERIOR COURT OF
LATE OF HENDERSON TOWNSHIP                              PENNSYLVANIA
HUNTINGDON COUNTY
COMMONWEALTH OF PENNSYLVANIA



APPEAL OF: RONALD LOCKE

                                                       No. 633 MDA 2014


                Appeal from the Order Entered on March 5, 2014
              In the Court of Common Pleas of Huntingdon County
                    Orphans’ Court at No.: 31-OC-242-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

OPINION BY WECHT, J.:                                 FILED MARCH 17, 2015

       Ronald Locke, executor of the Estate of Virginia A. Cherry, appeals the

orphans’ court order entered on March 5, 2014.         After careful review, we

conclude that Locke’s appeal is interlocutory and that this Court lacks

jurisdiction to consider its merits. Accordingly, we quash Locke’s appeal.

       Virginia A. Cherry died testate on October 9, 2013. She was eighty-

seven years old at the time of her death.         Cherry left a will, which she

executed on May 24, 2011.           Therein, Cherry named Ronald Locke as the

executor of her estate and made twenty-three specific cash bequests

totaling $59,500. Cherry made two of those specific bequests to the First




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*
       Retired Senior Judge assigned to the Superior Court.
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Baptist Church of Huntingdon, Pennsylvania (“the Church”), equaling

$11,000. Cherry also bequeathed the residue of her estate to the Church.

      Pursuant to the terms of Cherry’s will, Locke was empowered to sell or

otherwise convert any real or personal property.      Orphans’ Court Opinion

(“O.C.O.”), 5/20/2014, at 3. On October 23, 2013, the Huntingdon County

Register of Wills admitted Cherry’s will to probate and granted letters

testamentary to Locke. On November 21, 2013, counsel for the Church sent

a letter to Locke stating that, in light of the estate’s likely insolvency, the

Church was prepared to contribute funds to the estate in order to provide

Locke with sufficient liquid assets to satisfy the specific bequests in Cherry’s

will, any inheritance taxes due, and the costs of administration. The Church

anticipated that doing so would expedite the administration of the estate by

allowing Locke to convey the residue to the Church in kind once all of the

specific bequests had been paid.

      On November 26, 2013, Locke mailed a letter to the Church rejecting

its proposal. Locke reasoned that he did not have the authority to consent

to the suggested arrangement because it was contrary to Cherry’s intent, as

evidenced by the May 24, 2011 will. On January 3, 2014, the Church filed a

petition seeking to enjoin Locke permanently from selling all real and

personal property owned by the estate.

      After a hearing on February 25, 2014, the orphans’ court entered an

order denying the Church’s petition for an injunction on March 5, 2014. That

order provided as follows:

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       AND NOW, this 5th day of March, 2014, the Petition of the
       [Church] for an injunction is denied.      However, since the
       [Church] has offered to pay all of the cash requirements
       attendant to the settlement of this estate, this [c]ourt will not
       authorize the sale of the personal property or real estate of
       [Cherry,] and would, upon application, enjoin any proposed sale
       of these assets.

Orphans’ Court Order, 3/5/2014, at 1.

       On April 4, 2014, Locke filed a notice of appeal. On April 9, 2014, the

orphans’ court ordered Locke to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 20, 2014,

the   orphans’     court   filed   its   Pa.R.A.P. 1925(a)   opinion,   in   which   it

recommended that we quash Locke’s appeal as interlocutory.1

       Locke raises two issues challenging the orphans’ court’s March 5, 2014

order.   However, before addressing the merits of Locke’s claims, we must

assess our jurisdiction to do so. For the reasons set forth below, we agree

with the orphans’ court that the order at issue in this appeal is interlocutory

and not appealable.

       The orphans’ court’s reasoned as follows in finding that the appeal in

this case is premature:
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1
       We also note that the certified record at least suggests that Locke’s
Rule 1925(b) statement was filed untimely. As a matter of law, the untimely
filing of a Rule 1925(b) statement results in the waiver of all issues raised on
appeal. Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005). However,
addressing our subject matter jurisdiction is a threshold inquiry that
predominates over questions of procedural waiver. Because we find below
that we lack jurisdiction over the instant appeal, we need not resolve
questions regarding whether Locke timely filed his Rule 1925(b) statement.



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      [Pennsylvania Rule of Appellate Procedure] 342 was amended in
      2012 to specifically list the various orders that are immediately
      appealable in an Orphans’ Court case. The order in this appeal
      does not fit into one of the seven (7) categories of orders from
      which an appeal may be taken as of right nor is it an order that
      is otherwise appealable under Chapter 3 of the Rules of
      Appellate Procedure. Likewise, the Supreme Court in In re
      Estate of Stricker, 977 A.2d 1115, 1116 (Pa. 2009), opined
      that an appeal from an order directing the administrator to sell
      real estate was interlocutory. Accordingly, we believe that a
      direction not to sell is equally interlocutory.

O.C.O. at 5 (citation modified).

      Pennsylvania Rule of Appellate Procedure 341 provides generally that

appeals may be taken as of right only from final orders. Pa.R.A.P. 341. A

final order is any order that “disposes of all claims and of all parties,” “is

expressly defined as a final order by statute,” or “is entered as a final order

pursuant to” Rule 341(c).    Pa.R.A.P. 341(b).   Rule 341(c) permits the trial

court to “enter a final order as to one or more but fewer than all of the

claims and parties only upon an express determination that an immediate

appeal would facilitate resolution of the entire case.”     However, “in the

absence of such a determination and entry of a final order, any order or

other form of decision that adjudicates fewer than all the claims and parties

shall not constitute a final order.” Pa.R.A.P. 341(c).

      Qualifying Rule 341 are two rules that we must consider.       Rule 313

provides that an appeal may be taken as of right from a collateral order,

which is “an order separable from and collateral to the main cause of action

where the right involved is too important to be denied review and the

question presented is such that if review is postponed until final judgment in

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the case, the claim will be irreparably lost.”       Pa.R.A.P. 313(b).   Rule 342

(“Appealable Orphans’ Court Orders”), provides, in relevant part, as follows:

       (a) General rule.—An appeal may be taken as of right from
       the following orders of the Orphans’ Court Division:

                                         ****

          (6)      An order determining an interest in real or
          personal property . . . .

Pa.R.A.P. 342. We begin our review with Rule 342.

       In In re Estate of Stricker, 977 A.2d 1115 (Pa. 2009), our Supreme

Court held that an orphans’ court’s order to sell real estate in connection

with the disposition of an estate was an interlocutory order that was not

appealable under Rule 313 or former Rule 342.2 In that case, two tracts of

land constituted the bulk of the decedent’s estate, which was to be disposed

of by two co-executors, one of whom was the appellant, in favor of

approximately ten beneficiaries.         One tract was subject to a third party’s

option to repurchase the property, which the third party had exercised. The

remaining tract was put up for auction, where John Fulton made the highest

bid. The orphans’ court directed the estate to deliver that tract to Fulton.

Id. at 1116-17.




____________________________________________


2
       Rule 342 was amended, effective February 12, 2012, in ways that are
reflected in the reproduction immediately supra. We address the effect of
these amendments in the following discussion.



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      Before the auction occurred, the appellant co-executor had made

multiple below-market value offers to buy both tracts. His co-executrix and

the beneficiaries rejected the offers. Although the appellant participated in

the public auction for the unrestricted property, Fulton’s bid not only

exceeded the appellant’s, but indeed exceeded the appellant’s prior offers

for both tracts combined. The appellant thereafter refused to cooperate in

transferring either tract.   The co-executrix then petitioned the court to

compel the appellant to sign the agreement of sale transferring the tract

purchased by Fulton. The orphans’ court entered an order so directing, and

the appellant appealed that order.      This Court quashed the appeal as

interlocutory.   On remand, the orphans’ court ruled that the co-executors

were bound to take the necessary steps to consummate the sale of one

tract. The orphans’ court also directed the co-executors to take the steps

necessary to complete the sale of the other tract to Fulton. Id. at 1117.

      Once again, the appellant sought relief in this Court, and once again

this Court quashed the appeal for want of jurisdiction. First, we held that

the orders were not final because a final accounting of the estate had not

been rendered.    Second, we held that the orders appealed from were not

appealable under the collateral order doctrine as embodied by Rule 313. Id.

      The Supreme Court granted the appellant’s petition for allowance of

appeal to address whether the orders in question were final pursuant to

Rules 341 and 342 or were collateral orders that were appealable as of right

pursuant to Rule 313. Id. The Court made the following observations:

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     Rule 342 allows Orphans’ Court judges to designate as final (and
     therefore immediately appealable) an order “making a
     distribution, or determining an interest in realty or personalty or
     the status of individuals or entities.” Pa.R.A.P. 342. It does not
     require that any particular class of orders be treated as final, but
     instead leaves the determination of finality of orders not
     disposing of all claims and all parties up to the Orphans’ Court
     judge. Pa.R.A.P. 342(1). Certification under Rule 342 is wisely
     left to the discretion of the Orphans’ Court[ judges], who are in
     the best position to take the facts of the case into account when
     deciding whether an immediate appeal would be appropriate.

     “It is fundamental law in this Commonwealth that an appeal will
     lie only from final orders, unless otherwise expressly permitted
     by statute.” T.C.R. Realty, Inc., v. Cox, 372 A.2d 721, 724
     (Pa. 1977). An appeal from an order directing the administrator
     of a decedent’s estate to sell real estate belonging to the
     decedent is interlocutory and must be quashed.             In re
     Maslowski’s Estate, 104 A. 675 (Pa. 1918); In re Estate of
     Habazin, 679 A.2d 1293 (Pa. 1996); see also Appeal of
     Snodgrass, 96 Pa. 420, 421 (Pa. 1880) (holding that an order
     directing sale of real estate for payment of decedent’s debts is
     not definitive, and an appeal will not lie therefrom: “Why should
     the proceeding be brought here by piece-meal when the whole
     may be reviewed on an appeal from the final confirmation?”).

Id. at 1117-18 (citations modified).

     The appellant argued that, if he was not afforded an immediate

appeal, “the tracts [would] be sold, his claims regarding the properties

[would] be lost, and therefore the orders should be considered final.”

Id. at 1118. Our Supreme Court disagreed in an instructive passage:

     It is true that the real estate will no longer be available to [the
     appellant] once a sale to another party is accomplished. But
     [the appellant] was not bequeathed the tracts themselves.
     Instead, [the appellant] is entitled only to a share of the
     decedent’s estate after it has been liquidated. Therefore, his
     claim that an immediate appeal is necessary to protect his
     interests fails. Indeed, [the appellant] has no greater rights with
     respect to this property than any potential buyer. Moreover, if

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      [the Court] accepted [the appellant’s] argument that any claim
      on or about property that might be sold during the probate
      process should be immediately appealable, the appellate court
      system would be flooded with such appeals and the
      administration of decedents’ estates would be unreasonably
      delayed.

Id. at 1118; cf. id. at 1119-21 (Saylor, J., concurring) (positing that

immediate appeal in certain circumstances might expedite disposition of the

estate).    The Court went on to explain that “an order is not final and

appealable merely because it decides one issue of importance to the

parties.”   Id. at 1118 (quoting 3 Patridge-Remick, Practice & Procedure in

the Orphans’ Court of Penna. § 26.04); see In re Estate of Quinn, 805

A.2d 541, 543 (Pa. Super. 2002) (noting that “the confirmation of the final

account of the personal representative represents the final order, and

deeming an appealed distribution order interlocutory because the orphans’

court had not confirmed a final accounting and the estate “remain[ed] under

administration”).

      After Stricker, the Supreme Court amended Rule 342. No longer was

the question of appealability vested strictly in the orphans’ court’s discretion.

Rather, the revised rule identified certain orders that would henceforth be

appealable as of right, independent of any orphans’ court finding regarding

the nature of the order and its place in the proceedings. Locke argues that

subsection (a)(6) of Rule 342 applies in this case.              This subsection

designates    as    immediately   appealable   an   orphans’   court   order   that

“determines an interest in real or personal property.” Pa.R.A.P. 342(a)(6).


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      In In re Estate of Ash, 73 A.3d 1287 (Pa. Super. 2013), this Court

interpreted and applied Rule 342 in its current form.     In Ash, the will at

issue made specific cash bequests and directed that the remaining personal

and real property be sold, with the proceeds to be divided among three

residual beneficiaries. The appellant, Joseph Heit, was named executor; the

remaining two beneficiaries were his brother, James Heit, and Duane Fetter.

As executor, the appellant conveyed to himself (as an individual) a tract of

land referred to as Tract 1, which he contended was consistent with an

agreement of sale entered into with the decedent prior to his death.       The

orphans’ court set aside the sale, removed the appellant as executor, and

appointed an administratrix in the appellant’s place. The appellant did not

appeal that order. Id. at 1288.

      Thereafter, Fetter indicated that he had entered an agreement with

the decedent to purchase an adjoining tract (“Tract 2”), and signaled to the

administratrix that he was willing to buy Tract 2 as well as the two adjoining

tracts, Tract 1 and Tract 3.       It appeared from the record that the

administratrix intended to sell these tracts to Fetter.       Thereafter, the

appellant filed a “Petition to Force Sale of Real Estate,” wherein he asserted

that he was willing to buy Tract 1. He also contended that Tract 1 would be

landlocked unless an easement were granted over Tract 2.        He asked the

court to grant an order directing the administratrix to grant the easement

over Tract 2 and stay the sale of Tract 1 until the parties’ disputes regarding

the property were resolved. The administratrix, however, indicated that it

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would be in the best interests of the estate to sell all three tracts to Fetter,

both because the net proceeds would be greater and because it would avoid

the prospect of litigation with Fetter. The orphans’ court entered an order

denying the appellant’s petition and authorizing the administratrix to enter

into an agreement selling all of the tracts to Fetter, and the appellant

appealed. Id. 1288-89.

      We found the facts in Ash to be apposite to those in Stricker,

notwithstanding the intervening amendments to Rule 342:

      The order on appeal before us authorizes the administratrix to
      sell real estate formerly belonging to [Ash] in order to
      accomplish the eventual division of the estate assets (i.e., the
      sale proceeds) among the beneficiaries as directed by Ash’s will.
      Pursuant to Stricker, we conclude this order is neither final nor
      collateral but, instead, is interlocutory. . . .

      In reaching our result, we are mindful that the Rules of Appellate
      Procedure addressing the appealability of Orphans’ Court orders
      have changed somewhat since Stricker was decided. . . .
      Effective February 13, 2012, the Supreme Court deleted from
      Rule 342 the provision concerning the ability of an Orphans’
      Court to make determinations of finality and, instead, listed
      various orders that would be immediately appealable. See
      Pa.R.A.P. 342(a). Among the orders listed in Rule 342 is an
      order     determining    an    interest    in    real    property.
      Pa.R.A.P. 342(a)(6).

      We do not believe the order before us is one of the appealable
      orders set forth by Rule 342, whether in Subsection (6) or
      otherwise.   Consequently, we do not believe Subsection (6)
      and/or any other post[-]Stricker change(s) to Rule 342 negate
      Stricker and render the order before us appealable.             We
      understand the effect of the instant order will be to allow the
      realty sale and, if the administratrix sells the tracts, Fetter will
      come to own them. Thus, if the sale is completed, the order will
      eventually lead to a change in the ownership interest of the
      realty. Nevertheless, the Orphans’ Court decision now on appeal


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      did not involve the court having to resolve some dispute about
      who had or has an interest in the tracts: The estate obviously
      owns them. The court’s decision was about . . . the propriety of
      her plan to reduce the estate assets to cash by sale to a
      particular party, the goal being to distribute the sale proceeds in
      accordance with the will. The court’s decision was not about
      determining an interest in the subject realty.         Accordingly,
      Stricker controls this case.

Id. at 1289-90 (citations modified; footnotes omitted).     In a footnote, we

acknowledged that certain language in the comment to the rule as amended,

which drew upon Justice Saylor’s concurring opinion in Stricker, perhaps

complicated the analysis.   However, we concluded that if “the changes to

Rule 342 were indeed meant to abrogate Stricker and . . . to transform an

order such as the one before us into an order determining an interest in

realty under Subsection (6), . . . that pronouncement should be made by the

Supreme Court. At present, we will follow Stricker.” Id. at 1290 n.5.

      As noted, supra, the orphans’ court in this case focused upon Stricker

and made no mention of Ash.        However, the court’s reasoning is sound

under Ash:    Specifically, the orphans’ court observed that the Stricker

Court “opined that an appeal from an order directing the administrator to

sell real estate was interlocutory,” and reasoned that “a direction not to sell

is equally interlocutory.” O.C.O. at 5 (emphasis added). We agree.

      In Ash, we acknowledged that “the effect of the [challenged order

would] be to allow the realty sale,” which eventually would “lead to a change

in the ownership interest of the realty.”          Ash, 73 A.3d at 1290.

Nonetheless, we effectively held that subsection (a)(6) applied only when


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the orphans’ court enters an order that “resolve[s] some dispute about who

had or has an interest in the tracts” at issue”; there, because “the estate

obviously own[ed]” the property in question, subsection (a)(6) did not apply.

Id.

       The same is true in this case. Indeed, whereas Ash involved an order

that actually directed the sale of real estate, an act that we found did not

determine an interest in property, in the instant case the orphans’ court

order did not go even that far.          Rather, the orphans’ court order merely

denied the Church’s request for injunctive relief and indicated prospectively

that the court would not “authorize the sale of the personal property or real

estate of [Cherry,] and would, upon application, enjoin any proposed sale of

these assets.”     Simply put, even if the order had denied an application to

enjoin an actually proposed sale of the property at issue, rather than merely

speculating that the court would do so, under Ash, it would not be

appealable.     That the order in the instant case did not go even that far3
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3
       Although it does not change our ruling, which is based upon a
jurisdictional defect, we must acknowledge that the orphans’ court’s order in
this case appears rather anomalous. The orphans’ court declined to grant
the Church injunctive relief precluding the sale of the property the Church
sought in kind, but in the same breath signaled, without apparent
qualification, that it would enjoin any application to sell the property, citing
the Church’s willingness gratuitously to make the estate whole in return for
an in-kind transfer not specified in the will. In so doing, the court seems to
have created a stalemate in which the estate is not compelled to transfer the
property to the Church but is precluded from taking the alternative course—
i.e., selling the property—to settle the estate. This appears to be an
untenable situation. Notably, in Stricker our Supreme Court noted in
(Footnote Continued Next Page)


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conclusively establishes that order as interlocutory and, as such, not

appealable at this time.

      This does not conclude our discussion, however, because we also must

address whether the order at issue in this case is a collateral order that is

appealable as of right under Pa.R.A.P. 313.         As noted, supra, Rule 313

provides that an appeal may be taken as of right from “an order [that is]

separable from and collateral to the main cause of action where the right

involved is too important to be denied review and the question presented is

such that if review is postponed until final judgment in the case, the claim

will be irreparably lost.” Pa.R.A.P. 313(b).

      The Stricker Court held that the order in question in that case was not

a collateral order entitled to immediate review under Rule 313. Noting that,

“to qualify as collateral, an order must be separable from the main cause of

action,” and that the collateral order doctrine “is to be construed narrowly to

preserve the integrity of the general rule that only final orders may be

appealed,” the Court held that “it is not possible that an order to sell estate

property in pursuit of” the final accounting and distribution of the estate

provided for by the will could be “collateral to the main cause of action.” Id.
                       _______________________
(Footnote Continued)

support of its ruling that the appellant therein had “no greater rights with
respect to [the] property than any potential buyer” and that the rights were
dictated strictly by the terms of the will. 977 A.2d at 1118. While material
differences arguably exist between the Stricker fact pattern and the
circumstances of this case, we merely note that the orphans’ court order
appears to have created a quandary that must be resolved on remand.



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at 1119 (emphasis added). To the contrary, the Court found, it was “central

to the main cause of action.” Id. (emphasis in original). Thus, the order in

question did not qualify for immediate appeal as a collateral order under

Rule 313.

      Similarly in this case, the property at issue is central to the estate.

Consequently, its eventual disposition will serve directly the final accounting

and distribution of the estate. Accordingly, it is “central to the main cause of

action” and it does not qualify as a collateral order subject to immediate

appeal.

      Appeal quashed. Case remanded.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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