J-E02001-17

                           2018 PA Super 130



 IN RE: ESTATE OF SOPHIA M.           :   IN THE SUPERIOR COURT OF
 KRASINSKI A/K/A SOPHIA               :        PENNSYLVANIA
 KRASINSKI A/K/A SOPHIA               :
 KRASINSKY LATE OF MORRISDALE         :
 (COOPER TOWNSHIP), CLEARFIELD        :
 COUNTY, PENNSYLVANIA DECEASED        :
 NOVEMBER 4, 2006                     :
                                      :
                                      :   No. 1265 WDA 2015
 APPEAL OF: ESTATE OF SOPHIA M.       :
 KRASINSKI AND ITS EXECUTOR,          :
 EDWARD KRASINSKI                     :

                    Appeal from the Order July 16, 2015
   In the Court of Common Pleas of Clearfield County Orphans' Court at
                             No(s): 1707-0003


 IN RE: ESTATE OF SOPHIA M.           :   IN THE SUPERIOR COURT OF
 KRASINSKI, A/K/A SOPHIA              :        PENNSYLVANIA
 KRASINSKI A/K/A SOFIA                :
 KRASINSKY, LATE OF MORRISDALE,       :
 (COOPER TOWNSHIP) CLEARFIELD         :
 COUNTY, PENNSYLVANIA DECEASED        :
 ON 11/04/06                          :
                                      :
                                      :   No. 1289 WDA 2015
 APPEAL OF: PATRICIA KRASINSKI-       :
 DUNZIK                               :

                    Appeal from the Order July 16, 2015
   In the Court of Common Pleas of Clearfield County Orphans' Court at
                          No(s): No. 1707-0003


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.

CONCURRING AND DISSENTING OPINION BY SHOGAN, J.:

                                                    FILED MAY 15, 2018
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      In the appeal of Patricia Krasinski-Dunzik (“Appellant”), this Court is

once again asked to address the appealability of an Orphans’ Court order to

sell real estate during the administration of an estate.        In my opinion,

Pennsylvania case law instructs that the April 30, 2013 order confirming the

private sale of real estate owned by Sophia Krasinski (“Sophia”) was

interlocutory, despite the February 12, 2012 revision to Pa.R.A.P. 342.

Therefore, I respectfully dissent from the Majority’s conclusion that Appellant’s

issues regarding the private sale are waived.

      Pursuant to Pa.R.A.P. 342(a):

      An appeal may be taken as of right from the following orders of
      the Orphans’ Court Division:

      (1)   An order confirming an account, or authorizing or directing
            a distribution from an estate or trust;

      (2)   An order determining the validity of a will or trust;

      (3)   An order interpreting a will or a document that forms the
            basis of a claim against an estate or trust;

      (4)   An order interpreting, modifying, reforming or terminating
            a trust;

      (5)   An order determining the status of fiduciaries, beneficiaries,
            or creditors in an estate, trust, or guardianship;

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

      (7)   An order issued after an inheritance tax appeal has been
            taken to the Orphans' Court pursuant to either 72 Pa.C.S. §
            9186(a)(3) or 72 Pa.C.S. § 9188, or after the Orphans'
            Court has made a determination of the issue protested after
            the record has been removed from the Department of
            Revenue pursuant to 72 Pa.C.S. § 9188(a); . . .

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Pa.R.A.P. 342(a).

      The Majority concludes that the April 30, 2013 order was appealable

under Rule 342(a)(6) because it “clearly determines an interest in real

property.”   Majority Opinion, at 15 (internal quotation marks and ellipse

omitted). It appears that the Majority has overlooked this Court’s decision in

a substantively similar case, in which the revised version of Rule 342 was

applicable, In re Estate of Ash, 73 A.3d 1287, 1290 (Pa. Super. 2013).

      In Ash, the decedent’s will made several specific cash bequests and

directed that his remaining personal and real property be sold with the

proceeds being divided among three residual beneficiaries—namely, the

appellant Joseph Heit (“Heit”), James Heit (the appellant’s brother), and

Duane Fetter (“Fetter”). Although the decedent owned three tracts of land,

“[t]he will devised no realty.”   Ash, 73 A.3d at 1288.       As executor, Heit

conveyed Tract 1 to himself. The Orphans’ Court set aside that sale, removed

Heit as executor, and appointed an administratrix.

      Fetter expressed to the administratrix an interest in buying the three

tracts, and she was agreeable.      In response, Heit filed a document titled

“Petition to Force Sale of Real Estate.” Ash, 73 A.3d at 1288. Therein, Heit

indicated his continued willingness to buy Tract 1, his belief that Tract 1 would

be landlocked without an easement over Tract 2, and his willingness to pay a

higher price for Tract 1 if an easement over Tract 2 was in place. Heit asked

the Orphans’ Court to direct the administratrix to grant an easement over

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Tract 2 and to “halt the sale of Tract 1 until the disputes among the parties

regarding the sale of Tract 1 were resolved.”                  Id.   In response, the

administratrix favored a sale of all three tracts to Fetter because it would

dispose of all properties for a profitable price and would avoid the possibility

of a lawsuit by Fetter “if the administratrix attempted to grant an easement

over Tract 2 before conveying it to Fetter and Tract 1 to [Heit].” Id. at 1288–

1289.

        The   Orphans’    Court    denied      Heit’s   petition   and   authorized   the

administratrix to enter a sales agreement with Fetter. Heit appealed, and this

Court quashed the appeal.            In doing so, the panel first reviewed the

Pennsylvania Supreme Court case of In re Estate of Stricker, 977 A.2d 1115

(Pa. 2009). Therein, the Supreme Court:

        addressed the appealability of an Orphans’ Court order to sell
        realty during the process of disposition of an estate. The Supreme
        Court opined that “[a]n 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.” Stricker,
        977 A.2d at 1118. The court also held that the order in question
        was not appealable as a collateral order. Id. at 1119.

Ash, 73 A.3d at 1289.1 The Ash Court then explained its decision to quash

in light of Striker:

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1   See also In re Estate of Cherry, 111 A.3d 1204 (Pa. Super. 2015)
(explaining that under Stricker, the question of appealability was vested
strictly in the orphans’ court’s discretion, and following Stricker, Pa.R.A.P.
342 was amended, effective February 12, 2012, to list a number of orphans’
court orders appealable as of right. Pa.R.A.P. 342(a)(1-8)). In Estate of



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              The order on appeal before us authorizes the administratrix
       to sell real estate formerly belonging to the decedent 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. We note also that the
       instant interlocutory order is not listed as being appealable by
       right under Pa.R.A.P. 311, and Appellant did not secure
       permission to file this interlocutory appeal under Pa.R.A.P. 312.
       Because the order is not appealable, we lack jurisdiction to
       address the merits of [Heit’s] claims. In re Estate of Allen, 960
       A.2d 470, 471 (Pa.Super.2008). Therefore, we quash this matter.

              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.
       At the time of Stricker, Pa.R.A.P. 342 indicated, inter alia, that
       an order determining an interest in realty would be immediately
       appealable upon a determination of finality by an Orphans’ Court.
       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 changes 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
       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
____________________________________________


Cherry, we quashed as interlocutory an appeal from an order signaling that
the trial court would deny any application to sell the decedent’s property.
Estate of Cherry, 111 A.3d at 1210–1211.

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      whether the administratrix should be required to encumber
      one tract with an easement and 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.

Ash, 73 A.3d 1289–1290 (footnotes omitted; emphasis supplied).

      Applying Ash, I conclude that the April 30, 2013 order at issue was

interlocutory. Like the decedent in Ash, Sophia owned three parcels (“the

Property”) that she did not specifically devise to her children. Also like the

decedent in Ash, Sophia provided that the residue of the estate, including the

Property, was to be divided equally among her four children. Last Will and

Testament, 8/18/99, at Item II. With that goal in mind, Sophia’s executor

filed a petition to permit the private sale of the Property in July of 2010.

Appellant objected to the sale, claiming an ownership interest in the Property

based on an oral agreement she had with Sophia.          The orphans’ court

determined that Appellant did not have an ownership interest in the Property

and granted permission for a private sale.     Order, 3/22/11.    Pursuant to

Pa.R.A.P. 342(a)(6), Appellant could have appealed that decision because it

determined an interest in property, but she did not. Rather, she filed a civil

complaint against the Estate, which the trial court dismissed after finding no

oral contract existed between Sophia and Appellant. Order, 12/24/12.

      After the private sale of the Property on February 15, 2013, Sophia’s

executor petitioned for approval of the sale. Over Appellant’s objections, the


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orphans’ court granted the petition. Order, 4/30/13. Thus, as in Ash, the

purpose of the April 30, 2013 order was not to resolve some dispute about

who had an interest in the Property; that issue was determined in favor of the

Estate prior to the private sale. Order, 3/22/11; Order, 12/24/12. Rather,

the April 30, 2013 order was about approving the executor’s “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.” Ash, 73 A.3d at

1290.     Thus, contrary to the Majority’s conclusion, the orphans’ court’s

decision was not about determining an interest in real property; it was about

achieving distribution of the estate equally to Sophia’s children. Accordingly,

Stricker and Ash control this case.2

        Based on the foregoing, I disagree with the Majority’s conclusions that

the April 30, 2013 order was final and, therefore, appealable pursuant to

Pa.R.A.P. 342(a)(6); that Appellant should have filed an appeal from the

April 30, 2013 order; and that because Appellant did not appeal that order,




____________________________________________


2  Nor was the April 30, 2013 order appealable as a collateral order under
Pa.R.A.P. 313. See Ash, 73 A.3d at 1289 (concluding that an order
authorizing the sale of real property of the decedent’s estate was not a
collateral order under Rule 313); Striker, 977 A.2d at 1119 (holding that
order directing sale of real property was not appealable as a collateral order).
The Property is the primary estate asset. “Consequently, its eventual
disposition will serve directly the final account 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.” Estate of Cherry, 111 A.3d
at 1211 (internal quotation marks omitted).

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her issues regarding the private sale are waived. Therefore, I would address

those issues on the merits. In all other respects, I join the Majority Opinion.




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