J-S82013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF GRACE M. HARTMAN                         IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
APPEAL OF: VALERIE H. MILLER
                                                               No. 89 WDA 2017


                   Appeal from the Order December 12, 2016
               In the Court of Common Pleas of Allegheny County
                     Orphans' Court at No(s): 7719 of 2011


BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.:                               FILED MARCH 28, 2018

        Valerie H. Miller (“Ms. Miller”) appeals from the order, dated December

12, 2016, that entered a surcharge judgment for $257,002.64 against her in

the context of a motion for judgment on the pleadings relating to the settling

of the Estate of Grace M. Hartman (“Estate”). We quash.

        Grace M. Hartman (“Decedent”) died on December 15, 2011. Letters

Testamentary were granted to Decedent’s son, Harry S. Hartman, IV, (“Mr.

Hartman”) on December 27, 2011.                However, on February 1, 2012, Mr.

Hartman      petitioned    to   withdraw       as   the    executor     and     Letters   of

Administration     D.B.N.C.T.A.      were      granted    to   Ms.    Miller,   Decedent’s

daughter. On January 26, 2015, Mr. Hartman filed a petition to compel an

accounting and requested that Ms. Miller be removed as the administratrix.

Mr. Hartman’s petition alleged that his attorney had “received an informal

____________________________________________


*   Former Justice specially assigned to the Superior Court.
**   Retired Senior Judge assigned to the Superior Court.
J-S82013-17



account from [Ms.] Miller stating that [Ms.] Miller had made advanced

disbursements to herself in the amount of $183,454.35[,]” “that the actual

advance disbursements that [Ms.] Miller gave herself totaled $211,095.25

and that “[Ms.] Miller was also accused of receiving and using for her own

benefit $1,525.00 in monthly income from the Estate’s commercial rental

property.” Orphans’ Court Opinion (OCO), 3/1/17, at 1.

      Ms. Miller agreed to resign and by consent order, dated March 4, 2015,

the parties agreed to the appointment of Joseph M. Loy, Esq. (“Attorney

Loy”), as administrator. The consent order also directed that Ms. Miller file a

formal accounting. Only after a petition for contempt was filed in February

of 2016 was Ms. Miller’s accounting finally filed on February 19, 2016, with

an amendment subsequently filed on March 17, 2016. Thereafter, on behalf

of the Estate, Attorney Loy filed objections to both the accounting and the

amended accounting; however, no responses to the objections were filed by

Ms. Miller. Next, on August 26, 2016, Attorney Loy filed a motion in limine

to exclude any testimony or evidence at trial in light of the fact that Ms.

Miller had not filed any responses to the objections. On October 18, 2016,

the orphans’ court ordered that Ms. Miller was precluded from introducing

any evidence at trial.   Subsequently, on November 3, 2016, Attorney Loy

filed a motion for judgment on the pleadings, which the orphans’ court

granted on December 12, 2016. In pertinent part, that order states that “in

consideration of the within Motion for Judgment on the Pleadings, it is

hereby ORDERED that a surcharge judgment be entered of record in the

                                     -2-
J-S82013-17



amount of $257,002.64 against the Respondent, Valerie H. Miller.” Order,

12/12/16. That order also directed the scheduled trial to proceed in regard

to the Surcharge Petition filed against the Respondent, Frank D. DeBor, Esq.,

who previously represented Ms. Miller. Id.

        Ms. Miller filed an appeal from the court’s December 12, 2016 order,

raising the following issue for our review:

        Did the trial court err in holding on summary judgment that the
        Estate of Grace M. Hartman was entitled to a surcharge
        judgment against [Ms. Miller] in the amount of $257,002.64 as a
        matter of law, and that no genuine issue of material fact in
        dispute existed?

Ms. Miller’s brief at 4.

        Before we may address the issue Ms. Miller has raised, we must

consider the motion to quash this appeal filed by Attorney Loy on behalf of

the Estate. The motion to quash was filed with this Court on February 24,

2017.     On April 7, 2017, this Court issued an order denying the motion

without prejudice to the Estate to allow it to again raise the quashal issue

before this panel. In the appellate brief filed by Attorney Loy for the Estate,

a request to quash Ms. Miller’s appeal is included.         The brief contains a

compilation of the reasons for the request to quash, stating:

        [Ms.] Miller is prohibited from introducing any evidence at trial
        related to the specific surcharge requests made by [Attorney]
        Loy incidental to an Order of Court signed by the Court on
        October 18, 2016, as a result of the Court[’s] granting the
        Motion in Limine filed by [Attorney] Loy on August 16, 2016.
        [Ms.] Miller did not appeal the October 18, 2016 Order. In
        addition, [Ms.] Miller failed to file any responsive pleading to the
        objections of [Attorney] Loy prior to the pleadings being closed

                                       -3-
J-S82013-17


      nor did [Ms.] Miller challenge the objections by filing preliminary
      Objection nor did [Ms.] Miller request additional time to file a
      responsive pleading to the objections from the Court or from
      counsel prior to the pleadings being closed.

Estate’s brief at 16-17. Also see Motion to Quash, 2/24/17, (providing a

more extensive discussion of the reasons given to quash this appeal).

      Following our review, we are compelled to quash this appeal in that

Ms. Miller has failed to establish that the order appealed from is a final

order.

          The appealability of an order directly implicates the
          jurisdiction of the court asked to review the order. Estate
          of Considine v. Wachovia Bank, 966 A.2d 1148, 1151
          (Pa. Super. 2009). “[T]his Court has the power to inquire
          at any time, sua sponte, whether an order is appealable.”
          Id. Pennsylvania law makes clear:

              [A]n appeal may be taken from: (1) a final order
              or an order certified as a final order (Pa.R.A.P.
              341); (2) an interlocutory order as of right
              (Pa.R.A.P. 311); (3) an interlocutory order by
              permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.[] §
              702(b)); or (4) a collateral order (Pa.R.A.P. 313).

          Stahl v. Redcay, 897 A.2d 478,485 (Pa. Super. 2006),
          appeal denied, 591 Pa. 704, 918 A.2d 747 (2007).

      In re Estate of Cella, 12 A.3d 374, 377-78 (Pa. Super. 2010)
      (some internal citations omitted).

In re Estate of Moskowitz, 115 A.3d 372, 388 (Pa. Super. 2015).

      Under the circumstances here, our determination is guided by

Pa.R.A.P. 341, which defines a final order. The pertinent portion of Rule 341

states:

      Rule 341. Final Orders; Generally


                                     -4-
J-S82013-17



      (a) General rule.—Except as prescribed in paragraphs (d), and
      (e) of this rule, an appeal may be taken as of right from any final
      order of a government unit or trial court.

      (b) Definition of final order.—A final order is any order that:

      (1) disposes of all claims and of all parties; or

      (2) RESCINDED

      (3) is entered as a final order pursuant to subdivision (c) of this
      rule.

      (c) Determination of finality.—When more than one claim for
      relief is presented in an action, whether as a claim,
      counterclaim, cross-claim, or third-party claim or when multiple
      parties are involved, the trial court or other governmental unit
      may 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. Such an order becomes appealable when entered. 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. In
      addition, the following conditions shall apply:

      (1) The trial court...is required to act on an application for a
      determination of finality under subdivision (c) within 30 days of
      entry of the order.       During the time an application for a
      determination of finality is pending the action is stayed.

Pa.R.A.P. 341(a), (b), (c)(1).

      Here, the order appealed from is not a final order in that it does not

dispose of all claims and all parties. We are aware that “[i]n a decedent’s

estate, the confirmation of the final account of the personal representative

represents the final order, subject to exceptions being filed and disposed of

by the court.” In re Estate of Borkowski, 794 A.2d 388, 390 (Pa. Super.



                                      -5-
J-S82013-17


2002). Here, however, the surcharge petition filed against Attorney DeBor

remains outstanding, with the order on appeal directing that the scheduled

trial is to go forward.       We are also aware that in In re Estate of

Cherwinski, 856 A.2d 165, 167 (Pa. Super. 2004), the opinion provides

that “where a decree orders the executor to charge himself in the account

with a specified sum, this being equivalent to a surcharge, that decree is

appealable.”     Regardless    of   this   statement,   we   conclude   that   the

Cherwinski case is distinguishable in that no pending surcharge petition

against another fiduciary existed, as is the situation in the instant case.

Therefore, Cherwinski does not apply to the circumstances before us.

Moreover, the order is not an interlocutory order as of right (Pa.R.A.P. 311),

an interlocutory order by permission (Pa.R.A.P. 1311) or a collateral order

(Pa.R.A.P. 313) that could allow for an immediate appeal. Ms. Miller did not

respond to the Motion to Quash in either a separate answer to the Motion or

in her brief, where she simply provides a 1½ page argument directed at her

reasons to support the issue she has raised on appeal.          Accordingly, we

conclude that we lack jurisdiction to entertain Ms. Miller’s appeal and we

grant the Estate’s Motion to Quash.

      Motion to Quash granted.       Case remanded for further proceedings.

Jurisdiction relinquished.




                                       -6-
J-S82013-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2018




                          -7-
