J-A18024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF ROBERT M. MUMMA,           IN THE SUPERIOR COURT OF
DECEASED                                          PENNSYLVANIA


                   v.

APPEAL OF: BARBARA M. MUMMA

                        Appellant                No. 1003 MDA 2013


             Appeal from the Order Entered on May 10, 2013
          In the Court of Common Pleas of Cumberland County
                    Orphans’ Court at No.: 21-86-398


IN RE: ESTATE OF ROBERT M. MUMMA,           IN THE SUPERIOR COURT OF
DECEASED                                          PENNSYLVANIA


                   v.

APPEAL OF: ROBERT M. MUMMA, II

                                                 No. 1027 MDA 2013


             Appeal from the Order Entered on May 10, 2013
          In the Court of Common Pleas of Cumberland County
                    Orphans’ Court at No.: 21-86-398


IN RE: ESTATE OF ROBERT M. MUMMA,           IN THE SUPERIOR COURT OF
DECEASED                                          PENNSYLVANIA


                   v.

APPEAL OF : ROBERT M. MUMMA, II

                                                 No. 1028 MDA 2013


              Appeal from the Order Entered on May 10, 2013
J-A18024-14


               In the Court of Common Pleas of Cumberland County
                        Orphans’ Court at No.: 21-86-398


IN RE: ESTATE OF ROBERT M. MUMMA,                  IN THE SUPERIOR COURT OF
DECEASED                                                 PENNSYLVANIA


                      v.

APPEAL OF: ROBERT M. MUMMA II

                            Appellant                    No. 1222 MDA 2013


                  Appeal from the Order Entered on June 7, 2013
               In the Court of Common Pleas of Cumberland County
                        Orphans’ Court at No.: 21-86-398


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                               FILED OCTOBER 24, 2014

      Appellants Robert Mumma, II (“Mumma”), and Barbara Mumma

collectively    challenge   three   orphans’   court   orders   pertaining   to   the

administration of the estate of Robert M. Mumma (“Testator”). The orders in

question do not reflect a final accounting of the estate and testamentary

trusts, but rather are interim orders. Specifically, two May 10, 2013 orders

authorized Lisa M. Morgan (“Morgan”), in her role as executrix of Testator’s

estate and administrator of the marital and residuary trusts provided for

therein, to liquidate certain real estate holdings for the purpose of

distributing the proceeds equally amongst the four remaining beneficiaries of

the trusts. The June 7, 2013 order appealed only by Mumma reflected the

orphans’ court’s refusal to vacate its earlier July 30, 2012 order authorizing



                                        -2-
J-A18024-14



Morgan to liquidate certain life insurance policies for inclusion in, and

ultimate distribution from, the estate to the remaining beneficiaries. After

careful review of the record and the arguments of the parties, we are

constrained to conclude that we lack jurisdiction to consider appeals from

any of these orders at this juncture. The orders in question are interlocutory

orders that do not qualify for any exception to the general rule that this

Court will consider only appeals from orders that dispose of all issues as to

all parties to the underlying litigation.         Consequently, we must quash the

instant appeals and remand.

       It would be impracticable to provide a comprehensive account of the

history of the disputes underlying this case, which span nearly thirty years

since Testator passed on in 1986.1             We find sufficient the orphans’ court’s

recounting of the events and proceedings relevant to the instant appeal, as

follows:

       On January 6, 1999, Mumma petitioned th[e orphans’] court for
       an accounting of the estate of his father, Testator, who died
       testate on April 12, 1986. Testator’s will and the codicil thereto
       were probated on June 5, 1986. The will appoints Mrs. Barbara
       McK. Mumma (“Widow”), Testator’s widow, now also deceased,
       and Morgan, Testator’s daughter, as executrices thereof and as
____________________________________________


1
      The orphans’ court has enumerated four prior instances in which
Mumma appealed issues arising in this matter since 2005, three of which we
quashed and a fourth in which we affirmed the orphans’ court order in
question.   The orphans’ court further notes that Mumma presently is
embroiled in separate litigation in Florida concerning his late mother’s
estate. See Orphans’ Court Opinion at 1 n.2. This summary is by no means
exhaustive.



                                           -3-
J-A18024-14


       trustees of a marital trust and a residuary trust created
       thereunder.[2] Under the will, the presumptive remaindermen of
       the trusts, if they survive Widow, are Testator’s children:
       petitioner Mumma, Linda M. Mumma (“Linda Mumma”), Barbara
       M. Mumma (“Barbara Mumma”), and Morgan.                  Testator
       bequeathed to his testamentary trustees an amount equal to
       fifty percent of his total gross estate to be held in trust
       exclusively for the benefit of Widow during her lifetime, the
       principal to be distributed to Testator’s children upon Widow’s
       death. In addition, Testator gave his residuary estate to his
       testamentary trustees to be held in trust exclusively for the
       benefit of Widow during her lifetime, the principal to be paid to
       Testator’s children upon her death.

       Widow and Morgan filed interim accounts of their acts and
       transactions as executrices and as trustees on August 9, 1991.

       Mumma disclaimed his interest under the will in 1987. In 1989,
       former President Judge Harold E. Sheely of [the orphans’] court
       granted Mumma’s motion to revoke his disclaimer. Robert M.
       Frey, Esq., who was appointed guardian ad litem for the minor
       persons interested in the estate in 1988, appealed the revocation
       of the disclaimer. The Superior Court ruled that Mr. Frey’s
       representation of the estate with respect to the revocation of the
       disclaimer was beyond the scope of his limited appointment and
       therefore he lacked standing to appeal.

       Mumma eventually asked for a complete accounting of the
       estate, including an accounting of the trusts in which he claimed
       an interest. Widow and Morgan claimed in response that they
       could not provide an accounting to Mumma because he did not
       have standing, and the issue of the revocation of his disclaimer
       had not been fully litigated.



____________________________________________


2
      Because Morgan undisputedly is the trustee of both trusts, and it
further is undisputed that the corpora of the trusts are ripe for distribution
among their beneficiaries (this appeal involving only disputes pertaining to
authority to distribute and the form of distribution), the distinction between
the holdings of the respective trusts is immaterial to the analysis that
follows. Consequently, we largely refer to the trusts collectively as such.



                                           -4-
J-A18024-14


     The position of the executrices/trustees was rejected by the
     [orphans’] court, and an accounting by the executrices/trustees
     was ordered on February 23, 2000.

     An exhaustive further history of the estate, to the current date,
     is now available by way of a 130-page final auditor’s report, filed
     August 7, 2013.

     The first interim order referred to above, authorizing the sale of
     realty known as the UPS Property [“Order I”], had its inception
     in a Petition to Authorize Plan of Liquidation filed on April 5,
     2012, by Morgan, who had been appointed by her father as
     executrix and trustee of [the] marital and residuary trusts under
     his will, followed by a Petition to Authorize Sale of Real Estate in
     Testator’s residuary trust filed by Morgan on May 30, 2012,
     followed by a Supplemental Petition to Sell Real Estate filed by
     Morgan on August 28, 2012. The petitions related, in whole or
     in part, to a request to sell the UPS Property, which had been
     appraised in 2010 at $205,000, for $350,000. It may be noted
     that real estate alone in the marital and residuary trusts in this
     multi-million-dollar estate was appraised in 2010 at almost
     $20,000,000.

     The order being appealed was issued in accordance with a 30-
     page interim report and recommendation of the auditor, to
     whom the issue had been referred. . . . The order recommended
     by the auditor was entered by the court without solicitation of
     further argument . . . :

        AND NOW, this 6th day of May, 2013, upon the
        recommendation of the auditor in this case, it is hereby
        ordered that the Petition of Morgan to authorize the sale of
        the UPS Property is hereby granted.

     The entry of this order was consistent with a recognition of
     Morgan’s discretionary fiduciary powers and duties under
     Testator’s will, which were acknowledged by the Superior Court
     in the context of an earlier attempt by her brother to thwart her
     administration by the device of disqualification:

        With respect to the distribution of assets to the four sibling
        beneficiaries, the [orphans’] court determined that
        Morgan’s testimony established she is completing the
        process of obtaining valuations of the estate and trust
        assets and has asked the beneficiaries if they have a
        preference regarding the receipt of any particular assets or

                                    -5-
J-A18024-14


          cash and that she intends to make an equitable
          distribution of the assets to the beneficiaries after
          collecting the information. We agree with the [orphans’]
          court that this approach does not constitute any breach of
          fiduciary duty. Testator specifically provided Morgan, in
          her role as personal representative when making an equal
          distribution among the four sibling beneficiaries, with the
          power to decide how to “make distribution of any trust
          herein created, either in money or in kind, or partly in
          money and partly in kind.” Testator further indicated that
          the “judgment of the trustees as to what shall constitute
          an equitable distribution or apportionment shall be binding
          and conclusive upon the beneficiaries hereof.”[3]

       Although court approval of the sale was not legally required, the
       unfortunate dynamics of the estate have resulted, as Morgan’s
       counsel suggested, in a situation where no reasonable buyer
       would be willing to spend $350,000 on an asset from it without a
       court order sanctioning the transfer. Objections raised to the
       sale of the UPS Property at a price far in excess of its appraised
       value, such as the sale’s possible diminution of the value of
       another piece of estate realty, were either unsupported by any
       competent evidence from which such a conclusion could
       justifiably be drawn, or legally untenable, or both.        A full
       explication of the rationale for the order is contained in the
       auditor’s interim report and recommendation . . . .

       The second interim order referred to above [“Order II”] also had
       its inception in the aforesaid Petition to Authorize Plan of
       Liquidation filed on April 5, 2012, by Morgan. The petition
       recounted the more than quarter-century history of the estate
       without closure and the lack of cooperation of the remaindermen
       of the estate’s marital and residuary trusts with the trustee’s
       attempts to proceed with a liquidation of assets following the
       trusts’ terminations, and sought permission of the court to
       proceed with an orderly liquidation of the same.

       The purposes of this petition, in light of the history of
       [Mumma’s] obstruction of Morgan’s administration of the estate,
       was explained by her counsel as follows:

____________________________________________


3
       In re Estate of Mumma, 41 A.3d 41, 50 (Pa. Super. 2012).



                                           -6-
J-A18024-14


       Absent an agreement, what Morgan is asking for leave to
       do is exactly what would be necessary. It’s not as though
       these assets will be sold in a heartbeat. They’re not going
       to be liquidated at a fire sale value.

       I don’t perceive that there’s any real risk that she’ll sell the
       properties at below value or what have you. Any fiduciary
       could do that. But, of course, that’s why we have a
       fiduciary duty, that’s why we have the standards and the
       ability to surcharge a fiduciary who runs amok.

       But the process should begin, and Morgan should be at
       liberty to be able to discuss with potential buyers and talk
       with potential buyers or even feel out the market or have
       someone do it on her behalf with the knowledge that she
       has the authority to deliver.

     As with the first interim order discussed above, the second
     interim order being appealed was issued in accordance with the
     aforesaid 30-page interim report and recommendation of the
     auditor, to whom the issue had been referred. . . . The order
     recommended by the auditor was entered by the court without
     solicitation of further argument . . . :

       AND NOW, this 6th day of May, 2013, upon the
       recommendation of the auditor in this case it is hereby
       ordered that the request of Morgan, that she be authorized
       to proceed with a plan of liquidation[,] is hereby granted.
       Morgan is authorized and directed to proceed with a plan
       of liquidation of the assets remaining in the trusts
       established under the Seventh Section and the Eighth
       Section of the last will and testament of Testator, and
       following receipt by this court of its Order regarding the
       accounts previously filed[,] to distribute then remaining
       assets among and between the named beneficiaries in
       equal shares without further order of this court.

     Again, court approval of the liquidation process was not required
     under the terms of the will, and as the Superior Court indicated
     in the context of a prior challenge to Morgan’s fiduciary
     conduct[,] she was not obliged to attempt the impossible task of
     an immediate in-kind division of assets among the disputatious
     remaindermen upon the trusts’ terminations. The order now on
     appeal does not purport to adjudicate title to specific items of
     property or to dispose of the myriad of objections that have been
     filed to accounts in this matter.35      Distributions by Morgan

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J-A18024-14


      inconsistent with the ultimate resolution of those objections
      would obviously involve a personal risk that she might not
      choose to incur in the absence of satisfactory releases.36

      _______________________________
         35
             It is noted that the final 130-page auditor’s report in
         this case, filed as of August 7, 2013, does recommend that
         all the objections be dismissed.
         36
            It may be noted, however, that the final auditor’s report
         has recommended that all of the objections be dismissed
         and the accounts confirmed.

      The final interim order referred to above also had its inception in
      the aforesaid Petition to Authorize Plan of Liquidation filed on
      April 5, 2012, by Morgan. The petition recited the ownership
      interests of the parties herein in a company known as
      D.E. Distribution   Corporation . . . , noted    the    company’s
      ownership of certain life insurance policies, and sought
      permission to cash in the policies and distribute the proceeds to
      the parties in accordance with their interests in the corporation.
      This issue was included among those referred to the auditor for
      an interim report and recommendation.

Orphan’s Court Opinion (“O.C.O.”), 8/30/2013, at 6-14 (minor modifications

to nomenclature, other terminology, and formatting for clarity; most

footnotes omitted).

      Following the above-reviewed proceedings and orders, the parties filed

facially interlocutory appeals as follows:   On June 4, 2013, at 1003 MDA

2013, Barbara Mumma filed a notice of appeal from the orphans’ court’s

order dated May 10, 2013, which authorized Morgan to prepare and execute

a liquidation plan for the assets remaining under the trusts established under

Testator’s will. On June 10, 2013, Mumma filed two notices of appeal that

were docketed respectively at 1027 and 1028 MDA 2013.           The orders at



                                     -8-
J-A18024-14



issue in those cases included the same order challenged by Barbara Mumma

and the separate May 10, 2013 order authorizing the liquidation of the UPS

Property.    On July 8, 2013, Mumma timely filed an appeal at 1222 MDA

2013 of the orphans’ court’s June 7, 2013 order. In that order, the orphans

court denied Mumma’s “Petition to Compel Compliance with [the] Court’s

Order Dated July 30, 2012, and for Sanctions and Alternatively, to Vacate

Said Order.”     The July 30, 2012 order authorized Morgan to liquidate and

distribute certain life insurance policies.

       On July 12, 2013, this Court sua sponte consolidated the appeals

docketed at 1003, 1027, and 1028 MDA 2013 for decision. On September 9,

2013, this Court entered a sua sponte order consolidating 1222 MDA 2013

with the three previously-filed appeals.

       On June 7 and June 18, 2013, the orphans’ court filed orders directing

the appellants to file concise statements of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).            The parties timely complied, and the

orphans’ court entered the above-excerpted Rule 1925(a) opinion on August

30, 2013.

       On July 23, 2013, Morgan filed in this Court an Application to Quash

Mumma’s and Barbara Mumma’s appeals.              On August 12, 2013, Barbara

Mumma filed a response in opposition to that application.4 On September 9,

____________________________________________


4
       Mumma did not file a separate opposition to Morgan’s motion.




                                           -9-
J-A18024-14



2013, this Court filed a per curiam order denying the motion to quash

without prejudice to raise the issue before the panel assigned to this matter.

For the reasons that follow, we find that this Court lacks jurisdiction over

this interlocutory appeal. Consequently, we grant Morgan’s motion to quash

these appeals and remand.

       Our analysis begins and ends with Morgan’s motion to quash the

instant appeals.5      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.”

____________________________________________


5
       In her motion, Morgan refers only to Mumma’s appeals docketed at
1027 and 1028 MDA 2013, excluding by omission 1003 and 1222 MDA 2013.
However, her exclusion of two of the orders before this Court does not
preclude our review of our subject matter jurisdiction. Morgan raises a
colorable claim regarding our jurisdiction, and we must address that issue
regardless of whether or when it was raised. See Grom v. Burgoon,
672 A.2d 823, 824-25 (Pa. Super. 1996) (“[T]he question of subject matter
jurisdiction may be raised at any time, by any party, or by the court sua
sponte.”). When determining whether we have subject matter jurisdiction, a
question of law, our standard of review is de novo and the scope of our
review is plenary.    Corbett v. Locust Twp., 968 A.2d 1263, 1269
(Pa. 2009).




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J-A18024-14



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 arguably pertain to this case,

both of which are discussed by Morgan and in Barbara Mumma’s response to

Morgan’s motion. 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 the case, the claim will be irreparably lost.”

Pa.R.A.P. 313(b).

      Barbara Mumma relies foremost upon Rule 342, which 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:

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

                                     ***

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

Pa.R.A.P. 342. In her opposition to Morgan’s motion, Barbara Mumma cites

no case law to support her argument that this Court should find jurisdiction

based upon these provisions. However, our Supreme Court and this Court

recently have taken up the question under similar circumstances.


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J-A18024-14



       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 342.6 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.

       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

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

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


____________________________________________


6
       Rule 342 was amended, effective February 12, 2012, in ways that are
reflected in the reproduction immediately supra. These amendments factor
into the instant jurisdictional question in ways discussed at length, infra.



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

the appellant appealed the orphans’ court’s order. This Court quashed that

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.   Similarly, the orphans’ court directed that the co-executors

take the necessary steps 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:

     Rule 342 allows Orphans’ Court judgments 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.



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J-A18024-14


     “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’s response was telling:

     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
     [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




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J-A18024-14


       administration of decedents’ estates would be unreasonably
       delayed.[7]

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).

       The Court also held that the order in question 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” in furtherance of the final accounting and

distribution of the estate provided for by the will could be “collateral to the

main cause of action.” Id. 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.

____________________________________________


7
      In light of this case’s procedural history, and in particular Mumma’s
penchant for filing appeal after appeal in this Court, we cannot write off
these comments as hyperbolic or hypothetical.



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J-A18024-14



       After Stricker, however, the Supreme Court amended Rule 342. No

longer was the question of appealability vested strictly in the orphans’ court.

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.            As noted, in

relevant part, Barbara Mumma argues that subsections (a)(1) or (a)(6)

apply in this case.8 These subsections respectively designate orphans’ court

orders that either “confirm[] an account, or authoriz[e] or direct[] a

distribution from an estate or trust” or “determin[e] an interest in real or

personal property” as immediately appealable.           Pa.R.A.P. 342(a)(1), (6).

Such orders, moreover, must be appealed within thirty days of their entry

or the right to appeal them will be deemed waived. Pa.R.A.P. 342(c); see

Pa.R.A.P. 903(a) (prescribing thirty-day time limit).

       This Court interpreted and applied amended Rule 342 in In re Estate

of Ash, 73 A.3d 1287 (Pa. Super. 2013).            In that case, the will at issue

made specific cash bequests and directed that the remaining personal and
____________________________________________


8
      In addition to subsections (a)(1) and (a)(6), Barbara Mumma suggests
in passing that subsections (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”), and (4) (“An order interpreting,
modifying, reforming, or terminating a trust”) also may apply to this case,
but does not specify why she believes this to be the case. Answer to Motion
to Quash Appeal at 4 n.3. We can discern no arguable basis upon which to
align the orders subject to the instant appeal with any of those criteria.
Accordingly, our discussion focuses exclusively upon subsections (a)(1)
and (a)(6).



                                          - 16 -
J-A18024-14



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’ various disputes

regarding the property were resolved.          The administratrix, however,

indicated that it 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’

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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 reviewed the case in light of the Supreme Court’s Stricker

decision, and found the facts in Ash to be apposite, notwithstanding the

intervening amendment 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
      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


                                     - 18 -
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         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.

         Although Mumma does not directly engage the argument for quashal,

leaving that task to Barbara Mumma, in his brief on the merits he raises one

consideration that arguably distinguishes Ash and Stricker. The argument

in question nominally addresses the merits rather than the justiciability of

the appeal, but it is presented in a form that implicates the jurisdictional

issue.     Specifically, Mumma argues that the orphans’ court improperly

directed Morgan to liquidate assets that are owned in substantial part by

entities other than the estate. Brief for Mumma at 23-26, 34-36.

         Unless Mumma’s characterization of the ownership of various interests

and properties as fractional distinguishes this case dispositively from Ash

and Stricker, it is plain that Stricker, and by extension Ash, would compel

us to rule that this appeal is interlocutory. In Ash and Stricker, as Mumma



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observes, the estate’s ownership of the properties in question was, indeed,

undisputed.   Instead, solely at issue were questions pertaining to the

executor’s authority to dispose of those properties in advance of distributing

the proceeds and balance of the estates to the relevant beneficiaries. Thus,

in effect, neither Barbara Mumma nor Mumma have posited any other basis

upon which we might find that their invocations of Rule 342(a)(1) and (6)

are not in vain under those precedents.

      Accordingly,     we   must   assess    the   accuracy    of   Mumma’s

characterization of the relevant orphans’ court orders as directing the

liquidation of property that the estate does not own.     The first and more

specific of the orders granted “the Petition of [Morgan] to authorize the sale

of the real property owned by the Estate of [Testator], located on UPS Drive

in Dauphin County and commonly referred to by the parties as ‘the UPS

Property.’”   Order I, 5/10/2013.     The second order, in relevant part,

provided as follows:

      [U]pon the recommendation of the [a]uditor in this case it is
      hereby ordered that the request of [Morgan], that she be
      authorized to proceed with a plan of liquidation, is hereby
      granted. [Morgan] is authorized and directed to proceed with a
      plan of liquidation of the assets remaining in the trust[s]
      established under the Seventh Section and Eighth Section of the
      Last Will and Testament of [Testator], and following receipt by
      this Court of its Order regarding the accounts previously filed to
      distribute then remaining assets among and between the named
      beneficiaries . . . in equal shares without further order of this
      Court.

Order II, 5/10/2013.


                                    - 20 -
J-A18024-14



       Order II, in particular, does not clearly direct anything with respect to

the specific circumstances of the fractional ownership of various assets.

First, it directs the implementation of “a plan of liquidation of the assets

remaining in the trust[s]” (emphasis added).          It does not specify such a

plan, nor does it respond directly or preemptively to any challenges to the

prospective contours of such a plan. It stands to reason, as a matter of law

and of common sense, that such a plan could have provided for the

disposition of only those assets remaining in the trusts, whether fractional or

otherwise.     While it is true that Morgan might erroneously or improperly

seek to sell interests that the trusts do not own, it is not at all clear that no

remedy will lie in the event that she does so.          Moreover, nothing in the

language of Order II directs the sale of any assets not held by the trusts.

Consequently, any disputes that occur with respect to the particular

properties or interests that Morgan seeks to sell must be taken up as they

arise, not hypothetically.9

       Order I, however, is more specific.         That order calls for Morgan to

authorize the sale of “the UPS Property,” which the court identified therein

as “the real property owned by the [e]state of” Testator. Mumma’s point is

that the orphans’ court did not direct the sale of the Trust’s interest in that

property, but rather of the property in its entirety.

____________________________________________


9
      Cf. Silver v. Zoning Bd. of Adjustment, 112 A.2d 84, 87 (Pa. 1955)
(“A court should not render advisory decisions on hypothetical facts.”).



                                          - 21 -
J-A18024-14



      Notably, the orphans’ court emphasized the limited scope of Orders I

and II in terms directly responsive to Mumma and Barbara Mumma’s appeals

to Rule 342(a)(1) and (6):

      The order now on appeal does not purport to adjudicate title to
      specific items of property or to dispose of the myriad of
      objections that have been filed to accounts in this matter.
      Distributions by Morgan inconsistent with the ultimate resolution
      of those objections would obviously involve a personal risk that
      she might not choose to incur in the absence of satisfactory
      releases.

O.C.O. at 11 (footnotes omitted).

      To the extent the orders speak to, or incorporate, Morgan’s prayers for

relief—in itself, a debatable point—the orders do not appear to authorize or

direct Morgan to sell what she or the interests she commands do not control.

In connection with the UPS Properties, Morgan requested the following relief:

“[Morgan] seeks an order from [the orphans’ court] authorizing her to

proceed with the sale of the [UPS Properties], upon the terms and conditions

of the Agreement [for Purchase and Sale].”     Petition to Authorize Sale of

Real Estate at 2. In connection with her broader liquidation petition, Morgan

requested the following relief:

      [Morgan] seeks an order from [the orphans’ court] authorizing
      her to engage a third party, experienced in the sale of real
      estate, to conduct an orderly exposure of the real estate owned
      by the Trusts, [D.E. Distribution, G-A-T Distribution, Mumma
      Realty Association I (“MRA I”) and Mumma Realty Association II
      (“MRA II”) (collectively, the “Tenancies-In-Common”)], to the
      market, for ultimate sale, with the net proceeds to be so
      distributed, and further to surrender the life insurance policies
      held by [D.E. Distribution] for the cash value of such policies,


                                    - 22 -
J-A18024-14


      thereby providing liquidity in the interim until the [t]rust’s assets
      may be converted to cash for ultimate distribution.

Petition to Authorize Plan of Liquidation at 6.

      In Morgan’s liquidation petition, she identified the relevant fractional

ownership interests of the Tenancies-In-Common.              The Tenancies-In-

Common are owned in part by Mumma, Linda Mumma, Barbara Mumma,

and Morgan (individually).    Additionally, the estate of Widow also has an

interest in MRA I. Petition to Authorize Plan of Liquidation at 2-3. In her

liquidation petition, Morgan asserted, and neither Mumma nor Barbara

Mumma disputes, that the trusts and Morgan’s interests combined add up to

87.3% of MRA I and 98.6% of MRA II, with the vast majority of those

tenancies (81.8% and 98.1%, respectively) owned by the trusts.           Id.   In

connection with the Tenancies-In-Common, owners are authorized to act,

including the sale of “the entire Premises or any part thereof,” only by a

majority vote weighted according to the respective shares of the tenants-in-

common.       MRA   Agreement     Among       Tenants-in-Common,    12/19/1986,

at 12 ¶4. But see id. at 8 ¶ 3 (providing restrictions upon, and a right of

first refusal in association with, a tenant-in-common’s effort to sell his or her

interest in the tenancy-in-common).

      Morgan further asserts that the trusts own 50% of the stock of Union

Quarries, Inc., with the remaining shares held by third parties with no

relationship to the estate. As well, the trusts own a parcel of real estate in

Cumberland County, Pennsylvania. Id. at 3. The trusts also own 27.2% of



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J-A18024-14



the stock in D.E. Distribution, with additional shares distributed amongst the

estate of Widow, Mumma, Linda Mumma, Barbara Mumma, and Morgan.

Id. at 4. Thus, as executrix of Widow’s estate and the trusts, and in tandem

with her own individual holdings in D.E. Distribution, Morgan controls 58.1%

of that entity. The same pattern obtains with regard to G-A-T Distribution,

of which the trusts own 80.1%, the estate of Widow owns 18%, and Morgan

individually holds 0.5%, for a total share of approximately 98.6%. Id. at 4-

5.

      While it is true that, in the liquidation petition, Morgan seeks to

“expose” the real estate owned by various entities, she does not request

that the court direct any certain corporate activity on the part of those

entities, nor does she expressly seek to bypass any governing bylaws or

agreements pertaining to them or to the Tenancies-In-Common that might

be necessary to effectuate sale of those interests. At most, her prayer for

relief relies upon the silent premise that such liquidations will be practicable

because Morgan, in her various individual and representative capacities, has

authority, through her constructive control of majority interests in the

subject property (combining the trusts’ interests, the interests of the

Widow’s estate—as to all of which Morgan serves as executor—and Morgan’s

individual interests) to effectuate that result.

      Given the generality of the orphans’ court’s orders, it is not for us to

assess how, precisely, Morgan intends to or actually will seek to dispose of

the trusts’ various assets and holdings in which the trusts hold exclusive or

                                      - 24 -
J-A18024-14



fractional interests.     To the extent this implicates corporate parties, there

may be legitimate grounds for dispute as to her authority to act in the face

of opposition. That, in turn, may form the foundation of a wholly separate

legal action. Such a dispute would not be the first ancillary dispute resolved

separately that is associated with the Mumma Estate. However, this does

not by itself warrant a finding that the orphans’ court’s order is appealable

as of right under Rule 342 or as a collateral order under Rule 313.10         It

simply does not materially distinguish this case from Stricker and Ash.

       As well, we cannot overlook the fact that Morgan’s authority in this

regard already has been decided by this Court in a prior decision:

       [Testator] specifically provided Morgan, in her role as his
       personal representative when making an equal distribution
       among the four sibling beneficiaries, with the power to decide
       how to “make distribution of any trust herein created, either in
       money or in kind, or partly in money and partly in kind.”
       [Testator] further indicated that the “judgment of the trustees as
       to what shall constitute an equitable distribution or
       apportionment shall be binding and conclusive upon the
       beneficiaries thereof.”

Mumma, 41 A.3d at 50 (emphasis in original; citations omitted).              In

authorizing Morgan to make distributions in kind, Testator also gave Morgan

the means to address any indivisible property interests or shares in



____________________________________________


10
     To the contrary, since Rule 313 was not amended in the wake of the
Ash decision, there is little question that Ash controls the Rule 313
argument in this case in favor of quashal.



                                          - 25 -
J-A18024-14



corporate entities. Whether she opts to resolve them in that fashion, rather

than by liquidating them entirely, necessarily is conjectural at this juncture.

      In light of these considerations, we interpret the orphans’ court’s

orders as authorizing Morgan to liquidate the Trust’s assets. Because that

liquidation is a condition precedent to a final accounting and distribution of

the trusts, the orders do not “confirm[] an account, or authoriz[e] or direct[]

a distribution from the trusts.”   Pa.R.A.P. 342(a)(1).    Because the events

necessary to those steps have yet to occur, Rule 342(a)(1) does not apply to

render Mumma’s and Barbara Mumma’s justiciable at this time.

      Correlatively, we do not find that the orphans’ court’s orders were

intended to authorize, or have the effect of authorizing, Morgan’s disposition

of assets that the trusts do not own or do not own a controlling interest in,

without regard to the separately prescribed procedures for, or restrictions

upon, such actions. Nor do they “determin[e] an interest in real or personal

property.” Pa.R.A.P. 342(a)(6). The mechanics of Morgan’s liquidation must

be left to the agreements, bylaws, or laws that apply to the disposition of

those assets, a matter for another day and perhaps another tribunal.          In

providing for the liquidation of the trusts’ assets, such as they are, the

orphans’ court merely reaffirmed Morgan’s right to exercise the authority

that was vested in Morgan by the terms of the governing estate documents,

which already has been reaffirmed by this Court. Thus, the orphans’ court’s

orders are no more appealable under Rule 342(a)(6) than they are under

Rule 342(a)(1).

                                     - 26 -
J-A18024-14



      When all of the peripheral matters are set aside, we are left with a

circumstance that is not materially distinguishable from those that obtained

in Stricker and Ash, in which the predominant issue was the executor’s

authority to liquidate estate assets as he or she deemed appropriate in

furtherance of a final accounting and distribution of the estate.   An order

authorizing an executor to liquidate assets held by an estate or trust, which

is an order short of a final accounting of the estate in question, is an

interlocutory order not subject to immediate appellate review. Accordingly,

we lack jurisdiction to hear the instant appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




                                     - 27 -
