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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: ESTATE OF TIERNE RICHELLE             IN THE SUPERIOR COURT
    EWING, DECEASED                                 OF PENNSYLVANIA




    APPEAL OF RICHARD D. KOPKO

                                                    No. 1146 WDA 2018


                  Appeal from the Order Entered July 13, 2018
              In the Court of Common Pleas of Washington County
                   Orphans' Court at No: C -63-0C-2016-1169

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

MEMORANDUM BY STABILE, J.:                            FILED JULY 29, 2019

        Appellant Richard D. Kopko, father of Tierne Richelle Ewing, deceased

("Decedent"), appeals from an order denying his petition to remove Morgan

Miller ("Miller"), Decedent's daughter and Appellant's granddaughter, as

personal representative of Decedent's estate. The Orphans' court held that

Appellant lacked standing to seek Miller's removal. We affirm.

        On August 30, 2016, Decedent's husband, Kevin Ewing ("Husband"),

murdered Decedent and then took his own life. Decedent died without    a   will.

At the time of the murder/suicide, Husband was living with his mother,

Rosalee Riggle, due to   a   Protection From Abuse ("PFA") order obtained by

Decedent.    Husband and Decedent were the parents of two children, Morgan

and Deryk Miller. Decedent had no other issue.
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        On September 30, 2016, the Register of Wills of Washington County

appointed Miller the personal representative of Decedent's estate. On March

1,   2018, Appellant, Decedent's father and Miller's grandfather, filed      a   petition

to remove Miller as personal representative.           He   subsequently amended his

petition to allege that (1) Miller did not notify authorities that there were

violations of the    PFA   order prior to Decedent's murder, (2) Miller failed to file

a    wrongful death action against Riggle and other persons,' and (3) for these

reasons, Miller was conflicted from serving as personal representative.

Appellant himself filed     a   wrongful death action, naming himself as the plaintiff,

despite the fact that he was not Decedent's personal representative. Appellant

also obtained an order to show cause why Miller should not be removed as

personal representative.

        Miller filed preliminary objections to Appellant's amended petition.          On

July 13, 2018, the Orphans' Court sustained Miller's preliminary objections

and dismissed Appellant's amended petition on the ground that Appellant

lacked standing to seek Miller's removal.          This timely appeal followed. Both

Appellant and the Orphans' Court complied with Pa.R.A.P. 1925.

        Appellant raises six issues in this appeal, but we limit our review to the

standing issue because it is dispositive of this case.            We agree with the




' Miller states     brief that she filed a wrongful death action against Riggle
                  in her
and other defendants subsequent to dismissal of Appellant's petition. Miller
also provides the caption and docket number of this action. Miller's Brief at
13-14 & n.2.

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Orphans' Court that Appellant lacks standing to seek dismissal of Miller as

personal representative.

        When, as here, an individual dies intestate, the Decedents, Estates and

Fiduciaries Code ("Code") identifies the individuals who are eligible to serve

as the personal      representative of the decedent's estate:

        Letters of administration shall be granted by the register, in such
        form as the case shall require, to one or more of those hereinafter
        mentioned and, except for good cause, in the following order:

        (1) Those entitled to the residuary estate under the will.

        (2) The surviving spouse.

        (3) Those entitled under intestate law as the register, in his
        discretion, shall judge will best administer the estate, giving
        preference, however, according to the sizes of the shares of those
        in this class[.]

20 Pa.C.S.A.     §   3155(b)(1)-(3).

        Section 3183 of the Code prescribes the procedure for removing            a


personal representative as follows:

        The court on its own motion may, and on the petition of any
        party in interest alleging adequate grounds for removal shall,
        order the personal representative to appear and show cause why
        he should not be removed, or, when necessary to protect the
        rights of creditors or parties in interest, may summarily remove
        him. Upon removal, the court may direct the grant of new letters
        testamentary or of administration by the register to the person
        entitled and may, by summary attachment of the person or other
        appropriate orders, provide for the security and delivery of the
        assets of the estate[.]

20 Pa.C.S.A.     §   3183 (emphasis added). Section 3183 provides that   a   person

must be     a    "party   in   interest" to have standing to seek the personal


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representative's removal. The question thus becomes whether Appellant                           is a

"party   in    interest."   He is not.

         We first note that Appellant is not a beneficiary of Decedent's estate.

Section 2103 of the Code provides that when, as here, the decedent dies

without    a   will,

        The share of the estate, if any, to which the surviving spouse is
        not entitled, and the entire estate if there is no surviving spouse,
        shall pass in the following order:

         (1) Issue.-To the issue of the decedent.
         (2) Parents.-If no issue survives the decedent, then to the
         parents or parent of the decedent.
         (3) Brothers, sisters, or their issue.-If no parent survives the
         decedent, then to the issue of each of the decedent's parents              .   .   .




20 Pa.C.S.A.       §   2103 (emphasis added).

         In this case, Husband's estate has no share of Decedent's estate

because he murdered her. 20 Pa.C.S.A. §§ 8801-8815 (Slayers Act). Under

Section 2103(1), Decedent's two children become the lone beneficiaries,

leaving Appellant without an interest in the estate. Similarly, Appellant lacks

an interest in the proceeds of a wrongful death action arising from Decedent's

death. The wrongful death statute, 42 Pa.C.S.A.            §   8301, limits the right of

action to "the spouse, children and parents of the deceased," and any

proceeds of this action "shall be distributed to the beneficiaries in the

proportion they would take the personal estate of the decedent in the case of

intestacy[.]" 42 Pa.C.S.A.         §   8301(b). Because Appellant   is   not   a   beneficiary


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under Section 2103(1), he is also not          a   wrongful death beneficiary. For these

reasons, Appellant is not   a   "party   in   interest" who has standing to seek Miller's

removal under Section 3183.

        Estate of Briskman,           808 A.2d 928 (Pa. Super. 2002), provides

analogous support for our decision. There, the decedent was never married

and had no children, and her 1993 will named the manager of her local bank

as both   executor and sole beneficiary of her estate.             The register of wills

probated the 1993 will and granted letters testamentary to the bank manager.

Subsequently, the decedent's niece filed an action claiming the bank manager

procured the 1993 will through undue influence.                The niece submitted the

decedent's 1984 will, which named the decedent's then -attorney as primary

executor and trustee and the niece as secondary trustee if the attorney was

unable to serve.   The Orphans' Court held that the niece was                a   "party   in

interest" under 20 Pa.C.S.A.      §   9082 entitled to challenge the probate of the

1993 will. The court reversed the decision of the register of wills and vacated

the letters issued to the bank manager.                We reversed, reasoning that the

niece's status as successor trustee under the 1984 will did not make her                  a


party in interest with standing to contest the 1993 will.



2 Section 908 provides, in relevant part: "Any party in interest seeking to
challenge the probate of a will or who is otherwise aggrieved by a decree of
the register, or a fiduciary whose estate or trust is so aggrieved, may appeal
therefrom to the court within one year of the decree[.]" A different statutory
provision, Section 3183, is under review in the present case, but both statutes
have the same operative phrase, "party in interest."

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        [W]e are hard pressed to find that [the niece] has any interest
        that has been aggrieved by probate of the 1993 will. Indeed, even
        under the 1984 will, [the niece's] "interest" would arise only if the
        named trustee       were unable to serve.
                                .   .   .




        We find that [the      niece's] contingent interest, either as a
        successor trustee under the 1984 will, or as an intestate heir at
        law if both wills are deemed invalid, is too remote to confer upon
        her an interest in the probate of the 1993 will.

        Moreover, even if we were to assume [the niece] has a legitimate
        interest in the outcome of the will contest, historically, that
        interest must be substantial, direct, and immediate to confer
        standing.   .  A "substantial" interest is an interest in the outcome
                        .   .


        of the litigation which surpasses the common interest of all
        citizens in procuring obedience to the law. A "direct" interest
        requires a showing that the matter complained of caused harm to
        the party's interest. An "immediate" interest involves the nature
        of the causal connection between the action complained of and
        the injury to the party challenging it, and is shown where the
        interest the party seeks to protect is within the zone of interest
        sought to be protected by the statute or constitutional guarantee
        in question.

        Here,   although [the niece's] interest might be considered
        substantial, that is, one that surpasses the common interest of all
        citizens, it is neither direct nor immediate [because it] arises only
        if the named trustee is unavailable to serve under the 1984 will,
        or if both the 1993 will and the 1984 will are invalidated.

Id. at 931-33 (citations                    and quotations omitted).          Although Briskman

involved   a   different statute from the one at issue              in   the present case, see n.2,

supra, its analysis of "party                in   interest" applies with equal force to this case.

Even if Appellant's interest is substantial, it is neither direct nor immediate,

because Decedent's children are the only beneficiaries under the statutes

governing intestate succession and wrongful death actions. Thus, Appellant


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is   not   a   party in interest with standing to seek Miller's removal as personal

representative.

           Accordingly, we affirm the Orphans' Court's order sustaining Miller's

preliminary objections and dismissing Appellant's petition to remove Miller as

personal representative of Decedent's estate.

           Order affirmed.



Judgment Entered.


                     7Atze4x,;11,-.
Joseph D. Seletyn, Es
Prothonotary


Date: 7/29/2019




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