J-A25012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ESTATE OF: HOLLIS C. GORDON,               :   IN THE SUPERIOR COURT OF
    SR., DECEASED                              :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: JAMES A. GORDON                 :
                                               :
                                               :
                                               :
                                               :   No. 1175 EDA 2017

                   Appeal from the Decree December 5, 2016
              In the Court of Common Pleas of Philadelphia County
                    Orphans' Court at No(s): 955 AP of 2014


BEFORE:      OTT, J., STABILE, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 15, 2017

        James A. Gordon appeals pro se from the decree entered December 5,

2016, in the Court of Common Pleas of Philadelphia County, that sustained

preliminary objections (“Second Preliminary Objections”) filed by Willie

Canada, executrix of the Estate of: Hollis C. Gordon, Sr., Deceased, to the

Petition for Citation for Will Appeal (“Fifth Petition”), filed by Gordon, and

joined by Evonia E. Scott and Mary H. Gordon. We affirm on the basis of the

trial court opinion.

        The parties are well acquainted with the relevant facts and procedural

history of this case, which are fully set out in the orphans’ court’s opinion and

need not be restated herein. See Orphans’ Court Opinion, dated 3/20/2017,

at 1–5.

____________________________________________


   Former Justice specially assigned to the Superior Court.
J-A25012-17



        Gordon presents two questions for our review, which we have reordered,

as follows:

        Whether probate may be attacked on the ground of fraud
        practiced upon the Register of Wills after the time fixed by statute
        for an appeal has run?

        Does an heir-at-law of Decedent have standing to appeal the
        probate decree, when the heir-at-law is allegedly not a beneficiary
        under Decedent’s probated [2014] will, and there is a prior
        testamentary document allegedly executed by the Decedent
        allegedly excluding the heir-at-law as a beneficiary[1]?

Appellant’s Brief, at 4 (some capitalization removed).2

        The following principles guide our review:

        [T]he Orphans’ [C]ourt decision will not be reversed unless there
        has been an abuse of discretion or a fundamental error in applying
        the correct principles of law.

In re Estate of Whitley, 50 A.3d 203, 206-207 (Pa. Super. 2012) (internal

quotation marks and citation omitted).

            On an appeal from an order sustaining preliminary
            objections, we accept as true all well-pleaded material
            facts set forth in the appellant’s complaint and all
            reasonable inferences which may be drawn from those
            facts. Preliminary objections seeking the dismissal of a
            cause of action should be sustained only in cases in which
            it is clear and free from doubt that the pleader will be
            unable to prove facts legally sufficient to establish the right
            to relief; if any doubt exists, it should be resolved in favor
            of overruling the objections.


____________________________________________


1   Under Decedent’s prior, 2009 Will, Gordon received a $5.00 specific bequest.

2 Gordon timely complied with the order of the orphans’ court to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

                                           -2-
J-A25012-17


       Threshold issues of standing are questions of law; thus, our
       standard of review is de novo and our scope of review is plenary.

Rellick-Smith v. Rellick, 147 A.3d 897, 901 (Pa. Super. 2016) (internal

citations and quotation marks omitted). In addition, “whether the statute of

limitations has run on a claim is generally a question of law for the trial judge.”

Wilson v. Transp. Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005) (internal

quotation marks and citation omitted).

       Mindful of our standard of review, and having examined the record, the

briefs of the parties, the applicable law, and the well-reasoned opinion of the

Honorable John W. Herron, we conclude Gordon’s issues warrant no relief.

Judge Herron’s opinion comprehensively addresses and properly disposes of

both questions raised by Gordon in this appeal. See Orphans’ Court Opinion,

dated 3/20/2017, at 5–13 (finding, inter alia: (1) Petitioners’ Fifth Petition is

untimely filed beyond the applicable statute of limitations, 20 Pa.C.S. §

908(a),3 and orphans’ court cannot set aside the one year time limit in this

case where there is only a threadbare allegation that “both the [2014 Will]




____________________________________________


3 Section 908 of the Probate, Estates, and Fiduciaries Code provides that any
“party in interest seeking to challenge the probate of a will or who is otherwise
aggrieved by a decree of the register . . . may appeal therefrom to the
[orphans'] court within one year of the decree.” 20 Pa.C.S. § 908(a).




                                           -3-
J-A25012-17


and the [2009 Will] are fraudulent and were not drafted by”4 Decedent,5 and

(2) the orphans’ court could have dismissed Petitioners’ Fifth Petition based

on the fact that Petitioners lacked standing since, under the 2009 Will, which

could be probated if the 2014 Will was invalidated, petitioners were effectively

disinherited by the nominal bequest of $5.00 each, and therefore do not

qualify as a “party in interest” under 20 Pa.C.S. § 908(a); Estate of

Briskman, 808 A.2d 928, 932 (Pa. Super. 2002) addresses a similar issue. 6).

Accordingly, we affirm based upon the sound reasoning of the trial court.


____________________________________________


4 Orphans’ Court Opinion, dated 3/20/2017, at 6, quoting Gordon’s Answer to
the Second Preliminary Objections, 11/28/2016, ¶14. See also Gordon’s Fifth
Petition, 9/1/2016, at ¶12.

5 The orphans’ court acknowledges that in Estate of Colucci, 492 A.2d 1155,
1156 (Pa. Super. 1985), this Court remanded the case to the orphans’ court
“to afford Appellant the opportunity to amend his Notice specifying his
allegations and for an appropriate evidentiary hearing on the existence of
forgery in the signature of the will admitted to probate.” Id. at 1156. Here,
however, the orphans’ court concludes the threadbare allegation of fraud in
Gordon’s Fifth Petition does not warrant an evidentiary hearing. See Orphans’
Court Opinion, dated 3/20/2017, at 8–9 n.5, citing In re Estate of
Kirkander, 415 A.2d 26 (Pa. 1980).

       In Kirkander, a will appeal was allowed two years after the statute of
limitation had run where the petition contained well pleaded allegations the
decedent’s and a witness’s signatures on the will were forgeries. See id. at
27. We agree with the orphans’ court’s conclusion that a comparison of the
specificity of the fraud allegation in Kirkander with the allegation of fraud in
Gordon’s petition demonstrates reversal and remand for an evidentiary
hearing is not appropriate here.

6In Estate of Briskman, supra, this Court held that an heir of law of the
decedent who was not a beneficiary, but was a named successor trustee under



                                           -4-
J-A25012-17


       Decree affirmed.7

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2017




____________________________________________


a prior will, was not “a party in interest aggrieved by the decree of the register”
with standing to appeal. 808 A.2d at 931. The Court explained: “[The heir at
law’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. Id. at 933.

7In the event of further proceedings, the parties are directed to attach a copy
of the orphans’ court’s opinion, dated March 20, 2017, to this memorandum.

                                           -5-
                                                                                       Circulated 10/16/2017 10:32 AM




                     COURT OF COMMON PLEAS OF PHILADELPHIA
                            ORPHANS' COURT DIVISION

                            Estate of Hollis C. Gordon, Sr., Deceased
                                    O.C. No. 955 AP of2014
                                       Control No. 165214

                                       Opinion Sur Appeal

        There are two pertinent issues that this opinion addresses: (1) Can a court waive the

statutory time period to appeal the probate of a wil1 based only on a threadbare allegation that the

will was fraudulent? and (2) Does an heir that received nothing in a probated will have standing

to challenge that will where a successful challenge would result in the probate of a prior will

under which the heir received a de minim is bequest of $5.00?

        In a Decree dated December 5, 2016, this Court sustained Preliminary Objections

("Second Preliminary Objections") by Willie Meana Canada ("Respondent"), Executor of the

Estate of Hollis C. Gordon, Sr., deceased, to the Petition for Citation for Will Appeal ("Fifth

Petition"), filed by James A. Gordon and joined by Evonia E. Scott and Mary H. Gordon

{collectively "Petitioners"), because the Fifth Petition was filed on September I, 2016, which is

more than one year after the date that the Will of Hollis C. Gordon, Sr., deceased was probated.

On December 23, 2016, Petitioners appealed that decision to the Superior Court. For the reasons

explained herein, this Court properly sustained the Second Preliminary Objections.


   I. FACTUAL AND PROCEDURAL BACKGROUND

       Hollis C. Gordon, Sr. ("Decedent") died on November 27, 2014 survived by 10 children,

including Petitioners, Patricia A. Conway, and Respondent. See Fifth Petition ,i,i 1-2. Decedent

had executed or purportedly executed two wills during his lifetime--one on July 16, 2009

("2009 Will") and one on May 20, 2014 ("2014 Will"). See Second Preliminary Objections, 114,

                                                                    Ho!hs C Gordon, Sr, Appeal From Register
                                                 1


                                                                    I 111111111111111111111
                                                                          20140095502043
11.1 The 2009 Will bequeaths "only the amount of $5.00 each, and nothing else" to Petitioners

and bequeaths the residue in equal shares to the other seven children. See Second Preliminary

Objections, Ex. C. The 2014 Will bequeaths nothing to Petitioners, makes several specific

bequests, and bequeaths the residue in equal shares to the other seven children and three

grandchildren. See Second Preliminary Objections, Ex. G.

         On July 23, 2015, upon consideration of a petition by Respondent and Patricia A.

Conway to admit to probate the 2009 Will and objections thereto. by Petitioners, the Probate

Court of Screven County, Georgia admitted the 2009 Will to probate and issued Letters

Testamentary. See Second Preliminary Objections, ~ IO and Ex. F. On August 14, 2015, upon

consideration of a petition by Respondent, the Register of Wills of Philadelphia County admitted

to probate the 2014 Will and granted Letters Testamentary to Respondent. See Second

Preliminary Objections, ~ 13 and Ex. H.

         On November 25, 2015, Petitioners filed with this Court a Petition for Citation for Will

Appeal, which this Court dismissed without prejudice for failure to allege facts to support

disturbing the Register of Wills' decision to probate the 2014 Will. This Court also dismissed

without prejudice the Petitioners' Petition for Citation for Will Appeal filed on January 5, 2016

for the same reasons. This Court dismissed without prejudice the Petitioners' Petition for

Citation for Will Appeal filed on March 30, 2016 for failure to include "the names and addresses

of all parties in interest" as required under what was then Phila. O.C. Rule 10.2.C(2)(c). On April

25, 2016, Petitioners filed another Petition for Citation for Will Appeal ("Fourth Petition")

wherein they asserted that "the decedent lacked mental capacity procured by undue influence


1   As will be discussed infra, Petitioners allege that both the 2009 Will and 2014 Will "are fraudulent and were not
    drafted by [Decedent]." See Fifth Petition, ,i 12.
                                                          2
[sic], duress and/or constraint to execute a Will on May 20, 2014."2             See Fourth Petition j 11.

         The Fourth Petition complied with Phila. 0.C. I 0.2.C(2)(c) and contained non-

conclusory factual allegations that gave plausibility and context to the assertion of lack of

testamentary capacity, including the following allegations: Decedent was admitted to the hospital

on May 29, 2014 (nine days after he executed the 2014 Will) with "symptoms and diagnosis of a

severe stroke"; physicians at the hospital determined that Decedent was "deteriorating as a

starving victim, since his internal-body-system [sic) was feeding off his internal-body-organs

[sic] as their only source of nutrition leading the hospital's medical staff to classify [Decedent]

for immediate placement for hospice as a terminally ill patient"; and "hospital medical staff

concluded [that Decedent's] mental and physical capacity was severely diminishing long before

his May 29, 2014 hospital admission." See Fourth Petition j'[ 5-8. Accordingly, this Court

granted a Citation in a Preliminary Decree dated April 26, 2016, which required Respondent to

show cause why this Court should not sustain the Will Appeal and revoke the Letters

Testamentary due to Decedent's alleged lack of testamentary capacity at the time that he

executed the 2014 Will.

         On June 8, 2016, Respondent filed Preliminary Objections ("First Preliminary

Objections") to the Fourth Petition wherein she argued that Petitioners lacked standing to

challenge the probate of the 2014 Will.3 Her argument was essentially as follows; if the 2014


2   Petitioners seemed 10 be asserting that Decedent lacked testamentary capacity when he executed the Will, the
    Will was procured by undue influence, and the Decedent was under duress when he executed the Will. However,
    the Fourth Petition lacked specific factual allegations to support the latter two assertions.
3   In her First Preliminary Objections, Respondent also included allegations that James A. Gordon "had a long
    history of abusing and harassing" her, the Court of Common Pleas of Philadelphia County previously issued a
    Final Protection from Abuse Order against Petitioner, and she was afraid of James A. Gordon and the prospect of
                                                                            ,m
    "being cross-examined by her abuser." See First Preliminary Objections, 29-33. The Court did not consider
    these allegations relevant to the disposition of the First Preliminary Objections and Respondent cited no law to
    suggest that they were relevant.

                                                         3
 Will was invalidated, the 2009 Will could be probated; the 2009 Will left only $5.00 each to

 Petitioners compared to nothing in the 2014 Will; "[llosing out on $5.00 does not confer on

 [them] an interest ... that is substantial, direct, and immediate" and did not cause them to be

"reasonably aggrieved by the decision of the Philadelphia Register of Wills"; and, therefore, they

do not have standing to challenge 2014 Will. See First Preliminary Objections.v[ 26. No response

was filed to the First Preliminary Objections within the 20 day time period set forth in what was

then Phila. O.C. Rule 3.2.A(3)(b) and, on July 11, 2016, this Court issued a Decree sustaining the

First Preliminary Objections without prejudice on the ground of standing.

        On September 1, 2016, Petitioners filed yet another Petition for Citation for Will Appeal

(uFifth Petition"), In a Preliminary Decree dated October 12, 2016, this Court granted a Citation

that required Respondent to show cause why the Court should not sustain the Will Appeal and

revoke the Letters Testamentary due to Decedent's alleged lack of testamentary capacity at the

time that he executed the 2014 Will.

        On November 10, 2016, Respondent filed the Second Preliminary Objections wherein

she argues once again that Petitioners lack standing and further notes that the Fifth Petition was

filed 18 days after the expiration of the one year statute of limitations that governs Petitioners'

appeal of the Register of Wills' decision to grant Letters Testamentary to Respondent on August

14, 2015. See Second Preliminary Objections 125. Petitioners timely filed an Answer to the

Second Preliminary Objections, but the Answer mostly rehashed the Fifth Petition and did not

address the timeliness issue or even contain a paragraph 25. Since the Fifth Petition was filed 17

days after the expiration of the one year period during which an appeal may be taken from a

decree of the Register of Wills under 20 Pa.C.S. § 908(a), the Court issued a Final Decree dated

December 5, 2016 ("Final Decree") sustaining the Second Preliminary Objections.

                                                  4
        Petitioners filed a Notice of Appeal on December 23, 2016. This Court issued a Decree

dated January 4, 2017 ordering Petitioners to file a concise statement of errors complained of on

appeal ("Statement")   pursuant to Pa.R.A.P. l 925(b ). Petitioners timely filed the Statement,

which contains 17 numbered paragraphs.

    II. DISCUSSION

       There are two main issues relevant to this appeal: (1) whether the Fifth Petition was

timely filed and (2) whether Petitioners have standing to appeal the Register of Wills' decision to

probate the 2014 Will. These relatively straightforward issues are obfuscated in the Statement by

17 paragraphs consisting mostly of assertions that this Court improperly ignored certain

information. Most of the information that Petitioners assert this Court improperly ignored is

irrelevant or was not alleged before Petitioners filed his Notice of Appeal.

        A. The Court Properly Sustained the Second Preliminary Objections

       Petitioners' Fifth Petition was clearly untimeJy fiJed and thus the Court properly

sustained the Second Preliminary Objections on the ground of untimeliness. "Any party in

interest seeking to challenge the probate of a will or who is otherwise aggrieved by a decree of

the register ... may appeal therefrom to the court within one year of the decree." 20 Pa.C.S. §

908(a). Here, the Register of Wills of Philadelphia County issued a decree on August 14, 2015

probating the 2014 Will and granting Letters Testamentary to Respondent. The Fifth Petition was

filed on September 1, 2016, which is more than one year after August 14, 2015.

       The orphans' court may not set aside the one year time limit for an appeal from the

probate of a will absent "a fraud on the court or the Register of Wills." Dempsey v. Figura, 374

Pa. Super. 347, 351, 542 A.2d 1388, 1390-91 (1988) (citing In re Kirkander's Estate, 490 Pa. 49,

415 A.2d 26 (1980)). Even in cases involving fraud, the statutory time period cannot be set aside

                                                  5
if the appealing party knew or should have known about the alleged fraud during the one year

period.   See In re Kiger's Estate, 487 Pa. 143, 148, 409 A.2d 5, 8 (1979) (upholding orphans'

court dismissal of an untimely will appeal notwithstanding allegations of fraud because the

alleged fraud was "known or at least should have been known at the time the will was

probated"). Furthermore, a general avennent of fraud is insufficient to set aside the one year time

period; ''[aJllegations must be specific in order to compel the court to conduct a hearing." Estate

of Jackson v. Jackson, No. 1612 WDA 2014, 2015 WL 6951263, at *3 (Pa. Super. Ct. June 26,

2015) (quoting In re Estate of Karschner, 919 A.2d 252, 256 (Pa. Super. Ct. 2007)) (internal

quotations marks omitted).

          Based on the pleadings before this Court in this case, the Court lacked the authority to

disregard or extend the one yeru; time limitation set forth in 20 Pa.C.S. § 908(a) and therefore

was obligated to sustain the Second Preliminary Objections resulting in the dismissal of the

untimely Fifth Petition. Although Petitioners alleged in paragraph 14 of their Answer to the

Second Preliminary Objections that they "will prove ... both the [2014 Will] and the [2009 Will)

are fraudulent and were not drafted by" Decedent, there are no specific factual allegations to

support this threadbare allegation of fraud. It is not uncommon nor impermissible for someone

other than a decedent to draft his or her will and Petitioners failed to allege any facts that suggest

that such a common practice somehow amounted to fraud in this case. Given the lack of

specificity in the fraud allegation, the Court could not set aside the one year time period on the

basis of fraud. Additionally, the Court could not set aside the one year time limit because there

was no allegation that the Petitioners had just recently received information that they previously

did not know and could not have been reasonably expected to know that led them to believe that

the 2014 Will was fraudulent. Just as in In re Kiger's Estate, the orphans' court properly declined

                                                   6
to extend the time period for filing a will appeal because the alleged fraud in the form of undue

influence was "known or at least should have been known at the time the will was probated,"

here the court properly declined to extend the statutory time period because Petitioners did not

allege any facts that suggest that they did not know of the alleged fraud at the time that the 2014

Will was probated.      See 409 A.2d at 8. Unlike in In re Culbertson's Estate, where the challenging

parties alleged that the will admitted for probate was forged and the court extended the statutory

time period because the will appeal "was made promptly upon the discovery of the forgery," here

there are no allegations to indicate that Petitioners acted promptly upon discovering the alleged

fraud or even when they discovered it.4 See 301 Pa. 438, 447, 152 A. 540, 543 (1930).

          Given the lack of any supporting details pertaining to this alleged fraud, we do not think

that Petitioners are entitled to a hearing simply because they wrote the word "fraudulent" on a

pleading. In Estate of Jackson v. Jackson, the appellant sought to appeal after the one year time

period in 20 Pa.C.S. § 908(a) a decree from the Register of Wills issuing letters of

administration. 2015 WL 6951263 at *2. The appellant alleged that the administrator "committed

fraud upon the Register by falsely acknowledging in her petition for grant of letters of

administration ... that Decedent left no Will." id at *3 (internal quotation marks omitted).

However, the Superior Court upheld the orphans' court's dismissal of the will appeal because

"the validity of a document or 'paper presented' is not questioned" and"[ n]o forgery of a


4   The Objection to Petition to Probate Will in Solemn Form ("Objection") that Petitioners submitted to the Probate
    Court of Screven County, Georgia to oppose the probate of the 2009 Will alleges that Respondent and Patricia
    Conway "inserted their 'New Page 2' contrary to [Decedent's] devise and bequeath in his Original Last Will and
    Testament." See Second Preliminary Objections, Ex. E. Due to Petitioners' lack of allegations lo support the
    assertion that the 2014 Will is "fraudulent," it is unclear what the alleged fraud consists of. If the alleged fraud
    was the unscrupulous insertion ofa forged page as Petitioners seems to allege in their Objection was the case
    with the 2009 Will that was probated in Georgia, we note that Petitioners' Objection was dated April 28, 2015,
    which demonstrates that they were aware of the alleged fraud as it pertained to the 2009 Will months before the
    probate of the 2014 Will.

                                                           7
document connected to [the administrator's]                 petition [for letters of administration]              is alleged.',   Id.

at *4. Here, as in Estate of Jackson v. Jackson, there is not a specific allegation that any

document submitted to the Register was a forgery or that fraudulent concealment of any material

fact occurred. Unlike in in re Kirkander 's Estate, where the Pennsylvania Supreme Court

remanded a will appeal back to the orphans' court for an evidentiary hearing on the issue of

fraud where the appellant had specifically alleged that the decedent's and a witness's signature

on the probated will were forged, here, as in Estate of Jackson v. Jackson, Petitioners have not

specifically alleged how the 2014 Will is "fraudulent" and thus this Court respectfully suggests

that the Superior Court should not remand the case for an evidentiary hearing. See in re

Klrkander's Estate, 490 Pa. 49, 51, 415 A.2d 26, 27 (1980). In sum, Petitioners have offered

nothing other than a bald assertion that the 2014 Will and 2009 Will are "fraudulent" and their

allegation that the 2014 Will and 2009 Will were not drafted by Decedent provides no useful

information because it is common and permissible for a testator to have someone else (frequently

an attorney) draft his or her will. 5




s   We feel inclined to note a case,    Estate of Colucci, which    would arguably support the notion that this Court
    should have held an evldentlary hearing despite the fact that the fraud allegation was threadbare. See 342 Pa.
    Super. 349, 352, 492 A.2d 1155, 1156 {1985). In        sstote of Colucci, the   orphans' court dismissed a will appeal
    flied more than one year after the probate of the will for untimeliness and declined to set aside the time limit
    based on threadbare allegations of fraud and forgery. Id. at 1155. The Superior Court acknowledged that the
    notice of appeal did not allege sufficient facts to support the concluslon "that there was a forgery of the w1tl
    admitted to probate amounting to fraud on the Register of Wills sufficient to toll the one-year statute of
    llmltatlons," but nonetheless remanded the case back to the orphans' court In~ 2-1 decision "to afford
    Appellant the opportunity to amend his Notice specifying his allegations and for an appropriate                 evrdentlarv
    hearing on the existence of forgery In the signature of the wlll admitted to probate." Id. at 1156.

    The dissent, filed by Judge Popovich, noted that "the party attacking the [w]III nowhere asserts the basis for his
    fraud and forgery allegations" and thus concluded that "the Majority act(ed] prectpltouslv In remanding solely
    on appellant's bald allegationls]" of fraud and forgery. Id. at 1157 (Popovich,        J.,   Dissenting). The dissent
    believed that "appellant's   'boiler-plate'   allegations of fraud and forgery, left unsubstantiated,         fall short of
    preserving an attack on the probate of [the decedent's) will." Id. at 1158 (Popovich,            J.,   Dissenting). We agree
    with Judge Popovich's well-reasoned and thoughtful         dissent. The fstate    of Colucci majority's      reliance on
                                                                8
                          Even ifthe Fifth Petition was timely filed or fraud that would permit an extension of the

                  one year limitation was sufficiently alleged, for the reasons hereafter discussed the Court could

                  have properly dismissed the Fifth Petition based on the fact that Petitioners lacked standing to

                  appeal from the probate of the will. As is discussed in more depth below, the 2009 Will, which

                  could be probated if the 2014 Will was invalidated, effectively disinherited Petitioners and thus
            I

            II    the fact that they are intestate heirs does not confer upon them standing to challenge the 2014

                  Will.
        j                  B. The Court Properly Sustained the First Preliminary Objections
        I
        I                 In their Statement, Petitioners assert that this Court improperly sustained without

                  prejudice the First Preliminary Objections, which effectively dismissed the Fourth Petition

        I
        I
                  without prejudice, because (l) this Court "ignor[ed] the fact [that} Petitioners' Appeal from the

        I        · Register of Wills addressed the grounds of standing" and (2) Respondent never served upon him

                  Respondent's First Preliminary Objections or a twenty day notice to plead. We will address both

                  of these arguments.

                                   1. The Petltloners Lacked Standing to Challenge the 2014 Will
                                       Notwithstanding Their Statuses as Intestate Heirs

                          Only a "party in interest" may "challenge the probate of a will." 20 Pa.C.S. § 908(a).


                    Klrkonder's Estate was misplaced because, unltke in this case and In Estate of Colucci, the appellants in
                    Kfrkander's Estate speclflcally alleged that the decedent's and a witness's signature on the wlll were forged. See
                    Klrkatidet's Estate, 415 A.2d at 27. Here, Petitioner's allegation that he "will prove ... both the [2014 Will] and
                    the (2009 Will) are fraudulent and were not drafted by" the decedent does not give the court "any Insight as to
                    the substance of the claims." See Estate of Co/luci, 492 A.2d at 1157 (Popovich, J., Dissenting}.

    I               Therefore, notwithstanding   the 2-1 decision In Estate   of Colucci, this Court   respectfully suggests that the
    I
    I
                    Superior Court may wish to examine the difference between the tack of specificity of the fraud allegation In this
                    case and the specificity of the fraud allegations in Kirkander's Estate that the Pennsylvania Supreme Court
                    considered when it decided to reverse and remand that case and conclude that, unlike In Kfrkander's Estate
                    where there was a specific allegation of fraud, here a reversal and remand         rs not   appropriate due to the
                    threadbare nature of the fraud allegation.
I
I                                                                             9
j
Since Petitioner's "cause of action arises from § 908 ... [his) standing is a 'jurisdictional

prerequisite" to the action."   See In re Estate of Briskman, 2002 PA Super 287, 113, 808 A.2d

928, 933 (2002) (quoting Grom v. Burgoon, 448 Pa.Super 616, 672 A.2d 823, 824 (1996)). As

previously explained, the First Preliminary Objections were based on Petitioners' alleged lack of

standing given that the invalidation of the 2014 Will would cause the 2009 Will to be operative

and Petitioners would only receive $5.00 each under the 2009 Wi11 compared to nothing under

the 2014 Will. See In re Estate of Sid/ow, 374 Pa. Super. 624, 628, 543 A.2d 1143, 1145 (1988)

(noting that "absent a specific revocation, the doctrine of relative revocation revives an earlier

will [that] has been impliedly revoked by a subsequent will [that] is later declared invalid").

After the Court sustained the First Preliminary Objections without prejudice in a Decree dated

July 11, 2016, Petitioners had 34 days to re-file a will appeal addressing the standing issue within

the one year time limitation, but they did not do so. Furthermore, the Fifth Petition, filed 17 days

after the expiration of the one year period, did not include any additional allegations that would

have established Petitioners' standing to challenge the probate of the 2014 Wil1.

       Petitioners' assertion that they "addressed the grounds of standing" in the Fourth Petition

seems to be based on the fact that the Fifth Petition alleged that they are intestate heirs of

Decedent. While Petitioners did clearly allege in the Fourth Petition that they are intestate heirs

of Decedent (Fourth Petition    ~1 l,   13), the Superior Court has rejected the notion that an intestate

heir "would always be permitted to file an appeal from probate of a will in which the heir is not a

named beneficiary." Estate of'Brlskman, 808 A.2d at 932. Rather, an intestate heir lacks standing

under 20 Pa.C.S. § 908(a) to challenge a will if a successful challenge to that will would revive a

prior will under which the heir had no interest, even if the heir planned to challenge that will too,

because the heir's interest "is too remote" at that point. Id at 933. See also In re Knecht's Estate,

                                                     10
          341 Pa. 292, 298, 19 A.2d 111, 114 ( 1941) (holding that decedent's husband had no standing to

          challenge the probate of a will and codicil thereto where a prior will existed under which "he

          would receive precisely the same interest in the estate"); In re Estate of Swenson, No. 2289

          MDA 2013, 2014 WL 10889531, at *3 (Pa. Super. Ct. Aug. 1, 2014)(citingEstate of Briskman

          and holding that heir had no standing to challenge will because there were prior wills that would

          have to be invalidated in order for the heir to have an interest in the decedent's estate). But See

         Estate of Gralak, 2014 WL 2921592 at*5 (Pa. Com. Pl. June 24, 2014) (citing to Estate of

         Briskman, but nonetheless declining to sustain preliminary objections to standing where an

          intestate heir challenging the probate of the will had no interest under a prior will that could be

         probated if the probated will was invalidated because the heir "alleged that all known purported

         wills of [the decedent] are invalid").

                 While Petitioners arguably have some interest in the 2009 Will because they inherit $5.00

         each under the 2009 Will, in order for that to confer standing on them, it must be a substantial

         interest. See Estate of Briskman, 808 A.2d at 933 (internal citation omitted). We agree with

         Respondent's assertion in paragraph 26 of the First Preliminary Objections that the $5.00 bequest

         in the 2009 Will is not sufficiently substantial to confer standing. See id Decedent effectively

         disinherited Petitioners in the 2009 Will by leaving them a de rninimis bequest of $5.00. See

         Estate a/Susanna H. Praley, Deceased, No. 3244 of 1977, 1979 WL 139272, 3 Phila.Co.Rptr.

         359, 362) (Pa. Orph. Dec. 11, 1979), ajj'd sub nom. In re Proley's Estate, 492 Pa. 57, 422 A.2d

         136 (1980) (noting that "the decedent desired to disinherit» certain heirs "by leaving $1.00 to

         each of them"). We cannot find a published Pennsylvania appellate court case that addresses the
.,
         exact question of whether an heir has standing to challenge a will under which he or she receives

 I
     I   nothing if a successful challenge to that will would result in the probate of a prior will under
 i


                                                           11
which the heir received only a nominal bequest. However, several other state appellate courts

that have addressed similar issues have sensibly concluded that a de minimis bequest in a prior

will does not confer standing on an heir seeking to challenge a will under which he or she

receives nothing.

           In a Tennessee case,      Jolley v. Henderson, two heirs of the decedent argued that they had

standing to challenge the probated will because prior wills bequeathed $10.00 to each of them.

    154 S.W.3d 538, 541 (Tenn. Ct. App. 2004). The court, after noting that one "must have a

substantial interest" in the outcome of a will contest, held that the $10.00 bequest was "de

minimis and thus insufficient to confer standing." Id. at 543.6 To bolster this conclusion, the

court cited to a previous case holding that a $1.00 bequest was not sufficiently substantial to

confer standing and observed that "[tjhere is no difference between $1 and $10 in the context of

the matter under discussion." Id. (citing In re Es/ale of Spivey, No. OIAOJ ~9407-CH-00309, 1994

WL 697884, at *2 n.2 (Tenn. Ct. App., filed Dec. 14, 1994)).

           In a Florida case, Newman v. Newman, a son of the decedent who received nothing under

the probated will and was bequeathed $1.00 under a prior will challenged the probated will. 766

So.2d 1091, 1093 (Fla. Dist. Ct. App. 2000). The court noted that the aforesaid son "was actually

disinherited in [the decedent's prior) will since he was bequeathed only one dollar in that wilt>'

and that he "did not stand to gain by having the [probated] will declared invalid" given that "[h]e

would have only taken one dollar under [the decedent's] previous will." Id. at l 093-94 (internal

citations omitted). Therefore, the court ruled that he did not have standing to challenge the


6
      Although in Jo/{ey the last will that the decedent executed before the probated will also left nothing to the two
      challenging heirs whlle the three wills before that bequeathed $10.00 to them, the court's analysis, namely the
      court's focus on how a $10.00 bequest in a prior will is insufficient to confer standing on an heir, suggests that
      the outcome would have been the same even if all prior wills of the decedent bequeathed a nominal sum to
      the two challenging heirs.

                                                            12
probated will.    Id. at 1095. But see Danforth v. Danforth, 663 S.W.2d 288, 295 n.3 (Mo. Ct. App.

1983) (internal citation omitted) (noting that a child of the decedent who received nothing under

the challenged will but received one dollar under the prior will was a necessary party to the will

challenge "[djespite the deminimus [sic] amount of the legacy under the [prior] will").

          Just as in Jolley and Newman, nominal sums bequeathed in prior wills to challenging

heirs in the amount of $10.00 and $1.00, respectively, amounted to a disinheritance and did not

confer standing on the heirs to challenge a probated will under which they received nothing, here

the fact that Petitioners were bequeathed $5.00 each in Decedent's 2009 Will does not confer

standing on them to challenge the 2014 Will under which they received nothing. 7 See 154

S. W.3d 543; 766 So.2d at 1093. To hold differently would undermine the Superior Court's very

clear and well-reasoned ruling in Estate of Briskman, It is not uncommon for a testator to

bequeath a nominal sum to an heir in order to disinherit that heir.8 Permitting a nominal bequest

to be the basis for standing would arbitrarily allow a disinherited heir to challenge a will under

which he receives nothing because a prior will disinherited the heir by bequeathing a nominal

sum rather than disinheriting the heir by bequeathing nothing. We do not think such a result

conforms to the Superior Court's holding in Estate of Briskman and thus decline to so hold.

                   2. Petitioners' Alleged Lack of Notice of the First Preliminary Objections is
                      Irrelevant Given Their Lack of Standing

         Petitioners allege in their Statement that Respondent never served the First Preliminary

Objections on them nor gave them notice to plead within 20 days. See Statement.'[ 11-12. This is

1   Decedent stated In the 2009 Wiii that "I give the amount of 5.00 each, and nothing else" to Petitioners.
8   The somewhat common practice of leaving a nominal sum to an heir to dislnherit that heir may be caused, In
    part, by the "popular error" that, In order "to disinherit the helrl.] he must be 'cut off with a shllllng/" See in re
    emetnecker's Estate, 218 Pa. 369, 371, 67 A. 701 (1907) (holding that destroyed will cannot be probated where
    testator died before having the opportunity to execute a new will after destroying a prior will due to the
    "erroneous belief" that she must bequeath a nominal sum to an heir In order to effectively disinherit that heir).
                       .                                    13
    the first time that Petitioners have made these allegations, so the Court did not have an

    opportunity to conduct a hearing on this issue. Respondent included with her First Preliminary

    Objections a Certificate of Service certifying that the First Preliminary Objections were served

    via mail on Respondents. Respondent also included a copy of the notice given to Respondents,

    which contained a 20 day notice to plead.9 Therefore, absent information suggesting otherwise,

    the Court proceeded as if Petitioners were properly notified of the First Preliminary Objections.

             Ultimately, the issue of whether or not Petitioners received proper notice of the First

    Preliminary Objections is irrelevant because "when a statute creating a cause of action includes

    the designation of who may sue, then [the issue of] standing" is .. interwoven with that of subject

    matter jurisdiction" and "becomes a jurisdictional prerequisite to an action" that the court may

    raise sua sponte. See Hill v. Divecchio, 425 Pa. Super. 3 55, 361, 625 A.2d 642, 645 (1993);

Barndt v. Barndt, 397 Pa. Super. 321, 325, 580A.2d 320, 322 (1990). Since 20 Pa.C.S. § 908(a)

    creates a cause of action and designates who may sue, namely "a party in interest seeking to

challenge the probate of a will," this Court could have raised the issue of standing sua sponte and

dismissed the Fourth Petition after determining that the Court did not have jurisdiction to decide

the matter. See Hill, 625 A.2d at 645 n.3; Es/ate of Brtskman, 808 A.2d at 933 (quoting Grom v.

Burgoon, 672 A.2d at 824). Therefore, even if the First Preliminary Objections were never filed

and regardless of whether Petitioners received proper notice of the filing thereof, this Court had

the authority to raise the issue of standing sua sponte and dismiss the Fourth Petition for lack of

standing.



9
      The notice said ''{i)f you have any objections to the Preliminary Objectlons, you must state them ln writing and
      file them within 20 days from the date of this Notice or by June 28, 2016." The form of the notice to plead set
      forth In Pa.0.C. Rule 3.S(b)(1) more accurately uses the term "response" whereas Respondent used the term
      "objections."

                                                           14
         C. Most of the Facts that the Court Supposedly         Ignored Are Irrelevant

        Most of the paragraphs in Petitioners'   Statement, namely paragraphs 4, 6-10, and 13-17,

allege that the Court ignored information or allegations that are not relevant to the Court's

decision. To the extent that Petitioners complain that the Court dismissed without prejudice the

first, second, and third petitions for citation for will appeal, the Court notes that such dismissals

were appropriate given the lack of factual allegations in those petitions to support the general

assertions of duress, undue influence, fraud, or lack of testamentary capacity. The Court granted

a Citation based on the Fourth Petition due to the inclusion of some factual allegations that at

least tended to support the assertion that Decedent Jacked testamentary capacity when he

executed the 2014 Will. With respect to Petitioners'    assertion   in paragraph 13 of their Statement
that the Court ignored that Respondent "had a history of abusing, harassing, and stalking" James

A. Gordon, the Court notes that the allegations of abuse and harassment between 'the parties are

irrelevant to the issue of whether the Court properly dismissed the Fourth Petition and Fifth

Petition. Contrary to Petitioners' implication in paragraph 14 of his Statement, the Court did not

make any decision in this case based on the fact that Respondent alleged in her First Preliminary

Objections and Second Preliminary Objections that she was afraid of being cross-examined by

James A. Gordon. The reasons for this Court's decisions sustaining the First Preliminary

Objections and the Second Preliminary Objections are set forth above.

        D. Petitioners Did Not Previously Raise the Issue of Decedent's Domicile

       Petitioners assert in paragraph 3 of their Statement that the Court ignored that "Sylvania,

County of Screven, State of Georgia is the [Dlecedent's domicile[.] which is not the jurisdiction

of this court . ., Under 20 Pa.C.S. § 3131, the Philadelphia County Register of Wills would only

have jurisdiction to grant letters testamentary upon Decedent's Estate if at least one of the

                                                  15
following two statements is true: (1) Decedent died while a domiciliary of Pennsylvania and

Decedent's last principal residence was in Philadelphia County or (2) Decedent had property

located in Philadelphia County at the time of his death. In paragraph 3 of the Second Preliminary

Objections, Respondent alleges that "[a]t the time of his death, Hollis C. Gordon, Sr. was a

resident of Pennsylvania" although, in the Petition to Probate Will in Solemn Form that

Respondent and Patricia A. Conway filed in the Probate Court of Screven County, Georgia,

Respondent alleged that Decedent's "place of domicile" was an address in Screven County,

Georgia. See Answer to Second Preliminary Objections, Ex:. D. In paragraph l of the Fifth

Petition, Petitioners allege that Decedent "died ... in Philadelphia County, Pennsylvania," but

Petitioners did not clearly allege where Decedent was domiciled when he died until they filed

their Statement. Since Petitioners failed to raise this issue before this Court, it is "waived and

cannot be raised for the first time on appeal." See Pa.R.A.P. 302(a). Even if Petitioners did not

waive this issue, for the reasons stated supra they lacked standing to challenge the probate of the

2014 Will in the first place.

    III. CONCLUSION

       This Court properly dismissed Petitioners' Fourth Petition for lack of standing because,

even if the 2014 Will was invalidated, the 2009 Will, under which Petitioners do not have a

substantial interest, could be probated. The fact that Petitioners are intestate heirs of Decedent is

irrelevant because, as the Superior Court clearly set forth in Estate of Briskman, the interest of

intestate heirs is too remote to confer standing if those heirs have no interest in a prior will that

could be probated upon invalidation of the challenged will, regardless of whether the heirs desire

to challenge the prior will. Since standing is a jurisdictional prerequisite given that the persons

entitled to appeal the probate of a will are set forth in 20 Pa.C.S. § 908(a), this Court was

                                                  16
permitted to raise the issue of standing sua sponte. Thus, any alleged defect in the notice that

Petitioners received or did not receive of the First Preliminary Objections was harmless since the

Court could have dismissed the Fourth Petition on its own motion.

       The Court properly dismissed Petitioners' Fifth Petition because it was filed after the one

year statutory period for filing an appeal from the probate of a will under 20 Pa.C.S. § 908(a)

expired and Petitioners failed to make allegations of fraud sufficient to set aside the statute of

limitations. But even if this Court could have set the one year period aside based on the presence

of the word "fraudulent" in a pleading, this Court's failure to do so is irrelevant given that

Petitioners lack standing and thus the Court could have also properly dismissed the Fifth Petition

sua sponte for lack of standing.

       For the reasons set forth in this opinion, the Court properly dismissed the Fourth Petition

and Fifth Petition and, therefore, the Court's decision should be affirmed,



                                               BY THE COURT:




Dated this   Zo-it    day of March 2017.



James A. Gordon, prose
Evonia E. Scott, prose
Mary H. Gordon, pro se

Bradley Newman, Esquire

                                                 17
