J-A16035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF SOPHIA M.                     IN THE SUPERIOR COURT OF
KRASINSKI A/K/A SOPHIA KRASINSKI                     PENNSYLVANIA
A/K/A SOPHIA KRASINSKY LATE OF
MORRISDALE (COOPER TOWNSHIP),
CLEARFIELD COUNTY, PENNSYLVANIA
DECEASED NOVEMBER 4, 2006,

                        Appellee



APPEAL OF: ESTATE OF SOPHIA M.
KRASINSKI AND ITS EXECUTOR,
EDWARD KRASINSKI

                                                   No. 1265 WDA 2015


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


IN RE: ESTATE OF SOPHIA M.                     IN THE SUPERIOR COURT OF
KRASINSKI, A/K/A SOPHIA KRASINSKI                    PENNSYLVANIA
A/K/A SOFIA KRASINSKY, LATE OF
MORRISDALE, (COOPER TOWNSHIP)
CLEARFIELD COUNTY, PENNSYLVANIA
DECEASED ON 11/04/06,

                        Appellee



APPEAL OF: PATRICIA KRASINSKI-
DUNZIK

                                                   No. 1289 WDA 2015


                     Appeal from the Order July 16, 2015
              In the Court of Common Pleas of Clearfield County
                     Orphans' Court at No(s): 1707-0003
J-A16035-16


BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY SHOGAN, J.:

FILED: October 5, 2016

       I concur in the Majority’s disposition of the Estate’s appeal. However,

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

confirming the private sale of Sophia’s real estate was interlocutory, I

respectfully dissent from the Majority’s conclusion that Patricia’s issues

regarding the private sale are waived.           I also disagree that Patricia is

responsible for the tax implications of the private sale.

       Initially, I note that Sophia did not specifically devise her real estate to

her children. Instead, she provided that the residue of the estate was to be

divided equally among her four children. Last Will and Testament, 8/18/99,

at Item II.     Also, Sophia did not authorize her executor to sell her real

property.

       This Court has held, “In a decedent’s estate, the confirmation of the

final account of the personal representative represents the final order,

subject to exceptions being filed and disposed of by the court.”            In re

Estate of Habazin, 679 A.2d 1293, 1295 (Pa. Super. 1996) (citation

omitted); In re Estate of Quinn, 804 A.2d 541, 543 (Pa. Super. 2002)

(“[T]he confirmation of the final account of the personal representative

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*
    Retired Senior Judge assigned to the Superior Court.



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represents the final order.”). Here, the April 30, 2013 order, confirming the

private sale of real property of the decedent’s estate, is facially interlocutory

because it does not generate an appeal from the confirmation of the

executor’s final account.

       Moreover, and contrary to the Majority’s position, the April 30, 2013

order was not appealable under subsection (a)(6)—or any subsection—of

amended Pa.R.A.P. 342.1 “Legal title to all real estate of a decedent shall

pass at his death to his heirs or devisees, subject, however, to all the

powers granted to the personal representative by this code and lawfully by

the will and to all orders of the court.”        20 Pa.C.S.A. § 301 (emphasis

supplied). Here, until legal title passed to the heirs pursuant to the April 30,

2013 order, the estate owned the properties; therefore, subsection (a)(6)

does not apply.      Accord In re Estate of Ash, 73 A.3d 1287, 1290 (Pa.

Super. 2013) (holding that an order directing the sale of real estate not

specifically devised did not determine an interest in property because “the

estate obviously own[ed]” the property in question).       The purpose of the

April 30, 2013 order was not to resolve some dispute about who had or has

an interest in the properties; the estate owned the properties. Instead, the

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1
   Under Stricker, infra, the question of appealability was vested strictly in
the orphans’ court’s discretion. In re Estate of Cherry, 111 A.3d 1204,
1209 (Pa. Super. 2015). Following Stricker, Pa.R.A.P. 342 was amended,
effective February 12, 2012, to list a number of orphans’ court orders
appealable as of right. Pa.R.A.P. 342(a)(1-8).



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April 30, 2013 order was about the propriety of the executor’s plan to sell

the properties through a private sale, the goal being to distribute the estate

assets in accordance with the will, i.e., to Sophia’s children. In other words,

the purpose of the order was to achieve the distribution of the estate, not to

determine an interest in real property.

      Nor was the April 30, 2013 order appealable as a collateral order under

Pa.R.A.P. 313.   See In re Estate of Stricker, 977 A.2d 1115, 1118 (Pa.

2009) (holding that an orphans’ court order directing the sale of real estate

in the process of the administration of an estate is not immediately

appealable under Rule 313 as a collateral order); Ash, 73 A.3d at 1289

(concluding that an order authorizing the sale of real property of the

decedent’s estate was not a collateral order under Rule 313). Here, the real

estate at issue is central to the estate.         “Consequently, its eventual

disposition will serve directly the final account and distribution of the estate.

Accordingly, it is central to the main cause of action and it does not qualify

as a collateral order subject to immediate appeal.” In re Estate of Cherry,

111 A.3d 1204, 1211 (Pa. Super. 2015) (internal quotation marks omitted).

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

the April 30, 2013 order was final, that Patricia should have filed an appeal

from the April 30, 2013 order and that, because she did not appeal that

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

address those issues on the merits.


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      I also disagree with the Majority’s conclusion that Patricia was

responsible for the tax implications of the private sale.        The decedent

expressly directed, “[A]ll taxes that may be assessed in consequence of my

death, of whatever nature and by whatever jurisdiction imposed, shall be

paid from my residuary estate as a part of the expense of the administration

of my estate.”   Last Will and Testament, 8/18/99, at Item III. Therefore,

the Estate was responsible for the tax implications of the private sale.




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