J-A17029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF FRANKLIN A. HAWK              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
APPEAL OF: CAROL CALLANAN, CO-
EXECUTRIX AND RESPONDENT
                                                    No. 2858 EDA 2014


              Appeal from the Order Dated September 3, 2014
           In the Court of Common Pleas of Northampton County
              Orphans' Court at No(s): C-0048-OC-2012-0392


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 18, 2015

      Carol Callanan, co-administrator of the Estate of Franklin A. Hawk

(Decedent), appeals from the September 3, 2014 orphans’ court order that

denied her exceptions to the court’s granting of her co-administrator’s claim

for fair rental value of Decedent’s home by order of June 4, 2014. We quash

this appeal due to a lack of jurisdiction.

      In its order and opinion denying the exceptions filed by Ms. Callanan in

this matter, the orphans’ court provided the following factual and procedural

background involving this appeal. The court stated:

            On February 28, 2012, Decedent Franklin Hawk died
      intestate, survived only by his two daughters, Annette Harka and
      Carol Callanan. On March 22, 2012, Letters of Administration
      were granted to both women naming them co-administrators of
      Decedent’s Estate. On June 4, 2014, the Court issued a ruling
      on a petition filed by Ms. Harka, pursuant to which she brought
      actions for waste and fair rental value against Ms. Callanan, who
      resided in Decedent’s home from before his death until just
      before the sale of the property [on March 5, 2014,] by virtue of
      the administration of the estate.
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            In [the] written decision, [dated June 4, 2014,] the [c]ourt
      denied the waste claim, but granted the claim for fair rental
      value. Therein, the [c]ourt also addressed and denied the oral
      motion of counsel for Ms. Callanan, seeking the undersigned’s
      recusal from this matter. On June 16, 2014, Ms. Callanan filed
      exceptions to the [c]ourt’s order[, which the court denied on
      September 3, 2014.]

Orphans’ Court Order and Statement of Reasons (OCO), 9/3/14, at 1.

      Thereafter,   on   September    11,   2014,   Ms.   Harka   submitted   an

accounting and a schedule of distribution.     The matter was placed on the

September 26, 2014 audit list. Also on September 26, 2014, Ms. Callanan

filed a notice of appeal with this Court from the September 3, 2014 order.

As a result of Ms. Callanan’s objections to the accounting, and because of

the pending appeal with this Court, the accounting has not been confirmed

and no distribution has been made.

      Ms. Callanan sets forth the issues she raises in her appeal as follows:

      A. Is there any legal basis—either under Title 20, or under Title
      68—for [Ms. Harka’s] original request?

      B. If there is some legal basis for [Ms. Harka’s] original request,
      did [Ms. Harka] meet the legal standards for awarding a sum of
      money from one heir to the other heir?

      C. Should the judge have recused himself?

Ms. Callanan’s brief at 5.

      Before we may reach the merits of Ms. Callanan’s issues, we note that,

on November 17, 2014, Ms. Harka filed with this Court a motion to quash

Ms. Callanan’s appeal.       This Court denied the motion without prejudice,

allowing Ms. Harka to again raise the quashal issue before this panel at



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argument.      See Superior Court Order, 1/2/15.               Essentially, Ms. Harka

contends that the order appealed from here is not a final order under

Pa.R.A.P.    341    (“Final   Orders;     Generally”)   and,    therefore,   it   is   an

interlocutory order that is not appealable. Ms. Harka also relies on Pa.R.A.P.

342 (“Appealable Orphans’ Court Orders”),1 claiming that while certain

interlocutory orders issued by an orphans’ court are appealable as of right,


____________________________________________


1
    Rule 342 provides:

        Rule 342. Appealable Orphans’ Court Orders

        (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;
        (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;
        (4) An order interpreting, modifying, reforming or terminating a
        trust;
        (5) An order determining the status of fiduciaries, beneficiaries,
        or creditors in an estate, trust, or guardianship;
        (6) An order determining an interest in real or personal
        property;
        (7) An order issued after an inheritance tax appeal has been
        taken to the Orphans’ Court pursuant to either 72 Pa.C.S. §
        9186(a)(3) or 72 Pa.C.S. § 9188 or after the Orphans’ Court has
        made a determination of the issue protested after the record has
        been removed from the Department of Revenue pursuant to 72
        Pa.C.S. § 9188(a); or
        (8) An order otherwise appealable as provided by Chapter 3 of
        these rules.

Pa.R.A.P. 342(a).



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the order in question here does not fit within the confines of Rule 342. In

her response to the motion to quash, Ms. Callanan contends that the

September 3, 2014 order is appealable under Pa.R.A.P. 313, as a collateral

order.2     Therefore, we must address the appealability of the order from

which this appeal was taken, before we are permitted to address any issues

Ms. Callanan has raised.

       We    recognize     that   a   “question   of   appealability   implicates   the

jurisdiction of our court.”           Jacksonian v. Temple Health System

Foundation, 862 A.2d 1275, 1279 (Pa. Super. 2004).                Orders that would

otherwise be deemed interlocutory may be appealable as collateral orders

pursuant to Rule 313. Rule 313 provides as follows:

       Rule 313. Collateral Orders

         (a) General rule. An appeal may be taken as of right from a
       collateral order of an administrative agency or lower court.

         (b) Definition. A collateral order 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. Moreover,

____________________________________________


2
  Ms. Callanan also cites Rule 342(a)(6) and Rule 342(a)(8) as support for
her position against the quashal of her appeal. See Footnote 1, supra. We
conclude that the order appealed from in this case does not fall within the
confines of either subsection. Neither of Ms. Callanan’s issues deals with an
interest in real or personal property; nor do they fall within a rule in Chapter
3.



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      [i]n interpreting Pa.R.A.P. 313, we have held that all three
      elements of Rule 313(b) must be met, namely that the order
      is: (1) separable from and collateral to the main cause of action
      where, (2) the right involved is too important to be denied
      review, and (3) the question presented is such that if review is
      postponed until final judgment in the case, the claim will be
      irreparably lost. Nemirovsky v. Nemirovsky, 776 A.2d 988,
      991 (Pa. Super. 2001).       Pa.R.A.P. 313 is to be narrowly
      construed to prevent the collateral order doctrine from
      subsuming the fundamental precept that only final orders are
      appealable. Van der Laan v. Nazareth Hosp., 703 A.2d 540,
      541 (Pa. Super. 1997).

Gunn v. Automobile Ins. Co. of Hartford, 971 A.2d 505, 509 (Pa. Super.

2009) (emphasis added). In other words, if one of the elements is not met,

this Court does not have jurisdiction and the appeal must be quashed. See

Jacksonian, 862 A.2d at 1282 (quashing the appeal because the order

failed the importance prong and the court did “not need to address the third

prong of the collateral order rule”).

      Here, we focus on the third prong of Rule 313, i.e., “if review [of the

question] is postponed until final judgment in the case, the claim will be

irreparably lost.” Pa.R.A.P. 313(b). Ms. Callanan’s first two issues relate to

the award to Ms. Harka of the fair rental value of Decedent’s residence for

the period of time Ms. Callanan lived there.    The third issue concerns Ms.

Callanan’s oral request for the recusal of the orphans’ court judge. None of

these issues raised by Ms. Callanan in her appeal will be irreparably lost if

they are postponed until a final decree is entered in this estate matter.

Simply stated, both the fair market rental value claim and the recusal issue

can be reviewed after the accounting is confirmed and a final decree is

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entered. Ms. Callanan makes no argument that if review is postponed until

final judgment in the case, these claims will be irreparably lost.   She has

failed to meet the third prong of the collateral order test. Accordingly, we

conclude that we lack jurisdiction to entertain Ms. Callanan’s appeal from the

orphans’ court’s September 3, 2014 order. We must, therefore, quash the

appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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