J-S02041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: THE ESTATE OF ELLESMERE                  IN THE SUPERIOR COURT OF
FARRELL, A/K/A ELLESMERE MCGUIRE                      PENNSYLVANIA
FARRELL, A/K/A ELLESMERE CECELIA
FARRELL A/K/A/ MRS. FRANK P. FARRELL
A/K/A ELLESMERE M. FARRELL A/K/A
CORNELIA BARRY


APPEAL OF: LAND TYCOON, INC.

                                                     No. 1311 EDA 2014


               Appeal from the Order Entered on March 25, 2014
                In the Court of Common Pleas of Wayne County
                      Civil Division at No.: 28-O.C.D.-1987


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                        FILED FEBRUARY 20, 2015

       Land Tycoon, Inc. (“LTI”), challenges the trial court’s March 25, 2014

order rescinding that court’s December 12, 2013 order. The December 12,

2013 order reopened the Estate of Ellesmere Farrell (“the Estate”) to enable

the Estate’s personal representative, Honesdale National Bank (“HNB”), to

execute a settlement with LTI concerning certain real property to which the

Estate held fractional title, but which had not been accounted for in the prior

probate proceedings concerning the Estate. We affirm.

       The Estate was finally accounted for, its assets disposed of, and

executor Honesdale National Bank discharged in 1991.1            However, on
____________________________________________


1
      The Estate was reopened in 1998 for reasons that are immaterial to
the instant appeal.
J-S02041-15



December 12, 2013, LTI filed a petition in the Wayne County Court of

Common Pleas to reopen the Estate.          Therein, it averred that it had

purchased a property known as “Tunnel Road, Denison Township, Luzerne

County” (“the Property”) at a Luzerne County tax sale on September 20,

2012.    Petition to Reopen Estate, 12/12/2013, at 1 ¶4.     After tracing the

lineage of the Property, LTI averred in relevant part that a 1/24 interest had

passed to, and remained the property of, the Estate. LTI also averred that,

in a separate quiet title action in Luzerne County, an order had been entered

quieting title to the Property. LTI averred that HNB had no objections to the

entry of an order by the trial court to resolve “the remaining claim of the

[1/24] interest” of the Estate against the Property.     Id. at 2 ¶ 10.    LTI

indicated that it would make a fair settlement offer to the Estate for a

quitclaim deed in LTI’s favor for the Estate’s interest in the property.

Id. at 2 ¶ 11.

        LTI attached to the petition a Judgment and Order from the Luzerne

County Court of Common Pleas that entered judgment quieting title to the

Property as against seventeen named parties and their heirs and assigns,

unless any such party should file exceptions within thirty days of the entry of

the order.    That order specifically provided that it “shall not affect the

interest of any of the heirs of Ellesmere Farrell. The interest of the heirs of

Ellesmere Farrell shall re[t]ain the same interest in the [P]roperty [that they

held] prior to this court order, until further order of court.” Luzerne County

Court of Common Pleas Judgment and Order, 11/4/2013, at 2.

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      On December 12, 2013, the trial court convened a hearing concerning

LTI’s petition, at which appeared counsel for LTI and Charlie Curtin, a

representative of HNB. In a brief proceeding, LTI and HNB represented, and

the trial court took at face value, that reopening the Estate for purposes of

disposing of its 1/24 share of the Property served everyone’s interests.

Mr. Curtin testified as follows:

      [T]he bank is happy to assist [LTI] in getting the transfer of the
      deed; however, we don’t want to—it’d be more costly for the
      bank to go through formal stay proceedings. We would just like
      the ability to do this without re-raising an estate, notifying the
      heirs, we would like to—[LTI] to take care of all that . . . we can
      sign off on the deed; however, we’re just thinking it would be
      more time and expense on our part for one twenty[-]fourth of a
      piece of property.

Notes of Testimony (“N.T.”), 12/12/2013 (transcript undated), at 3-4

(ellipsis in original).   Neither LTI nor Mr. Curtin offered any indication,

express or implied, that the Luzerne County tax sale and order quieting title

that had led to the instant proceedings were subject to pending challenges

by two women claiming an interest in the Property as heirs of the Estate.

      The trial court entered an order granting LTI’s petition.     The order

provided, in relevant part, as follows:

      1.    [The Estate] shall be reopened for the sole purpose of
      allowing [HNB to] execute a settlement with [LTI] and transfer
      [the Property,] in which the [E]state may hold a small interest.

      2.    [HNB] and [LTI] in their sole and absolute discretion shall
      enter into a settlement for [the Property] that is fair and
      equitable to the heirs of the [E]state and [LTI].

                                    ****


                                     -3-
J-S02041-15


      4.    [HNB] shall not be required to recommence any formal
      estate proceedings with the Commonwealth of Pennsylvania or
      any other governmental body as a result of the transfer of [the
      Property] by [the Estate].

Order of Court, 12/12/2013, at 1.       Thereafter, LTI and HNB arranged to

transfer the Estate’s interest in the Property to LTI for the agreed-upon sum

of $2500, with an additional $1000 to be paid by LTI to HNB as

consideration for its work as personal representative of the Estate. LTI and

HNB completed the transaction, and LTI recorded the deed for the relevant

interest in the Property.

      On January 31, 2014, Colleen O’Neill and Patricia A. Warunek (when

not identified individually, identified collectively as “the Descendants”), by

and through counsel, filed a joint petition to set aside the trial court’s

December 12, 2013 order reopening the Estate. Therein, they averred that

they are lineal descendants and heirs of Ellesmere Farrell. They averred that

any property possessed by Farrell (i.e., the Estate) had passed by operation

of law to Farrell’s heirs, including (but not limited to) the Descendants.

      The Descendants averred that, on or about November 4, 2013,

Warunek had filed a petition in Luzerne County to set aside the “upset tax

sale” of the Property, alleging, inter alia, defective notice. On November 20,

2013, O’Neill filed a parallel petition raising the same defects. Although a

hearing on the Descendants’ petitions had been scheduled by the Luzerne

County Court of Common Pleas for January 2, 2014, LTI asked the




                                      -4-
J-S02041-15



Descendants to agree to a continuance to make way for a holiday vacation. 2

The Descendants agreed to the continuance, but averred that, during their

communications concerning the continuance, LTI made no mention of its

“surreptitious actions in the Wayne County Court.”          Joint Petition to Set

Aside Court Order, 1/31/2014, at 3 ¶ 15. The Descendants further alleged

that LTI did not inform HNB of the Luzerne County actions regarding the

Property before presenting the December 12, 2013 petition to reopen the

Estate. The Descendants indicated that they had only become aware of the

Wayne County action on or about January 15, 2014, when one or more of

the Estate’s heirs received notice from LTI of the sale and checks for their

respective shares of the proceeds. Consequently, the Descendants argued

that LTI had procured the order reopening the Estate “by omission at best,”

and without providing notice to the Descendants, whose claimed interests in

the Property by then was known to LTI. Id. at 4 ¶¶ 20, 22-23.

       On February 26, 2014, the Wayne County Court of Common Pleas held

a hearing to consider the Descendants’ petition to set aside that court’s

earlier order reopening the Estate at LTI’s request. At the hearing, the court

heard testimony from O’Neill, Warunek, LTI representative David Keller, and

HNB representative Curtin.          Although various potentially material factual



____________________________________________


2
     The record contains no information regarding the ultimate resolution of
the Descendants’ Luzerne County actions.



                                           -5-
J-S02041-15



disputes   emerged      during   the   course   of   testimony,   ultimately   the

Descendants reached the following stipulation with LTI:

      One, [LTI] knew in October 2013 that [the Descendants] claimed
      to be heirs of Ellesmere Farrell.

      Two, in [Warunek’s] Petition to Set Aside the Upset Tax Sale in
      Luzerne County she claimed to be an heir of G.L. and Arthur
      Barry.

      Three, in [O’Neill’s] petition in Luzerne County to Set Aside the
      Upset Tax Sale she claimed to be an heir of Arthur Barry.

      In the original joint petition in this matter, the [Descendants]
      claimed to be heirs of Arthur Barry.

      In the amended petition in this matter, [the Descendants]
      claimed to be heirs of G.L. Barry.

      I’m down to #6 now.            [LTI] did not inform . . . [the
      Descendants] of the Wayne County December 2013 Petition to
      Re-Open the Estate prior to [its] presentment.

      Number seven, HNB was not informed prior to execution of the
      settlement agreement at issue that [the Descendants] were
      opposing [LTI’s] Quiet Title Action in Luzerne County.

      Number eight, HNB was not informed prior to execution of the
      settlement agreement that [the Descendants] filed Luzerne
      County actions to Set Aside the Upset Tax Sale.

      And finally, number nine, [LTI] did not inform [the Descendants]
      of the HNB settlement agreement or negotiations therefore, prior
      to the settlement agreement’s execution.

N.T., 2/26/2014, at 53-54. The trial court also received briefs in support of

the parties’ respective positions.

      On March 25, 2014, the trial court issued an opinion and order setting

aside its earlier order reopening the Estate.        The trial court explained its

reasoning as follows:


                                       -6-
J-S02041-15


     At first blush, this case appeared to be simple, at least based
     upon what this [c]ourt knew prior to the execution of the
     December 12, 2013 Order. This [c]ourt relied on the following
     representations when issuing that [o]rder: A piece of [the
     Property] was found to belong to the heirs of the [E]state,
     apparently unbeknownst to those heirs and the personal
     representative of the [E]state. [The Property] was sold at a tax
     sale in Luzerne County in 2012.          The purchaser of the
     [P]roperty, [LTI], then received the tax deed to the [P]roperty.
     Thereafter, [LTI] initiated an action to quiet title in Luzerne
     County. [LTI] had obtained a judgment to quiet title for 23/24[]
     of the [P]roperty. The remaining 1/24[] interest was owned by
     the [Estate].

     [HNB] was appointed as personal representative of the [Estate,]
     which was filed here in Wayne County. No one informed this
     [c]ourt as to why the judgment to quiet title had not been
     entered as to the entirety of the shares. Therefore, this [c]ourt
     presumed, but never stated on the record, that [the] inability to
     effectuate service had been a reason the remaining 1/24[] was
     not included in the judgment to quiet title. Counsel gave no
     reason for this [c]ourt to think otherwise. This was a found
     asset in the [E]state, and the heirs would be assured a fair price,
     as provided for in this [c]ourt’s order. Given the heirs’ modest
     interest in the [P]roperty, this appeared to be a straightforward
     way of handling a fair disposition of the [P]roperty. However,
     appearances can be deceiving.

     The personal representative of an estate may sell, at a public or
     private sale, any real property not specifically devised by the
     will, if any. 20 Pa.C.S. § 3351. The heirs, with all things being
     equal, were not entitled to notice before the sale. Nevertheless,
     all things were not “being equal.” This [c]ourt should have been
     advised by counsel that the quiet title action in Luzerne County
     was contested, and those contesting it were heirs of [the Estate,
     i.e., the Descendants]. Had this [c]ourt been so informed, this
     [c]ourt would have deferred the matter to the Luzerne County
     action.

     Upon that decision, [the Descendants] would have had the tax
     sale either overturned or confirmed. If confirmed, there would
     have been no legitimate basis to challenge the conveyance,
     except if the agreed[-]upon price was not reasonable. If not
     confirmed, then the [E]state would have owned a 1/24[] interest
     and administered that interest in the appropriate manner.

                                    -7-
J-S02041-15


      The record discloses that [the Descendants] filed their objection
      to the Luzerne County quiet title action in November of 2013.
      Prior to the filing of [its] petition to reopen the [E]state, [LTI]
      and its counsel knew of [the Descendants’] objections. It is
      evident that [LTI’s] Petition to reopen the [E]state sought to do
      through the back door what it could not do through the front
      door, specifically, adjudicate the rights of the [Descendants]
      without giving them notice.

      This was not a case where the [Descendants] were simply
      beneficiaries coming into found money; they had affirmatively,
      and on the record, given notice of their objections to the quiet
      title action in Luzerne County. As such, they were surely entitled
      to notice of a proceeding which would divest them of their
      standing to continue to contest the quiet title action. “Due
      process requires that a party who will be adversely affected by a
      court order must receive notice and a right to be heard in an
      appropriate hearing.” McKinney v. Carolus, 634 A.2d 1144,
      1146 (Pa. Super. 1993).

      Counsel for [LTI] goes to great lengths to defend his actions in
      this case. It matters not whether [LTI’s] attorney knew of the
      “back door” maneuver in order to reach [t]his decision. The fact
      remains that under the present facts, [the Descendants] were
      denied due process.

Trial Court Opinion, 3/25/2014, at 2-3 (citation modified; emphasis in

original).

      LTI filed the instant timely appeal on April 23, 2014. The trial court

responded the same day by entering an order directing LTI to file a concise

statement    of   the    errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b).      LTI timely complied on May 9, 2014.       Therein, LTI

contended that, by operation of 42 Pa.C.S. § 5505, the trial court lost

jurisdiction to modify or rescind its December 12, 2013 order on the thirty-

first day after that order issued, which passed long before the trial court



                                      -8-
J-S02041-15



issued its March 25, 2014 opinion and order purporting to rescind the earlier

order.

       In its Rule 1925(a) opinion, the trial court offered two theories in

support of its prerogative to revisit its December order greater than thirty

days after its issuance. First, the trial court suggested that the December

order, because it reopened the Estate, did not constitute a final order under

Pa.R.A.P. 341, and therefore did not fall within the ambit of section 5505’s

prohibition. In the alternative, the trial court relied upon the bases set forth

in its earlier opinion, supra—that LTI’s misleading conduct, in having

deprived the Descendants of their rights to due process, qualified this case

for the recognized, if narrow, equitable exception under which a trial court

may modify or rescind its orders even after the expiration of thirty days.

       Before this Court, LTI raises the following issues:

       1.   Was the [trial court’s] December 12, 2013 Order a Final
       Order?

       2.   Did the [trial court] have [j]urisdiction to void its
       December 12, 2013 [order] more than 30 days after its entry
       and more than 30 days after the completion of the sale?

Brief for LTI at 5 (unnumbered).3              However, in its brief LTI only presents

legal argument in support of that latter question, which arguably constitutes
____________________________________________


3
      On October 22, 2014, counsel for Ms. Warunek filed in this Court a
letter indicating the he would not file a brief on Ms. Warunek’s behalf
because she had entered into a settlement and release with LTI. Counsel for
Ms. Warunek also requested that the trial court’s March 25, 2014 order
underlying this appeal be rescinded and the orphans’ court’s prior December
(Footnote Continued Next Page)


                                           -9-
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waiver of the first issue as stated.             See Pa.R.A.P. 2119(a).   Nonetheless,

because both issues implicate the trial court’s subject matter jurisdiction, we

will address them both in turn.           See LeFlar v. Gulf Creek Indus. Park

No. 2, 515 A.2d 875, 879 (Pa. 1986) (“The lack of jurisdiction of the subject

matter . . . may be raised by the court sua sponte . . . .”).             Jurisdictional

questions are questions of law as to which our standard of review is de novo

and our scope of review plenary.            See Commonwealth, Office of Atty.

Gen. ex rel. Corbett v. Locust Twp., 968 A.2d 1263, 1268-69 (Pa. 2009).

      In order to understand the final-order question, we first must consider

LTI’s argument in support of its second issue, which is based upon

42 Pa.C.S. § 5505. LTI contends that the trial court’s March 25, 2014 order,

                       _______________________
(Footnote Continued)

12, 2013 order be reinstated. However, nothing in this letter addresses
Ms. O’Neill’s interest in this matter. See Letter, 10/22/2014, at 1 (“I am
writing to you on behalf of my client, Patricia Warunek. My client has
agreed to settle this matter . . . with Land Tycoon, Inc. . . .”).
      Although Ms. O’Neill did not file a brief in this matter, as an appellee
she has no obligation to do so to preserve her underlying claims. See Reif
v. Reif, 626 A.2d 169, 172 n.3 (Pa. Super. 1993) (citing Pa.R.A.P. 2188)
(“[A]ppellees cannot be punished in any way for not filing briefs in cases
which are submitted to this Court without argument . . . .”). Accordingly, we
cannot speculate that Ms. O’Neill was a party to the settlement, or that she
intends to abandon her claim. Moreover, over a month later, on December
3, 2014, this Court issued to the parties a letter confirming that this case
had been submitted on the briefs, but Ms. O’Neill in no way signaled her
desire to discontinue her case. Under these circumstances, we can neither
discontinue this appeal nor direct the trial court to reinstate its prior order,
which served to protect the interests of both Ms. Warunek and Ms. O’Neill.
That being said, this memorandum is without prejudice to Ms. Warunek
and/or Ms. O’Neill to discontinue the matter before the orphans’ court upon
remand.



                                           - 10 -
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in following by more than thirty days the December 12, 2013 order it

purported to rescind, was entered in violation of 42 Pa.C.S. § 5505, which

provides as follows:

      Except as otherwise provided or prescribed by law, a court upon
      notice to the parties may modify or rescind any order within 30
      days after its entry, notwithstanding the prior termination of any
      term of court, if no appeal from such order has been taken or
      allowed.

42 Pa.C.S. § 5505. Section 5505 must be read in tandem with section 5504,

which provides as follows:

      (a) General rule.—Except as provided in section 1722(c)
      (relating to time limitations) or in subsection (b) of this section,
      the time limited by this chapter shall not be extended by order,
      rule or otherwise.

      (b) Fraud.—The time limited by this chapter may be extended
      to relieve fraud or its equivalent, but there shall be no extension
      of time as a matter of indulgence . . . .

42 Pa.C.S. § 5504. Critically, though, section 5505 applies to this case only

if the order the trial court rescinded was a final order.             See Mente

Chevrolet,    Oldsmobile,     Inc.,    v.      Swoyer,   710   A.2d    632,   633

(Pa. Super. 1998) (citing Hutchison by Hutchison v. Luddy, 611 A.2d

1280 (Pa. Super. 1992)).

      The trial court found that its December 12, 2013 order, in reopening

the Estate, did not constitute a final order, ostensibly because, while it

opened the Estate, it did not close it.          Our appellate rules provide, in

relevant part, as follows:

      Rule 341. Final Orders; Generally

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      (a) General rule. Except as prescribed in subdivisions (d),
      and (e) of this rule, an appeal may be taken as of right from any
      final order of an administrative agency or lower court.

      (b) Definition of a final order.           A final order is any order
      that:

         (1)        disposes of all claims and of all parties; or

         (2)        is expressly defined as a final order by statute . . . .

Pa.R.A.P. 341.

      In light of the plain terms of Rule 341, the trial court’s submission that

its December 12, 2013 order was not a final order is at least colorable. The

order in question reopened the Estate.          Although it did so for a “limited”

purpose, nonetheless the Estate was opened, and no action that followed

necessarily effectuated its closing. However, the trial court’s December 12,

2013 order also provided as follows: “[HNB] shall not be required to

recommence any formal estate proceedings with the Commonwealth of

Pennsylvania or any other governmental body as a result of the transfer of

[the Property] by [the Estate].” Order of Court, 12/12/2013, at 1 ¶ 4. In

specifying that no further action would be required after the Estate’s interest

in the Property was liquidated and any heirs compensated for their share of

that interest, the court left open little prospect of further proceedings

regarding the Estate, at least in the instant connection. Thus, were we to

credit the trial court’s reasoning, we would effectively have put its December

12, 2013 order beyond the reach of appellate review in perpetuity, an

untenable result.



                                       - 12 -
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       This does not conclude our assessment of finality. Although the trial

court in this case does not identify itself as sitting in its orphans’ court

jurisdiction, the docket for this case originates in the administration of the

Estate in the Orphans’ Court division of the Wayne County Court of Common

Pleas. Accordingly, we presume that the trial court in the instant case sat in

its Orphans’ Court capacity.4           Consequently, Pa.R.A.P. 342 (“Appealable

Orphans’ Court Orders”) merits review.             Rule 342(a)(6) provides for an

immediate appeal as of right from an Orphans’ Court order “determining an

interest in real or personal property.” Rule 342(c) further provides that the

“[f]ailure to appeal an order that is immediately appealable under

paragraphs (a)(1)-(7) of this rule shall constitute a waiver of all objections

to such order.” Consequently, we assume, arguendo, that the December 12,

2013 order was final for purposes of appeal. As such, we assume without

deciding that the order is subject to the provisions of 42 Pa.C.S. § 5505.5




____________________________________________


4
      At least arguably, this would be required by 20 Pa.C.S. § 711, which
confers mandatory jurisdiction over the administration of an estate upon the
Orphans’ Court.
5
      We refrain from deciding this issue conclusively because the issue is
not squarely presented or argued, and our research discloses no case
integrating Rule 342 and section 5505 in this fashion. However, given
section 5505’s plain language and the stringency with which our Courts have
applied any exceptions thereto, it would be illogical for it not to apply to
orders that are deemed final for purposes of appeal.




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       In support of its strict reading of sections 5504 and 5505 wherein,

putatively, only a showing of fraud will enable a court to rescind a prior

order greater than thirty days after its entry, LTI cites Commonwealth,

Dep’t of Transp., Bureau of Driver Lic. v. Duncan, 601 A.2d 456 (Pa.

Cmwlth. 1991), and Board of Supervisors of Chartiers Twp. v.

Quarture, 603 A.2d 295 (Pa. Cmwlth. 1992).6             However, both cases

acknowledged that circumstances other than fraud may warrant trial court

action outside section 5505’s thirty-day limitation.

       In Duncan, for example, the court observed that, after the expiration

of section 5505’s time limit, “a court may vacate, amend or modify its order

only if extraordinary cause exists”:

       Only grave and compelling circumstances provide “extraordinary
       cause” to justify court intervention after expiration of the appeal
       period.    Such circumstances have customarily entailed an
       oversight or act by the court, or failure of the judicial process,
       which operates to deny the losing party knowledge of entry of
       final judgment and commencement of the running of the appeal
       period.

601 A.2d at 459 (quoting DeMarco v. Borough of East McKeesport,

556 A.2d 977, 979 n.4 (Pa. Cmwlth. 1991)).         In Quarture, to much the

same effect, the Commonwealth Court explained as follows:

       It is well[-]settled that the courts of this Commonwealth possess
       inherent power to act where equity so demands.           In such
____________________________________________


6
     Although we may consult Commonwealth Court opinions for their
persuasive value, those decisions do not bind this Court. Petow v.
Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010).



                                          - 14 -
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      situations, the power of the court to open and set aside its
      judgments may extend beyond the expiration of the appeal
      period.    The discretionary power of the court over such
      judgments is, however, very limited.       Generally, judgments
      regularly entered in adverse proceedings cannot be opened or
      vacated after they have become final, unless there has been
      fraud or some other circumstances so grave or compelling as to
      constitute extraordinary cause justifying intervention by the
      court.    Such circumstances have customarily entailed an
      oversight or act by the court, or failure of the judicial process,
      [that] operates to deny the losing party knowledge of entry of
      final judgment and commencement of the running of the appeal
      period.

603 A.2d at 298099 (quoting Dep’t of Transp., Bureau of Driver Lic. v.

Axsom, 598 A.2d 616, 619 (Pa. Cmwlth. 1991); citations and internal

quotation marks omitted); accord ISN Bank v. Rajaratnam, 83 A.3d 170,

172 (Pa. Super. 2013) (holding that, following the expiration of the thirty-

day time limit, “the trial court may exercise discretion to modify an order

only upon a showing of extrinsic fraud, lack of jurisdiction over the subject

matter, a fatal defect apparent on the face of the record or some other

evidence of extraordinary cause justifying intervention by the court”

(emphasis added; internal quotation marks omitted)).

      The trial court’s ruling, in effect if not explicitly, was based upon a

combination of extraordinary cause and deceit, if not outright fraud by

omission. LTI disregards the trial court’s implicit finding that LTI committed

a fraud upon the trial court, or something very nearly approaching one.

See 42 Pa.C.S. § 5504 (allowing a court to extend the section 5505 time

limit “to relieve fraud or its equivalent” (emphasis added)). In so doing,

LTI effectively concedes the point. Moreover, the trial court’s findings in this

                                     - 15 -
J-S02041-15



regard are consistent with facts that LTI stipulated, as set forth supra,

including its acknowledgment that it was aware of the Descendants’ pending

challenge to the tax sale when it asked the trial court to reopen the Estate,

effectively for purposes of subverting the pending Luzerne County action.

Moreover, LTI conceded that it recognized the Descendants’ claims to be

heirs of the Estate, but provided no notice to them of the Wayne County

action. Thus, LTI effectively admits that the trial court had a sound basis for

determining that its lack of awareness of the contemporaneous actions in

Luzerne County concerning the Property was intended or at least abetted by

LTI, rendering the lack of notice to the Descendants of the opening of the

Estate for purposes of disposing of the Property while its disposition was

contested in Luzerne County violative of the Descendants’ rights to due

process. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, (1950) (“An elementary and fundamental requirement of due process

in any proceeding which is to be accorded finality is notice reasonably

calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their

objections.”). In failing to address these undisputed circumstances, and in

furnishing no case law to contradict the trial court’s basis for ruling as it did,

LTI’s argument is unavailing.        Cf. First Union Mortgage Corp. v.

Frempong, 744 A.2d 327, 334-35 (Pa. Super. 1999) (affirming reopening of

summary judgment after five years due to the opposing party’s “profusion of




                                     - 16 -
J-S02041-15



dilatory tactics” and because “equity demanded at least the opening of the

judgment in this extraordinary case of abuse of our legal system”).

       LTI’s related argument that the settlement it reached with HNB was

fair and reasonable fails, because it puts the cart before the horse. While

LTI is correct that 20 Pa.C.S. § 3351 authorizes an estate’s representative to

dispose of estate property without notice to the heirs, the problems

animating the trial court’s order in this case logically precede any

consideration of the fairness of LTI’s and HNB’s disposition of the Property,

inasmuch as the Property would not have been theirs to dispose of if one or

more of the Descendants’ Luzerne County actions were to prevail. Because

the Descendants were challenging in Luzerne County the tax sale and LTI’s

effort to quiet title when LTI sought to cut off the Descendants’ interest in

the Property in the trial court, the Wayne County action had the effect of

eliminating the Descendants’ standing in the Luzerne County actions without

notice and the opportunity to be heard, implicating the very due process

considerations cited by the trial court in supporting its decision to rescind the

December 12, 2013 order.7
____________________________________________


7
      We acknowledge that, regardless of the outcome of Ms. O’Neill’s
Luzerne County cases, if any, see supra n.3 (noting Ms. Warunek’s
withdrawal from this appeal per her settlement agreement with LTI), her
interest in the Property necessarily is mediated by HNB as personal
representative of the Estate, and that, all things being equal, HNB will retain
the prerogative to dispose of the Estate’s interest in the Property even if one
or more of Ms. O’Neill’s challenges succeed. However, a number of potential
contingencies implicate Ms. O’Neill’s due process rights. First, should she
(Footnote Continued Next Page)


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      Perhaps some more robust substantive argument in support of LTI’s

position may lie. But the trial court’s finding that due process was denied

the Descendants on its face is equitable under the circumstances. Moreover,

LTI simply mounts no principled challenge to that dispositive aspect of the

trial court’s reasoning.8       This Court will not advocate on behalf of a party

                       _______________________
(Footnote Continued)

succeed in setting aside the tax sale, then LTI ostensibly will have no title to
the 23/24 share of the Property it secured in its quiet title action. The same
would be true in the event that Ms. O’Neill were to prevail in her challenge to
LTI’s action to quiet title. Were that the case, then LTI might have no
interest in securing Ms. O’Neill’s share, such that HNB would have no buyer,
and might, upon request, transfer the Property to Ms. O’Neill and other heirs
in kind. It is plausible, then, that Ms. O’Neill, perhaps in tandem with other
heirs not party to this action, might raise the funds necessary to free the
Property from its tax arrears, thus freeing it for sale on the open market or
to be retained by one or more of the heirs.            Needless to say, such
considerations are highly speculative, especially because we lack information
about the status of the pending Luzerne County actions. But the above
considerations satisfy us that Ms. O’Neill has an interest in the Property
entitling her to due process that would be denied her if her standing to press
her Luzerne County actions were compromised by HNB’s transfer of the
Property to LTI.
8
      This Court also has suggested that among the factors militating
against an extension of the section 5505 time limit is the “adversarial”
nature of the proceedings. See Orie v. Stone, 601 A.2d 1268, 1270-71
(Pa. Super. 1992). The premise of this qualification is that a party should
not be given more than thirty days to seek to interfere with a judgment
when it has had the opportunity to be heard in the underlying proceedings.
Id. Thus, in Orie, this Court distinguished a trial court’s ongoing authority
to revisit and open judgments by confession or default, which may be
entered without notice to the party against whom such judgments are
entered, from judgments entered following adversarial proceedings. Id. At
least arguably, this case more resembles the latter category of actions than
the former, further militating in favor of waiving section 5505’s time limit
under the circumstances of this case.



                                           - 18 -
J-S02041-15



that has failed to do so, which is precisely what would be required to afford

LTI   relief   from   the   trial   court’s   ruling   in   this   instance.   See

Pa.R.A.P. 2119(a); cf. In re Estate of Whitley, 50 A.3d 203, 209

(Pa. Super. 2012) (“This Court will not consider the merits of an argument

[that] fails to cite relevant case or statutory authority.”). Accordingly, this

claim, too, does not warrant relief.

      Order affirmed.

      Judge Mundy concurs in the result.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




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