J-A27042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF MARIAN BURRELL,                          IN THE SUPERIOR COURT OF
DEC.                                                            PENNSYLVANIA

APPEAL OF: PAMELA K. BURRELL AND
RICARDO BURRELL
                                                                No. 2624 EDA 2015


                      Appeal from the Decree July 17, 2015
      in the Court of Common Pleas of Philadelphia County Orphans' Court
                         at No(s): Control No. 141963
                            O.C. No. 805 DE of 2013

BEFORE: PANELLA, LAZARUS, FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                             FILED FEBRUARY 21, 2017

         Pamela   K.   Burrell       (“Pamela”)     and   Ricardo     Burrell   (“Ricardo”)

(collectively “Appellants”), co-executors of the estate of Marian Burrell

(“Decedent”), appeal from a decree of the Philadelphia Court of Common

Pleas,    Orphans’     Court     Division,   awarding     Rodney      Burrell   (“Rodney”)

$10,154.59, comprised of his one-fifth shares of (1) proceeds of the sale of

Decedent’s     residence,      (2)    monies      distributed   to   non-beneficiaries   of

Decedent’s will, and (3) the remaining balance in the estate account after

distribution, plus interest. Appellants argue that the Orphans’ Court erred

by refusing to subtract two items from this award: (1) legal fees and

expenses that Appellants incurred in an action to eject Rodney from




*
    Former Justice specially assigned to the Superior Court.
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Decedent’s residence1 after her death; and (2) reduction in the sale price of

the residence that Rodney caused by refusing to leave the residence after

Decedent’s death.      We agree with Appellants’ first argument but not their

second.    Accordingly, we affirm in part, reverse in part and remand for

further proceedings.

     The Orphans’ Court summarized the factual and procedural history of

these proceedings as follows:

             [Decedent] died testate on December 2, 2011. She
          was survived by her five children[:] Ricardo, Pamela,
          Rodney, Courtney Burrell, and Mandel Burrell. Decedent’s
          [w]ill named Ricardo and Pamela as co-executors.
          Decedent’s [w]ill left the residuary of the estate to her
          children in equal shares.

             On March 17, 2012, there was an [a]greement of [s]ale
          to sell the 17th Street property for $53,000.00. On April 6,
          2012, pursuant to [s]ection 13(B)(2) of the [a]greement of
          [s]ale, Ricardo and Pamela agreed to the buyer’s
          termination of sale and agreed to return the buyer’s
          $1,000.00 deposit. On February 13, 2013, the 17th Street
          property sold for $39,482.37.

              The First and Final Account indicates that Rodney was
          paid a $10,297.17 disbursement from [Decedent’s] Estate
          . . . On June 24, 2014, Rodney filed a petition seeking to
          have Ricardo and Pamela file an [a]ccounting and show
          cause why he was not entitled to his 20% share of the
          proceeds from the sale of [the 17th Street property]. In
          response, [Appellants filed an answer asserting] that




1
 Decedent’s residence was located at 3847 North 17th Street, Philadelphia,
Pennsylvania. We will refer to it below as “the 17th Street property.”




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        Rodney[’s] share was exhausted by the legal fees they
        paid to evict[2] him from the 17th Street property.

           The [Orphans’] Court held a hearing[3] and received
        testimony on July 14, 2015.

           At the hearing, Rodney presented two witnesses.
        Rodney[’s] first witness was his brother, Ricardo, who was
        called on cross-examination.      He testified that as co-
        executor[,] he along with Pamela disbursed $3,000.00
        each to Noah Burrell and Shirley Johnson, despite the fact
        that they were not included in the [w]ill. He also testified
        that Part 10 of the [w]ill allowed him to disinherit a
        beneficiary under the [w]ill. He admitted that while his
        brother Rodney contested the sale of the 17th Street
        property, he had not formally contested the [w]ill. He
        testified that Rodney only received approximately
        $10,000.00 and did not receive his share of the proceeds
        from the sale because “he contested the sale of the house,
        that’s why we lost the first sale.” Ricardo further testified
        that on March 23, 2012, he changed the locks to the [17 th
        Street] property and prevented Rodney[’s] entry by not
        giving him a key.

           Furthermore, Ricardo asserted that the initial
        [a]greement of [s]ale was not finalized because Rodney
        “created false documents, [hung] several signs in the
        windows trying to discourage the seller and neighbors,
        [and] created a Burrell trust fund where he was the only
        recipient of it.” However, he added that because he lived

2
 Appellants’ answer actually asserted that they paid legal fees to “eject”
Rodney from the 17th Street Property. Answer To Pet. For Citation at ¶ 7.
3
  The certified record did not include the hearing transcript. The Note to
Pa.R.A.P. 1921 provides, however: “[W]here the accuracy of a pertinent
document is undisputed, the Court [can] consider that document if it was in
the Reproduced Record, even though it was not in the record that had been
transmitted to the Court.” Note, Pa.R.A.P. 1921 (citing Commonwealth v.
Brown, 52 A.3d 1139, 1145 n. 4 (Pa. 2012)). Because the hearing
transcript in this case is part of the reproduced record, and because neither
party disputes its accuracy, we will consider it. See id.




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        in Washington, D.C., he did not see the signs in person,
        only in pictures.    Additionally, he stated that he and
        Pamela had to file an ejectment action4 “[b]ecause that
        was the only way we could resell the house.” He added
        that they needed Rodney to be removed from the property
        in order to sell it.

           Rodney also testified. He testified that he moved back
        into the 17th Street property in 2009 after he lived in
        Atlanta, Georgia for a period of time. He testified that
        before the ejectment action was filed, he was never asked
        to move out. He further stated that he was locked out by
        his brother on March 23, 2012. He elaborated that he
        found out the locks had been changed after his brother
        Courtney Burrell called him and indicated that his
        belongings would be left on the porch that same day if he
        did not come and retrieve them. He stated that he had to
        change the locks again on March 29, 2012 to regain entry
        to the property. He also testified that before the property
        was put on the market for sale, a number of family
        members came into the home and took many of the items
        contained inside. He added that while this occurred, the
        police were called, but that the police declined to take
        action because it was a civil dispute. He said originally, he
        was in agreement to sell the house, but it was not until the
        incident when the police were called that he began to
        oppose the sale.

           Additionally, regarding the sale of the property, Rodney
        testified that he allowed a lockbox to be placed on the
        front door to allow the real estate agent and potential
        buyers to tour the property. He stated that during the
        time the property was listed for sale, he had not prevented
        potential buyers from inspecting the property. He testified
        that he did not remove the real estate sale signs from the
        property. He added that he did post a sign in the window
        to deter criminal activity of those who may have thought
        the house did not have anyone living in it. He also
        testified that after the sale of the house occurred on
        February 13, 2013, he did not receive any money. Finally,

4
 It is undisputed that Ricardo and Pamela prevailed in the ejectment action
against Rodney. R.R. at 29 (hearing transcript).



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         he stated that there was no agreement between his
         siblings to give $3,000.00 each to Noah Burrell and Shirley
         Johnson.

             In Ricardo and Pamela[’s] case-in-chief, both Ricardo
         and Pamela testified. Pamela testified that all of the
         siblings were in agreement that the 17th Street property
         should be sold. She also stated that she and Ricardo
         ultimately decided to file an ejectment action because of
         outstanding utility bills. She also testified that as a result
         of the ejectment action legal fees were incurred in the
         amount of $6,720.28. With regard to the two $3,000.00
         disbursements, she also stated that she and her brother
         felt that, as executors, they could give their aunt and uncle
         “thank you” gifts in the amount of $3,000.00 each because
         they had been there “through thick and thin.” She verified
         that after the distributions, $2,416.00 remained in the
         [e]state, but that $1,500.00 was used to retain an
         attorney on June 25, 2014. She stated that Rodney had
         received $10,000.00 on December 31, 2012 after she
         divided her mother’s insurance policy between her siblings.
         She also testified that she agreed with Ricardo that the
         [n]o-[c]ontest [p]rovision of the [w]ill prohibited Rodney
         from taking his share of the proceeds of the sale of the
         property. Despite this, she admitted that no court gave
         her the authority to disinherit her brother.

            Lastly, Ricardo briefly testified on direct examination.
         He stated that on March 30, 2012, he and his cousin were
         unable to gain access to the property because Rodney had
         changed the locks.      He also admitted that when he
         previously changed the locks, he did not provide Rodney
         with a key. He also testified that when the real estate
         agent sent him the termination of the [a]greement of
         [s]ale document, he did not question his realtor about why
         he had to sign it.

Orphans Ct. Op., 1/6/16, at 1-5 (with minor stylistic revisions).

      The Orphans’ Court decreed in relevant part:

         4. [Rodney] received a one-fifth share of the residuary
         estate in the amount of $10,297.17 as a partial
         disbursement;


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J-A27042-16



       5. [Appellants], as [c]o-[e]xecutors of the estate at issue,
       bore the sole responsibility of administering said estate
       according to the provisions set forth in [D]ecedent's [l]ast
       [w]ill and [t]estament, and furthermore, owed a fiduciary
       duty to all legatees, including [Rodney], without favoring
       or benefitting any beneficiary over another within an equal
       distributive class, namely, [Rodney]’s three brothers and
       one sister who also were entitled to a one-fifth share of the
       residuary estate;

       6. [Appellants] distributed the proceed[s] of $39,482.57
       from the sale of [the 17th Street property] in four equal
       shares, thereby, excluding [Rodney] from his one-fifth
       share or $7,896.51;

       7. [Appellants] made distributions of . . . $6,000.00 . . . or
       . . . $3,000.00 . . . each to Noah Burrell and Shirley
       Johnson, neither of whom were named beneficiaries under
       the [l]ast [w]ill and [t]estament of [Decedent];

       8. [Appellants] did not give [Rodney] his one-fifth share of
       the $2,416.69 balance remaining after distribution of the
       estate assets;

       9. [Appellants’] contention that the estate incurred legal
       expenses in evicting [Rodney] is without merit as this
       Court finds the March 13, 2012 lockout of [Rodney]
       precipitated the need for formal ejectment and was done
       without court approval and in violation of [Rodney]’s
       rights;

       10. [Rodney] at no time violated Part 10 the No-Contest
       Provision of [D]ecedent[’s] [l]ast [w]ill and [t]estament;

       11. [Appellants] never filed a formal accounting prior to
       court order;

       12. Based on the testimony and evidence presented at the
       July 14, 2015 hearing in this matter, the Court awards
       [Rodney] $7,896.51 from the sale of the estate[’s] real
       estate, $1,200.00 for his share of monies distributed to
       non–beneficiaries under the [w]ill, $483.34 for [Rodney]’s
       one-fifth share [of] the estate account balance after


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J-A27042-16


         distribution, $574.74 representing simple interest for one
         year and no attorney fees for a total of . . . $10,154.59
         with [Appellants] to be surcharged accordingly.

Decree, 7/17/15, at ¶¶ 4-12.

      On August 14, 2015, Appellants filed a timely appeal to this Court.5

Both Appellants and the Orphans’ Court complied with Pa.R.A.P. 1925.

      Appellants raise four issues on appeal, which we have re-ordered for

purposes of review:

         1. Did the [Orphans’] [C]ourt err in reasoning that
         [Rodney’s] actions did not create a chain of events which
         led to the granting of a formal ejectment due to [Rodney’s]
         refusal to participate in the sales process and his unlawful
         occupation of the estate’s property?

         2. Did the Orphans’ Court err in deciding that . . .
         Appellants’ changing the locks on the estate[’s] property
         was an illegal lockout rather than necessary steps to
         secure the property, in light of [Rodney’s] efforts to
         frustrate the sale of the estate’s property?

         3. Did the Orphans’ Court err in prohibiting testimony
         which would have explained . . . Appellants’ need to file an
         action for ejectment against [Rodney]?

         4. Did the [Orphans’] [C]ourt ignore [Rodney’s] actions
         [which] caused the original sale agreement of $53,000.00
         to be terminated which resulted in a $14,000.00 loss in the
         sale [of] the estate’s property?

Appellants’ Brief at 5.



5
  Although Appellants did not file exceptions to the Orphans’ Court’s decree,
they were not required to do so under the rules then in effect, statewide
Orphans’ Court Rule 7.1 or Philadelphia Local Rules 7.1A or 7.1B. Thus, the
absence of exceptions does not result in waiver of any issues.



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      In their first argument, Appellants contend that the Orphans’ Court

erred in refusing to deduct legal fees and expenses from the award to

Rodney that Appellants were forced to expend to eject Rodney from

Decedent’s property.     The Orphans’ Court denied this deduction on the

ground that Appellants performed an illegal “self-help eviction” by locking

Rodney out of the property thirteen days before filing an ejectment action.

Orphans’ Ct. Op. at 7, 10.        In so doing, the Orphans’ Court opined,

Appellants “acted with unclean hands.”         Id. at 10.       We agree with

Appellants.

          When reviewing a decree entered by the Orphans’ Court,
          this Court must determine whether the record is free from
          legal error and the court’s factual findings are supported
          by the evidence. Because the Orphans’ Court sits as the
          fact-finder, it determines the credibility of the witnesses
          and, on review, we will not reverse its credibility
          determinations absent an abuse of [ ] discretion.

Owens v. Mazzei, 847 A.2d 700, 706 (Pa. Super. 2004).             “If the court’s

findings are properly supported, an appellate court may reverse an Orphans’

court’s decision only if the rules of law on which it relied are palpably wrong

or clearly inapplicable.” Id.

      The Orphans’ Court erroneously determined that Appellants evicted

Rodney. On the contrary, the record demonstrates that Appellants ejected

Rodney from Decedent’s property, and that Appellants are entitled to

recover   attorney   fees   and   expenses   for   their   successful   ejectment

proceeding.



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      Ejectment is a “possessory action” that “can succeed only if the

plaintiff is out of possession, and if he has a present right to immediate

possession.”     Wells Fargo Bank, N.A. v. Long, 934 A.2d 76, 79 (Pa.

Super. 2007) (citation omitted).    Ejectment is a common law proceeding.

See Siskos v. Britz, 790 A.2d 1000, 1009 (Pa. 2002) (noting that filing of

ejectment action would have entitled party to demand jury trial in the

exercise of constitutional right to jury trial in common law proceeding).

      An eviction is a statutory proceeding that occurs in a landlord-tenant

relationship. See Landlord and Tenant Act of 1951, 68 P.S. §§ 250.501—

250.514.       A landlord-tenant relationship “arises under a contract for

possession of lands in consideration of rent to be paid therefor . . . A tenant

is one who occupies land or the premises of another in subordination to the

other’s title, and with his assent, express or implied.”      In Re Wilson’s

Estate, 37 A.2d 709, 710 (Pa. 1944) (citations omitted).         Under certain

statutorily prescribed conditions, the landlord has the right to commence

eviction proceedings against a tenant.6     It is impermissible, however, for

landlords to evict tenants via self-help, or through actions not involving

judicial process. See Williams v. Guzzardi, 875 F.2d 46, 52 n. 13 (3d Cir.

1989) (analyzing Pennsylvania law).

6
   See 68 P.S. § 250.501(a) (following written notice, landlord can
commence eviction proceedings “(1) upon the termination of a term of the
tenant, (2) or upon forfeiture of the lease for breach of its conditions, (3) or
upon the failure of the tenant, upon demand, to satisfy any rent reserved
and due”).



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      Here, the undisputed evidence demonstrates that (1) Decedent’s

residence was the property of her estate, (2) after Decedent’s death,

Appellants filed an action to eject Rodney from Decedent’s residence

because Rodney refused to leave the residence, and (3) Appellants prevailed

against Rodney in the ejectment action.7          There is no evidence that

Decedent and Rodney had a landlord-tenant relationship, i.e., a contractual

relationship in which Rodney paid rent to Decedent. See Wilson’s Estate,

37 A.2d at 710.

      The evidence thus refutes the Orphans’ Court’s conclusion that

Appellants engaged in a self-help eviction or acted with unclean hands.

Appellants prosecuted an ejectment action against Rodney in good faith—an

action that became necessary because Rodney refused to vacate Decedent’s

residence, and because Appellants needed him to leave in order to sell the

residence.   Indeed, Appellants won this ejectment action, a fact which is

antithetical to the Orphans’ Court finding that Appellants acted in bad faith.

      Despite disagreeing with the Orphans’ Court’s reasoning, we have the

authority to inquire whether an alternative reason exists for affirming its

decree. See In Re Estate of Klink, 743 A.2d 482, 485 (Pa. Super. 1999)


7
  Philadelphia’s civil docket also indicates that Appellants prevailed in their
ejectment action. See Burrell v. Burrell, April Term, 2012, No. 629. The
court granted judgment in that case to Appellants when Rodney did not file
an answer to Appellants’ motion for judgment on the pleadings. Id. Rodney
appealed to this Court, which dismissed his appeal due to his failure to file a
docketing statement. See Burrell v. Burrell, 3158 EDA 2012.



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(“this court may uphold the decision of a lower court if it can be sustained

for any reason, even if the reasons given by the lower court to support its

decision are erroneous”).   In this instance, however, we can think of no

alternative reason for affirming the Orphans’ Court’s decision.       To the

contrary, the record establishes that (1) Appellants had to file the ejectment

action to facilitate the administration of Decedent’s estate, (2) Appellants

had to file the ejectment action due to Rodney’s refusal to vacate Decedent’s

residence, and therefore (3) Rodney alone should be responsible for the

attorney fees and expenses incurred because of this action.     We conclude

that the Orphans’ Court erred by declining to deduct these attorney fees and

expenses from Rodney’s award.

     Appellants’ second argument is that the Orphans’ Court erred by

holding that Appellants’ act of changing the locks on Decedent’s residence

was an illegal lockout. Based on our analysis of Appellant’s first argument,

we conclude that they are correct.           The evidence demonstrates that

Appellants engaged in valid ejectment proceedings against Rodney and

therefore are entitled to attorney fees and expenses incurred during these

proceedings.

     Appellants’ third argument is that the Orphans’ Court erred in

prohibiting testimony that would have explained Appellants’ need to file an

ejectment action against Rodney. Our conclusion above that Appellants had




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a good faith reason for prosecuting an ejectment action renders this

argument moot.

      In their fourth and final argument, Appellants contend the Orphans’

Court erred by failing to hold Rodney accountable for the drop in the sale

price of Decedent’s residence from $53,000.00 in the first agreement of sale

to $39,482.37 in a subsequent agreement of sale. We disagree.

      The evidence demonstrates that on March 17, 2012, Appellants

entered an agreement to sell the 17th Street property for $53,000.00. On

April 6, 2012, pursuant to section 13(B)(2) of the agreement, the buyer

terminated the sale, and Appellants returned the buyer’s down payment. On

February 13, 2013, the 17th Street property sold for $39,482.37.

      The evidence demonstrates that the first buyer backed out of the sale

not because of Rodney’s conduct but because of dissatisfaction with a home

inspection. The Orphans’ Court observed that the notice of termination of

agreement of sale signed by both Appellants and the buyer cited section

13(B)(2) of the agreement of sale.     Section 13(B)(2) provided in relevant

part that “if the result of any inspection . . . is unsatisfactory to the Buyer,

Buyer will, within the stated Contingency Period . . . terminate this

Agreement by written notice to Seller with all deposit monies returned to the

Buyer . . .”   This evidence provided sufficient foundation for the Orphans’

Court to conclude that Rodney should not bear the blame for the termination

of the first sale and the resulting price drop from $53,000.00 to $39,482.37.



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      For these reasons, we vacate the Orphans’ Court order and remand to

the Orphans’ Court for deduction of all attorney fees and expenses

necessitated by the ejectment proceeding from Appellant’s award.

      Decree affirmed in part and reversed in part.    Case remanded to

Orphans’ Court for further proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2017




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