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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF DOROTHY TORKOS :              IN THE SUPERIOR COURT OF
                                :                    PENNSYLVANIA
APPEAL OF: JAMES TORKOS,        :
BARRY TORKOS, AND DAVID TORKOS, :                    No. 167 EDA 2014
                                :
                   Appellants   :


              Appeal from the Order Entered December 9, 2013,
           in the Court of Common Pleas of Northhampton County
                        Civil Division at No. 2008-1622


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED JANUARY 09, 2015

      Dorothy Torkos, appellants’ mother, died testate. Her estate consisted

primarily of her house.       James Torkos, Barry Torkos, and David Torkos

appeal   from   the   order   entered   December    9,   2013,   providing   that

Barry Torkos is entitled to claim a family exemption under 20 Pa.C.S.A.

§ 3121, but is not permitted to purchase the real property at market value

and deduct the family exemption from the purchase price.         We quash the

instant appeal as interlocutory.

      The trial court has set forth the history of this matter as follows:

                 Dorothy Torkos (“Decedent”) died testate on
            September 6, 2008, having executed a Last Will and
            Testament (“Will”) on November 11, 1981. The Will
            named her husband Frank as executor, and her son
            David as his alternate. The entirety of her Estate
            was to be devised to Frank, and alternatively, in
            equal shares to her sons David, Barry, Brian and
            James. Decedent was predeceased by Frank and
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          Brian. At the time of her death, Decedent resided at
          110 Motil Road, in Hellertown, Northampton County
          with her son Barry. Along with Barry, she was
          survived by her sons David and James, and Brian’s
          children, Stacie and Kristopher.

                Upon her death, executorship fell to David,
          who renounced his role.       Executorship was also
          renounced by James, Barry and Christopher, leaving
          the role to Decedent’s granddaughter, Stacie. On
          December 30, 2008, Decedent’s Will was admitted to
          probate and Letters of Administration CTA were
          issued to Stacie (“Administratrix/Stacie Torkos”).

                 On March 16, 2010, Stacie Torkos filed a
          “Petition for Permission to Sell Real Estate to
          Personal Representative/Administratrix.”        David,
          James and Barry Torkos (“Torkos Brothers”) filed an
          Answer thereto on May 28, 2010. The petition came
          before undersigned for a conference on the filing
          date, and as a result thereof, the Court directed that
          there be a sealed bid auction between the parties.
          The high bid was submitted by Stacie, and on
          June 11, 2010 the Court entered an Order directing
          that the property be sold to her for the bid price of
          One Hundred Fifty-Thousand Dollars ($150,000.00)
          pending proof of her ability to consummate the sale,
          and closing within thirty (30) days.

                 On July 9, 2010, the Torkos Brothers filed a
          “Petition to Set Aside the Proposed Sale or in the
          Alternative, Motion to Reconsider, or in the
          Alternative, Petition to Vacate Order of Court Dated
          June 11, 2010.” On July 12, 2010, Stacie Torkos
          filed a “Petition to Require Occupant to Vacate
          Certain Real Estate and to Extend the Closing Date
          Pursuant to Order of Court Dated June 11, 2010.”
          The Torkos Brothers filed an Answer, New Matter and
          Counterclaim in response to that petition on July 19,
          2010, seeking Stacie Torkos’ removal from her role
          as Administratrix by the latter. On July 19, 2010,
          the parties went to Motions Court relative to
          Stacie Torkos’ request for an extension of time to
          settle on the property, and an Order was entered


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           granting such relief. On July 28, 2010, Stacie Torkos
           answered the Torkos Brothers’ petition of July[] 9,
           2010, and on August 6, 2010, she replied to their
           New Matter, as set forth in their pleading of July 19,
           2010, followed by an Amended Reply, on August 11,
           2010. On August 12, 2010, the undersigned entered
           an Order staying conveyance of the real estate to
           Stacie Torkos pending further Order of Court.

                  Additionally, on August 12, 2010, Barry Torkos
           filed a “Petition for Claim of Family Exemption,” to
           which the Administratrix filed a response on
           August 31, 2010. Thereafter, on August 19, 2010,
           the Torkos Brothers filed an omnibus petition
           inclusive of petitions declaring that the Will set forth
           a per capita and not a per stirpes distribution
           scheme,[1] and that therefore, Kristopher and
           Stacie Torkos were not entitled to Brian’s share of
           the Estate; a formal petition for the removal of
           Stacie Torkos from her position as the Administratrix
           of the Estate; a renewal of Barry Torkos’ claim for
           family exemption and a petition to allow them to
           purchase the real estate.

                  On December 14, 2010, Stacie Torkos filed a
           “Petition to Enforce Order of Court Dated June 11,
           2010,” to which the Torkos Brothers filed an Answer

1
           Pursuant to a per capita distribution scheme, the
           beneficiaries of a single class identified in a will share
           in the estate amongst themselves, and no one takes
           by representation on behalf of a deceased member
           of that class. See Hamilton’s Estate, 312 A.2d 373
           (Pa. 1973). Whereas, under a per stirpes scheme of
           distribution, the descendants of the deceased take
           by representative share. See Grimm’s Estate, 275
           A.2d 349, 357 (Pa. 1971) (“Ordinarily, the words
           ‘per stirpes’ are used with respect to substitutional
           gifts to substituted legatees in the event of the death
           of a primary legatee or legatees. . . .”)[.]

Estate of Dorothy Torkos, No. 1234 EDA 2011, unpublished memorandum
at 5-6 (Pa.Super. filed March 26, 2012), quoting trial court opinion, 4/5/11
at 6-7 n.6.


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          on December 21, 2010. On December 30, 2010, the
          Court, in consideration of the motions bearing on the
          disposition of the real estate, entered an Order
          directing that the property be sold at a public auction
          to be conducted by Wil E. Hahn. On January 7,
          2011, the Torkos Brothers filed a motion for
          reconsideration of the December 30, 2010
          Order.[Footnote 1] Contemporaneously, the Torkos
          Brothers filed a motion to certify the December 30,
          2010 Order for appeal. However, prior to the filing
          of any appeal, the matter came back before the
          undersigned for disposition of Barry Torkos’ claim for
          exemption, and the Torkos Brother’s [sic] petitions
          relative to the proper interpretation of the Will and
          the rights of Kristopher and Stacie Torkos to inherit
          thereunder.

                [Footnote 1] Given the pendency of
                these and other motions, the Court, by
                correspondence     to    counsel  dated
                January 13, 2011, notified the parties
                that it had directed Mr. Hahn to hold in
                abeyance his plans to auction the
                property until the disposition of these
                outstanding matters.

                 By an Order and Statement of Reasons filed on
          April 5, 2011, the Court determined that: (1) Barry
          Torkos was entitled to claim the family exemption;
          (2) the Will set forth a per stirpes distribution
          scheme, and (3) Stacie and Kristopher Torkos were
          untitled [sic] to take thereunder.       On or about
          April 15, 2010, the Torkos Brothers filed a petition to
          certify the Court’s April 5, 2011 decision for appeal,
          and the same was granted by an Order entered on
          April 20, 2011.     That Order also put a stay of
          proceedings into effect pending disposition of the
          appeal, which was filed on May 3, 2011. By a
          decision issued on March 26, 2012, the Superior
          Court affirmed this Court’s April 5, 2011 ruling.

                 On September 3, 2013, Stacie Torkos filed a
          “Petition to Remove Stay and Enforce Orders of
          Court Dated June 11, 2010 and April 5, 2011.” The


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            Torkos Brothers responded with the filing of an
            Answer and New Matter on October 3, 2013 and the
            parties appeared before the undersigned for a
            conference on October 4, 2013. Given that the issue
            presented by Stacie Torkos’ present petition is the
            disposition of the real estate, the parties came to an
            agreement at conference that the threshold issue is
            whether or not Barry Torkos is entitled to take the
            family exemption in kind, or whether he is limited to
            taking the exemption in cash.         Counsel for the
            Torkos Brothers contend that if Barry is entitled
            under the law to take the exemption in kind, the
            Court’s prior rulings relative to the disposition of the
            real estate will be superseded by his option to buy
            the real estate at fair market value. This limited
            issue is now ready for disposition.

Order and opinion, 12/9/13 at 1-4.

      Appellants’ main issue on appeal is that the trial court erred when it

precluded Barry Torkos from proceeding under 20 Pa.C.S.A. § 3123, allowing

him to purchase the real estate at market value and deducting the family

exemption from the purchase price, as opposed to taking the $3,500 family

exemption out of the estate in cash.        There is no question that Barry is

entitled to claim the $3,500 family exemption pursuant to 20 Pa.C.S.A.

§ 3121. However, Barry insists that because the real property is the only

significant asset in the estate, he is entitled to take the property “in kind” to

satisfy the family exemption, while reimbursing the estate for the remaining

fair market value of the property. In the prior appeal, we determined that

the issue was not properly before this court because the trial court had

issued a stay of the order conveying the property to Stacie Torkos for

$150,000. Because a stay order is interlocutory, we did not have jurisdiction


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to consider the issue.   Therefore, the issue of the “right to take the real

estate” was not properly before this court.     Estate of Dorothy Torkos,

supra at 12-13.

      Before we may address appellants’ substantive issues on appeal, we

must determine whether the instant appeal is from a final order or is

otherwise appealable. On February 7, 2014, this court issued a rule to show

cause why the appeal should not be quashed as interlocutory.       Appellants

filed a response on February 19, 2014, arguing, inter alia, that while not a

final order, it is appealable as of right under several subsections of

Pa.R.A.P. 342, including as an order determining an interest in real property.

Pa.R.A.P. 342(a)(6). Appellants also argue it is immediately appealable as it

declares the rights and obligations of the parties. 42 Pa.C.S.A. § 7532.

            As a prefatory matter, we must determine whether
            this appeal lies from a final order subject to our
            review. We may examine the issue of appealability
            sua sponte because it affects the Court’s
            jurisdiction over the case.        In re Estate of
            Cherwinski, 856 A.2d 165 (Pa.Super.2004) (citing
            In re Estate of Borkowski, 794 A.2d 388
            (Pa.Super.2002)). An appeal must be taken from a
            final order. In re Estate of Cherwinski, supra. A
            final order is defined as follows:

                  Rule 341. Final Orders; Generally

                  (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.



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

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

                         (2) any order that is expressly
                             defined as a final order by
                             statute; or

                         (3) any order entered as a
                             final order pursuant to
                             subdivision (c) of this rule.

                                      ***

            Pa.R.A.P. 341. See In re Estate of Borkowski,
            supra. Thus, for purposes of the present case, an
            order is final and appealable if it disposes of all
            claims or if a statute expressly defines it as final.

In re Miscin, 885 A.2d 558, 560-561 (Pa.Super. 2005).

      “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.”      Borkowski, 794 A.2d at 390,

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

citing 20 Pa.C.S. § 3514.

      Rule 342 provides that certain Orphans’ Court orders are appealable as

of right without a determination of finality.

            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:




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                    (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).

     Appellants claim that the order determines an interest in real property.

Rule 342(a)(6) provides that an appeal may be taken as of right from an



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order determining an interest in real property.     Appellants state that the

December 9, 2013 order denied Stacie Torkos’ petition to remove the stay

and enforce the prior order allowing her to purchase the property for

$150,000.    The December 9 order also specifically precluded Barry Torkos

from claiming the family exemption in kind, i.e., by purchasing the real

property at fair market value and then deducting the family exemption from

the purchase price.     Rather, the trial court ruled that Barry Torkos was

limited to taking the exemption in cash. Therefore, according to appellants,

the December 9 order determined the rights of the parties to the real

property in question and is immediately appealable. We disagree.

      The trial court did not determine ownership of the subject property.

The estate remains the owner of the property until it is sold to a third party.

The trial court only determined whether the property should be sold at public

auction as previously ordered or sold to Stacie Torkos as requested in her

petition.   In fact, the trial court specifically provided that “all interested

parties remain eligible to purchase the property pursuant to the public

auction,” including Barry Torkos.     Determining eligibility to purchase real

property is not the same as determining ownership of the property.           If

Barry Torkos wants to purchase the property, he can do so by placing the

high bid at public auction.    Regardless, he is still entitled to the $3,500

family exemption as well as his share of the proceeds from the sale of the

house.



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         Appellants also claim the order is appealable under Subsection (a)(5)

as an order determining the status of fiduciaries, beneficiaries, or creditors

in an estate. Appellants argue that the trial court determined Barry Torkos’

status, i.e., that he is permitted to take the family exemption, but not use it

to purchase the real property.         We disagree.     The trial court did not

determine Barry Torkos’ “status” as a beneficiary of the estate, it merely

ruled that he could not proceed under 20 Pa.C.S.A. § 3123.

         Appellants suggest that the order is immediately appealable under

Rule 342(a)(1), as an order confirming an account, or authorizing or

directing a distribution from an estate or trust.         Again, this section is

inapplicable.    Appellants argue that by ordering the property to be sold at

public auction, the order is essentially directing the distribution of an estate

asset.     The December 9, 2013 order does no such thing.         The trial court

made no determination as to the distribution of any of the proceeds from the

sale, and did not direct or authorize any distribution from the estate. Nor

does the December 9 order relate to the confirmation of an account. The

trial court simply reaffirmed its prior order directing that the property be

sold at public auction.

         Appellants also point to 42 Pa.C.S.A. § 7532, which provides,

              Courts of record, within their respective jurisdictions,
              shall have power to declare rights, status, and other
              legal relations whether or not further relief is or
              could be claimed. No action or proceeding shall be
              open to objection on the ground that a declaratory
              judgment or decree is prayed for. The declaration


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             may be either affirmative or negative in form and
             effect, and such declarations shall have the force and
             effect of a final judgment or decree.

This is not a declaratory judgment action. Nor did the December 9, 2013

order make a final determination of the legal rights and obligations of the

parties.   As appellee observes, “The Estate remains under Administration

and there will be no final determination of the legal rights and obligations of

the Parties until a final distribution is made to all beneficiaries of the Estate

and a Final Account is confirmed by the Court.” (Appellee’s brief at 11.)

      Appellants also argue that in the court below, the parties basically

agreed that the first issue to be decided was whether Barry Torkos could

take the family exemption “in kind,” or whether it would be paid as an

administrative cost out of the estate.        If the trial court ruled that Barry

Torkos could take the exemption in kind, then the matter of a public auction

becomes moot. At a status conference, the parties indicated that whatever

the court’s ruling, it would likely be appealed. (Appellants’ response to show

cause order, 2/19/2013 at 4, citing notes of testimony, 10/4/13 at

10:14-19.)     However, it is well established that litigants cannot confer

jurisdiction by stipulation or agreement.        See Jahanshahi v. Centura

Development Co., Inc., 816 A.2d 1179, 1183 (Pa.Super. 2003) (“Although

neither the trial court nor the parties raised the issue of appealability, “[w]e

may raise [it] sua sponte because it affects our jurisdiction over the

case.”), quoting Borkowski, 794 A.2d at 389.



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      Finally, appellants claim that the December 9, 2013 order exposes the

sole valuable asset of the estate to public sale, and they would suffer

irreparable harm if a sale is consummated.     Appellants’ argument in this

regard is unconvincing.     As stated above, there is no dispute that

Barry Torkos is entitled to the family exemption under 20 Pa.C.S.A. § 3121.

That decision was upheld on the prior appeal. Whether or not the house is

sold to a third party, Barry Torkos is entitled to the $3,500. The house has

been valued at approximately $200,000.      It is clear from the record that

Barry Torkos is using the family exemption entitlement to try to force a sale

to him.

      For these reasons, we conclude that the December 9, 2013 order is

interlocutory and non-appealable. As such, we lack jurisdiction to consider

the instant appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2015




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