J-S36013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF HELEN A.                  :   IN THE SUPERIOR COURT OF
    GOODMAN ALBIE E. GOODMAN, JR.              :        PENNSYLVANIA
    AND SUZANNE STITT                          :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW A. GOODMAN                         :   No. 304 WDA 2020
                                               :
                       Appellant               :

               Appeal from the Order Entered January 30, 2020
     In the Court of Common Pleas of Armstrong County Orphans' Court at
                             No(s): 03-17-0380


BEFORE:      OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 26, 2020

        Appellant, Matthew A. Goodman, appeals from the January 30, 2020

order overruling his objections to the first and final account of the Estate of

Helen A. Goodman (“the Estate”). We affirm.

        The orphans’ court accurately summarized the relevant factual and

procedural history of this case as follows.

        Helen A. Goodman [the (“Decedent”)] died testate on [June 17,
        2017]. Letters of administration . . . were granted by the Register
        of Wills to Albie E. Goodman, Jr., [(“Goodman”)], [Appellant], and
        Suzanne Stitt [(“Stitt”)] on November 30, 2017. [Appellant,
        Goodman, and Stitt] are [Decedent’s] three children and the sole
        remaining beneficiaries under her will [as] her husband []
        predeceased her in 2006. At the time of her death, [Decedent]
        owned a parcel of real property located at 109 Iron Works Street,
        Kittanning, Armstrong County, Pennsylvania (the “Property”).

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      She also [] possessed certain liquid assets in checking and wealth
      management accounts[.]

      On November 21, 2018, [Goodman and Stitt, (collectively,
      “Appellees”)] filed a petition to direct the Estate to sell [the
      Property] to [Goodman]. Attached to the petition [was] a mutual
      family agreement (“Family Agreement”) executed among the
      three beneficiaries[, which addressed several outstanding issues.]

      By orders entered [on] February [5], 2019, and March 1, 2019,
      the [orphans’ c]ourt ordered the Estate to conduct among the
      three beneficiaries a private sale of the Property by sealed bids.
      [Appellees] together submitted the highest bid, and the Property
      thereafter was conveyed to them. [Appellees then] filed a first
      and final account and petition for adjudication/statement of
      proposed distribution pursuant to Pa.O.C. Rule 2.4 on [September
      4, 2019,] which accounted for [the] Estate’s] administration
      through August 30, 2019 (the “Account”).           Thereafter, on
      September 19, 2019, [Appellant] filed objections to [the] Account
      and [an] answer to [the] petition for adjudication. [Appellant]
      lodged the following objections: 1) that [Goodman] owe[d] rent
      to the Estate, to be distributed among the three beneficiaries, []
      [for the] period of time that he resided on the Property after [the
      Decedent’s] death; 2) the Account improperly included attorney’s
      fees for work done on behalf of [the] individual heirs rather than
      only for work that benefitted the Estate; and 3) that the Account
      fail[ed] to both include the value of [the Decedent’s] personal
      property and provide for the return [of Appellant’s] personal
      property.

      [Appellees] filed a response to [Appellant’s] objections, [and]
      attached [four] sworn affidavits in which they represented that
      [Goodman] resided on the Property at [the Decedent’s] request
      and with her consent at the time of her death[. The Appellees
      also averred that they had no desire to withhold the Decedent’s
      personal property and, if Appellant so desired, he could retain any
      items of the Decedent’s personal property, together with any
      value they had, at any time.]

Orphans’ Court Opinion, 3/11/20, at *1-4 and *6. (un-paginated) (footnotes

and superfluous capitalization omitted).




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       Thereafter, the orphans’ court entered an order scheduling a hearing on

Appellant’s objections for November 14, 2019.             Orphans’ Court Order,

10/17/19, at 1. Prior to the hearing, Appellant’s counsel filed a motion to

compel discovery and a motion for a continuance. The orphans’ court granted

Appellant’s motion to compel discovery, but denied his motion for a

continuance. The court conducted a partial hearing on November 14, 2019.

During the hearing, Appellees’ counsel reiterated that Appellees would

relinquish all of the Decedent’s personal property to Appellant. N.T. Hearing,

11/14/19, at 6-7.          Thereafter, Appellant’s counsel again requested a

continuance. Id. at 26. This time, the court granted Appellant’s request and

rescheduled the hearing. Orphans’ Court Order, 11/15/19, at 1. The court

conducted a hearing on January 13, 2020, but ultimately overruled Appellant’s

objections in full on January 30, 2020. Orphans’ Court Opinion and Order,

1/30/20, at 1-6. This timely appeal followed.1

       Appellant raises the following issues on appeal:

        I.    Did the [orphans’ court] err in entering an order of distribution
              whe[n] no account was filed in the [E]state, and whe[n Appellees]
              failed to list all the assets being distributed?

       II.    Did the [orphans’ court] err in failing to include in its order of
              distribution the [D]ecedent’s personal property to be distributed
              to [Appellant] where there was an admission, made in open court
              by [Appellees’] counsel, that no personal property list [was] filed,
____________________________________________


1 Appellant filed a notice of appeal on February 6, 2020. On February 12,
2020, the orphans’ court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. The orphans’ court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on March 11, 2020.

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               but that [they] agreed to distribute all of the personal property,
               other than the appliances that [went] with the [Property’s] sale,
               to [Appellant]?

     III.      Did the [orphans’ court] err in failing to charge [Goodman] rent
               for his continued residence in the [D]ecedent’s home?

      IV.      Did the [orphans’ court] err in holding the first day of the
               [evidentiary] hearing seven days after it granted [Appellant’s]
               request for . . . discovery?

       V.      Did the [orphans’ court] err in allowing [Appellees] to amend their
               petition for adjudication [via] a brief filed with the court, without
               giving [Appellant] any opportunity to object?


Appellant’s Brief at 4-5.

      Appellant’s first three issues relate to the orphans’ court’s decision to

overrule his objections to the first and final account of the Estate. Initially,

we note:

      Our standard of review of the findings of an [o]rphans' [c]ourt is
      deferential.

            When reviewing a decree entered by the [o]rphans' [c]ourt,
            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 [o]rphans' [c]ourt 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 that discretion.

            However, we are not constrained to give the same deference
            to any resulting legal conclusions.

      [T]he [o]rphans' [c]ourt decision will not be reversed unless there
      has been an abuse of discretion or a fundamental error in applying
      the correct principles of law.

In re Estate of Whitley, 50 A.3d 203, 206-207 (Pa. Super. 2012), appeal

denied, 69 A.3d 603 (Pa. 2013) (internal citations and quotation marks


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omitted). “An abuse of discretion is not merely an error of judgment; if, in

reaching a conclusion, the court overrides or misapplies the law, or the

judgment exercised is shown by the record to be either manifestly

unreasonable or the product of partiality, prejudice, bias or ill will, discretion

has been abused.” Silver v. Pinskey, 981 A.2d 284, 291 (Pa. Super. 2009)

(en banc), quoting Mencer v. Ruch, 928 A.2d 294, 297 (Pa. Super. 2007).

“Our scope of review is also limited: we determine only whether the court's

findings are based on competent and credible evidence of record.”          In re

Estate of Karschner, 919 A.2d 252, 256 (Pa. Super. 2007), quoting In re

Estate of Westin, 874 A.2d 139, 142 (Pa. Super. 2005).

      Appellant’s first two appellate issues are interrelated and, as such, we

will address them together. First, Appellant argues that the orphans’ court

erred in entering an order of distribution because Appellees failed to file an

account that separately itemized the personal property of the Decedent. See

Appellant’s Brief at 13-15. Second, Appellant argues that the orphans’ court

erred because it did not include the Decedent’s personal property in its

distribution order. Id. at 15-16. Appellant’s claims lack merit.

      Orphans Rule 2.1 states, in relevant part, as follows:

      (a) Except where otherwise provided by an order of the court in a
      particular matter, Accounts shall be prepared and filed with the
      clerk in conformity with the form of the Model Accounts set forth
      in the Appendix or in conformity with any other form adopted by
      the Supreme Court subsequent to the date of adoption of these
      Rules.

      (b) As illustrated in the Model Accounts, Accounts shall conform
      to the following rules:

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        (1) The dates of all receipts, disbursements and
        distributions, the sources of the receipts, and the persons to
        whom disbursements and distributions are made and the
        purpose thereof shall be stated.         When a number of
        payments have been received from the same source or
        disbursed or distributed to the same recipient for the same
        purpose over a period of time, such receipts, disbursements
        or distributions need not be itemized, but may be stated in
        total amounts only, with beginning and ending dates within
        the period covered.

        (2) Except where otherwise provided by an order of the
        court in a particular matter, principal and income shall be
        accounted for separately within the Account.

        (3) Assets held by the accountant on the closing date of the
        Account shall be separately itemized.

        (4) Every Account shall contain:

           (i) a cover page;

           (ii) a summary page with page references;

           (iii) separate schedules, as needed, which set forth
           receipts, gains or losses on sales or other dispositions,
           disbursements,     distributions,  investments    made,
           changes in holdings, and other schedules as appropriate;
           and

           (iv) signature pages signed by all the accountants stating
           the Account and verified by at least one of the
           accountants.       The verification of a personal
           representative's Account shall contain a statement that
           the Grant of Letters and the first complete advertisement
           thereof occurred more than four months before the filing
           of the Account, unless the personal representative has
           been directed by the court to file an Account prior to that
           time.

Pa.O.C. Rule 2.1(a)-(b).

     Herein, Appellees filed a first and final account and petition for

adjudication/statement of proposed distribution on September 4, 2019, which


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accounted for the Estate’s administration through August 30, 2019. Thus, an

Account was, in fact, filed in this matter and Appellant’s claim to the contrary

is unfounded. Further, the Account included a line item for the Decedent’s

personal property. First and Final Account, 9/4/19, at 11. It explicitly stated

that “[a]ll [Decedent’s] belongings were very old, consisting of no valuables,

collectives, etc. No value.” Id. Thus, while Appellant “is correct that [the

Decedent’s] personal property is not [individually] itemized in the Estate with

any corresponding value,” the property is still included within the Account.

Orphans Court Opinion, 3/11/20, at *5-6 (un-paginated).2

       Lastly, Appellant is also correct in his statement that the orphans’ court’s

distribution order did not include the Decedent’s personal property. Appellant,

however, fails to recognize that, at the hearing conducted on November 14,

2019, Appellees’ counsel expressly stated:

       [Appellees] do [not] want the [D]ecedent’s personal property.
       Why, because it is valueless. It has no value.

                                           ***
____________________________________________


2 We recognize that Appellant claims that Appellees’ failure to itemize the
Decedent’s personal property deprived him of the opportunity to confirm that
he did, in fact, obtain all of the Decedent’s personal effects. Pursuant to
Pa.O.C. Rule 2.1(b)(3), however, Appellees only needed to account for the
Decedent’s assets. See Pa.O.C. Rule 2.1(b)(3).        Black’s Law Dictionary
defines “asset” as “an item that is owned and has value.” Black's Law
Dictionary (11th ed. 2019). Appellees contended that the Decedent’s personal
property was valueless. Appellant does not dispute this fact. Instead, he
simply argues that an error occurred because Appellees failed to list every
item owned by the Decedent. Because we do not read Rule 2.1 to require an
estate to list all of the property owned by the decedent, we conclude that
Appellant’s claim lacks merit.


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      [Appellees] have no interest in it.       They do [not] want it.
      [Appellant] can have it.

N.T. Hearing, 11/14/19, at 6-7. Therefore, as of November 2019, Appellees

and the court considered the Decedent’s personal property to be Appellant’s

property. Accordingly, because the orphans’ court ordered that “any personal

property of [Appellant] still in the possession of the Estate or [Appellees] be

returned to him within 30 days of the date of this Order,” the court, in effect,

ordered that all of the Decedent’s personal property be returned to Appellant.

Orphans’ Court Order, 1/30/20. Based upon the foregoing, we conclude that

Appellant’s first two appellate issues lack merit.

      In his third appellate issue, Appellant argues that the orphans’ court

erred in failing to charge Goodman rent for his “continued residence in the

Decedent’s home.” Appellant’s Brief at 17. We disagree.

      The Code provides, in pertinent part, as follows:

      § 3311. Possession of real and personal estate; exception

         (a) Personal representative.—A personal representative
         shall have the right to and shall take possession of, maintain
         and administer all the real and personal estate of the
         decedent, except real estate occupied at the time of death
         by an heir or devisee with the consent of the decedent. He
         shall collect the rents and income from each asset in his
         possession until it is sold or distributed, and, during the
         administration of the estate, shall have the right to maintain
         any action with respect to it and shall make all reasonable
         expenditures necessary to preserve it. The court may direct
         the personal representative to take possession of,
         administer and maintain real estate so occupied by an heir
         or a devisee if this is necessary to protect the rights of
         claimants or other parties. Nothing in this section shall
         affect the personal representative's power to sell real estate
         occupied by an heir or devisee.

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20 Pa.C.S.A. § 3311(a). “It is not contemplated[, however,] that rents shall

be collected by the personal representative from real estate occupied by an

heir or devisee unless needed for payment of claims.” 20 Pa.C.S.A. § 3311,

Comment. Thus, the “case authority . . . confirms that as long as the estate

is solvent, rental is not awarded to an estate from an heir or devisee occupying

land of the decedent when the decedent died.” In re Padezanin, 937 A.2d

475, 482 (Pa. Super. 2007).

       Herein, there is no dispute that the Estate is solvent. Rather, Appellant

argues that Goodman did not reside at the Property at the time of Decedent’s

death and, as such, owes rent for the period of his residence.3     A review of

the transcripts of the November 14, 2019 and January 13, 2020 hearings

reveals conflicting testimony presented on the subject.      Indeed, Appellant

testified that he resided with the Decedent at the time of her death, not

Goodman. N.T. Hearing, 11/14/19, at 9-18; N.T. Hearing, 1/13/20, at 8-12.

Appellees, however, both testified that Goodman lived with the Decedent at

____________________________________________


3 With respect to this issue, Appellant’s brief devotes much of its argument to
discussing the orphans’ court’s failure to admit two exhibits into evidence
during the January 13, 2020 hearing. Appellant’s Brief at 17-28. Appellant,
however, did not include this evidentiary issue in his statement of questions
involved. Id. at 4. Thus, this issue is waived. See Pa.R.A.P. 2116(a); see
also Commonwealth v. Ivy, 146 A.3d 241, 254 n.6 (Pa. Super. 2016)
(failure to raise issue in statement of questions involved on appeal results in
waiver). We note, however, that even if we were to consider the two exhibits
offered by Appellant, they only constitute facts supporting Goodman’s
residency and the orphans’ court, as the factfinder, had authority to weigh the
exhibits against other evidence in making its ultimate ruling on who lived at
the Decedent’s property at the time of her death. See Orphans’ Court
Opinion, 3/11/20, at *9 (un-paginated).

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the Property at her request when she died. N.T. Hearing, 1/13/20, at 4-8.

Clearly, the orphans’ court made a credibility determination and concluded

that Goodman did, in fact, live on the Property.     “Because the [o]rphans'

[c]ourt 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 that discretion.” In re Estate of Whitley, 50 A.3d at 206. We

discern no abuse of discretion and therefore conclude that the court did not

err in failing to charge Goodman rent for residing at the Property.

      In Appellant’s fourth issue, he argues that the orphans’ court erred in

conducting the November 14, 2019 and January 13, 2020 hearings after it

granted him 90 days to conduct discovery on November 8, 2019.           In the

argument section devoted to this appellate issue, however, Appellant cites no

legal authority to support his position that the decision of the orphans’ court

amounted to prejudicial error.    Instead, Appellant engages in a rambling

discussion and, in conclusion, asserts that the amount of time permitted for

discovery was “useless.” Appellant’s Brief at 29. This Court previously noted:

      The argument portion of an appellate brief must include a
      pertinent discussion of the particular point raised along with
      discussion and citation of pertinent authorities. Estate of
      Lakatosh, [] 656 A.2d 1378, 1381 ([Pa. Super.] 1995). This
      Court will not consider the merits of an argument which fails to
      cite relevant case [law] or statutory authority. Iron Age Corp.
      v. Dvorak, 880 A.2d 657, 665 (Pa. Super. 2005). Failure to cite
      relevant legal authority constitutes waiver of the claim on appeal.
      Eichman v. McKeon, 824 A.2d 305 (Pa. Super. 2003)[.]




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In re Estate of Whitley, 50 A.3d at 209–210 (quotation marks omitted).

Because Appellant failed to engage in a discussion of this issue and include

any citation to pertinent authority, we conclude that this issue is waived.4

       Lastly, Appellant argues that the orphans’ court erred in permitting

Appellees to amend their petition for adjudication via a brief. Appellant utterly

fails to point this Court to where, in the record, the Appellees amended their

petition.   Nonetheless, a review of the record indicates that, during the

January 13, 2020 hearing, the orphans’ court directed the parties to submit

briefs. N.T. Hearing, 1/13/20, at 15-17. The Appellees timely complied, and

it is within this brief that they included a proposal on the Estate’s final

distribution. Petitioners Post-Hearing Brief, 1/28/20, at 11. Herein, Appellant

claims that, by permitting the Appellees to amend their petition for


____________________________________________


4 Even if Appellant did not waive this issue, we would conclude that he is not
entitled to relief. As explained above, prior to the November 14, 2019 hearing,
Appellant filed a motion to compel discovery and a motion for a continuance.
In Appellant’s motion to compel discovery, he requested the court compel
Appellees to submit to depositions and permit a real estate professional to
enter the Property and determine its fair market value. Appellant’s Motion to
Compel Discovery, 11/8/19, at *1-3 (un-paginated). The orphans’ court
granted Appellant’s motion to compel discovery and, despite its initial denial,
granted his motion for a continuance. Appellant deposed Appellees in
December 2019. While he currently complains that he did not have enough
time to conduct discovery, he raised no complaint during the January 13, 2020
hearing. In fact, the orphans’ court inquired on three separate occasions as
to whether Appellant needed to present any additional evidence and, each
time, Appellant responded in the negative. N.T. Hearing, 1/13/20, at 16-17.
“Had additional time been necessary and requested, the [orphans’ court]
would have granted it.”          Orphans’ Court Opinion, 3/11/19, at *12
(un-paginated). Because Appellant did not suffer prejudice, we conclude that
he is not entitled to relief.

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adjudication in their post-hearing brief, the orphans court “denied [him] the

opportunity to review the amendment[] and potentially object to it.”

Appellant’s Brief at 30.

      Upon review, we conclude that this issue is waived.           Contrary to

Appellant’s claim, he could have objected to the orphans’ court’s action by

filing a motion for reconsideration. Indeed, Orphans’ Court Rule 8.2 states

that a motion for reconsideration of any order that is final pursuant to

Pa.R.A.P. 342 may be filed. Pa.O.C.R. 8.2. A review of the certified record,

however, reveals that Appellant did not file a motion for reconsideration.

Appellant therefore raises this claim of error for the first time on appeal and,

as such, this claim is waived. See In re Estate of Schmidt, 596 A.2d 1124,

1132 (Pa. Super. 1991) (explaining that, in order to preserve an issue for

appellate review, an appellant must raise the issue first with the orphans’

court); see also Pa.R.A.P. 302(a) (issues not preserved in the trial court may

not be pursued before this Court).

      Because Appellant is not entitled to relief on any of his claims, we affirm

the orphans’ court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2020




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