J-S46013-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF KATHRYN S. MCLEOD,            IN THE SUPERIOR COURT OF
DECEASED                                             PENNSYLVANIA



                   v.

APPEAL OF: JOAN Y. SUMMY-LONG AND
JANICE FAUST

                                                   No. 1960 MDA 2016


              Appeal from the Order Entered November 3, 2016
              In the Court of Common Pleas of Dauphin County
                     Orphans' Court at No(s): 22150133


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                             FILED JULY 31, 2017

     Joan Y. Summy-Long and Janice Faust appeal from the November 3,

2016 order dismissing their appeal from the probate of a will. We affirm.

     Kathryn S. McLeod died testate on December 18, 2014. On February

9, 2015, the Register of Wills and Clerk of the Orphans’ Court of Dauphin

Court (“Register of Wills”) probated an instrument dated February 19, 2004,

as decedent’s last will and testament and granted letters testamentary to

Nancy McLeod O’Brien, Ms. McLeod’s stepdaughter.             Appellants were

decedent’s nieces. The residuary estate was left to the Kathryn S. McLeod

Trust dated February 19, 2004.




* Former Justice specially assigned to the Superior Court.
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      The   February   19,   2004    trust,   which   constituted   a   complete

restatement of a trust agreement dated July 27, 2001, was a living will

whereby Ms. McLeod appointed herself as trustee and retained a life estate.

Upon Ms. McLeod’s death, the settlor’s two stepdaughters, the executrix

Nancy McLeod O’Brien and Jean McLeod Croft, were appointed as successor

co-trustees, and, after some specific bequests, Ms. McLeod distributed the

remaining ninety percent of the trust’s assets to the two stepdaughters.

Appellants each received five percent of the remainder of the trust assets.

      After an attorney had entered an appearance on their behalf,

Appellants filed a pro se document, which was directed to the Register of

Wills and indicated that it was being filed to “meet the required legal

deadline of being within one year of probation of the Will and is under

consultation with attorneys at this time.”      Request to Register of Wills,

2/8/16, at 1. There is no indication that the document was served on the

executrix. The filing in question did not raise any issues as to the validity of

the will or trust nor did it suggest that the decedent lacked the capacity or

was unduly influenced to execute those February 19, 2004 documents.

      Instead, Appellants averred that there was tortious interference with

their inheritance, and they sought subpoenas in order to obtain answers to

“questions regarding the entirety of Kathryn McLeod’s assets” as well as the

disposition of assets held in 1992, 1997, and 1999 trusts created by the




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decedent.   On March 9, 2016, the orphans’ court dismissed the untitled

document.

      On March 17, 2016, counsel for Appellants filed a Petition to Contest

Probated Will and Trust Agreement.          That petition sought discovery to

determine whether all of the decedent’s assets had been located and

whether decedent had executed a will and trust after February 19, 2004.

Appellants also requested copies of any trusts that the decedent executed

prior to 2001.

      The executrix filed preliminary objections to the Petition to Contest

Probated Will and Trust Agreement, alleging that it was untimely, did not

state a cause of action in that it did not contain any challenges to the validity

of the February 19, 2004 will and trust, and was incapable of being

answered. As to the latter averment, the executrix noted that the Petition to

Contest Probated Will and Trust Agreement referred to wills and/or trusts

that were supposedly executed after 2004, but that the document failed to

apprise her of any facts that would enable her to locate testamentary

dispositions signed after 2004.     The executrix also set forth that, even

though Appellant Summy-Long was the decedent’s power of attorney for the

twenty-five years preceding her death, Appellants did not list any assets that

should have been, but were not, included in either the trust copus or the

estate.




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       After   Appellants     filed   preliminary   objections   to   the   executrix’s

preliminary objections, the orphans’ court entertained oral argument on

October 17, 2016.           On November 3, 2016, it dismissed Appellants’

preliminary objections, granted the executrix’s preliminary objections, and

dismissed with prejudice Appellants’ Petition to Contest Probated Will and

Trust Agreement.         The orphans’ court concluded that the appeal from

probate was untimely under 20 Pa.C.S. § 908(a), which is set forth infra,

and that the petition failed to state a claim that actually contested the

validity of the will or trust.

       Appellants filed this appeal from the November 3, 2016 order, and

raise these issues:

       A. Whether the trial court abused its discretion and committed
       an error of law in finding that Petitioners had not properly raised
       a claim of fraud on the Register of Wills.

       B. Whether the trial court abused its discretion and denied to
       Petitioners their procedural due process rights by permitting the
       Executrix to raise a statute of limitations defense/argument in
       the context of preliminary objections and then failing to permit
       Petitioners to address the jurisdictional argument in a
       subsequent filing.

Appellants’ brief at 4.1

____________________________________________


1
  The order in question is a final order as it denied a petition that purported
to challenge the validity of the probated will and a trust in this matter.
Pa.R.A.P. 342 (a)(2) (“An appeal may be taken as of right from the following
orders of the Orphans' Court Division: . . . An order determining the validity
of a will or trust[.]”).



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      Our standard of review in this matter is as follows:

      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 that
      discretion. However, we are not constrained to give the same
      deference to any resulting legal conclusions. The Orphans’ Court
      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 Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016) (citations and

quotation marks omitted).

      Section 908 of the Probate, Estates, and Fiduciaries Code provides that

any “party in interest seeking to challenge the probate of a will or who is

otherwise aggrieved by a decree of the register . . . may appeal therefrom

to the [orphans’] court within one year of the decree.” 20 Pa.C.S. § 908(a).

We note that: “[I]n matters of probate, the expiration of the statutory time

limitations generally bars probate of a later will or codicil.” In re Estate of

Peles, 739 A.2d 1071, 1074 (Pa.Super. 1999); Dempsey v. Figura, 542

A.2d 1388 (Pa.Super. 1988). Decedent’s will was probated on February 9,

2015, and Appellants filed their appeal from probate on March 17, 2016,

which is one month late under § 908. There is one exception to the one-

year time bar of § 908, which applies when there is an allegation that the

probate of the will in question was procured by a fraud perpetrated on the

register of wills. Dempsey, supra.


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      Appellants do not dispute that their “Petition was filed more than one

year after the granting of letters testamentary on February 9, 2015,” but

they maintain that they “adequately alleged the existence of fraud on the

Register of Wills.” Appellants’ brief at 9. On appeal, their position is that

the “fraud they are alleging stems from the Executrix's failure to include

between $1,000,000 - $2,000,000 in assets of the Estate. This was based

upon Petitioner Summy-Long's personal knowledge[.]” Id. at 12.

      Appellants’ averment thus is that there is certain property owned by

the decedent that has not been included in the estate and/or trust assets.

This position is unrelated to whether the trust and will were properly

executed.   It likewise does not suggest either that the decedent lacked

testamentary capacity on February 19, 2004, or that she was subject to

undue influence at that time. The averment simply does not raise any valid

challenge to the probate of the will or the integrity of the will or trust, much

less the existence of fraud perpetrated on the register of wills during

probate.

      The only documented instance where an untimely appeal from probate

has been entertained is when there was an averment that the probated will

was forged. See In re Kirkander's Estate, 415 A.2d 26 (Pa. 1980); In re

Culbertson's Estate, 152 A. 540 (Pa. 1930). Appellants’ position raises the

specter of fraud upon them, but not upon the Register of Wills in connection

with its decision to probate the document in question as the last will and

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testament of Ms. McLeod.        Appellants did not aver forgery, that the

document was procured by duress, or that, on February 19, 2004, the

decedent was an incapacitated person incapable of executing a legal

document.     In fact, Appellants do not understand that the failure of the

executrix or the co-trustees to account for assets actually owned by the

decedent can be raised by objections to their accounts. Appellants also have

no inkling of how to conduct discovery, which is not by means of filing an

appeal from the probate of a will. Hence, the orphans’ court did not abuse

its discretion in concluding that § 908 applied and that Appellants had failed

to state a valid cause of action in their Petition To Contest Probated Will and

Trust Agreement.

      Appellants’ second averment is two-fold. They first maintain that the

bar of § 908, being a statute of limitations defense, should have been raised

in an answer to their petition and as new matter rather than through means

of preliminary objections. See Pa.R.C.P. 1030 (affirmative defenses, which

include statute of limitations, must be pled in a responsive pleading under

new matter). The orphans’ court construed § 908 as pertaining to subject

matter jurisdiction rather one imposing a statute of limitations, and it ruled

that it could properly be raised in preliminary objections           Pa.R.C.P.

1028(a)(1) (preliminary objections may be filed based upon “lack of

jurisdiction over the subject matter of the action or the person of the

defendant[.]”).

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      We are constrained to disagree with the orphans’ court’s analysis of

the question. “It is hornbook law that as a pure question of law, the

standard of review in determining whether a trial court has subject matter

jurisdiction is de novo and the scope of review is plenary.” Grimm v.

Grimm, 149 A.3d 77, 82 (Pa.Super. 2016). The question of subject matter

jurisdiction “relates to the competency of the individual court, administrative

body, or other tribunal to determine controversies of the general class to

which a particular case belongs.” Id. at 83 (citation omitted). The orphans’

court had subject matter jurisdiction over whether the Register of Wills

properly probated the document in question as the last will and testament of

the decedent and whether the trust was valid. 20 Pa.C.S. § 711 (1), (3),

and (18) (the orphans’ court division has mandatory jurisdiction over the

administration and distribution of decedents’ estates, the administration and

distribution of property of inter vivos trusts, and appeals from the registers

of wills). We also note that the stricture of § 908 is typically referred to as a

statute of limitations. See Demsey, supra at 1390 (“The applicable Statute

of Limitation for an appeal from the probate of a will is one year. 20 Pa.C.S.

[§] 908.”).

      We nevertheless will not reverse and remand to the orphans’ court

merely because it entertained this issue by means of preliminary objections

rather than as a new matter. We apply the reasoning set forth in Cooper v.




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Downingtown Sch. Dist., 357 A.2d 619, 621 (Pa.Super. 1976) (citations

and footnotes omitted):

             Although the issue of the expiration of the statute of
      limitations is properly raised under new matter, rather than by
      preliminary objection, we will reach the merits at this time, in the
      interests of judicial economy, for two reasons. First, it was
      briefed, argued, and considered in the lower court. Secondly,
      once the statute of limitations is raised in new matter, appellee's
      right to a judgment on the pleadings, based on the statute of
      limitations, will be clear. Therefore, we see no reason to remand
      this case for further pleadings.

      In the present case, application of the one-year time bar set forth in §

908 was argued and considered in the orphans’ court.           It was raised in

Appellants’ brief in opposition to the executrix’s preliminary objections, and

at oral argument. Furthermore, not only was Appellants’ petition untimely,

it did not contain valid grounds for relief in that it raised no challenge to the

validity of the probated will or trust.

      On appeal, Appellants contend that property owned by the decedent is

purportedly not being included in the estate and/or trust assets.            The

petition was properly dismissed because it was untimely and because it did

not raise any challenge that would provide grounds for voiding either the

probate of the February 19, 2004 will or the trust.       There is no need to

remand this matter and waste judicial resources when the outcome would be

the same.

      Subpart two of Appellants’ second position on appeal is that they

“should have been granted an opportunity to address the statute of

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limitations argument on a substantive basis following the denial of their

preliminary objection.   To refuse to do so violated their procedural due

process rights.” Appellants’ brief at 14. As our Supreme Court observed in

Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013), “In terms of

procedural due process, government is prohibited from depriving individuals

of life, liberty, or property, unless it provides the process that is due. . . .

[T]he basic elements of procedural due process are adequate notice, the

opportunity to be heard, and the chance to defend oneself before a fair and

impartial tribunal having jurisdiction over the case.”

      Herein, Appellants were notified of the § 908 time bar to their petition

when the executrix filed preliminary objections.     They filed a brief on the

question.   At oral argument held on October 17, 2016, Appellants raised

arguments to refute the executrix’s invocation of § 908. N.T., 10/17/16, at

9-10, 14-15.   Additionally, the orphans’ court specifically entertained their

position that their appeal from probate was timely under the fraud exception

to § 908.   Trial Court Opinion, 11/3/16, at 2.      Hence, we conclude that

Appellants had both notice of the § 908 matter and an opportunity to be

heard as to whether it applied. The orphans’ court was fair and impartial.

There was no violation of procedural due process presented in this case.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017




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