J-A19030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF KARL E. BUTZ,                    IN THE SUPERIOR COURT OF
DECEASED                                                PENNSYLVANIA

APPEAL OF: LORRI ZIMMERMAN
                                                      No. 3161 EDA 2015


                Appeal from the Order Entered October 1, 2015
        in the Court of Common Pleas of Monroe County Orphans' Court
                           at No(s): 26 O.C. 2013

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 19, 2016

        Appellant, Lorri Zimmerman, appeals from the judgment entered in

the Monroe County Court of Common Pleas, Orphans’ Court Division,

granting Participant’s, Jeffrey T. Butz’s, petition to compel the sale of real

estate. Appellant contends that the trial court erred by denying her petition

for the partial distribution of the real estate in question and instead ordering

the immediate sale of the property. We affirm.

        The facts underlying this case are well-known to the parties.        For

purposes of this appeal, we note the following pertinent background gleaned

from the trial court opinion and from the record. Appellant and Participant

are brother and sister and are the sole beneficiaries of the estate of Karl E.

Butz (“Decedent”).     Decedent died testate on January 14, 2011.      Initially,

Appellant and Participant served as co-executors but both ultimately


*
    Former Justice specially assigned to the Superior Court.
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resigned     and   the   trial   court   appointed    James   F.   Marsh,   Esq.,   as

Administrator.

         The estate has remained open as the beneficiaries have long

attempted to resolve various disputes.               After a failed attempt to sell

Decedent’s home, Administrator Marsh distributed the property in-kind to

Appellant and Participant.         Also in Decedent’s estate is the large farm

property (“Farm”) here at issue. The Farm, having been in the Butz family

for generations, was given to Appellant and Participant in Decedent’s Will as

part of a general bequest.        The Farm consists of approximately sixty-four

acres of unimproved land along Route 715 in Jackson Township, Monroe

County and was valued at $715,000 for Pennsylvania Inheritance Tax

purposes.

         On March 21, 2014, Participant filed a petition to compel the sale of

the Farm. Appellant opposed the sale of the Farm, citing a possible border

dispute with a neighboring property, which could negatively impact the sale

price.    On July 21, 2014, the trial court conducted a hearing concerning,

inter alia, the distribution of the Farm. Counsel for Appellant indicated that

a survey had been performed regarding the Farm but the results were

unavailable.     N.T., 7/21/14, at 26.      Counsel for Participant indicated that

there was no evidence of record regarding a current border dispute and any

title issue could be rectified through sale. Id. at 60. On July 25, 2014, the




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trial court issued an order continuing the matter for consideration of any

survey results and other alternatives for the Farm.

      On April 29, 2015, Appellant filed a petition requesting that the Farm

be distributed in-kind equally to both beneficiaries. On September 22, 2015,

the trial court conducted a hearing to consider Appellant’s petition for

distribution of the Farm and Participant’s petition to sell the Farm. Appellant

testified and presented evidence of a survey performed during the

Decedent’s lifetime, which indicated that a border dispute might exist. N.T.,

9/22/15, at 22-23.     At the hearing, Joseph Fisher, a certified real estate

appraiser, also testified.   He stated that the value of the Farm had likely

decreased due to declining values of real estate generally in Monroe County.

Id. at 26-28.   Fisher also opined that any boundary dispute, which could

reduce the total acreage of the Farm significantly, would result in a lower

market value at the time of sale.       Id. at 34.    Conversely, counsel for

Participant indicated that the most recent survey commissioned by the

Estate would show a lack of any border dispute. Id. at 70-71. However, the

survey was not entered into evidence.

      On October 1, 2015, the trial court issued an order and opinion

denying Appellant’s petition for partial distribution and granting Participant’s

petition to compel the sale of the Farm. To that end, the court directed that

Administrator Walsh list the Farm for absolute auction, with no reserve,

within sixty days of the trial court’s order.   The court cited 20 Pa.C.S. §



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3534, which permits the public sale of any estate property unable to be

divided, partitioned, or allotted.   The trial court specifically noted that no

definitive expert testimony was presented at trial regarding the boundary

dispute and a survey, which was done by a reputable title company in

Monroe County, was not offered into evidence. Trial Ct. Op., 10/1/15, at 2-

3.

        Further, the court found that the Farm could not be fairly divided

between the parties because the property is not physically contiguous. Id.

at 4.      The court also specifically emphasized that the parties had

demonstrated the inability to cooperate. Id. Therefore, a joint distribution

of the Farm would likely devolve into a partition action that would, after

considerable expense, ultimately also result in the sale of the Farm.      Id.

Thus, the court found that the public sale of the Farm would be the most

expeditious method to resolve the matter, while allowing either party to buy

out the other.    Id. Further, any title issue could be resolved through the

sales process. Id.

        Appellant filed the instant timely appeal and a court-ordered Pa.R.A.P.

1925(b) statement of matters complained of on appeal.          The trial court

issued a responsive opinion, referencing the reasoning set forth in the

court’s October 1, 2015 opinion. Appellant sets forth the following issues for

review:

          Did the lower Court abuse its discretion and commit an
          error of law by granting the Petition to Compel the Sale of


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         Real Estate filed by [Participant], and denying the Petition
         for Partial Distribution brought by [Appellant] as:

         1. any sale by absolute auction without reserve of the
         Property is in contravention of the lower Court’s Order of
         July 25, 2014 as no title search has been completed, and
         thus, [Participant’s] Petition is violative of Pennsylvania
         Supreme Court Orphans’ Court Rule 12.9;

         2. any sale by absolute auction without reserve of the
         Property will irreparably harm the Estate and result in a
         sale price which is far less than the market value and thus
         will result in waste and dissipation, particularly in light of
         existing and unaddressed title issues impacting the
         Property in contravention of the lower Court’s prior Order
         of July 25, 2014;

         3. the lower Court made its determinations without
         sufficient reasons to discredit the unrebutted evidence of
         [Appellant] and Fisher and as such, the Court abused its
         discretion and committed an error of law, and the finding
         necessary to support the Opinion and Order are not
         supported by substantial evidence of record?

Appellant’s Brief at 8-9.

       The crux of all three of Appellant’s arguments concern the possible

boundary dispute and whether such potential dispute would substantially

diminish the value received for the Farm at a public sale.1 Accordingly, we


1
  To the extent that Appellant contends that Participant’s petition to compel
the sale of the Farm was deficient under Orphans’ Court Rule 12.9 because it
did not contain any reference to the possible boundary dispute, we hold such
argument to be waived. Appellant failed to present this issue to the trial
court in the over two years since Appellant’s petition was filed and also failed
to raise it in her Rule 1925(b) statement. It is axiomatic that “[i]ssues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). Further, any issue not raised in a Rule
1925(b) statement is deemed waived. Pa.R.A.P. 2116(a); In re Estate of
Daubert, 757 A.2d 962, 963 (Pa. Super. 2000).



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discuss all of Appellant’s contentions together. Appellant specifically avers

that the trial court erred by granting Participant’s petition to compel the sale

of the Farm at a public auction because the potential boundary dispute will

diminish any sale proceeds leading to waste and dissipation of estate assets.

Appellant contends that the trial court’s July 25, 2014 order acknowledged

the boundary dispute by continuing the case for review of survey results and

other alternatives for the Farm.     Further, Appellant argues that the trial

court failed to properly consider the testimony of Appellant and Fisher

regarding the boundary dispute and the resulting diminished value that the

Farm would receive at a public sale. We hold Appellant is not due relief.

      We begin by noting our standard of review:

         Our standard of review of the findings of an [O]rphans’
         [C]ourt is deferential. 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.

            As an appellate court we can modify an Orphan’
            Court decree only if the findings upon which the
            decree rests are unsupported by competent or
            adequate evidence or if there has been an error of
            law, an abuse of discretion or a capricious disbelief of
            competent evidence. The test to be applied is not
            whether we, the reviewing court, would have
            reached the same result, but whether a judicial
            mind, after considering the evidence as a whole,
            could reasonably have reached the same conclusion.




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In re Devoe, 74 A.3d 264, 267 (Pa. Super. 2013) (quotation marks and

citations omitted).

      Further, it is axiomatic that “the Orphans’ Court Division has

mandatory and exclusive jurisdiction over the administration and distribution

of the real and personal property of decedents’ estates.” In re Ciuccarelli,

81 A.3d 953, 958 (Pa. Super. 2013) (citation omitted).              Specifically,

regarding the sale of real estate by a fiduciary, it is well-settled that when

“we deal with the estate of a decedent, over which the court exercises a

supervisory control for the benefit of all interested, it is well recognized that

not only the power, but also the duty, exists to see that a fair value is

received.” McCullough’s Estate, 140 A. 865, 867 (Pa. 1928). Further, it is

beyond cavil “that fiduciaries entrusted with the administration of an estate

have a duty to exercise the upmost fairness in dealing with beneficiaries.”

Estate of Bosico, 412 A.2d 505, 507 (Pa. 1980).

      Also pertinent is Section 3534 of the Probate Code, which provides for

the distribution of estate property as follows:

         § 3534. Distribution in kind

             The court, for cause shown, may order the estate to be
         distributed in kind to the parties in interest, including
         fiduciaries. In such case, when there are two or more
         distributees, distribution may be made of undivided
         interests in real or personal estate or the personal
         representative or a distributee may request the court to
         divide, partition and allot the property, or to direct the sale
         of the property. If such a request is made, the court, after
         such notice as it shall direct, shall fairly divide, partition
         and allot the property among the distributees in proportion


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         to their respective interests, or the court may direct the
         personal representative to sell at a sale confined to the
         distributees, or at a private or public sale not so confined,
         any property which cannot be so divided, partitioned or
         allotted.

20 Pa.C.S. § 3534.

      Instantly, while Appellant is correct that the trial court’s 2015 order

continued the matter for the review of survey results and potential other

alternatives for the Farm, Appellant did not present the most current survey

results, commissioned by the estate, to the court. Therefore, we decline to

conclude that the trial court erred by entering an order without the benefit of

such survey.

      With respect to Appellant’s argument that the trial court erred by not

considering her own testimony and that of Fisher to be dispositive regarding

the existence of a boundary dispute, the determination of witnesses’

credibility is a task reserved for the Orphans’ Court as the fact-finder. See

In re Devoe, 74 A.3d at 267. Thus, we hold that the trial court did not err

by concluding that conclusive evidence of a boundary dispute was not

presented. Id. Accordingly, the trial court aptly determined that a public

sale for the Farm would yield a fair price where the presence of a border

dispute was not established and any potential encumbrance on the Farm’s

title could be resolved through the process of sale.      See McCullough’s

Estate, 140 A. at 867. Appellant’s issues on appeal lack merit.




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        Moreover, the trial court was well within its purview by ordering the

sale of the Farm. The Probate Code specifically permits courts to order the

sale of real property within an estate, upon request of a distributee, where

such property cannot be divided, partitioned, or allotted. See 20 Pa.C.S. §

3534.     In this case, the trial court specifically found that any attempt to

distribute the Farm “in-kind” would likely result in a partition action because

the parties had demonstrated an inability to cooperate within the confines of

joint ownership. See Trial Ct. Op. at 4. Further, the non-contiguous nature

of the Farm itself makes any attempt to fairly divide the property physically

untenable. Id. Indeed, as noted by the trial court, a public sale of the Farm

will allow for the efficient distribution of the property and will avoid a likely

partition action leading to the same end: the sale of the Farm. Therefore,

we conclude that the trial court did not err in granting Appellant’s petition to

compel the immediate sale of the Farm and we affirm the trial court’s order.2

See 20 Pa.C.S. § 3534; In re Ciuccarelli, 81 A.3d at 958.

        Order affirmed.




2
  Consistent with the trial court’s October 1, 2015 order, we order the
Administrator to list the Farm with an auctioneer for an absolute sale,
without reserve, within sixty days. Accordingly, we direct the Administrator
to prepare the Farm for sale by, inter alia, obtaining clear title for the
property.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




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