In Re: Estate of Krasinski, S. Apl of: Dunzik ( 2019 )

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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: ESTATE OF SOPHIA M. : No. 40 WAP 2018
KRASINSKI, A/K/A SOPHIA KRASINSKI :
A/K/A SOFIA KRASINSKY, LATE OF : Appeal from the Order of the Superior
MORRISDALE, (COOPER TOWNSHIP) : Court entered May 15, 2018 at No.
CLEARFIELD COUNTY, PENNSYLVANIA : 1289 WDA 2015, affirming in part,
DECEASED ON 11/04/2006 : reversing in part and vacating in part
: the Order of the Court of Common
: Pleas of Clearfield County entered
APPEAL OF: PATRICIA KRASINSKI- : July 16, 2015 at No. 1707-0003, and
DUNZIK : remanding
:
: ARGUED: April 9, 2019
IN RE: ESTATE OF SOPHIA M. : No. 41 WAP 2018
KRASINSKI A/K/A SOPHIA KRASINSKI :
A/K/A SOPHIA KRASINSKY LATE OF : Appeal from the Order of the Superior
MORRISDALE (COOPER TOWNSHIP), : Court entered May 15, 2018 at No.
CLEARFIELD COUNTY, PENNSYLVANIA : 1265 WDA 2015, affirming in part,
DECEASED NOVEMBER 4, 2006 : reversing in part and vacating in part
: the Order of the Court of Common
: Pleas of Clearfield County entered
APPEAL OF: PATRICIA KRASINSKI- : July 16, 2015 at No. 1707-0003, and
DUNZIK : remanding
:
: ARGUED: April 9, 2019
OPINION
JUSTICE DONOHUE DECIDED: OCTOBER 31, 2019
This discretionary appeal presents the Court with an opportunity to clarify the
proper scope of Rule 342(a)(6) of the Pennsylvania Rules of Appellate Procedure, which
provides for an appeal as of right from an order of the Orphans’ Court Division that
“determin[es] an interest in real or personal property.” Pa.R.A.P. 342(a)(6). Pa.R.A.P.
342(c) further provides that the failure of a party to immediately appeal an order
appealable under, inter alia, Rule 342(a)(6), constitutes a waiver of all objections to the
order. Pa.R.A.P. 342(c).1 Applying these rules to the case at bar, we conclude that
1 Pa.R.A.P. 342(a) and (c) provide as follows:
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:
(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.
* * *
(c) Waiver of objections. Failure to appeal an order that is immediately
appealable under paragraphs (a)(1)–(7) of this rule shall constitute a waiver
of all objections to such order and such objections may not be raised in any
subsequent appeal.
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Appellant Patricia Krasinski-Dunzik (“Dunzik”) waived all objections to the orphans’
court’s order dated April 30, 2013 approving a private sale of land. Accordingly, we affirm
the Superior Court’s decision.
Sophia M. Krasinski (the “Decedent”) died testate on November 4, 2006. Her will
named Edward Krasinski (the “Executor”)2 as the executor of her estate. The Executor
is one of the Decedent’s four children, who also include Eleanor Krasinski (“Eleanor”),
James Krasinski (“James”), and Dunzik. Decedent’s will directed that each of her four
children were equal beneficiaries of the residue of the estate after debts and funeral
expenses were paid. Eleanor relinquished her twenty-five percent interest to Dunzik on
January 9, 2013. The primary assets of the estate included three parcels of real estate:
(1) twenty acres of property with an appraised value of $55,000 (“Johnny Hoover Place”);
(2) a barn and ninety-five acres of property, including sixty-eight acres of coal rights, with
an appraised value of $230,000 (“Wicks’ Place”); and (3) a house, buildings, and
approximately ninety-nine acres with an appraised value of $200,000 (“Homestead
Place”). Dunzik and her husband constructed a residence, a barn, and appurtenances
on Homestead Place and had lived there for many years at the time of Decedent’s death.
On July 7, 2010, the Executor filed a petition to permit the private sale of real estate
to heirs. In that petition, the Executor averred that Dunzik was objecting to the distribution
of all three properties because it was her position she already owned them based on a
Pa.R.A.P. 342(a)(6), (c).
2 Edward Krasinski was nominated by Decedent as Executor. However, he renounced
his right to serve and his brother, James Krasinski, was initially appointed as personal
representative and letters testamentary were issued to him. Thereafter, those letters
testamentary were revoked and Edward Krasinski was appointed Executor.
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prior oral agreement between herself and the Decedent. After argument and briefing, on
March 22, 2011 the orphans’ court granted the Executor’s petition to permit the private
sale of all of the real estate. Specifically, the orphans’ court concluded, inter alia, that
Dunzik had not produced a writing that satisfied the statute of frauds and thus lacked the
legally required proof to support her claim that she owned the properties.
Dunzik and her husband then filed a civil complaint against the estate based upon
the alleged oral contract with the Decedent. On December 24, 2012, after a nonjury trial,
the trial court ruled that there was no enforceable oral contract between Dunzik and
Decedent and dismissed the case. This trial court’s order also lifted a stay on the orphans’
court’s prior order approving the private sale of the Decedent’s lands. Dunzik did not
appeal the trial court’s rulings.
On February 8, 2013, the estate’s attorney sent a letter to the four heirs explaining
the process by which the private sale would occur. With respect to the Homestead Place
property, the letter stated that if Dunzik and her husband did not purchase all of the
property of Homestead Place, steps would be taken to ensure they could maintain
ownership of the home and barn on the property. Specifically, the letter provided that
“[t]his sale does not include the home and barn … and if [Dunzik] does not purchase
[Homestead Place] an adjustment in real estate will have to be made to allow for the
ground under those two buildings to be separately owned and assessed to [Dunzik and
her husband].” Orphans’ Court Opinion, 4/22/2015, at 9. The bidding took place one
week later, on February 15, 2013. The Executor, James and his wife, and Dunzik
attended, at which time Dunzik stated that she would not be bidding because she believed
that she already owned the properties. She then left the meeting. In her absence, James
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and his wife bid $230,000 for Wicks' Place. Edward bid $55,000 for Johnny Hoover Place.
Edward, James and his wife jointly bid $120,000 for Homestead Place.
On March 7, 2013, the Executor petitioned the orphans’ court to approve the sale
of these properties to the residuary heirs for these amounts, attaching the proposed
deeds to the three properties as exhibits. Contrary to the representation in the February
8, 2013 letter from the estate’s attorney, the deed for Homestead Place did not include
any provision permitting Dunzik and her husband to retain ownership of the house and
barn. On March 14, 2013, Dunzik filed pro se objections to the petition, which did not
include any objection relating to the sale of the properties. On April 30, 2013, the orphans’
court, after argument, entered an order approving the sales of the three properties and
authorizing the estate to issue the three deeds to the purchasers at the private sale.3
On May 30, 2014, the Executor filed a first and final accounting. Dunzik, through
counsel, filed six objections, four of which related to the sales of real property approved
pursuant to the April 30, 2013 order. Dunzik first objected to the manner in which the
private sale was conducted, including a claim that the Executor and his brother James
conspired to purchase the properties for themselves without competitive bidding, thus
3 Specifically, the order provided as follows:
AND NOW, this 30th day of 2013, on consideration of the
foregoing REPORT AND RETURN OF PRIVATE SALE OF
REAL ESTATE TO HEIRS, it is Ordered by this Court that the
Report of Edward P. Krasinski, Executor of the estate of the
above Decedent, is hereby approved in all regards and the
properties described in Exhibits 1, 2, and 3 of said report shall
be conveyed to the grantees in accordance with the terms set
out in the Report.
Orphans’ Court Order, 4/30/2013.
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suppressing the sales prices. Dunzik requested the filing of an amended final accounting
that set forth the true value of the real estate. Second, Dunzik objected to the failure to
include a limiting condition regarding Petitioner’s home, barn, and underlying land in the
Homestead Place deed, as promised in the February 8, 2013 letter from the estate’s
attorney, and that the Executor and James had changed the terms of the sale without
proper notice. Dunzik demanded that the estate provide her and her husband with a deed
securing their ownership of the lands underneath their house and barn and all surrounding
lands appurtenance to the same. Third, Dunzik objected to the placement of a right of
way easement over the Homestead Place tract in favor of the Johnny Hoover Place tract,
which she claimed increased the value of the Johnny Hoover property (purchased by the
Executor). Dunzik insisted that a revised final accounting be prepared that included the
correct values for the two properties. Fourth, Dunzik claimed that the Executor had sold
lands to himself at artificially reduced prices, which were based upon faulty appraisals
that, inter alia, did not include the value of the timber, subsurface rights and Marcellus
Shale gas. As with the first and third claims, Dunzik requested that a revised final
accounting include the true values of the properties for distribution purposes. Id. at 5-7.
By order and opinion dated April 22, 2015, the orphans’ court denied these four
objections,4 concluding that pursuant to Pa.R.A.P. 342, Dunzik had waived them because
she had not filed an appeal in the Superior Court from the April 30, 2013 order (approving
the completion of the proposed sales) within thirty days of its entry.
4 The orphans’ court granted one of Dunzik’s other objections. The court ruled that
natural gas payments received by the estate for Homestead Place, in the amount of
$39,536, were the property of Dunzik. The court order directed the filing of an amended
accounting to remove the $39,536 from the estate. Orphans’ Court Opinion, 4/22/2015,
at 17-19.
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Pennsylvania Rule of Appellate Procedure 342, entitled
Appealable Orphans’ Court Orders, clearly states that an
order from a decree of the [o]rphans’ [c]ourt determining an
interest in real property is immediately appealable. Failure to
appeal such an order constitutes a waiver of all objections to
such order and any objections may not be raised in a
subsequent procedure. See Rule of Appellate Procedure
342(a)(6) and (c). Therefore, the claims set forth in the first
four objections have been waived by [Dunzik] through her
failure to file an appeal of this [c]ourt’s [o]rder of April 30, 2013.
Id. at 8.
The orphans’ court so ruled despite its acknowledgement that the estate had not
followed “acceptable and legal process in conducting the sales” with respect to the
Dunzik’s house and barn. Orphans’ Court Opinion, 4/22/2015, at 8. The court indicated
that the excuses given by the Executor and the estate’s attorney for not including
language in the Homestead Place deed providing for the Dunziks’ continued ownership
of the land under their house and barn were “woefully inadequate.” 5 The court insisted
that the Executor had acted in his own interests as co-purchaser of Homestead Place, an
act that “some may construe … to be fraud.” Id. at 10. Nevertheless, although the
orphans’ court was of the view that “fundamental fairness dictates a different result,” it
held that Pa.R.A.P. 342 compelled it to conclude that Dunzik’s four objections to the
private sale had been waived for her failure to timely appeal.6
5 The Executor testified that he was unaware of the relevant language in the estate
lawyer’s letter until the day of the sale. Orphans’ Court Opinion, 4/22/2015, at 9. The
estate’s lawyer testified that he discussed the issue with the Executor and James, and
that they decided to change the terms in the deed because they concluded that Dunzik,
having left the sale meeting before its conclusion, was no longer interested in the property.
Id.
6 On May 4, 2015, Dunzik filed a motion for reconsideration, contending, inter alia, that:
(1) the April 30, 2013 order approving the private sale was interlocutory, and (2) the
Executor, James, and James’ wife had removed a significant amount of timber from
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By fiduciary deed executed, acknowledged and recorded on May 31, 2013, the
Executor conveyed the Homestead tract to himself, James and his wife. In August, 2013,
these three individuals joined in the filing of an action in ejectment against Dunzik, her
husband and Eleanor (who has resided on Decedent’s property her entire life). This
action, seeking the removal of the two sisters from their residences, remains pending.
On appeal, the Superior Court issued an en banc decision on May 15, 2018 in
which it, inter alia, affirmed the orphans’ court’s ruling that Dunzik had waived all
objections to the estate’s private sale of real estate by failing to appeal from the April 30,
2013 order. In re Estate of Krasinski, 188 A.3d 461, 469-70 (Pa. Super. 2018) (en banc).
The Superior Court ruled that the orphans’ court’s April 30, 2013 order “finalized the sale
of real estate by the Executor” and thus clearly “determine[d] an interest in real ...
property.” Id. at 469. Consequently, the Superior Court held that the orphans' court's
April 30, 2013 order was appealable as of right pursuant to Pa.R.A.P. 342(a)(6) and
Dunzik’s failure to appeal within thirty days of its entry resulted in a waiver of all claims
related to the sale pursuant to Pa.R.A.P. 342(c).7 Id. at 469-70. Judge Shogan issued a
dissenting opinion.
This Court granted allowance of appeal to consider the following issues:
(1) Does Pa.R.A.P. [...] 342(a)(6), which provides for an
immediate appeal as of right from Orphans' Court orders “...
Homestead Place. On May 13, 2015, the orphans’ court granted Dunzik’s motion for
reconsideration and scheduled argument on these two issues. By order entered July 16,
2015, the orphans’ court rescinded the May 13, 2015 order, construed Dunzik’s motion
for reconsideration as exceptions, and dismissed those exceptions. The orphans’ court
also dismissed exceptions filed by the Executor concerning ownership of the gas and oil
rights to Homestead Place.
7 The Superior Court further determined that the April 30, 2013 order was not a collateral
order pursuant to Pa.R.A.P. 313. Neither of the parties appealed this ruling.
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determining an interest in real or personal property[,”] also
allow or require an immediate appeal from an order of the
Orphans' Court permitting or denying the personal
representative the authority to sell real or personal property,
such that filing the appeal from the Order confirming the [f]irst
[and] [f]inal account was deemed to be a waiver of those
issues?
(2) Did the Superior Court commit an error of law, and
misconstrue Pa.R.A.P. [...] 342(a)(6) in its holding that an
order confirming the sale of real property of a decedent's
estate was an order determining an interest in real property,
and that an appeal from such an order was waived if not filed
within thirty [...] days of said order?
(3) Did the Superior Court commit an error of law by
misconstruing Pa.R.A.P. [...] 342(a)(6), and ignoring, or
otherwise failing to address controlling authority
encompassed by the Superior Court decisions and holdings
in In re Estate of Ash, 73 A.3d 1287 (Pa. Super. 2013), and In
re Estate of Cherry, 111 A.3d 1204 (Pa. Super. 2015)?
In re Estate of Krasinski, 198 A.3d 1045 (Pa. 2018). While set forth in three distinct
formulations, at bottom these issues present a single question for this Court’s
consideration: did the orphans’ court’s April, 30, 2013 order determine an interest in real
property in accordance with Pa.R.A.P. 342(a)(6), and, if so, did Dunzik’s failure to appeal
within thirty days result in a waiver of all claims related to the sale of real property pursuant
to Rule 342(c). The proper interpretation of a rule presents a question of law and our
standard of review is de novo. Touloumes v. E.S.C. Inc., 899 A.2d 343, 346 n.4 (Pa.
2006). Our scope of review, to the extent necessary to resolve the legal question before
us, is the entire record and is thus plenary. Id.Prior to 1992, a “final order” for purposes of appeal was not precisely defined in
the Pennsylvania Rules of Civil Procedure. Rather, the finality of an order was generally
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governed by appellate court decisions holding that the order had a “final aspect” to it. 8
The “final aspect” approach was useful for parties in orphans’ court proceedings, as a
large number of orders issue by these courts resolved specific issues, like the rights of
beneficiaries and the disposition of real or personal property, but did not terminate the
entire administrative proceeding. In 1992, however, this Court adopted Pa.R.A.P. 341,
which defines a “final order” as one that disposes of all claims and of all parties. Pa.R.A.P.
341(b)(1). As a result of this change, many orphans’ court orders that would have been
appealable under the “final aspect” doctrine were no longer appealable, as only the order
approving the final accounting disposes of “all claims and all parties.” This new definition
of “final order” proved to be problematic to orphans’ court practice, including for example
with respect to the disposition of real estate. Personal representatives (including
executors), guardians and trustees had typically sought the finality of orphans’ court
approval of real estate transactions pursuant to section 548 of the Fiduciaries Act of 1949
(now section 3353 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 33539).
8 Pursuant to this approach, an order was deemed “final” if it (1) ended the litigation or
disposed of the entire case; (2) effectively put a litigant “out of court”; or (3) precluded a
party from presenting the merits of his or her claim to the trial court. Bollinger by
Carraghan v. Obrecht, 552 A.2d 359, 361 (Pa. Commw. 1989).
9 Sections 3311 and 3351 authorize a personal representative to sell the real and
personal property of the decedent. 20 Pa.C.S. §§ 3311(a), 3351. Section 3353, entitled
“Order of Court,” provides that the orphans’ court may issue orders authorizing personal
representatives to do so:
When the personal representative is not authorized to do so
by this title or is denied the power to do so by the governing
instrument, if any, or when it is advisable that a sale have the
effect of a judicial sale, he may sell any real or personal
property of the estate, including property specifically devised,
at public or private sale, or may pledge, mortgage, lease, or
exchange any such property, or grant an option for the sale,
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Because after 1992 orders approving dispositions of real estate were no longer
immediately appealable, the finality of such transactions remained uncertain until after
the orphans’ court had approved a final accounting for the entire estate. It was often
difficult for a personal representative, given the uncertainties associated with potential
future appeals, to obtain results consistent with the interests of the estate’s beneficiaries.
As of 1992, Pa.R.A.P. 342 permitted interlocutory appeals as of right from orphans’
court orders in only one circumstance: non-final orders of distribution. The rule further
required that such an order was appealable only if “the lower court shall certify that the
order is sufficiently definite to determine the substantive issues between the parties.” See
In re Estate of Habazin, 679 A.2d 1293, 1295 (Pa. Super. 1996), abrogated by
amendments to Pa.R.A.P 342. In 2000, in part to address the difficulties just discussed,
the Court amended Pa.R.A.P. 342 to include two additional types of orphans’ court
interlocutory orders appealable as of right: (1) orders “determining an interest in realty,
personalty,” and (2) an order determining the status of individuals or entities. In re Estate
of Sorber, 803 A.2d 767, 769 (Pa. Super. 2002), abrogated by amendments to Pa.R.A.P
342. The revised rule continued to retain the requirement that the orphans’ court certify
the ruling as final before an appeal could be filed, modifying the language slightly to
lease, or exchange of any such property, under order of the
orphans' court division of the county where letters
testamentary or of administration were granted, upon such
terms and upon such security and after such notice as the
court shall direct, whenever the court shall find such sale,
pledge, mortgage, lease, exchange, or option to be desirable
for the proper administration and distribution of the estate.
20 Pa.C.S. § 3353.
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require that the order “shall constitute a final order upon a determination of finality by the
Orphans' Court Division.” Id. In 2005, the rule was amended again as follows:
Rule 342. Orphans’ Court Orders Appealable. Orders Determining
Realty, Personalty and Status of Individuals or Entities. Orders
Making Distribution.
An order of the Orphans’ Court Division making a distribution,
or determining an interest in realty or personalty or the status
of individuals or entities, shall be immediately appealable:
(1) upon a determination of finality by the
Orphans’ Court Division, or
(2) as otherwise provided by Chapter 3 of these
rules.10
Pa.R.C.P. 342 (footnote added).
This Court addressed the application of this rule in In re Estate of Stricker, 977
A.2d 1115 (Pa. 2009). In Stricker, two tracts of land constituted the bulk of the decedent's
estate and the will provided that they be sold for the benefit of ten beneficiaries. There
were two co-executors, one of whom was the appellant. One tract was subject to a third
party's option to repurchase the property, which the third party had exercised. The
remaining tract was put up for auction. The appellant co-executor participated in the
auction, but another bidder (John Fulton) entered a considerably higher bid. The orphans'
court directed the estate to deliver that tract to Fulton, but the appellant refused to
cooperate in transferring either tract. The orphans’ court entered an order to compel the
appellant to sign the agreement of sale transferring the tract purchased by Fulton, and
10 The only substantive change from the 2001 amendment was the addition of subsection
(2), which clarified that orphans’ court orders are immediately appealable under Pa.R.A.P.
311 (interlocutory appeals as of right) and Pa.R.A.P. 313 (collateral orders). In 2005, this
Court amended Pa.R.A.P. 311(a)(8) to permit an interlocutory appeal as of right from an
order determining the validity of a will or trust. Orphans’ court orders determining the
validity of a will or trust are now appealable pursuant to Pa.R.A.P. 342(a)(2).
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did not certify any of its orders as final. The Superior Court refused to consider the appeal,
concluding that the orphans’ court’s orders were interlocutory. We granted the appellant's
petition for allowance of appeal to address whether the orders in question were final
pursuant to Rules 341 and 342.
This Court ruled that the orders were interlocutory, as we decided that the orphans’
court had not erred in refusing to certify its orders as final. Without setting any specific
standard for what constitutes a final order for purposes of Pa.R.A.P. 342, we instead
noted that the determination of finality should be left to the discretion of orphans’ court
judges:
[Pa.R.A.P. 342] does not require that any particular class of
orders be treated as final, but instead leaves the
determination of finality of orders not disposing of all claims
and all parties up to the Orphans' Court judge. Pa.R.A.P.
342(1). Certification under Rule 342 is wisely left to the
discretion of the Orphans' Court [judges], who are in the best
position to take the facts of the case into account when
deciding whether an immediate appeal would be appropriate.
Id. at 1117-18.
The appellant argued that the orders were final because without an immediate
appeal, the real property would be sold and his claims would be lost. We disagreed,
finding a lack of finality because appellant had no claim to the properties.
It is true that the real estate will no longer be available to [the
appellant] once a sale to another party is accomplished. But
[the appellant] was not bequeathed the tracts themselves.
Instead, [the appellant] is entitled only to a share of the
decedent's estate after it has been liquidated. Therefore, his
claim that an immediate appeal is necessary to protect his
interests fails. Indeed, [the appellant] has no greater rights
with respect to this property than any potential buyer.
Moreover, if [the Court] accepted [the appellant's] argument
that any claim on or about property that might be sold during
the probate process should be immediately appealable, the
appellate court system would be flooded with such appeals
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and the administration of decedents' estates would be
unreasonably delayed.
A delay in review of the orders in this case will not result in the
loss of any right in any of the parties because the real estate
is not specifically devised under the will to any person, and
the proceeds of sale will remain under the review and control
of the Orphans' Court until confirmation of the final account.
[A]n order is not final and appealable merely because it
decides one issue of importance to the parties. Rather, for an
order to be final and ripe for appeal, it must resolve all pending
issues and constitute a complete disposition of all claims
raised by all parties.
Id. at 1118 (citations and quotation marks omitted).
In an instructive concurring opinion, then-Justice (now Chief Justice) Saylor argued
that Rule 342 should be revised to eliminate the requirement of a determination of finality
before certain types of orphans’ court orders could be appealed as of right. Id. at 1120
(Saylor, J., concurring). In particular, he disagreed that Pa.R.A.P. 342 should endow
orphans’ courts with essentially “standardless” discretion to determine whether its orders
were final and thus immediately appealable. Id. In disagreeing with the majority’s
“categorical assessment regarding the wisdom of the rule in this regard,” id. at 1119, then-
Justice Saylor supported his contrary position as follows:
In my view, there are substantial arguments to be made that
estate administration would be better served by a rule
providing for the general appealability of estate-related orders
determining property interests at least in the real property
setting. Notably, the present “determination of finality”
procedure does not closely align with the justifications for
permitting immediate appeals (facilitating the prompt
resolution of potential title disputes to benefit purchasers, the
estate, and beneficiaries). Further, the vesting of absolute,
standardless discretion in our orphans' courts yields the
potential for disparate treatment. Cf. Commonwealth v.
Castillo, 888 A.2d 775, 779 (Pa. 2005) (rejecting the exercise
of appellate discretion to review issues on appeal where the
appellant has failed to comply with the obligation to file a
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statement of matters complained of on appeal, where such
discretion yields “inconsistent results and uneven justice”).
Id. He also disagreed with the majority’s contention that allowing immediate appeals from
orders involving the disposition of real property would “flood” the appellate court system
with appeals, noting that the majority offered no evidence to support such an eventuality.
Id. at 1120. The determination of finality did not foreclose any appeals, but rather only
delayed them. Id. at 1120-21. He requested that the appellate and orphans’ court rules
committees study and make recommendations to improve “the troubling implications of
maintaining a system based on absolute, largely standardless discretion.” Id. at 1121.
The rules committees plainly studied alternative improvements, as effective
February 12, 2012, Rule 342 was substantially revised in two respects. First, the rule as
revised includes additional types of orphans’ court orders that are immediately appealable
as of right, including for example subsection (a)(3), which permits the immediate appeal
of an order interpreting a will or other relevant document that forms the basis of a claim
asserted against the estate or trust. Pa.R.A.P. 342(a)(3). The recognition of orders
“determining an interest in realty or personalty” as immediately appealable was retained
without substantive modification. Now set forth in 342(a)(6), the rule provides that “[a]n
appeal may be taken as of right from ... [a]n order determining an interest in real or
personal property.” Pa.R.A.P 342(a)(6). Subsection (c) was added to provide that
“[f]ailure to appeal an order that is immediately appealable under paragraphs (a)(1)-(7) of
this rule shall constitute a waiver of all objections to such order and such objections may
not be raised in any subsequent appeal.” Pa.R.A.P. 342(c).
Second, and of significant importance for present purposes, the requirement that
the orphans’ court designate an order as final before it becomes immediately appealable
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was eliminated. In explaining the change, the Official Note to Pa.R.A.P. 342 states as
follows:
Experience has also proven that it is difficult to analogize civil
litigation to litigation arising in estate, trust and guardianship
administration. The civil proceeding defines the scope of the
dispute, but the administration of a trust or estate does not
define the scope of the litigation in Orphans' Court.
Administration of a trust or an estate continues over a period
of time. Litigation in Orphans' Court may arise at some point
during the administration, and when it does arise, the dispute
needs to be determined promptly and with finality so that the
guardianship or the estate or trust administration can then
continue properly and orderly. Thus, the traditional notions of
finality that are applicable in the context of ongoing civil
adversarial proceedings do not correspond to litigation in
Orphans' Court.
In order to facilitate orderly administration of estates, trusts
and guardianships, the 2011 amendments list certain orders
that will be immediately appealable without any requirement
that the Orphans' Court make a determination of finality.
Orders falling within subdivisions (a)(1)-(7) no longer require
the lower court to make a determination of finality.
Pa.R.A.P. 342, Official Note.
The Superior Court applied the revised rule in In re Estate of Ash, 73 A.3d 1287(Pa. Super. 2013). In Ash, the will at issue made specific cash bequests and directed
that the remaining personal and real property be sold, with the proceeds to be divided
among three residual beneficiaries. The appellant, Joseph Heit, was the executor and
the other two beneficiaries were his brother, James Heit, and Duane Fetter. As executor,
the appellant conveyed to himself one of the three tracts of land owned by the estate
(Tract 1). The orphans' court set aside the sale, removed the appellant as executor, and
appointed an administratrix in the appellant's place. Appellant did not appeal. Id. at 1288.
Thereafter, Fetter indicated that he had entered an agreement with the decedent to
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purchase an adjoining tract (“Tract 2”), and further agreed to purchase Tracts 1 and 3.
Appellant filed a petition asserting that he was willing to buy Tract 1 if he could get an
easement over Tract 2. The administratrix, however, decided to sell all three tracts to
Fetter. The orphans' court agreed and entered an order authorizing the administratrix to
sell the three tracts to Fetter. Appellant appealed.
The Superior Court ruled that the revisions to Pa.R.A.P. 342 had no effect on this
Court’s decision in Stricker and that, as such, the orphans’ court’s order authorizing the
administratrix to sell the real property to Fetter was interlocutory:
We do not believe the order before us is one of the appealable
orders set forth by Rule 342, whether in Subsection (6) or
otherwise. Consequently, we do not believe Subsection (6)
and/or any other post[-]Stricker change(s) to Rule 342 negate
Stricker and render the order before us appealable. We
understand the effect of the instant order will be to allow the
realty sale and, if the administratrix sells the tracts, Fetter will
come to own them. Thus, if the sale is completed, the order
will eventually lead to a change in the ownership interest of
the realty. Nevertheless, the Orphans' Court decision now
on appeal did not involve the court having to resolve
some dispute about who had or has an interest in the
tracts: The estate obviously owns them. The court's decision
was about ... the propriety of her plan to reduce the estate
assets to cash by sale to a particular party, the goal being to
distribute the sale proceeds in accordance with the will. The
court's decision was not about determining an interest in the
subject realty. Accordingly, Stricker controls this case.
Id. at 1289-90 (emphasis added).
The Superior Court relied upon its decision in Ash in deciding Estate of Cherry,
111 A.3d 1204 (Pa. Super. 2015). In Cherry, the decedent’s will named twenty-three
beneficiaries, including her local church, with the church to receive the residue of the
estate. Id. at 1206. The church, seeking to receive the real estate as the residue, offered
to contribute funds to allow for the payment of the cash bequests. Id. The executor,
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however, indicated that such a procedure was contrary to the terms of the will and moved
forward to sell the real property. Id. Upon petition by the church, the orphans’ court
entered an order indicating that it would not authorize a sale of the real property and
would enjoin future efforts to do so. Id. On appeal, the Superior Court affirmed on two
grounds. First, the order did not determine an interest in real property because it did not
approve an actual sale of the property, and second, even if one might speculate that the
orphans’ court would never permit the sale of the real property (thus effectively
permanently determining ownership of the property), the orphans’ court’s order was
interlocutory under Ash because it did not “resolve some dispute about who had or has
an interest in the tracts” at issue. Id. at 1210-11 (quoting Ash, 73 A.3d at 1290).
With this background to the rule in mind, we turn to consideration of the case at
bar. To begin, we agree with Dunzik that the Superior Court’s decision in this case is
fundamentally inconsistent with its prior decisions in Ash and Cherry. The majority in the
present case concluded that the orphans’ court’s April 30, 2013 order “finalized the sale
of real estate by the Executor” and thus clearly “determine[d] an interest in real ...
property.” Krasinski, 188 A.3d at 469. Unlike in Ash and Cherry (to which the majority in
this case did not even cite), the court did not follow Stricker’s requirement that the
orphans’ court’s order must resolve a “dispute” between the parties regarding who owned
an interest in the real estate in question to make it immediately appealable. Instead, the
majority ruled that the orphans’ court’s order, by approving the sale of the three tracts in
question, “determined an interest in real property,” namely ownership of the real estate at
issue. Id. The majority further noted that Dunzik was aware that her claims of ownership
to the properties would be lost upon the finalized sale, and thus any continuing ownership
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interest she had in those properties would be lost upon its completion absent an appeal
seeking a reversal or modification of said order. Id. Because it was immediately
appealable as of right, her failure to appeal the April 30, 2013 order resulted in waiver
pursuant to Rule 342(c) and she could not obtain relief on her later claims related to the
private sale. Id. at 469-70.
In contrast, in her concurring and dissenting opinion, Judge Shogan relied upon
the reasoning in Ash. She reasoned, in accordance with Ash, that an order directing the
sale of real estate that is not specifically devised to a particular person is not appealable
under Rule 342(a)(6) because it does not determine an interest in property, since “the
estate obviously owned the property.” Id. at 478 (Shogan, J., concurring and dissenting).
As a result, Judge Shogan concluded as follows:
[A]s in Ash, the purpose of the April 30, 2013 order was not to
resolve some dispute about who had an interest in the
Property; that issue was determined in favor of the Estate prior
to the private sale. Order, 3/22/11; Order, 12/24/12. Rather,
the April 30, 2013 order was about approving the executor's
“plan to reduce the estate assets to cash by sale to a particular
party, the goal being to distribute the sale proceeds in
accordance with the will.” Ash, 73 A.3d at 1290. Thus,
contrary to the Majority's conclusion, the orphans' court's
decision was not about determining an interest in real
property; it was about achieving distribution of the estate
equally to Sophia's children. Accordingly, Stricker and Ash
control this case.
Id.We conclude that the Superior Court’s majority correctly interpreted and applied
Pa.R.A.P. 342(a)(6). By its express terms, this rule applies to any orphans’ court order
that determines an interest in real or personal property, without regard to whether it
resolves a dispute over ownership or whether its purpose is to achieve a fair distribution
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of the proceeds of an estate. In the vast majority of cases, the applicability of Pa.R.A.P.
342(a)(6) will be clear from the face of the order – if it determines an interest in real or
personal property it is appealable as of right and the failure to file an immediate appeal
will result in waiver pursuant to Pa.R.A.P. 342(c). Our prior decision in Stricker has no
continuing vitality with respect to the application of Pa.R.A.P. 342(a)(6), as the lack of
immediate appealability in that case was based solely and exclusively upon the orphans’
courts’ determination that its order was not final. The revisions to Pa.R.A.P. 342
eliminated the requirement of judicial declarations of finality and thus abrogated Stricker.
Because Ash and Cherry relied upon the reasoning in Stricker, those cases must also be
disapproved.11
11 In his Concurring Opinion, Justice Dougherty disagrees with the decision to disapprove
of Stricker, Ash and Cherry on the grounds that those cases involved orders approving
“future” sales of real estate (or a refusal to permit a future sale) while the order in the
present case approved a “prior” sale of real estate. Concurring Op. at 2. However, no
such factual distinction exists. Properly understood, the orphans’ court’s March 22, 2011
order merely permitted the Executor to proceed with efforts to sell the estate’s real estate,
and to this end the Executor conducted a bidding process to identify specific buyers for
each property. The March 22, 2011 order did not determine any interest in the estate’s
real property, as no interests were determined until after completion of the bidding
process. To the contrary, throughout the bidding process the estate retained its exclusive
interests in the three properties, and the bidding process had no impact on the estate’s
continued interests in these properties.
After the bidding process was finalized, on March 7, 2013 the Executor petitioned the
orphans’ court to approve the sale of the properties to the buyers and at the prices
determined in the bidding process. After argument on the petition, the orphans’ court,
pursuant to its April 30, 2013 order, approved the sale of the properties to the specifically
identified buyers, thereby determining an interest in those properties. The sales could
not, and did not, take place until they were approved by the orphans’ court. Thus, as in
Stricker, Ash and Cherry, the orphans’ court was ruling on an event to take place in the
future, i.e., after the entry of the April 30, 2013 order.
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In all fairness to the Superior Court panels in Ash and Cherry, as well as to Judge
Shogan in relying on Ash, both recognized that the decision to continue to follow Stricker
in light of the revisions to Pa.R.A.P. 342 was a difficult one, noting that if “the changes to
Rule 342 were indeed meant to abrogate Stricker and … to transform an order such as
the one before us into an order determining an interest in realty under Subsection (6),
that pronouncement should be made by the Supreme Court.” Ash, 73 A.3d at 1290 n.5;
Cherry, 111 A.3d at 1210. We make that pronouncement here. In adopting the revisions
to Pa.R.A.P. 342, we effectively adopted the position set forth in the concurring opinion
in Stricker – which called for the elimination of the requirement of a determination of
finality as a means to provide for “the general appealability of estate-related orders
determining property interests… .”12 Stricker, 977 A.2d at 1120 (Saylor, J., concurring).
12 In Estate of Plance, 175 A.3d 249 (Pa. 2017), this Court previously explained:
Prior to the most recent revision, [Rule 342] “[did] not require
that any particular class of orders be treated as final, but
instead [left] the determination of finality of orders not
disposing of all claims and all parties up to the Orphans' Court
judge.” In re Estate of Stricker, 602 Pa. 54, 977 A.2d 1115,
1118 (2009). Concurring in Stricker, then–Justice, now Chief
Justice, Saylor questioned the prudence of this rule, as the
case-by-case determination of finality procedure could lead to
inconsistent results in different Orphans' Courts, and could
cause undue delays in estate administration. Justice Saylor
opined that “allowing appeals as of right most frequently
would result in a net benefit.” Id. at 1121 (Saylor, J.,
concurring). Following Justice Saylor's recommendation in
Stricker, Rule 342 was revised to provide for appeals as of
right for specified categories of Orphans' Court orders. See
Pa.R.A.P. 342(a). The rule explicitly states that objections to
such orders must be raised in an immediate, timely appeal,
on pain of waiver. See Pa.R.A.P. 342(c).
Id. at 269.
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Such a rule of general appealability of these types of orders will best serve estate
administration, as immediate appeals will, among other things, facilitate transfers of
property in a manner favorable to beneficiaries by assuring the certainty of the title
acquired by purchasers (rather than generating clouds on title when an appeal is delayed,
sometimes for years, until the closing of the estate). Id. Moreover, the current text of the
rule does not include any of the obstructions to immediate appealability created by
Stricker, Ash and Cherry. Every orphans’ court order determining an interest in real or
personal property, without exception, is immediately appealable as of right.
The order of the Superior Court is affirmed.
Chief Justice Saylor and Justices Todd, Wecht and Mundy join the opinion.
Justice Dougherty files a concurring opinion in which Justice Baer joins.
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