Estate of Virginia Cherry Appeal of: Ronald Locke ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF VIRGINIA A. CHERRY IN THE SUPERIOR COURT OF
LATE OF HENDERSON TOWNSHIP PENNSYLVANIA
HUNTINGDON COUNTY
COMMONWEALTH OF PENNSYLVANIA
APPEAL OF: RONALD LOCKE
No. 633 MDA 2014
Appeal from the Order Entered on March 5, 2014
In the Court of Common Pleas of Huntingdon County
Orphans’ Court at No.: 31-OC-242-2013
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 24, 2014
Ronald Locke, executor of the Estate of Virginia A. Cherry, appeals the
orphans’ court order entered on March 5, 2014. After careful review, we
conclude that Locke has waived all of his claims. Locke failed to comply
timely with the orphans’ court order directing him to file a concise statement
of errors pursuant to Pa.R.A.P. 1925(b). Accordingly, we affirm.
Virginia A. Cherry died testate on October 9, 2013. She was eighty-
seven years old at the time of her death. Cherry left a will, which she
executed on May 24, 2011. Therein, Cherry named Ronald Locke as the
executor of her estate and made twenty-three specific cash bequests
totaling $59,500. Cherry made two of those specific bequests to the First
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*
Retired Senior Judge assigned to the Superior Court.
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Baptist Church of Huntingdon, Pennsylvania (“the Church”), equaling
$11,000. Cherry also bequeathed the residue of her estate to the Church.
Pursuant to the terms of Cherry’s will, Locke was empowered to sell or
otherwise convert any real or personal property. Orphans’ Court Opinion
(“O.C.O.”), 5/20/2014, at 3. On October 23, 2013, the Huntingdon County
Register of Wills admitted Cherry’s will to probate and granted letters
testamentary to Locke. On November 21, 2013, counsel for the Church sent
a letter to Locke stating that, in light of the estate’s likely insolvency, the
Church was prepared to contribute funds to the estate in order to provide
Locke with sufficient liquid assets to satisfy the specific bequests in Cherry’s
will, any inheritance taxes due, and the costs of administration. The Church
anticipated that doing so would expedite the administration of the estate by
allowing Locke to convey the residue to the Church in kind once all of the
specific bequests had been paid.
On November 26, 2013, Locke mailed a letter to the Church rejecting
its proposal. Locke reasoned that he did not have the authority to consent
to the suggested arrangement because it was contrary to Cherry’s intent, as
evidenced by the May 24, 2011 will. On January 3, 2014, the Church filed a
petition seeking to enjoin Locke permanently from selling all real and
personal property owned by the estate.
After a hearing on February 25, 2014, the orphans’ court entered an
order denying the Church’s petition for an injunction on March 5, 2014. That
order provided as follows:
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AND NOW, this 5th day of March, 2014, the Petition of the
[Church] for an injunction is denied. However, since the
[Church] has offered to pay all of the cash requirements
attendant to the settlement of this estate, this [c]ourt will not
authorize the sale of the personal property or real estate of
[Cherry,] and would, upon application, enjoin any proposed sale
of these assets.
Orphans’ Court Order, 3/5/2014, at 1.
On April 4, 2014, Locke filed a notice of appeal. On April 9, 2014, the
orphans’ court ordered Locke to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one
days. Although the proof of service attached to Locke’s Rule 1925(b)
statement is dated April 30, 2014, the record indicates that it was not filed
and docketed with the clerk of the Huntingdon County orphans’ court until
May 20, 2014.1 Also on May 20, 2014, the orphans’ court filed its
Pa.R.A.P. 1925(a) opinion, in which it recommended that we quash Locke’s
appeal as interlocutory.
Locke raises two issues challenging the orphans’ court March 5, 2014
order. However, before addressing the merits of Locke’s claims, we must
evaluate whether he has preserved those issues for our review, as required
by Pa.R.A.P. 1925(b). Rule 121 of the Pennsylvania Rules of Appellate
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1
On April 9, 2014, the orphans’ court ordered Locke to file his concise
statement of errors complained of on appeal within twenty-one days. Thus,
the final day that Locke could have filed a timely Rule 1925(b) statement
was April 30, 2014. See Pa.R.C.P. 106 (“When any period of time is
referred to in any rule, such period in all cases . . . shall be so computed as
to exclude the first and include the last day of such period.”).
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Procedure provides that a “filing shall not be timely unless the papers are
received by the prothonotary within the time fixed for filing.”
Pa.R.A.P. 121(a). Even assuming, arguendo, that Locke mailed a copy of his
Rule 1925(b) statement to the orphans’ court judge on April 30, 2014 (as his
proof of service asserts), he still has failed to comply with the dictates of
Rule 121.
We have held that, where “an appellant does not comply with an order
to file a Rule 1925(b) statement, all issues on appeal are waived—even if the
Rule 1925(b) statement was served on the trial judge who subsequently
addressed in an opinion the issues raised in the Rule 1925(b) statement.”
In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (citing Commonwealth v.
Schofield, 888 A.2d 771, 773-74 (Pa. 2005)). Moreover, our Supreme
Court repeatedly has emphasized that an appellant’s “failure to comply with
the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic
waiver of the issues raised [on appeal].” Schofield, 888 A.2d at 774;
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (finding that
appellant had waived all his claims on appeal for untimely filing his Rule
1925(b) statement); Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)
(“[F]rom this date forward . . . [a]ppellants must comply whenever the trial
court orders them to file a Statement of [Errors] Complained of on Appeal
pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be
deemed waived.”).
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Accordingly, we are constrained to find all of Locke’s issues waived due
to his failure to file a timely Rule 1925(b) statement. Because Locke has
waived all of his issues on appeal, we affirm the orphans’ court order dated
March 5, 2014.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
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