In Re: Estate of Ellesmere Farrell ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ESTATE OF ELLESMERE IN THE SUPERIOR COURT OF
FARRELL, A/K/A ELLESMERE MCGUIRE PENNSYLVANIA
FARRELL, A/K/A ELLESMERE CECELIA
FARRELL A/K/A/ MRS. FRANK P. FARRELL
A/K/A ELLESMERE M. FARRELL A/K/A
CORNELIA BARRY
APPEAL OF: LAND TYCOON, INC.
No. 1311 EDA 2014
Appeal from the Order Entered on March 25, 2014
In the Court of Common Pleas of Wayne County
Civil Division at No.: 28-O.C.D.-1987
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 20, 2015
Land Tycoon, Inc. (“LTI”), challenges the trial court’s March 25, 2014
order rescinding that court’s December 12, 2013 order. The December 12,
2013 order reopened the Estate of Ellesmere Farrell (“the Estate”) to enable
the Estate’s personal representative, Honesdale National Bank (“HNB”), to
execute a settlement with LTI concerning certain real property to which the
Estate held fractional title, but which had not been accounted for in the prior
probate proceedings concerning the Estate. We affirm.
The Estate was finally accounted for, its assets disposed of, and
executor Honesdale National Bank discharged in 1991.1 However, on
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1
The Estate was reopened in 1998 for reasons that are immaterial to
the instant appeal.
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December 12, 2013, LTI filed a petition in the Wayne County Court of
Common Pleas to reopen the Estate. Therein, it averred that it had
purchased a property known as “Tunnel Road, Denison Township, Luzerne
County” (“the Property”) at a Luzerne County tax sale on September 20,
2012. Petition to Reopen Estate, 12/12/2013, at 1 ¶4. After tracing the
lineage of the Property, LTI averred in relevant part that a 1/24 interest had
passed to, and remained the property of, the Estate. LTI also averred that,
in a separate quiet title action in Luzerne County, an order had been entered
quieting title to the Property. LTI averred that HNB had no objections to the
entry of an order by the trial court to resolve “the remaining claim of the
[1/24] interest” of the Estate against the Property. Id. at 2 ¶ 10. LTI
indicated that it would make a fair settlement offer to the Estate for a
quitclaim deed in LTI’s favor for the Estate’s interest in the property.
Id. at 2 ¶ 11.
LTI attached to the petition a Judgment and Order from the Luzerne
County Court of Common Pleas that entered judgment quieting title to the
Property as against seventeen named parties and their heirs and assigns,
unless any such party should file exceptions within thirty days of the entry of
the order. That order specifically provided that it “shall not affect the
interest of any of the heirs of Ellesmere Farrell. The interest of the heirs of
Ellesmere Farrell shall re[t]ain the same interest in the [P]roperty [that they
held] prior to this court order, until further order of court.” Luzerne County
Court of Common Pleas Judgment and Order, 11/4/2013, at 2.
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On December 12, 2013, the trial court convened a hearing concerning
LTI’s petition, at which appeared counsel for LTI and Charlie Curtin, a
representative of HNB. In a brief proceeding, LTI and HNB represented, and
the trial court took at face value, that reopening the Estate for purposes of
disposing of its 1/24 share of the Property served everyone’s interests.
Mr. Curtin testified as follows:
[T]he bank is happy to assist [LTI] in getting the transfer of the
deed; however, we don’t want to—it’d be more costly for the
bank to go through formal stay proceedings. We would just like
the ability to do this without re-raising an estate, notifying the
heirs, we would like to—[LTI] to take care of all that . . . we can
sign off on the deed; however, we’re just thinking it would be
more time and expense on our part for one twenty[-]fourth of a
piece of property.
Notes of Testimony (“N.T.”), 12/12/2013 (transcript undated), at 3-4
(ellipsis in original). Neither LTI nor Mr. Curtin offered any indication,
express or implied, that the Luzerne County tax sale and order quieting title
that had led to the instant proceedings were subject to pending challenges
by two women claiming an interest in the Property as heirs of the Estate.
The trial court entered an order granting LTI’s petition. The order
provided, in relevant part, as follows:
1. [The Estate] shall be reopened for the sole purpose of
allowing [HNB to] execute a settlement with [LTI] and transfer
[the Property,] in which the [E]state may hold a small interest.
2. [HNB] and [LTI] in their sole and absolute discretion shall
enter into a settlement for [the Property] that is fair and
equitable to the heirs of the [E]state and [LTI].
****
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4. [HNB] shall not be required to recommence any formal
estate proceedings with the Commonwealth of Pennsylvania or
any other governmental body as a result of the transfer of [the
Property] by [the Estate].
Order of Court, 12/12/2013, at 1. Thereafter, LTI and HNB arranged to
transfer the Estate’s interest in the Property to LTI for the agreed-upon sum
of $2500, with an additional $1000 to be paid by LTI to HNB as
consideration for its work as personal representative of the Estate. LTI and
HNB completed the transaction, and LTI recorded the deed for the relevant
interest in the Property.
On January 31, 2014, Colleen O’Neill and Patricia A. Warunek (when
not identified individually, identified collectively as “the Descendants”), by
and through counsel, filed a joint petition to set aside the trial court’s
December 12, 2013 order reopening the Estate. Therein, they averred that
they are lineal descendants and heirs of Ellesmere Farrell. They averred that
any property possessed by Farrell (i.e., the Estate) had passed by operation
of law to Farrell’s heirs, including (but not limited to) the Descendants.
The Descendants averred that, on or about November 4, 2013,
Warunek had filed a petition in Luzerne County to set aside the “upset tax
sale” of the Property, alleging, inter alia, defective notice. On November 20,
2013, O’Neill filed a parallel petition raising the same defects. Although a
hearing on the Descendants’ petitions had been scheduled by the Luzerne
County Court of Common Pleas for January 2, 2014, LTI asked the
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Descendants to agree to a continuance to make way for a holiday vacation. 2
The Descendants agreed to the continuance, but averred that, during their
communications concerning the continuance, LTI made no mention of its
“surreptitious actions in the Wayne County Court.” Joint Petition to Set
Aside Court Order, 1/31/2014, at 3 ¶ 15. The Descendants further alleged
that LTI did not inform HNB of the Luzerne County actions regarding the
Property before presenting the December 12, 2013 petition to reopen the
Estate. The Descendants indicated that they had only become aware of the
Wayne County action on or about January 15, 2014, when one or more of
the Estate’s heirs received notice from LTI of the sale and checks for their
respective shares of the proceeds. Consequently, the Descendants argued
that LTI had procured the order reopening the Estate “by omission at best,”
and without providing notice to the Descendants, whose claimed interests in
the Property by then was known to LTI. Id. at 4 ¶¶ 20, 22-23.
On February 26, 2014, the Wayne County Court of Common Pleas held
a hearing to consider the Descendants’ petition to set aside that court’s
earlier order reopening the Estate at LTI’s request. At the hearing, the court
heard testimony from O’Neill, Warunek, LTI representative David Keller, and
HNB representative Curtin. Although various potentially material factual
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2
The record contains no information regarding the ultimate resolution of
the Descendants’ Luzerne County actions.
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disputes emerged during the course of testimony, ultimately the
Descendants reached the following stipulation with LTI:
One, [LTI] knew in October 2013 that [the Descendants] claimed
to be heirs of Ellesmere Farrell.
Two, in [Warunek’s] Petition to Set Aside the Upset Tax Sale in
Luzerne County she claimed to be an heir of G.L. and Arthur
Barry.
Three, in [O’Neill’s] petition in Luzerne County to Set Aside the
Upset Tax Sale she claimed to be an heir of Arthur Barry.
In the original joint petition in this matter, the [Descendants]
claimed to be heirs of Arthur Barry.
In the amended petition in this matter, [the Descendants]
claimed to be heirs of G.L. Barry.
I’m down to #6 now. [LTI] did not inform . . . [the
Descendants] of the Wayne County December 2013 Petition to
Re-Open the Estate prior to [its] presentment.
Number seven, HNB was not informed prior to execution of the
settlement agreement at issue that [the Descendants] were
opposing [LTI’s] Quiet Title Action in Luzerne County.
Number eight, HNB was not informed prior to execution of the
settlement agreement that [the Descendants] filed Luzerne
County actions to Set Aside the Upset Tax Sale.
And finally, number nine, [LTI] did not inform [the Descendants]
of the HNB settlement agreement or negotiations therefore, prior
to the settlement agreement’s execution.
N.T., 2/26/2014, at 53-54. The trial court also received briefs in support of
the parties’ respective positions.
On March 25, 2014, the trial court issued an opinion and order setting
aside its earlier order reopening the Estate. The trial court explained its
reasoning as follows:
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At first blush, this case appeared to be simple, at least based
upon what this [c]ourt knew prior to the execution of the
December 12, 2013 Order. This [c]ourt relied on the following
representations when issuing that [o]rder: A piece of [the
Property] was found to belong to the heirs of the [E]state,
apparently unbeknownst to those heirs and the personal
representative of the [E]state. [The Property] was sold at a tax
sale in Luzerne County in 2012. The purchaser of the
[P]roperty, [LTI], then received the tax deed to the [P]roperty.
Thereafter, [LTI] initiated an action to quiet title in Luzerne
County. [LTI] had obtained a judgment to quiet title for 23/24[]
of the [P]roperty. The remaining 1/24[] interest was owned by
the [Estate].
[HNB] was appointed as personal representative of the [Estate,]
which was filed here in Wayne County. No one informed this
[c]ourt as to why the judgment to quiet title had not been
entered as to the entirety of the shares. Therefore, this [c]ourt
presumed, but never stated on the record, that [the] inability to
effectuate service had been a reason the remaining 1/24[] was
not included in the judgment to quiet title. Counsel gave no
reason for this [c]ourt to think otherwise. This was a found
asset in the [E]state, and the heirs would be assured a fair price,
as provided for in this [c]ourt’s order. Given the heirs’ modest
interest in the [P]roperty, this appeared to be a straightforward
way of handling a fair disposition of the [P]roperty. However,
appearances can be deceiving.
The personal representative of an estate may sell, at a public or
private sale, any real property not specifically devised by the
will, if any. 20 Pa.C.S. § 3351. The heirs, with all things being
equal, were not entitled to notice before the sale. Nevertheless,
all things were not “being equal.” This [c]ourt should have been
advised by counsel that the quiet title action in Luzerne County
was contested, and those contesting it were heirs of [the Estate,
i.e., the Descendants]. Had this [c]ourt been so informed, this
[c]ourt would have deferred the matter to the Luzerne County
action.
Upon that decision, [the Descendants] would have had the tax
sale either overturned or confirmed. If confirmed, there would
have been no legitimate basis to challenge the conveyance,
except if the agreed[-]upon price was not reasonable. If not
confirmed, then the [E]state would have owned a 1/24[] interest
and administered that interest in the appropriate manner.
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The record discloses that [the Descendants] filed their objection
to the Luzerne County quiet title action in November of 2013.
Prior to the filing of [its] petition to reopen the [E]state, [LTI]
and its counsel knew of [the Descendants’] objections. It is
evident that [LTI’s] Petition to reopen the [E]state sought to do
through the back door what it could not do through the front
door, specifically, adjudicate the rights of the [Descendants]
without giving them notice.
This was not a case where the [Descendants] were simply
beneficiaries coming into found money; they had affirmatively,
and on the record, given notice of their objections to the quiet
title action in Luzerne County. As such, they were surely entitled
to notice of a proceeding which would divest them of their
standing to continue to contest the quiet title action. “Due
process requires that a party who will be adversely affected by a
court order must receive notice and a right to be heard in an
appropriate hearing.” McKinney v. Carolus, 634 A.2d 1144,
1146 (Pa. Super. 1993).
Counsel for [LTI] goes to great lengths to defend his actions in
this case. It matters not whether [LTI’s] attorney knew of the
“back door” maneuver in order to reach [t]his decision. The fact
remains that under the present facts, [the Descendants] were
denied due process.
Trial Court Opinion, 3/25/2014, at 2-3 (citation modified; emphasis in
original).
LTI filed the instant timely appeal on April 23, 2014. The trial court
responded the same day by entering an order directing LTI to file a concise
statement of the errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). LTI timely complied on May 9, 2014. Therein, LTI
contended that, by operation of 42 Pa.C.S. § 5505, the trial court lost
jurisdiction to modify or rescind its December 12, 2013 order on the thirty-
first day after that order issued, which passed long before the trial court
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issued its March 25, 2014 opinion and order purporting to rescind the earlier
order.
In its Rule 1925(a) opinion, the trial court offered two theories in
support of its prerogative to revisit its December order greater than thirty
days after its issuance. First, the trial court suggested that the December
order, because it reopened the Estate, did not constitute a final order under
Pa.R.A.P. 341, and therefore did not fall within the ambit of section 5505’s
prohibition. In the alternative, the trial court relied upon the bases set forth
in its earlier opinion, supra—that LTI’s misleading conduct, in having
deprived the Descendants of their rights to due process, qualified this case
for the recognized, if narrow, equitable exception under which a trial court
may modify or rescind its orders even after the expiration of thirty days.
Before this Court, LTI raises the following issues:
1. Was the [trial court’s] December 12, 2013 Order a Final
Order?
2. Did the [trial court] have [j]urisdiction to void its
December 12, 2013 [order] more than 30 days after its entry
and more than 30 days after the completion of the sale?
Brief for LTI at 5 (unnumbered).3 However, in its brief LTI only presents
legal argument in support of that latter question, which arguably constitutes
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3
On October 22, 2014, counsel for Ms. Warunek filed in this Court a
letter indicating the he would not file a brief on Ms. Warunek’s behalf
because she had entered into a settlement and release with LTI. Counsel for
Ms. Warunek also requested that the trial court’s March 25, 2014 order
underlying this appeal be rescinded and the orphans’ court’s prior December
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waiver of the first issue as stated. See Pa.R.A.P. 2119(a). Nonetheless,
because both issues implicate the trial court’s subject matter jurisdiction, we
will address them both in turn. See LeFlar v. Gulf Creek Indus. Park
No. 2, 515 A.2d 875, 879 (Pa. 1986) (“The lack of jurisdiction of the subject
matter . . . may be raised by the court sua sponte . . . .”). Jurisdictional
questions are questions of law as to which our standard of review is de novo
and our scope of review plenary. See Commonwealth, Office of Atty.
Gen. ex rel. Corbett v. Locust Twp., 968 A.2d 1263, 1268-69 (Pa. 2009).
In order to understand the final-order question, we first must consider
LTI’s argument in support of its second issue, which is based upon
42 Pa.C.S. § 5505. LTI contends that the trial court’s March 25, 2014 order,
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(Footnote Continued)
12, 2013 order be reinstated. However, nothing in this letter addresses
Ms. O’Neill’s interest in this matter. See Letter, 10/22/2014, at 1 (“I am
writing to you on behalf of my client, Patricia Warunek. My client has
agreed to settle this matter . . . with Land Tycoon, Inc. . . .”).
Although Ms. O’Neill did not file a brief in this matter, as an appellee
she has no obligation to do so to preserve her underlying claims. See Reif
v. Reif, 626 A.2d 169, 172 n.3 (Pa. Super. 1993) (citing Pa.R.A.P. 2188)
(“[A]ppellees cannot be punished in any way for not filing briefs in cases
which are submitted to this Court without argument . . . .”). Accordingly, we
cannot speculate that Ms. O’Neill was a party to the settlement, or that she
intends to abandon her claim. Moreover, over a month later, on December
3, 2014, this Court issued to the parties a letter confirming that this case
had been submitted on the briefs, but Ms. O’Neill in no way signaled her
desire to discontinue her case. Under these circumstances, we can neither
discontinue this appeal nor direct the trial court to reinstate its prior order,
which served to protect the interests of both Ms. Warunek and Ms. O’Neill.
That being said, this memorandum is without prejudice to Ms. Warunek
and/or Ms. O’Neill to discontinue the matter before the orphans’ court upon
remand.
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in following by more than thirty days the December 12, 2013 order it
purported to rescind, was entered in violation of 42 Pa.C.S. § 5505, which
provides as follows:
Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or
allowed.
42 Pa.C.S. § 5505. Section 5505 must be read in tandem with section 5504,
which provides as follows:
(a) General rule.—Except as provided in section 1722(c)
(relating to time limitations) or in subsection (b) of this section,
the time limited by this chapter shall not be extended by order,
rule or otherwise.
(b) Fraud.—The time limited by this chapter may be extended
to relieve fraud or its equivalent, but there shall be no extension
of time as a matter of indulgence . . . .
42 Pa.C.S. § 5504. Critically, though, section 5505 applies to this case only
if the order the trial court rescinded was a final order. See Mente
Chevrolet, Oldsmobile, Inc., v. Swoyer, 710 A.2d 632, 633
(Pa. Super. 1998) (citing Hutchison by Hutchison v. Luddy, 611 A.2d
1280 (Pa. Super. 1992)).
The trial court found that its December 12, 2013 order, in reopening
the Estate, did not constitute a final order, ostensibly because, while it
opened the Estate, it did not close it. Our appellate rules provide, in
relevant part, as follows:
Rule 341. Final Orders; Generally
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(a) General rule. Except as prescribed in subdivisions (d),
and (e) of this rule, an appeal may be taken as of right from any
final order of an administrative agency or lower court.
(b) Definition of a final order. A final order is any order
that:
(1) disposes of all claims and of all parties; or
(2) is expressly defined as a final order by statute . . . .
Pa.R.A.P. 341.
In light of the plain terms of Rule 341, the trial court’s submission that
its December 12, 2013 order was not a final order is at least colorable. The
order in question reopened the Estate. Although it did so for a “limited”
purpose, nonetheless the Estate was opened, and no action that followed
necessarily effectuated its closing. However, the trial court’s December 12,
2013 order also provided as follows: “[HNB] shall not be required to
recommence any formal estate proceedings with the Commonwealth of
Pennsylvania or any other governmental body as a result of the transfer of
[the Property] by [the Estate].” Order of Court, 12/12/2013, at 1 ¶ 4. In
specifying that no further action would be required after the Estate’s interest
in the Property was liquidated and any heirs compensated for their share of
that interest, the court left open little prospect of further proceedings
regarding the Estate, at least in the instant connection. Thus, were we to
credit the trial court’s reasoning, we would effectively have put its December
12, 2013 order beyond the reach of appellate review in perpetuity, an
untenable result.
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This does not conclude our assessment of finality. Although the trial
court in this case does not identify itself as sitting in its orphans’ court
jurisdiction, the docket for this case originates in the administration of the
Estate in the Orphans’ Court division of the Wayne County Court of Common
Pleas. Accordingly, we presume that the trial court in the instant case sat in
its Orphans’ Court capacity.4 Consequently, Pa.R.A.P. 342 (“Appealable
Orphans’ Court Orders”) merits review. Rule 342(a)(6) provides for an
immediate appeal as of right from an Orphans’ Court order “determining an
interest in real or personal property.” Rule 342(c) further provides that the
“[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.” Consequently, we assume, arguendo, that the December 12,
2013 order was final for purposes of appeal. As such, we assume without
deciding that the order is subject to the provisions of 42 Pa.C.S. § 5505.5
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4
At least arguably, this would be required by 20 Pa.C.S. § 711, which
confers mandatory jurisdiction over the administration of an estate upon the
Orphans’ Court.
5
We refrain from deciding this issue conclusively because the issue is
not squarely presented or argued, and our research discloses no case
integrating Rule 342 and section 5505 in this fashion. However, given
section 5505’s plain language and the stringency with which our Courts have
applied any exceptions thereto, it would be illogical for it not to apply to
orders that are deemed final for purposes of appeal.
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In support of its strict reading of sections 5504 and 5505 wherein,
putatively, only a showing of fraud will enable a court to rescind a prior
order greater than thirty days after its entry, LTI cites Commonwealth,
Dep’t of Transp., Bureau of Driver Lic. v. Duncan, 601 A.2d 456 (Pa.
Cmwlth. 1991), and Board of Supervisors of Chartiers Twp. v.
Quarture, 603 A.2d 295 (Pa. Cmwlth. 1992).6 However, both cases
acknowledged that circumstances other than fraud may warrant trial court
action outside section 5505’s thirty-day limitation.
In Duncan, for example, the court observed that, after the expiration
of section 5505’s time limit, “a court may vacate, amend or modify its order
only if extraordinary cause exists”:
Only grave and compelling circumstances provide “extraordinary
cause” to justify court intervention after expiration of the appeal
period. Such circumstances have customarily entailed an
oversight or act by the court, or failure of the judicial process,
which operates to deny the losing party knowledge of entry of
final judgment and commencement of the running of the appeal
period.
601 A.2d at 459 (quoting DeMarco v. Borough of East McKeesport,
556 A.2d 977, 979 n.4 (Pa. Cmwlth. 1991)). In Quarture, to much the
same effect, the Commonwealth Court explained as follows:
It is well[-]settled that the courts of this Commonwealth possess
inherent power to act where equity so demands. In such
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6
Although we may consult Commonwealth Court opinions for their
persuasive value, those decisions do not bind this Court. Petow v.
Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010).
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situations, the power of the court to open and set aside its
judgments may extend beyond the expiration of the appeal
period. The discretionary power of the court over such
judgments is, however, very limited. Generally, judgments
regularly entered in adverse proceedings cannot be opened or
vacated after they have become final, unless there has been
fraud or some other circumstances so grave or compelling as to
constitute extraordinary cause justifying intervention by the
court. Such circumstances have customarily entailed an
oversight or act by the court, or failure of the judicial process,
[that] operates to deny the losing party knowledge of entry of
final judgment and commencement of the running of the appeal
period.
603 A.2d at 298099 (quoting Dep’t of Transp., Bureau of Driver Lic. v.
Axsom, 598 A.2d 616, 619 (Pa. Cmwlth. 1991); citations and internal
quotation marks omitted); accord ISN Bank v. Rajaratnam, 83 A.3d 170,
172 (Pa. Super. 2013) (holding that, following the expiration of the thirty-
day time limit, “the trial court may exercise discretion to modify an order
only upon a showing of extrinsic fraud, lack of jurisdiction over the subject
matter, a fatal defect apparent on the face of the record or some other
evidence of extraordinary cause justifying intervention by the court”
(emphasis added; internal quotation marks omitted)).
The trial court’s ruling, in effect if not explicitly, was based upon a
combination of extraordinary cause and deceit, if not outright fraud by
omission. LTI disregards the trial court’s implicit finding that LTI committed
a fraud upon the trial court, or something very nearly approaching one.
See 42 Pa.C.S. § 5504 (allowing a court to extend the section 5505 time
limit “to relieve fraud or its equivalent” (emphasis added)). In so doing,
LTI effectively concedes the point. Moreover, the trial court’s findings in this
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regard are consistent with facts that LTI stipulated, as set forth supra,
including its acknowledgment that it was aware of the Descendants’ pending
challenge to the tax sale when it asked the trial court to reopen the Estate,
effectively for purposes of subverting the pending Luzerne County action.
Moreover, LTI conceded that it recognized the Descendants’ claims to be
heirs of the Estate, but provided no notice to them of the Wayne County
action. Thus, LTI effectively admits that the trial court had a sound basis for
determining that its lack of awareness of the contemporaneous actions in
Luzerne County concerning the Property was intended or at least abetted by
LTI, rendering the lack of notice to the Descendants of the opening of the
Estate for purposes of disposing of the Property while its disposition was
contested in Luzerne County violative of the Descendants’ rights to due
process. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, (1950) (“An elementary and fundamental requirement of due process
in any proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.”). In failing to address these undisputed circumstances, and in
furnishing no case law to contradict the trial court’s basis for ruling as it did,
LTI’s argument is unavailing. Cf. First Union Mortgage Corp. v.
Frempong, 744 A.2d 327, 334-35 (Pa. Super. 1999) (affirming reopening of
summary judgment after five years due to the opposing party’s “profusion of
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dilatory tactics” and because “equity demanded at least the opening of the
judgment in this extraordinary case of abuse of our legal system”).
LTI’s related argument that the settlement it reached with HNB was
fair and reasonable fails, because it puts the cart before the horse. While
LTI is correct that 20 Pa.C.S. § 3351 authorizes an estate’s representative to
dispose of estate property without notice to the heirs, the problems
animating the trial court’s order in this case logically precede any
consideration of the fairness of LTI’s and HNB’s disposition of the Property,
inasmuch as the Property would not have been theirs to dispose of if one or
more of the Descendants’ Luzerne County actions were to prevail. Because
the Descendants were challenging in Luzerne County the tax sale and LTI’s
effort to quiet title when LTI sought to cut off the Descendants’ interest in
the Property in the trial court, the Wayne County action had the effect of
eliminating the Descendants’ standing in the Luzerne County actions without
notice and the opportunity to be heard, implicating the very due process
considerations cited by the trial court in supporting its decision to rescind the
December 12, 2013 order.7
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7
We acknowledge that, regardless of the outcome of Ms. O’Neill’s
Luzerne County cases, if any, see supra n.3 (noting Ms. Warunek’s
withdrawal from this appeal per her settlement agreement with LTI), her
interest in the Property necessarily is mediated by HNB as personal
representative of the Estate, and that, all things being equal, HNB will retain
the prerogative to dispose of the Estate’s interest in the Property even if one
or more of Ms. O’Neill’s challenges succeed. However, a number of potential
contingencies implicate Ms. O’Neill’s due process rights. First, should she
(Footnote Continued Next Page)
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Perhaps some more robust substantive argument in support of LTI’s
position may lie. But the trial court’s finding that due process was denied
the Descendants on its face is equitable under the circumstances. Moreover,
LTI simply mounts no principled challenge to that dispositive aspect of the
trial court’s reasoning.8 This Court will not advocate on behalf of a party
_______________________
(Footnote Continued)
succeed in setting aside the tax sale, then LTI ostensibly will have no title to
the 23/24 share of the Property it secured in its quiet title action. The same
would be true in the event that Ms. O’Neill were to prevail in her challenge to
LTI’s action to quiet title. Were that the case, then LTI might have no
interest in securing Ms. O’Neill’s share, such that HNB would have no buyer,
and might, upon request, transfer the Property to Ms. O’Neill and other heirs
in kind. It is plausible, then, that Ms. O’Neill, perhaps in tandem with other
heirs not party to this action, might raise the funds necessary to free the
Property from its tax arrears, thus freeing it for sale on the open market or
to be retained by one or more of the heirs. Needless to say, such
considerations are highly speculative, especially because we lack information
about the status of the pending Luzerne County actions. But the above
considerations satisfy us that Ms. O’Neill has an interest in the Property
entitling her to due process that would be denied her if her standing to press
her Luzerne County actions were compromised by HNB’s transfer of the
Property to LTI.
8
This Court also has suggested that among the factors militating
against an extension of the section 5505 time limit is the “adversarial”
nature of the proceedings. See Orie v. Stone, 601 A.2d 1268, 1270-71
(Pa. Super. 1992). The premise of this qualification is that a party should
not be given more than thirty days to seek to interfere with a judgment
when it has had the opportunity to be heard in the underlying proceedings.
Id. Thus, in Orie, this Court distinguished a trial court’s ongoing authority
to revisit and open judgments by confession or default, which may be
entered without notice to the party against whom such judgments are
entered, from judgments entered following adversarial proceedings. Id. At
least arguably, this case more resembles the latter category of actions than
the former, further militating in favor of waiving section 5505’s time limit
under the circumstances of this case.
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that has failed to do so, which is precisely what would be required to afford
LTI relief from the trial court’s ruling in this instance. See
Pa.R.A.P. 2119(a); cf. In re Estate of Whitley, 50 A.3d 203, 209
(Pa. Super. 2012) (“This Court will not consider the merits of an argument
[that] fails to cite relevant case or statutory authority.”). Accordingly, this
claim, too, does not warrant relief.
Order affirmed.
Judge Mundy concurs in the result.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2015
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