In Re:Est. of T.M. Pinto, Jr. Appeal of: Pinto, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF THOMAS M. PINTO, IN THE SUPERIOR COURT OF
JR. PENNSYLVANIA
APPEAL OF: MICHAEL PINTO
No. 991 MDA 2014
Appeal from the Order Entered June 4, 2014
In the Court of Common Pleas of Susquehanna County
Orphans' Court at No(s): O.C. 067-2013
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED APRIL 28, 2015
Appellant, Michael Pinto, appeals from the June 4, 2014 order granting
the executor, Anthony J. Garone (Executor), of the Estate of Thomas M.
Pinto, Jr. (Estate) permission to sell two parcels of real property belonging to
Estate. Because we determine that this appeal is interlocutory, we quash
the appeal.
The certified record discloses the following facts and procedural
history. Thomas M. Pinto, Jr. (Decedent) died testate on April 17, 2013. His
will made specific bequests of $20,000.00 to each of his two grandchildren
to be held in trust until each grandchild turns 23. Decedent’s Last Will and
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*
Former Justice specially assigned to the Superior Court.
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Testament, 12/28/09, at 1.1 The will did not specifically devise Decedent’s
real property. Instead, it provided that the residue of the estate was to be
divided equally between his two sons, Thomas M. Pinto III (Thomas) and
Appellant. Id. at 2. The will vested the executor with “full authority to sell,
transfer and convey any property, real or personal, which I may own at the
time of my death at such time and price upon such terms and conditions as
he may determine.” Id. On May 21, 2013, letters testamentary were
granted to Executor.
At the time of his death, Decedent owned two adjoining parcels of real
property totaling 20.05 acres. Decedent’s residence was located on one of
the parcels, which was ten acres (improved parcel). The other parcel was
10.05 acres of vacant land (unimproved parcel).
To assist with the administration of the real estate, Executor employed
Francis J. Pinkowski, a licensed real estate broker and appraiser, to
determine the value of Decedent’s real property. On July 29, 2013,
Pinkowski reported a total appraised value of $232,500.00 for both parcels
and the residence combined as one unit. When both Thomas and Appellant
expressed an interest in purchasing all or some of the real property,
Executor instructed Pinkowski to conduct a second appraisal of the property
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1
Decedent’s will is not paginated, but we have numbered the pages
sequentially for ease of discussion.
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as two separate parcels. This second appraisal valued the improved parcel
at $180,000.00, and the unimproved parcel at $100,000.00. Following this
appraisal, Executor directed Pinkowski to list the parcels separately because
that would net the highest return for the property. On January 30, 2014,
Pinkowski listed the improved parcel for $189,500.00 and the unimproved
parcel for $104,900.00. Pinkowski explained he set the list price above the
appraised value to build in negotiating room. N.T., 5/19/14, at 110.
Executor received multiple bids for the improved and unimproved
parcels. On February 10, 2014, Appellant sent an offer to Sam W. Lewis,
Esquire, counsel for the estate (Counsel), to purchase both parcels together
for $280,000.00. Executor, however, refused to accept Appellant’s bid on
the parcels as a whole, and instead directed Appellant to submit his bids
separately for each parcel. On February 18, 2014, Appellant submitted bids
in the amount of $152,000.00 for the improved parcel and $128,000.00 for
the unimproved parcel. Appellant’s Petition for Citation, 3/24/14, at Exhibit
9.
In the interim, on February 14, 2014, Thomas submitted an offer on
the unimproved parcel for $110,000.00, accompanied by a deposit of
$1,000.00. On February 21, 2014, third-party purchasers submitted a bid of
$189,500.00 for the improved parcel, along with a $1,000.00 deposit. N.T.,
5/19/14, at 138. Thereafter, Executor accepted the third-party purchasers’
bid on the improved parcel. The third-party purchasers entered into a
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written agreement of sale for the improved parcel with Executor, and set a
proposed settlement date of May 16, 2014. Id. at 118-119. The parties
later extended the settlement date to June 16, 2014. Id. at 120.
On March 10, 2014, Counsel accepted Appellant’s bid for the
unimproved parcel. Counsel, however, rejected Appellant’s bid for the
improved parcel as Pinkowski had obtained the abovementioned third-party
purchasers who offered the full listing price for the improved parcel.
Appellant’s Petition for Citation, 3/24/14, at Exhibit 10. Counsel requested
Appellant contact Pinkowski to execute a standard real estate agreement.
Id. On March 18, 2014, Counsel sent the following letter to Appellant’s
attorney.
As I indicated to you last week upon my return to
the office, your client submitted the high bid on the
10[-]acre vacant parcel. The Executor accepted his
bid. It is listed with Frank Pinkowski. Please have
your client do as you indicated he would in your
letter of March 12, 2014 – formalize the accepted
offer by way of a sales agreement through Frank
Pinkowski’s office. There is no reason to involve any
other realtor inasmuch as the deal is struck. Your
client, previously so concerned about an imagined
delay, is now dragging his feet and creating that of
which he complains.
Id. at Exhibit 12.
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Appellant neither executed a formalized agreement of sale with
Pinkowski2 nor put a deposit on the unimproved parcel. N.T., 5/19/14, at
120-121. Instead, on March 24, 2014, Appellant filed a petition for citation
with the orphans’ court. In it, Appellant requested that Executor “show
cause why [Appellant]’s offer to purchase from the Estate all of the
Decedent’s undivided real property, consisting of twenty and five hundredths
(20.05) acres plus residence, for [$232,500.00], should not be accepted by
the Estate ….”3 Appellant’s Petition for Citation, 3/24/14, at 5-6.
A hearing on the petition was held on May 19, 2014. At the hearing,
Appellant contended that the parcels and residence should have been sold as
a single unit to Appellant for $232,000.00. N.T., 5/19/14, at 49, 53.
Alternatively, Appellant suggested that the orphans’ court restart the
bidding, confined to Appellant and Thomas. Id. at 164 (requesting leave to
amend to add this remedy). Appellant, however, did not suggest that the
court enforce his bid of $128,000.00 for the unimproved lot. Id. at 160-
165. On June 4, 2014, the orphans’ court issued its opinion and order
granting Executor permission to sell the improved lot to the third-party
purchasers for $189,500.00 and granting Executor permission to sell the
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2
Executor, however, did sign the agreement of sale for Appellant to
purchase the unimproved parcel. N.T., 5/19/14, at 93.
3
The petition did not specifically ask the orphans’ court to direct the sale of
the unimproved parcel to Appellant.
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unimproved lot to Thomas for $110,000.00. Orphans’ Court Order, 6/4/14,
at 1.
On June 12, 2014, Appellant filed a timely notice of appeal. The
record reveals that the orphans’ court did not order Appellant to file a
concise statement of errors complained of on appeal pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure, and Appellant did
not file a Rule 1925(b) concise statement. The orphans’ court nonetheless
filed, on June 24, 2014, a “statement as to matters complained of on
appeal,” explaining that the reasons for its decision were contained in its
June 4, 2014 opinion and order.
On appeal, Appellant raises the following issue for our review.
Whether or not the [orphans’] [c]ourt erred as a
matter of law and overstepped its bounds abusing its
discretion in granting the unimproved lot in question
to the low bidder, Thomas M. Pinto, III[,] for a price
less than that for which the Appellant had already
agreed to buy from the Estate, and which the Estate
agreed to sell, in writing, to the Appellant[?]
Appellant’s Brief at 6.
Before reaching the merits of Appellant’s claims, we must determine if
we may properly exercise jurisdiction over this appeal. As an appellate
court, we may raise jurisdictional issues sua sponte. In re W.H., 25 A.3d
330, 334 (Pa. Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011). “Under
Pennsylvania law, an appeal may be taken only from an interlocutory order
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appealable as of right, a final order, a collateral order, or an interlocutory
order by permission.” Id. (citations omitted).
Pennsylvania Rule of Appellate Procedure 341 provides generally that
an appeal may be taken as of right only from a final order. Pa.R.A.P. 341. A
final order is any order that “disposes of all claims and of all parties,” “is
expressly defined as a final order by statute,” or “is entered as a final order
pursuant to [Rule 341(c)].” Id. at 341(b). Rule 341(c) permits the trial
court to “enter a final order as to one or more but fewer than all of the
claims and parties only upon an express determination that an immediate
appeal would facilitate resolution of the entire case.” Id. at 341(c). If the
trial court does not do so, “any order or other form of decision that
adjudicates fewer than all the claims and parties shall not constitute a final
order.” Id.
“In a decedent’s estate, the confirmation of the final account of the
personal representative represents the final order, subject to exceptions
being filed and disposed of by the court.” In re Estate of Habazin, 679
A.2d 1293, 1295 (Pa. Super. 1996) (citation omitted). Here, the June 4,
2014 order of the orphans’ court, authorizing Executor to sell real property
of Decedent’s estate, is facially interlocutory because it is not an appeal from
the confirmation of the final account of Executor. However, Appellant
contends that his appeal may be taken pursuant to either Rule 313 or 342 of
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the appellate rules. Appellant’s Answer to Rule to Show Cause, 10/22/14, at
9-12. After careful review, we conclude this appeal must be quashed.
Appellant first claims the orphans’ court order directing the sale of
Decedent’s property is immediately appealable as a collateral order.
Appellant’s Brief at 1-2. An appeal as of right from a collateral order is
permitted by Rule 313, which provides as follows.
Rule 313. Collateral Orders
(a) General rule. An appeal may be taken as of
right from a collateral order of an administrative
agency or lower court.
(b) Definition. A collateral order is an order
separable from and collateral to the main cause of
action where the right involved is too important to be
denied review and the question presented is such
that if review is postponed until final judgment in the
case, the claim will be irreparably lost.
Pa.R.A.P. 313.
Our Supreme Court has held that an orphans’ court order directing the
sale of real estate in the process of the disposition of an estate is not
immediately appealable under Rule 313 as a collateral order. In re Estate
of Stricker, 977 A.2d 1115, 1118 (Pa. 2009). Therein, the decedent’s
estate consisted largely of two tracts of land that the decedent’s will did not
specifically devise. Id. at 1116. One tract was subject to an option to
repurchase, which the holder of the option exercised. Id. at 1116-1117.
The other tract was not encumbered and was sold at auction to the highest
bidder. Id. at 1117. The orphans’ court ordered that the unencumbered
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tract be delivered to the high bidder, but one of the two executors, who was
also a residual beneficiary of the estate and a low bidder, refused to sign the
agreements of sale for the unrestricted tract. Id. The orphans’ court issued
an order determining that the sale was valid, and the executor appealed.
Id. This Court quashed this first appeal as interlocutory. Id. After remand,
the orphans’ court entered an order determining that the option to
repurchase was valid and instructed the co-executors to move toward
finalizing the sale of that tract to the option holder. Id. The executor
appealed, and this Court quashed the second appeal as interlocutory. Id.
On further appeal, our Supreme Court concluded that the order was not a
collateral order pursuant to Rule 313 for the following reasons. Id. at 1119.
The Orphans’ Court division has jurisdiction over,
among other things, “[t]he administration and
distribution of the real and personal property of
decedents’ estates and the control of the decedent’s
burial.” 20 Pa.C.S. § 711. In this case, the “main
cause of action” is the final administration of [the]
estate, along with the distribution of estate property
according to [the will], in accordance with the central
purpose of the [o]rphans’ [c]ourt’s jurisdiction. The
[w]ill, which consists of a single page, does not make
any specific bequests; rather, it first directs that the
executors pay debts, expenses, and taxes, and then
directs that all remaining property in the estate be
given in equal shares to the decedent’s children or
their issue per stirpes. Since the [w]ill directs that
the residue be divided equally among the decedent’s
heirs, it is not possible that an order to sell estate
property in pursuit of such division is collateral to the
main cause of action. It is, in fact, central to the
main cause of action. Therefore, [the] [a]ppellant’s
argument that the contested orders should be
appealable as collateral orders must fail.
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Id. at 1119. (emphasis in original); see also Estate of Cherry, --- A.3d ---
, 2015 WL 1208223, at *1, *7 (Pa. Super. 2015) (holding that orphans’
court order providing “this [c]ourt will not authorize the sale of the personal
property or real estate of [the decedent,] and would, upon application,
enjoin any proposed sale of these assets[]” was not immediately appealable
as a collateral order under Rule 313); In re Estate of Ash, 73 A.3d 1287,
1289 (Pa. Super. 2013) (concluding that an order authorizing the sale of real
property of the decedent’s estate was not a collateral order under Rule 313),
appeal denied, 86 A.3d 231 (Pa. 2014).
For similar reasons, we conclude that the orphans’ court order in this
case is not immediately appealable as a collateral order under Rule 313.
Here, the main cause of action is the administration of Decedent’s Estate.
Like in Stricker, Decedent did not specifically devise his real property in his
will. Instead, his will provides for the creation of trusts for both of his
grandchildren and then directs all residual property be divided equally
between two heirs, Appellant and Thomas. A necessary antecedent to
equally dividing the residue of Decedent’s Estate between his heirs is the
sale of Decedent’s real property. The orphans’ court order authorizing said
sale of Decedent’s property to achieve that division is central to the
administration of Decedent’s estate. Therefore, the orphans’ court order is
not a collateral order under Rule 313. See Stricker, supra.
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This does not conclude our discussion because Appellant alternatively
maintains the following subsections of Rule 342 permit his appeal as of right.
Appellant’s Brief at 2.
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:
…
(3) An order interpreting a will or a document
that forms the basis of a claim against an
estate or trust;
…
(6) An order determining an interest in real or
personal property; [or]
…
(8) An order otherwise appealable as provided
by Chapter 3 of these rules [e.g., Rule 313,
supra].
Pa.R.A.P. 342(a)(3), (6), (8).
In Stricker, our Supreme Court concluded that Rule 342 did not
permit an interlocutory appeal from an orphans’ court order that determined
an option to repurchase the decedent’s property was valid. 4 Stricker,
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4
Stricker was decided under the prior version of Rule 342, which made
appealability contingent upon the orphans’ courts determining the finality of
their orders either making a distribution or deciding an interest in property
or the status of individuals. Following Stricker, Rule 342 was amended,
(Footnote Continued Next Page)
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supra. The Court rejected the appellant’s argument that, for the purposes
of Rules 341 and 342, the orphans’ court order should be considered final
because his claims regarding the property would be lost after it was sold,
reasoning as follows.
It is true that the real estate will no longer be
available to [the] [a]ppellant once a sale to another
party is accomplished. But [the] [a]ppellant was not
bequeathed the tracts themselves. Instead, [the]
[a]ppellant 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]
[a]ppellant has no greater rights with respect to this
property than any potential buyer. Moreover, if we
accepted [the] [a]ppellant’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 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
[o]rphans’ [c]ourt until confirmation of the final
account.” Habazin, [supra].Id. at 1118.
_______________________
(Footnote Continued)
effective February 12, 2012, to list a number of orphans’ court orders
appealable as of right.
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Following Stricker, Rule 342 was amended to its current, above-
quoted form. In Ash, this Court decided that those amendments to Rule
342 did not render immediately appealable an order authorizing an
administratrix to enter an agreement for the sale of all three tracts of the
decedent’s real property, which was not specifically devised, to a third-party
purchaser. Ash, supra at 1289. The decedent’s will made specific cash
bequests and directed the remaining personal and real property to be sold,
with the proceeds divided equally among three residual beneficiaries. Id. at
1288. At the time of decedent’s death, a third party had an agreement with
decedent to purchase one, but not all three, of the tracts. Id. In affirming
the orphans’ court order directing the sale of all three tracts to the third
party, this Court recognized that said order would eventually lead to a
change in ownership of the property. Id. at 1290. However, we explained
that it remained an unappealable order under all subsections of the new Rule
342 because it “did not involve the court having to resolve some dispute
about who had or has an interest in the tracts[.]” Id. Instead, the purpose
of the orphans’ court order was to achieve the distribution of proceeds in
accordance with the will, not to determine an interest in the decedent’s
property. Id. Therefore, this Court concluded that the amendments to Rule
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342 did not negate the rule announced in Stricker and quashed the appeal.5
Id.
The orphans’ court order in this case did not take any of the actions
specified by Rule 342 that would render the order immediately appealable.
Like in Stricker and Ash, the orphans’ court order did not resolve a dispute
about who had or has an interest in the unimproved parcel. Instead, it only
authorized Executor to make a distribution of real property in furtherance of
the administration of the estate in accordance with Decedent’s will. As this
Court reasoned in Ash, the purpose of the orphans’ court order was to
achieve the distribution of Decedent’s Estate, not to determine an interest in
the unimproved parcel. Therefore, under Stricker and Ash, the orphans’
court order is not immediately appealable under Rule 342.
Appellant argues, however, that this case is distinct because, even
though the will did not specifically devise the real property, Appellant
otherwise had an interest in the unimproved parcel due to Estate’s
acceptance of his high bid. Appellant’s Brief at 2. This is a distinction
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5
The Ash Court noted that the comment to the amended Rule 342 relied on
Justice Saylor’s concurring opinion in Stricker, wherein he opined that the
immediate appeal of estate orders related to real property would facilitate
the more efficient distribution of a decedent’s estate. Stricker, supra at
1119-1121 (Saylor, J., concurring); Ash, supra at 1290 n.5. However, we
concluded that if “the changes to Rule 342 were indeed meant to abrogate
Stricker and were intended 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. At present, we will
follow Stricker.” Ash, supra at 1290 n.5.
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without difference. This fact does not render the orphans’ court order
immediately appealable under Rule 342 because the orphans’ court did not
consider the letter wherein Counsel accepted the high bid and did not
determine whether that letter provided Appellant with any interest in the
unimproved property.6 Therefore, the orphans’ court order did not
“interpret[] … a document that forms the basis of a claim against an estate”
nor “determin[e] an interest in real[ ]property.” Pa.R.A.P. 342(3), (6).
Instead, the orphans’ court order only authorized Executor to sell the
unimproved parcel. This is not an immediately appealable order under Rule
342.
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6
As noted above, Appellant did not ask the orphans’ court to determine the
effect of his high bid or to enforce it by directing the sale of the unimproved
parcel to Appellant. See Appellant’s Petition for Citation, 3/24/14, at 5-6
(requesting that the orphans’ court direct the sale of both lots to Appellant
for $232,000.00); N.T., 5/19/14, at 160-165 (asking, alternatively, that the
orphans’ court re-open the bidding and confine it to Appellant and Thomas).
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Based on the foregoing, we conclude the orphans’ court order is not
immediately appealable. We therefore quash the appeal, as we are without
jurisdiction to entertain it. See Stricker, supra; Ash, supra at 1290.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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