In Re: Estate of Sterchak, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF ROSEMARIE : IN THE SUPERIOR COURT OF
STERCHAK, DECEASED : PENNSYLVANIA
:
:
APPEAL OF: THOMAS LAMONT DYNO :
AND JULIA DYNO :
:
:
: No. 1194 MDA 2021
Appeal from the Order Entered August 9, 2021
In the Court of Common Pleas of Susquehanna County Orphans' Court at
No(s): OC068-2016
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM PER CURIAM: FILED: NOVEMBER 29, 2022
Thomas Lamont Dyno and Julia Dyno (collectively “Appellants”) appeal
pro se from the orphans’ court’s August 9, 2021 order that, inter alia, directed
the Estate of Rosemarie Sterchak (“the Estate”) to distribute eighty percent
of the stocks specifically devised to them in the decedent’s will.1 We affirm.
Decedent died testate on October 30, 2015. The will divided the estate,
valued at $1,562,698.90, among several beneficiaries, who all received
specific bequests of corporate stock and/or cash. As it relates to Appellants,
the will provided:
FIRST: I direct the payment of all of my just debts, funeral and
testamentary expenses as soon as convenient after my decease.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The distribution order is appealable pursuant to Pa.R.A.P 342(a)(1), which
provides, “[a]n appeal may be taken as of right from [inter alia,] [a]n order
. . . directing a distribution from an estate or trust[.]”.
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SECOND: I give and bequeath the following:
....
My sister-in-law, Julie Dyna - $3,000 cash, 500 shares of Altria
Group, Inc. stock, 89 shares of Southern Union Co. stock and 533
shares of Union Pacific stock.
My nephew, Thomas Dyno - $1,000 cash, 400 shares of Exxon
stock and 100 shares of Fortune Brand stock.
Last Will and Testament, 4/14/08, at ¶¶ 1,2. The will further provided that
“in the case of a specific devises and/or bequests, any inheritance tax due on
said specific bequests shall be the responsibility of the residuary account as
per Pennsylvania Statute.” Id. at ¶7.
Albert Dyno, Jr. (“Executor”), was appointed as executor of the estate.
He determined that the residual estate lacked sufficient assets to pay
inheritance taxes, assigned each beneficiary a share of the estimated deficit,
and requested that each beneficiary agree to satisfy that portion of the debt.
Most of the beneficiaries agreed and contributed their apportioned shares to
bolster the estate’s residuary assets. However, Appellants balked at the
proposal, challenged the executors’ authority over the bequest of specific
property, and initiated lawsuits against the executor and the estate. The
ensuing litigation in state and federal courts caused the estate to incur
additional expenses and effectively stalled the final administration of the
estate. This Court ultimately affirmed the Executor’s authority to create the
reserve, noting “the statute does not require the Executor exhaust the
residuary prior to approaching the specific beneficiaries to ask for permission
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to dissolve their pro rata share of the anticipated expenses.” In re Estate of
Sterchak, 188 A.3d 569 *4 (Pa.Super. 2018) (unpublished memorandum),
appeal denied, In re Estate of Sterchak, 188 A.3d 569 (Pa. 2019).
Similarly, in Dyno v. Dyno, 2021 WL 3508252, at *1 (3d Cir. 2021), the
United States Court of Appeals upheld the District Court’s dismissal, albeit
with a modification, of Appellants’ related federal complaint against the
Executor, wherein Appellants “requested a declaration that they were entitled
to immediate possession of the stocks in their bequests[.]”
While the federal litigation was still pending, Appellants sought an order
from the orphans’ court that directed the distribution of their corporate stocks.
The orphans’ court granted the entreaty, in part, and directed the distribution
of eighty percent of the respective corporate stock. It ordered the Executor
to retain the remainder of the property pending the payment of all the estate’s
expenses and the filing of a final accounting.
Appellants filed a timely appeal and responded to the orphans’ court’s
directive to file a concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b) by submitting a nine-page, single-spaced
document that the orphans’ court accurately characterized as “neither concise
nor clear.” Rule 1925 Opinion, 9/28/21, at 5. Nevertheless, the orphans’
court was able to decipher one potential issue relating to Appellants’
contention that the court erred in withholding twenty percent of the stocks in
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order to assure that the estate was able to satisfy the projected expenses
associated with the administration of the estate.
At the outset, we address whether any of Appellants’ issues are
preserved for our review. An appellant waives all matters for review where
he identifies an excessive number of issues in the concise statement. See
Jones v. Jones, 878 A.2d 86 (Pa.Super. 2005) (holding that a seven-page,
twenty-nine issue statement resulted in waiver). Similarly, we may also find
waiver where a concise statement is too vague. See In re A.B., 63 A.3d 345,
350 (Pa.Super. 2013) (“When a court has to guess what issues an appellant
is appealing, that is not enough for meaningful review.”) (citation omitted).
While Rule 1925(b)(4)(iv) provides that the sheer number of issues is
not sufficient grounds to find waiver “[w]here non-redundant, non-frivolous
issues are set forth in an appropriately concise manner[,]” that concession
does not negate the requirement that the Rule 1925 statement facilitates
appellate review. see also Kanter v. Epstein, 866 A.2d 394, 401 (Pa.Super.
2004) (holding that “[b]y raising an outrageous number of issues” in a Rule
1925(b) statement, an appellant impedes the trial court’s ability to prepare
an opinion addressing the issues on appeal, thereby effectively precluding
appellate review). Instantly, our review of Appellants’ Rule 1925(b) statement
confirms the orphans’ court’s description of it. Accordingly, we conclude that,
pursuant to Pa.R.A.P. 1925(b)(4)(vii), Appellants waived all but the single
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issue that the orphans’ court was able to discern and address in its Rule
1925(a) opinion.2
We rephrase the pertinent issue as whether the orphans’ court erred in
directing the distribution of less than 100% of the specifically devised stock.
See Appellants’ brief at 26-28. In these matters, we review the orphans’
court’s legal conclusions for “a fundamental error in applying the correct
principles of law.” In re Estate of Whitley, 50 A.3d 203, 206-07 (Pa.Super.
2012). Our review of the orphans’ court’s exercise of discretion is deferential.
In re Paxson Trust, 893 A.2d 99, 112 (Pa. Super. 2006). We have
explained,
When the trial court has come to a conclusion through the exercise
of its discretion, the party complaining on appeal has a heavy
burden. It is not sufficient to persuade the appellate court that it
might have reached a different conclusion if, in the first place,
charged with the duty imposed on the court below; it is necessary
to go further and show an abuse of the discretionary power. An
abuse of discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will, as shown by the evidence of
record, discretion is abused. A conclusion or judgment constitutes
an abuse of discretion if it is so lacking in support as to be clearly
erroneous.
____________________________________________
2 Moreover, Appellants’ brief is defective insofar as it fails to present a
comprehensible legal argument. Instead, consistent with the marginally
coherent Rule 1925(b) statement, Appellants’ twelve issues attack the actions
of both the Executor and the orphans’ court. See Appellants’ brief at 10-11.
To the extent that these contentions do not align with the single issue that
was preserved in Rule 1925(b) statement, they are waived. See Pa.R.A.P.
1925(b)(4)(vii) (issues not included in concise statements are waived).
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Id. (cleaned up) (internal citations and quotations omitted).
As defined by our High Court, “[a] specific legacy or devise is a gift by
will of a specific article or part of the testator's estate, which is identified and
distinguished from all other things of the same kind, and which may be
satisfied only by the delivery of the particular thing.” Beatty v. Hottenstein,
112 A.2d 397, 399 (Pa. 1955). Relying upon this definition, Appellants frame
the instant bequest of stocks as a specific legacy or devise that is separate
from the estate and severed from the estate on the death of the testator.
Appellants posit that a bequest of specific property is not part of the
decedent’s estate, and absent proof of a deficiency in the residual estate, it
should be distributed immediately. Hence, discounting the Executor’s
repeated representations that the residual estate may be insufficient to pay
the outstanding debts and expenses associated with the prolonged
administration of the estate, Appellants contend that the trial court erred in
directing the distribution of only eighty percent of the stock that was
specifically devised to them in the will. Essentially, Appellants contend that
the estate is debt-free and, therefore, they are entitled to the immediate
distribution of 100% of their stock.
In rejecting Appellants’ claim, the orphans’ court reasoned,
[Appellants] appear to argue that the Estate has no “debts”
such that they are entitled to immediate distribution of their
specific device. The expenses of administration of an estate,
which include the commission of the personal representative as
well as attorney’s fees, are chargeable to the Estate itself. Indeed,
the costs of administration of the estate actually take priority over
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all other claims. 20 Pa.C.S. § 3392(1). As noted, this Estate
lacked sufficient residual funds to pay for the outstanding
liabilities, claims and expenses of the Estate—and the Executor
and Estate counsel negotiated with the bulk of the specific
devisees for at risk partial distribution which created a reserve
sufficient to pay the outstanding obligations of the Estate. The
Superior Court has already determined that these actions were
appropriate. See In re Estate of Sterchak, [supra at *4].
It is well-settled that "the time of distribution and the
conditions that may be imposed upon any partial distribution or
early distribution are matters resting in the sound discretion of the
orphans’ court." See In re Sprissler's Estate, 27 A.2d 51, 51
(Pa. 1942). At this point, the court has not approved any final
account or final distribution. 20 Pa.C.S. § 3514. Thus, the
distribution of certain stocks to [Appellants], as authorized under
the August 6, 2021 order, constitutes a partial or early
distribution. The court has discretion to impose appropriate
conditions to any such partial distribution to protect the Estate
itself. Given that Estate expenses remain outstanding, including
the Executor's commission and the Estate counsel fees, the court
sought clarification as to what those expenses would encompass
as a means to determine whether a partial distribution could be
made so as to alleviate the continued delays in some form of
distribution occasioned by [Appellants’] repetitive litigation.
In making such an assessment, the court was aware that
the legal fees incurred by the Estate have increased as a result of
now three appeals to the Superior Court—as well as defense of a
civil rights litigation in federal court. Given that no final
accounting has been filed, the court has no knowledge as to the
amount of fees that will be requested—nor has the court made
any determination as to the reasonableness of those fees. But
there is no way to escape the reality that there will be
additional expenses incurred by the Estate directly
resulting from so much unnecessary litigation. While an
initial reserve was created at the inception of the Estate
administration, the reserve itself was created before the
extraordinary amount of litigation that was largely
unpredictable. It would not be appropriate to make an early
distribution of all of the property specifically devised to the
[Appellants] where the Estate expenses have not yet been
satisfied. Thus, the court awarded a partial distribution to the
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[Appellants] but likewise retained certain property pending a final
accounting and distribution award.
Rule 1925 Opinion, 9/28/21, at 6-8 (emphasis added) (footnotes omitted)
(cleaned up) (some citations omitted).
Insofar as the certified record supports the orphans’ court’s findings, we
discern neither legal error nor an abuse of discretion. Moreover, pursuant to
the Probate, Estates and Fiduciaries Code (“PEF Code”) § 711(1), (17), and
(20), the orphans’ court is vested with authority over the “administration and
distribution of the real and personal property of decedents’ estates;”
“adjudication of the title to personal property in the possession of the personal
representative;” and “[m]atters relating to inheritance and estate taxes,”
respectively. 20 Pa.C.S. § 711(1), (17), and (20). Here, the orphans’ court
determined that the partial distribution of Appellants’ specifically devised
stocks in the Executor’s possession was reasonable considering the unresolved
financial liabilities and the Estate’s outstanding financial obligations, which
included the expenses of defending the various litigation initiated by
Appellants. As the PEF Code authorizes the orphans’ court to oversee the
distribution of personal property in this situation, it was within the court’s
discretion to permit the Executor to retain twenty percent of the stock as a
reserve against any potential obligations pending the final accounting.
For these reasons, the orphans’ court did not err in exercising its
authority to retain a portion of the stocks to ensure that the residual estate
has sufficient funds pending the resolution of Appellants’ litigation and the
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final accounting. Hence, we affirm the orphans’ court order denying
Appellants’ application to compel the immediate distribution of the entire
amount of stock that Decedent specifically bequeathed to them in her will.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2022
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