In Re: Estate of Victor Sangiuliano

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF VICTOR : IN THE SUPERIOR COURT OF
SANGIULIANO : PENNSYLVANIA
:
:
APPEAL OF: DEBRA A. SLACK : No. 2182 MDA 2015
Appeal from the Order Entered November 12, 2015
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No(s): 2015-00411
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 23, 2016
Appellant, Debra A. Slack, appeals pro se from the order entered in
the Lackawanna County Court of Common Pleas, Orphans’ Court, which,
inter alia, directed Appellant to vacate real property formerly owned by
Victor Sangiuliano (“Decedent”); and directed Theresa M. Sowka (Decedent’s
daughter and the administratrix of Decedent’s estate) to list for sale
immediately the real property located at 536 N. Bromley Avenue in
Scranton, PA (“Property”). We quash the appeal.
The relevant facts and procedural history of this case are as follows.
On March 24, 2015, Decedent died intestate. The Register of Wills
subsequently granted letters of administration to Mrs. Sowka. At the time of
Decedent’s death, Appellant resided with Decedent in the Property.
Following Decedent’s death, Mrs. Sowka asked Appellant to vacate the
Property so Mrs. Sowka could perform her duties as administratrix of
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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Decedent’s estate. Appellant refused to vacate the Property, claiming she
was Decedent’s common-law wife and entitled to reside in the Property as
an heir to Decedent’s estate. Consequently, Mrs. Sowka commenced
eviction proceedings on May 15, 2015. On May 27, 2015, a district judge
awarded Mrs. Sowka possession of the Property. Appellant timely filed an
appeal in the Court of Common Pleas on June 3, 2015.
On June 16, 2015, Mrs. Sowka filed a complaint for possession of the
Property. Mrs. Sowka alleged Appellant refused to leave the Property based
on her claim that she is Decedent’s common-law wife; and Mrs. Sowka
requires possession of the Property to protect the rights of Decedent’s estate
and those of lienholders on the Property. Mrs. Sowka asked the court, inter
alia, to direct Mrs. Sowka to take possession of the Property and to sell the
Property; and require Appellant to pay fair market rent from the date of
Decedent’s death until she vacates the Property. Appellant filed an answer
on July 14, 2015, claiming she was Appellant’s common-law wife for fifteen
years and was therefore entitled to remain in the Property as a rightful heir.
On July 20, 2015, Mrs. Sowka filed an emergency motion to transfer the
case to the Orphans’ Court, which the trial court granted on August 18,
2015.
On August 20, 2015, Mrs. Sowka filed an emergency motion for
possession of the Property. Mrs. Sowka alleged, inter alia, she is the sole
surviving heir to Decedent’s estate; Appellant (Decedent’s “acquaintance”) is
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residing in Decedent’s home and refusing to vacate the Property; and Mrs.
Sowka requires immediate possession of the Property to protect Decedent’s
estate, prevent foreclosure of the Property, and settle estate-related debts.
Appellant filed an answer to the emergency motion on August 28, 2015,
challenging Mrs. Sowka’s claim that she is the sole surviving heir of
Decedent’s estate. The court scheduled a hearing on the motion and
directed Appellant to pay rent to the judicial clerk.
On November 12, 2015, the court conducted a hearing on the
emergency motion. At the beginning of the hearing, Mrs. Sowka’s counsel
asked the court to decide only whether Mrs. Sowka was entitled to
possession of the Property so that she could perform her duties as
administratrix and protect the estate. Mrs. Sowka’s counsel insisted the
court defer ruling on Appellant’s common-law marriage claim until
distribution of the estate. Appellant’s counsel maintained that Appellant’s
status as Decedent’s common-law wife was relevant to Appellant’s
entitlement to stay in the Property. Following this discussion, the court
declined to limit the scope of the hearing and permitted Mrs. Sowka and
Appellant to call their respective witnesses. (See N.T. Hearing, 11/12/15, at
4-5; R.R. at 19-20.)
Mrs. Sowka presented three witnesses: Attorney Stephen Bresset,
herself, and her husband. Attorney Bresset testified that his law firm
represents Valor Credit Union, which has a mortgage interest in the
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Property. Attorney Bresset indicated no payments were made on the
mortgage since February 2015, and the Property was in danger of mortgage
foreclosure. (Id. at 5-12; R.R. at 20-27).
Mrs. Sowka testified that she is the sole heir to Decedent’s estate and
she was appointed administratrix of Decedent’s estate.1 Mrs. Sowka
explained Appellant refused to vacate the Property after Decedent’s death,
forcing Mrs. Sowka to initiate eviction proceedings. Mrs. Sowka indicated
the Property is in danger of foreclosure because Decedent’s estate lacks
sufficient assets to make monthly mortgage payments. Mrs. Sowka
discussed outstanding utility bills, credit card bills, and other potential liens
against the estate. Mrs. Sowka said she had the Property appraised and the
appraisal report showed the Property is worth $75,000.00. Mrs. Sowka
claimed selling the Property is necessary to pay off the estate’s debts. Mrs.
Sowka admitted Appellant had lived with Decedent prior to his death but
insisted Appellant was Decedent’s girlfriend, not his common-law wife. Mrs.
Sowka testified that Appellant and Decedent did not hold any joint back
accounts and Appellant’s name is not on the mortgage to the Property. The
court observed for the record that the deed to the Property is in Decedent’s
name only. Mrs. Sowka claimed she did not hear Decedent refer to
Appellant as his wife, and she did not recall Decedent and Appellant
exchanging wedding rings. (Id. at 12-30; R.R. at 27-45).
1
The parties stipulated that Mrs. Sowka is the administratrix of Decedent’s
estate.
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Steven Sowka, Mrs. Sowka’s husband, also testified that the Property
was in disarray since Decedent’s death. Mr. Sowka said the ceiling had
fallen down and a radiator was leaking. Mr. Sowka suggested Appellant
removed some of Decedent’s personal belongings from the Property. Mr.
Sowka claimed Appellant refused to let Mrs. Sowka sell Decedent’s vehicles.
(Id. at 30-38; R.R. at 45-53).
Appellant presented five witnesses in her defense: Cody Slack
(Appellant’s son), James Horvath, Janet Fabri, Judith Jaget, and herself. Mr.
Slack testified that Decedent was Appellant’s significant other. Mr. Slack
said he lived with Decedent and Appellant in the Property for approximately
ten years beginning around 2000 or 2001. Mr. Slack maintained Decedent
treated him like a son. Mr. Slack recalled Appellant and Decedent
exchanging wedding vows on Christmas Eve around 2000. Mr. Slack said
Appellant and Decedent gave each other wedding rings by the Christmas
tree. Mr. Slack claimed Appellant and Decedent wore the wedding rings.
(Id. at 38-45; R.R. at 53-60).
Mr. Horvath testified that he knows Appellant through Decedent and
has known Decedent for over fifty years. Mr. Horvath recalled Decedent and
Appellant referring to one another as husband and wife. Mr. Horvath
claimed Appellant and Decedent were always together. (Id. at 45-50; R.R.
at 60-65).
Ms. Fabri testified that she is the best friend of Appellant’s mother and
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has known Decedent for about fifteen or sixteen years. Ms. Fabri recalled
Appellant showing her a ring that looked like a wedding band. (Id. at 50-
53; R.R. at 65-68).
Ms. Jaget testified that Appellant and Decedent lived together for
many years and took care of each other. Ms. Jaget insisted Appellant took
care of Decedent when he was ill, in the way that a wife cares for her
husband. Ms. Jaget contended Appellant and Decedent wore wedding
bands. On cross-examination, Ms. Jaget admitted Appellant did not live with
Decedent continuously from 2001-2005 when they were having relationship
difficulties. (Id. at 53-57; R.R. at 68-72).
Appellant testified that she and her son moved into the Property in
1999. Appellant alleged she exchanged marriage vows with Decedent on
Christmas Eve in 2002. Appellant claimed she and Decedent promised to be
there for one another in sickness and health and until death parted them.
Appellant maintained she exchanged rings with Decedent and brought in
pictures of Appellant wearing her purported wedding ring. At this point, Mrs.
Sowka objected. Appellant contended pictures of the rings exchanged were
relevant to Appellant’s claim of common-law marriage. The court overruled
the objection and let Appellant admit the pictures into evidence. The court
also permitted Appellant to testify over Mrs. Sowka’s objection that
Decedent introduced her as his wife.
During Appellant’s testimony, Mrs. Sowka’s counsel suggested
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Appellant’s testimony was beyond the scope of the hearing. Mrs. Sowka’s
counsel maintained the purpose of the hearing was strictly to determine
whether Mrs. Sowka could take possession of the Property to sell it and pay
off the mortgage. Mrs. Sowka’s counsel insisted, once again, that the court
should defer Appellant’s common-law marriage claim until distribution of the
estate. The court agreed Appellant might be “putting the cart before the
horse,” but it permitted Appellant to continue with her testimony. The court
also noted Appellant could renew her common-law marriage claim at the
time of distribution. Appellant then testified about Decedent’s various
ailments, and how she cared for Decedent during their relationship.
Appellant said Decedent opened a store credit card in 2012, and named
Appellant on the application as an authorized user as his “wife.”2
On cross-examination, Appellant admitted she did not share any joint
back accounts with Decedent and was not named on the mortgage to the
Property. Mrs. Sowka’s counsel also introduced various legal documents
showing Appellant listed her residence as addresses other than the Property
during the timeframe she had alleged she cohabitated with Decedent and
was his common-law wife. Mrs. Sowka’s counsel further presented court
papers Appellant had completed, suggesting she was married to a man other
2
This event occurred after Pennsylvania had abolished common-law
marriage in 2005. See 23 Pa.C.S.A. § 1103 (stating: “No common-law
marriage contracted after January 1, 2005, shall be valid. Nothing in this
part shall be deemed or taken to render any common-law marriage
otherwise lawful and contracted on or before January 1, 2005, invalid”).
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than Decedent in 2001. Appellant also admitted she lived somewhere other
than the Property from approximately 2004-2007. Although Mrs. Sowka’s
counsel presented evidence showing Appellant used three different
addresses (one at the Property) between 2001 and 2007, Appellant
maintained she did not relinquish her address at the Property during that
timeframe. (Id. at 57-86; R.R. at 72-101).
At the conclusion of Appellant’s testimony, the court ruled in favor of
Mrs. Sowka. The court ordered Appellant to vacate Decedent’s home within
30 days; directed the clerk of judicial records to turn over all rent paid by
Appellant to Decedent’s estate for proper distribution; instructed Mrs. Sowka
to list the Property for sale immediately; and prohibited Appellant from
removing any of Decedent’s personal belongings from the Property. The
court declined to rule on Appellant’s common-law marriage claim, informing
Appellant she could raise that issue at the time of distribution of the estate.
On Monday, December 14, 2015, Appellant filed a pro se notice of appeal.
The court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed
none.
Appellant raises the following issues on appeal:
DID THE TRIAL COURT ABUSE ITS DISCRETION OR ERR
AT LAW WHEN IT DIRECTED APPELLANT TO VACATE
DECEDENT’S HOME ABSENT A FULL HEARING ON HER
PROPERLY RAISED COMMON-LAW WIFE RIGHTS?
SHOULD THIS MATTER BE REMANDED TO HOLD AN
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EVIDENTIARY HEARING ON THE ISSUE OF WHETHER OR
NOT APPELLANT HAS COMMON-LAW WIFE RIGHTS?
(Appellant’s Brief at 4).
Preliminarily, “[t]he appealability of an order directly implicates the
jurisdiction of the court asked to review the order.” In re Estate of
Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009). As
a result, “this Court has the power to inquire at any time, sua sponte,
whether an order is appealable.” Id. “An appeal may be taken from: (1) a
final order or an order certified as a final order (Pa.R.A.P. 341); (2) an
interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by
permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral
order (Pa.R.A.P. 313).” In re Estate of Cella, 12 A.3d 374, 377 (Pa.Super.
2010) (some internal citations omitted).
Pennsylvania Rule of Appellate Procedure 341 defines “final orders”
and states:
Rule 341. Final Orders; Generally
(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 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; or
(3) is entered as a final order pursuant to subdivision
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(c) of this rule.
(c) Determination of finality. When more than one
claim for relief is presented in an action, whether as a
claim, counterclaim, cross-claim, or third-party claim [or
when multiple parties are involved,] the trial court…may
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. Such an order becomes
appealable when entered. In the absence of such a
determination and entry of a final order, any order…that
adjudicates fewer than all the claims [and parties] shall
not constitute a final order. …
Pa.R.A.P. 341(a)-(c) (effective July 1, 2014).3 “Under Rule 341, a final order
can be one that disposes of all the parties and all the claims, is expressly
defined as a final order by statute, or is entered as a final order pursuant to
the trial court’s determination under Rule 341(c).” Estate of Cella, supra
at 378. “An 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.” In re Estate of Stricker, 602
Pa. 54, 60, 977 A.2d 1115, 1118 (2009). As a general rule in an estate
case, “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). See also In re Estate of Quinn, 805 A.2d 541 (Pa.Super. 2002)
3
This version of Rule 341 was in effect when Appellant filed the notice of
appeal in this case. The current version of Rule 341 was amended
December 14, 2015, effective April 1, 2016.
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(explaining confirmation of final account of personal representative
represents final order in estate case; where Orphans’ Court has not yet
confirmed final accounting and estate remains under administration, order
approving settlement distribution of some funds included in estate is not
final and appealable order).
Specific to the appealability of Orphans’ Court orders, Pennsylvania
Rule of Appellate Procedure 342 provides, in pertinent part:
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.A. § 9188, or
after the Orphans’ Court has made a determination of
the issue protested after the record has been removed
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from the Department of Revenue pursuant to 72
Pa.C.S. § 9188(a); or
(8) An order otherwise appealable by Chapter 3 of
these rules.
Pa.R.A.P. 342(a) (representing current, relevant version of rule, adopted
December 29, 2011, effective February 12, 2012). Significantly, “[a]n
appeal from an order directing the administrator of a decedent’s estate to
sell real estate belonging to the decedent is interlocutory and must be
quashed.” Estate of Stricker, supra at 59, 977 A.2d at 1118. See also
Estate of Habazin, supra (explaining appeal from order directing
administrator of decedent’s estate to sell real estate belonging to decedent is
interlocutory and must be quashed). Generally, absent a specific devise
under a will, the delay in review of an order permitting an administrator to
sell the decedent’s property does not result in the loss of any right to an heir
because the proceeds of the sale will remain under the review and control of
the Orphans’ Court until confirmation of the final account. Estate of
Stricker, supra at 60, 977 A.2d at 1118. See also Estate of Ash, 73 A.3d
1287 (Pa.Super. 2013), appeal denied, 624 Pa. 679, 86 A.3d 231 (2014)
(quashing appeal from order authorizing administratrix to sell real estate
that belonged to decedent to accomplish eventual division of estate assets).
Instantly, Appellant filed her notice of appeal from the order which,
inter alia, (a) directed Appellant to vacate Decedent’s home within 30 days
and (b) ordered Mrs. Sowka to list the Property for sale immediately.
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Administration of the estate remains ongoing, and Mrs. Sowka has not
issued a final account for the court’s confirmation. Thus, the order appealed
from is not a final order pursuant to Rule 341. See Pa.R.A.P. 341; Estate
of Quinn, supra; Estate of Habazin, supra. Additionally, the order
appealed from is not enumerated as an immediately appealable order under
Rule 342(a). See Pa.R.A.P. 342(a). Notably, the court declined to rule on
Appellant’s common-law marriage claim at the conclusion of the hearing,
deferring that issue until distribution of the estate.4 Consequently, the order
4
In its Rule 1925(a) opinion, the Orphans’ Court states Appellant was
unable to establish her claim of common-law marriage at the November 12,
2015 hearing. (See Orphans’ Court Opinion, filed March 1, 2016, at 2.)
Nevertheless, the court’s remarks on the record at the time of the hearing
make clear the court declined to decide the common-law marriage issue,
without prejudice to Appellant to prove her status as an heir at a later date.
(See N.T. Hearing at 65-66; R.R. at 80-81) (stating: “By the way, that
doesn’t preclude [Appellant] from [establishing her claim of common-law
marriage] if she wants to try to establish something at a later date to get
part of this, whatever the estate is, if she can prove that.”) (See also id. at
89; R.R. at 104) (stating: “[Appellant], please be out of the premises in 30
days, and if you want to seek counsel to try to establish common-law
marriage that’s another issue.”) Moreover, we observe Appellant’s assertion
that she is entitled to remain in the Property if she proves her common-law
marriage claim, even when sale of the Property is necessary to protect the
rights of claimants or other parties, is simply a misunderstanding of the law.
See 20 Pa.C.S.A. § 3311(a) (stating: “The court may direct the personal
representative to take possession of, administer and maintain real estate so
occupied by an heir or a devisee if this is necessary to protect the rights of
claimants or other parties. Nothing in this section shall affect the personal
representative’s power to sell real estate occupied by an heir or devisee”);
In re Brose’s Estate, 423 Pa. 420, 223 A.2d 661 (1966) (explaining where
personal representative is charged with responsibility of possessing and
administering asset, individual cannot retain possession of asset of estate
merely because individual is, or might be, entitled to subsequently share in
distribution of estate).
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appealed from did not determine Appellant’s status as a potential beneficiary
or decide what interest she might have in the Property as a potential heir.
See Pa.R.A.P. 342(a)(5-6). See also Estate of Ash, supra (explaining
Rule 342(a)(6) applies only where Orphans’ Court enters order that resolves
some dispute about who had or has interest in property; because there was
no question that decedent’s estate owned property at issue, subsection
(a)(6) did not apply).
Further, Appellant makes no claim that the order at issue is appealable
as of right under Pa.R.A.P. 311,5 and Appellant did not secure permission to
5
See Pa.R.A.P. 311 (listing specific orders from which appeal may be taken
as of right and without reference to Rule 341(c)). Rule 311(a)(2) states an
appeal may be taken as of right from an order “confirming, modifying,
dissolving, or refusing to confirm, modify or dissolve an attachment,
custodianship, receivership, or similar matter affecting the possession or
control of property,” subject to some exceptions. Pa.R.A.P. 311(a)(2). See
also Jerry Davis, Inc. v. Nufab Corp., 677 A.2d 1256, 1259 (Pa.Super.
1996) (holding order denying or granting issuance of writ of seizure in
replevin action does not constitute order affecting possession or control of
property as contemplated in Rule 311(a)(2); stating “attachments,”
“custodianships,” and “receiverships” have technical and peculiar meanings
when applied in legal context and refer to particular type of action or
remedy; “replevin” is also distinct form of legal action and relief, which
cannot be equated or used interchangeably with attachment, receivership, or
custodianship; Supreme Court’s decision to exclude from Rule 311
interlocutory replevin orders of type at issue here suggests Supreme Court
did not intend for such orders to be appealable as of right). Similarly, we do
not consider the order appealed from in this case to constitute an order
affecting the possession or control of property as contemplated in Rule
311(a)(2). Likewise, Rule 342 expressly delineates various types of
immediately appealable Orphans’ Court orders, and an order directing the
sale of a decedent’s real property is not among those listed. See generally
K.T. v. L.S., 118 A.3d 1136, 1169 (Pa.Super. 2015) (explaining under
statutory construction doctrine of ejusdem generis (“of the same kind or
class”), where general words follow enumeration of particular classes of
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file this interlocutory appeal under Pa.R.A.P. 312.6 According to prevailing
law, the order appealed from is also not immediately appealable as a
collateral order.7 See Estate of Stricker, supra (explaining that main
cause of action in estate case is final administration of estate and
distribution of estate property, and order to sell property in pursuit of
division of estate assets among decedent’s heirs is not collateral to main
cause of action, but central to it). See also Estate of Ash, supra (holding
order authorizing administratrix to sell real estate formerly belonging to
decedent was not immediately appealable as collateral order). Because the
persons or things, general words will be construed as applicable only to
persons or things of same general nature or class as those enumerated;
when opposite sequence is found, i.e., specific words follow general ones,
doctrine is equally applicable, and restricts application of general term to
things that are similar to those enumerated).
6
See Pa.R.A.P. 312 (stating: “An appeal from an interlocutory order may be
taken by permission pursuant to Chapter 13 (interlocutory appeals by
permission)”).
7
See Pa.R.A.P. 313 (explaining appeal may be taken as of right from
collateral order and defining collateral order as “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”). Importantly, the appellant must demonstrate the order
(or portion thereof) on appeal is collateral for purposes of Rule 313. See
Chase Manhattan Mortg. Corp. v. Hodes, 784 A.2d 144 (Pa.Super. 2001)
(stating appellant must affirmatively demonstrate collateral nature of order
under review). See also Rae v. Pennsylvania Funeral Directors Ass’n,
602 Pa. 65, 977 A.2d 1121 (2009) (holding collateral order three-prong test
must be applied independently to each distinct legal issue and restricting
appellate review only to portion of order that is collateral; rejecting “whole
order” approach; promoting judicial accuracy and economy over creative
advocacy).
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Orphans’ Court order in this case is not immediately appealable, we lack
jurisdiction to address Appellant’s claims. See id. See also Estate of
Stricker, supra; Estate of Habazin, supra. Accordingly, we quash the
appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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