Estate of Tierne Richelle Ewing, Appeal of: Kopko

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF TIERNE RICHELLE IN THE SUPERIOR COURT
EWING, DECEASED OF PENNSYLVANIA
APPEAL OF RICHARD D. KOPKO
No. 1146 WDA 2018
Appeal from the Order Entered July 13, 2018
In the Court of Common Pleas of Washington County
Orphans' Court at No: C -63-0C-2016-1169
BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 29, 2019
Appellant Richard D. Kopko, father of Tierne Richelle Ewing, deceased
("Decedent"), appeals from an order denying his petition to remove Morgan
Miller ("Miller"), Decedent's daughter and Appellant's granddaughter, as
personal representative of Decedent's estate. The Orphans' court held that
Appellant lacked standing to seek Miller's removal. We affirm.
On August 30, 2016, Decedent's husband, Kevin Ewing ("Husband"),
murdered Decedent and then took his own life. Decedent died without a will.
At the time of the murder/suicide, Husband was living with his mother,
Rosalee Riggle, due to a Protection From Abuse ("PFA") order obtained by
Decedent. Husband and Decedent were the parents of two children, Morgan
and Deryk Miller. Decedent had no other issue.
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On September 30, 2016, the Register of Wills of Washington County
appointed Miller the personal representative of Decedent's estate. On March
1, 2018, Appellant, Decedent's father and Miller's grandfather, filed a petition
to remove Miller as personal representative. He subsequently amended his
petition to allege that (1) Miller did not notify authorities that there were
violations of the PFA order prior to Decedent's murder, (2) Miller failed to file
a wrongful death action against Riggle and other persons,' and (3) for these
reasons, Miller was conflicted from serving as personal representative.
Appellant himself filed a wrongful death action, naming himself as the plaintiff,
despite the fact that he was not Decedent's personal representative. Appellant
also obtained an order to show cause why Miller should not be removed as
personal representative.
Miller filed preliminary objections to Appellant's amended petition. On
July 13, 2018, the Orphans' Court sustained Miller's preliminary objections
and dismissed Appellant's amended petition on the ground that Appellant
lacked standing to seek Miller's removal. This timely appeal followed. Both
Appellant and the Orphans' Court complied with Pa.R.A.P. 1925.
Appellant raises six issues in this appeal, but we limit our review to the
standing issue because it is dispositive of this case. We agree with the
' Miller states brief that she filed a wrongful death action against Riggle
in her
and other defendants subsequent to dismissal of Appellant's petition. Miller
also provides the caption and docket number of this action. Miller's Brief at
13-14 & n.2.
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Orphans' Court that Appellant lacks standing to seek dismissal of Miller as
personal representative.
When, as here, an individual dies intestate, the Decedents, Estates and
Fiduciaries Code ("Code") identifies the individuals who are eligible to serve
as the personal representative of the decedent's estate:
Letters of administration shall be granted by the register, in such
form as the case shall require, to one or more of those hereinafter
mentioned and, except for good cause, in the following order:
(1) Those entitled to the residuary estate under the will.
(2) The surviving spouse.
(3) Those entitled under intestate law as the register, in his
discretion, shall judge will best administer the estate, giving
preference, however, according to the sizes of the shares of those
in this class[.]
20 Pa.C.S.A. § 3155(b)(1)-(3).
Section 3183 of the Code prescribes the procedure for removing a
personal representative as follows:
The court on its own motion may, and on the petition of any
party in interest alleging adequate grounds for removal shall,
order the personal representative to appear and show cause why
he should not be removed, or, when necessary to protect the
rights of creditors or parties in interest, may summarily remove
him. Upon removal, the court may direct the grant of new letters
testamentary or of administration by the register to the person
entitled and may, by summary attachment of the person or other
appropriate orders, provide for the security and delivery of the
assets of the estate[.]
20 Pa.C.S.A. § 3183 (emphasis added). Section 3183 provides that a person
must be a "party in interest" to have standing to seek the personal
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representative's removal. The question thus becomes whether Appellant is a
"party in interest." He is not.
We first note that Appellant is not a beneficiary of Decedent's estate.
Section 2103 of the Code provides that when, as here, the decedent dies
without a will,
The share of the estate, if any, to which the surviving spouse is
not entitled, and the entire estate if there is no surviving spouse,
shall pass in the following order:
(1) Issue.-To the issue of the decedent.
(2) Parents.-If no issue survives the decedent, then to the
parents or parent of the decedent.
(3) Brothers, sisters, or their issue.-If no parent survives the
decedent, then to the issue of each of the decedent's parents . . .
20 Pa.C.S.A. § 2103 (emphasis added).
In this case, Husband's estate has no share of Decedent's estate
because he murdered her. 20 Pa.C.S.A. §§ 8801-8815 (Slayers Act). Under
Section 2103(1), Decedent's two children become the lone beneficiaries,
leaving Appellant without an interest in the estate. Similarly, Appellant lacks
an interest in the proceeds of a wrongful death action arising from Decedent's
death. The wrongful death statute, 42 Pa.C.S.A. § 8301, limits the right of
action to "the spouse, children and parents of the deceased," and any
proceeds of this action "shall be distributed to the beneficiaries in the
proportion they would take the personal estate of the decedent in the case of
intestacy[.]" 42 Pa.C.S.A. § 8301(b). Because Appellant is not a beneficiary
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under Section 2103(1), he is also not a wrongful death beneficiary. For these
reasons, Appellant is not a "party in interest" who has standing to seek Miller's
removal under Section 3183.
Estate of Briskman, 808 A.2d 928 (Pa. Super. 2002), provides
analogous support for our decision. There, the decedent was never married
and had no children, and her 1993 will named the manager of her local bank
as both executor and sole beneficiary of her estate. The register of wills
probated the 1993 will and granted letters testamentary to the bank manager.
Subsequently, the decedent's niece filed an action claiming the bank manager
procured the 1993 will through undue influence. The niece submitted the
decedent's 1984 will, which named the decedent's then -attorney as primary
executor and trustee and the niece as secondary trustee if the attorney was
unable to serve. The Orphans' Court held that the niece was a "party in
interest" under 20 Pa.C.S.A. § 9082 entitled to challenge the probate of the
1993 will. The court reversed the decision of the register of wills and vacated
the letters issued to the bank manager. We reversed, reasoning that the
niece's status as successor trustee under the 1984 will did not make her a
party in interest with standing to contest the 1993 will.
2 Section 908 provides, in relevant part: "Any party in interest seeking to
challenge the probate of a will or who is otherwise aggrieved by a decree of
the register, or a fiduciary whose estate or trust is so aggrieved, may appeal
therefrom to the court within one year of the decree[.]" A different statutory
provision, Section 3183, is under review in the present case, but both statutes
have the same operative phrase, "party in interest."
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[W]e are hard pressed to find that [the niece] has any interest
that has been aggrieved by probate of the 1993 will. Indeed, even
under the 1984 will, [the niece's] "interest" would arise only if the
named trustee were unable to serve.
. . .
We find that [the niece's] contingent interest, either as a
successor trustee under the 1984 will, or as an intestate heir at
law if both wills are deemed invalid, is too remote to confer upon
her an interest in the probate of the 1993 will.
Moreover, even if we were to assume [the niece] has a legitimate
interest in the outcome of the will contest, historically, that
interest must be substantial, direct, and immediate to confer
standing. . A "substantial" interest is an interest in the outcome
. .
of the litigation which surpasses the common interest of all
citizens in procuring obedience to the law. A "direct" interest
requires a showing that the matter complained of caused harm to
the party's interest. An "immediate" interest involves the nature
of the causal connection between the action complained of and
the injury to the party challenging it, and is shown where the
interest the party seeks to protect is within the zone of interest
sought to be protected by the statute or constitutional guarantee
in question.
Here, although [the niece's] interest might be considered
substantial, that is, one that surpasses the common interest of all
citizens, it is neither direct nor immediate [because it] arises only
if the named trustee is unavailable to serve under the 1984 will,
or if both the 1993 will and the 1984 will are invalidated.
Id. at 931-33 (citations and quotations omitted). Although Briskman
involved a different statute from the one at issue in the present case, see n.2,
supra, its analysis of "party in interest" applies with equal force to this case.
Even if Appellant's interest is substantial, it is neither direct nor immediate,
because Decedent's children are the only beneficiaries under the statutes
governing intestate succession and wrongful death actions. Thus, Appellant
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is not a party in interest with standing to seek Miller's removal as personal
representative.
Accordingly, we affirm the Orphans' Court's order sustaining Miller's
preliminary objections and dismissing Appellant's petition to remove Miller as
personal representative of Decedent's estate.
Order affirmed.
Judgment Entered.
7Atze4x,;11,-.
Joseph D. Seletyn, Es
Prothonotary
Date: 7/29/2019
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