In Re: Estate of Victor Sangiuliano

• Court: Superior Court of Pennsylvania
• Decided: August 23, 2016
• Docket: 2182 MDA 2015
• Status: Unpublished

Opinion

J-S58033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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*Retired Senior Judge assigned to the Superior Court. J-S58033-16

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. -4- J-S58033-16

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”). -7- J-S58033-16

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. - 10 - J-S58033-16

(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 - 14 - J-S58033-16

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). - 15 - J-S58033-16

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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