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

• Court: Superior Court of Pennsylvania
• Decided: April 28, 2015
• Docket: 991 MDA 2014
• Status: Unpublished

Opinion

J-A03015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-A03015-15

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

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

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,

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 ____________________________________________

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.

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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