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filed: October 8, 1982.


NO. 2924 PHILADELPHIA, 1980, Appeal from the Order of the Orphans' Court of Chester County, at No. 1048 of 1979.


Thomas P. Mohr, West Chester, for appellant.

William Scott, Coatesville, for appellee.

Beck, Watkins and Hoffman, JJ.

Author: Per Curiam

[ 305 Pa. Super. Page 334]

This appeal arises from an Action for Order of Court brought by the guardian of Elizabeth Ann Manley, an incompetent, pursuant to Sections 5521(23) and 5155(1) of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. §§ 5521(23), 5155(1).*fn1 In that action, the guardian seeks court permission to sell real estate belonging to the incompetent's Estate. Appellant is George Ruggieri, an intervenor and prospective purchaser of the real estate. He appeals from the Orphans' Court order of November 13, 1980 issued in response to Petition to Intervene filed by appellee Leonard Giunta, another prospective purchaser of the same property.

The order of November 13, 1980 states in pertinent part: ". . . we grant the Petition to Intervene to the extent necessary to permit Leonard Giunta, George Ruggieri, and any other interested party to present bids, and we direct that counsel propose an acceptable procedure for receiving and evaluating bids . . ."*fn2 Because we conclude that this order is not a final order, we quash the appeal.*fn3

[ 305 Pa. Super. Page 335]

The relevant facts are the following. On July 7, 1977, Elizabeth Ann Manley entered into a written agreement with appellant Ruggieri wherein she granted him a "right of first refusal" if and when she might decide to sell her real estate at 520 Maple Avenue, West Goshen Township, PA. In January 1980, the Orphans' Court declared Ms. Manley incompetent and named her niece Christine Campbell as her guardian. The Estate subsequently entered into negotiations with appellant Ruggieri for sale of the real estate to him. Before the results of these negotiations were formalized in a written contract of sale, appellee Giunta, through counsel, contacted the Estate and expressed an interest in purchasing the property. Giunta's counsel was told that he need not submit an offer, because agreement had already been reached for the sale of the real estate to appellant Ruggieri.

On June 12, 1980, the guardian executed an Agreement of Sale for the real estate with appellant Ruggieri for the price of $73,000.00.*fn4

On July 29, 1980, the guardian petitioned the Orphans' Court for an Order of Court to allow the sale of the real estate to appellant Ruggieri. On August 7, 1980, before any hearing on this petition had been held, appellee Giunta filed a Petition to Intervene, alleging inter alia that he was willing to offer $80,000.00 for the real estate, and that his earlier offers to purchase the property had not been considered by the Estate. After a hearing, the Orphans' Court issued the November 13, 1980 order that is the subject of this appeal.

We note at the outset that the Orphans' Court did not by its order permit appellee to intervene as a party in the

[ 305 Pa. Super. Page 336]

Order of Court proceeding. In effect, the court denied the Petition to Intervene, but sua sponte granted permission to appellee and other interested persons to submit bids on the property.*fn5

Section 5521(23) of the Probate, Estates and Fiduciaries Code confers broad supervisory powers on the Orphans' Court with regard to the sale by guardians of real property belonging to the Estate of an incompetent. Under Section 5521(23), which incorporates PFC Section 5155(1), guardians are empowered to sell real property belonging to the Estate when the court determines that the sale is in the best interests of the incompetent.*fn6 20 Pa.C.S.A. §§ 5521(23), 5155(1). Pursuant to this supervisory authority, the Orphans' Court is empowered to permit potential bidders on real property belonging to an incompetent's estate to present relevant evidence in a proceeding for an Order of Court concerning whether a proposed sale of such real property is in the incompetent's best interest.

It is well settled that orders which are not final are generally not appealable. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).*fn7 In deciding whether an order permitting such testimony is final, this court considers whether the practical effect of such order is to put the appellants "out of court." Alessandro v. State Farm Mut. Auto. Ins. Co., 487 Pa. 274,

[ 305 Pa. Super. Page 337409]

A.2d 347 (1979). The instant order, which permits appellant, appellee and others to present bids for the real estate to the court, does not put appellant out of court. The order is in the nature of an evidentiary ruling, determining factors that the Orphans' Court proposes to consider in deciding the merits of appellant's petition for an Order of Court. In Re Trust Under Deed of La Rocca, 485 Pa. 236, 401 A.2d 746 (1979) (where auditing court sought to develop the record before it and to facilitate decision on the reserved objection, order that accounts be filed did not dispose of the merits of any claim); Cf. Philadelphia Nat. Bank v. Lutherland, Inc., 286 Pa. Super. 48, 428 A.2d 232 (1981). The Orphans' Court ruling on the Petition to Intervene in no way terminates the litigation or disposes of the entire case. In Interest of C.A.M., 264 Pa. Super. 300, 399 A.2d 786 (1979).

Since the lower court's order is not final, we quash this appeal.

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