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ALBERT F. MAIER AND ALBERT F. MAIER v. EARL L. HENNING (10/12/88)

filed: October 12, 1988.

ALBERT F. MAIER AND ALBERT F. MAIER, JR., EXECUTORS OF THE ESTATE OF WALTER J. SUDU, A/K/A WALTER SUDU, DECEASED,
v.
EARL L. HENNING, GUNNAR M. HENNING AND MAYNARD W. HENNING, TRADING AS GEM PROPERTIES, AND JOSEPH SUDU, STANLEY SUDU AND ANNA PERCZ. APPEAL OF JOSEPH SUDU, STANLEY SUDU AND ANNA PERCZ. ALBERT F. MAIER AND ALBERT F. MAIER, JR., EXECUTORS OF THE ESTATE OF WALTER J. SUDU, A/K/A WALTER SUDU, DECEASED, APPELLANTS, V. EARL L. HENNING, GUNNAR M. HENNING AND MAYNARD W. HENNING, TRADING AS GEM PROPERTIES, AND JOSEPH SUDU, STANLEY SUDU AND ANNA PERCZ



Appeal from the Order entered August 7, 1987, Court of Common Pleas, Carbon County, Orphans Division, at No. 80-151. Appeal from the Order entered August 7, 1987, Court of Common Pleas, Carbon County, Civil Division, at No. 80-151.

COUNSEL

Harry A. Jacobowitz, Palmerton, for appellants (at 2488) and appellees (at 2526).

Roger N. Nanovic, II, Jim Thorpe, for appellants (at 2526) and appellees (at 2488).

Patricia Carroll, Blue Bell, and Edward J. Hayes, Philadelphia, for appellees (at 2488 and 2526).

Beck, Kelly and Johnson, JJ.

Author: Johnson

[ 378 Pa. Super. Page 411]

This is a consolidated appeal from summary judgment which the Orphans' Court Division of the Court of Common

[ 378 Pa. Super. Page 412]

Pleas of Carbon County granted in a declaratory judgment action.

We are asked to determine whether a general power of sale clause contained in a will may override an express limitation upon sale found in the Probate, Estates and Fiduciaries Code*fn1 (the Code). We are also asked to determine whether the failure to object to a petition to sell real estate at private sale may constitute a statutory joinder on the part of a specific devisee under a will. Since we find the language of Section 3351 of the Code*fn2 to be both clear and free from doubt, and since we are unaware of any other provisions permitting the divestiture of specifically devised real estate, we reverse.

On May 19, 1980, Walter Sudu (the "Decedent"), died testate. Albert F. Maier and Albert F. Maier, Jr., (the "Executors"), were appointed Executors of the Decedent's Estate by the Carbon County Register of Wills on May 27, 1980.

The Decedent's Estate included a 17.1 acre parcel of property known as the "Hickory Run Plaza" (truck stop) leased to Interstate Traveler Services, Inc., since 1974. Included in the lease, and operated as an integrated unit with the truck stop, were four surrounding properties: (1) a 1.99 acre tract with a sewage treatment plant; (2) a 50 foot by 50 foot tract which was used for a high rise sign; and (3) two parcels containing easements from the truck stop to the sewage treatment plant and high rise sign location. These four parcels of property are the subject of this litigation. The truck stop together with the four surrounding properties were specifically devised by the Decedent in his will to Stanley Sudu, Joseph Sudu and Anna Percz (the "Devisees").

On October 29, 1981, the Executors presented to the Orphans' Court for Carbon County a Petition for Leave to Sell at Private Sale ...


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