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ESTATE HAROLD R. SCHMIDT (08/13/91)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 13, 1991.

IN RE ESTATE OF HAROLD R. SCHMIDT, DECEASED. APPEAL OF SQUARE 106 ASSOCIATES

Appeal from the Order entered on October 2, 1990, in the Court of Common Pleas, Orphans Division, of Allegheny County, No. 3222 of 1989.

COUNSEL

Richard B. Tucker, Jr., Pittsburgh, for appellant.

Edward C. Schmidt, Pittsburgh, for appellee.

Richard Disalle, Pittsburgh, for participating party.

Rowley, President Judge, and Cavanaugh and Hester, JJ.

Author: Rowley

[ 408 Pa. Super. Page 355]

This is a timely appeal by Square 106 Associates from the trial court's order denying its claim against the estate of Harold R. Schmidt. Appellant has raised the following issues for our review:

1) whether the orphans' court division lacked jurisdiction because appellant never presented a claim in the estate proceeding;

2) whether the orphans' court division lacked jurisdiction because appellant withdrew all its filings prior to the audit;

3) whether the orphans' court division abused its discretion in striking appellant's withdrawal of its claim; and

4) whether, by adjudicating the instant claim, the orphans' court division denied appellant due process of law and violated the preemption doctrine which arises from Art. VI, cl. 2 of the United States Constitution.

Having carefully reviewed the record and considered the arguments presented, we affirm the order of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

The complex factual and procedural history of the instant case, insofar as it is relevant to the issue before us, is as

[ 408 Pa. Super. Page 356]

    follows. On January 17, 1983, Square 106 Associates ("appellant"), a joint venture, leased office space in the District of Columbia to the law firm of Chapman, Duff & Paul. On February 28, 1985, the firm of Chapman, Duff & Paul entered into a "joint venture" with the law firm of Rose, Schmidt, Dixon & Hasley. The joint venture was known as Rose, Schmidt, Chapman, Duff & Hasley. However, relations between the two firms soured, and their joint venture was dissolved. Sometime thereafter, the Rose, Schmidt firm was renamed Rose, Schmidt, Hasley & Di Salle (RSH & DiS). Harold R. Schmidt was a partner in Rose, Schmidt, Dixon & Hasley; Rose, Schmidt, Chapman, Duff & Hasley; and RSH & DiS.

Harold R. Schmidt died on June 10, 1989. His will was admitted to probate in the orphans' court division of the court of common pleas of Allegheny County, Pennsylvania. The court issued letters testamentary to Barbara N. Schmidt Wickwire on June 16, 1989. On August 7, 1989, appellant filed a claim in the amount of $2,036,398.00 against Harold R. Schmidt's estate ("Estate") in the orphans' court division of the court of common pleas of Allegheny County, Pennsylvania.*fn1 The claim, which was on a standard, preprinted form issued by the Allegheny County Register of Wills, stated as follows:

Form 93 -- O.C. Division

IN THE COURT OF COMMON PLEAS

ALLEGHENY COUNTY, PENNSYLVANIA

ORPHANS' COURT DIVISION

[ 408 Pa. Super. Page 357]

IN RE: ESTATE

OF

HAROLD R. SCHMIDT

(Deceased)

NO. 3222 OF 1989

CLAIM

To the Clerk of Orphans' Court Division:

Index and make proper entry in your official records of the claim of The Square 106 Associates (Claimant) in the amount of $2,036,398.00 against the estate of the above named decedent. This claim is filed under Section 732(b)(2) of the Fiduciaries Act of 1949 as amended. The said decedent, who resided at 154 North Bellfield, Apt. 20, Pittsburg [sic], PA 15213, died on June 10, 1989.

Written notice of this claim was given to J. Mark Munson of Rose, Schmidt, Hasley & DiSalle, counsel, on August 3, 1989.

The amount of appellant's claim reflected rent allegedly due under appellant's lease of January 17, 1983, with the Chapman, Duff law firm.

On August 14, 1989, appellant also filed a "complaint for breach" of the same lease in the Superior Court of the District of Columbia against the estate of Harold R. Schmidt; the estate of Michael W. Balfe, a former partner in the joint venture of Rose, Schmidt, Chapman, Duff & Hasley; and all present and former partners of Rose, Schmidt, Chapman, Duff & Hasley.

The Executor of the Estate filed her account on December 1, 1989. Appellant filed objections to the account on January 5, 1990. In a letter dated January 16, 1990, five former partners of Harold R. Schmidt (the "Angel partners")*fn2 notified the Estate in a letter, pursuant to 20 Pa.C.S.A. § 3384,*fn3 of their claims for indemnification and/or

[ 408 Pa. Super. Page 358]

    contribution against the Estate in the event that appellant prevailed against them in its District of Columbia lawsuit. The letter was written by Stanley R. Geary, Esq, an Angel Partner, and was sent to Richard Di Salle, Esq., counsel for the Estate.*fn4

The Executor's account was called for audit on January 17, 1990, at which time appellant filed a petition for continuance of the audit pending resolution of the litigation in the District of Columbia. This petition was denied, but the parties consented to an order which continued the audit pending the return of Judge Schwartz, who was on vacation. At a conciliation conference held with Judge Schwartz on March 6, 1990, appellant again requested that the orphans' court division stay distribution of the estate pending the disposition of the proceedings in the District of Columbia action. The trial court refused to stay distribution.

On March 14, 1990, appellant filed a notice of withdrawal of its claim. At a conference on March 21, 1990, the Estate requested that the court strike the withdrawal. On March 22, 1990, the court stated that it would strike the withdrawal and order a hearing on the merits of appellant's claim against the Estate on March 26, 1990.*fn5 N.T. 3/22/90, at 2. Appellant's attorney noted his exceptions to the order and informed the court that he was not authorized by appellant to attend the hearing on the merits of appellant's claim against the Estate.

In a letter dated March 26, 1990, former partners of the decedent, who are currently partners in the law firm of RSH & DiS ("the RSH & DiS partners") notified counsel for

[ 408 Pa. Super. Page 359]

    the Estate, pursuant to 20 Pa.C.S.A. § 3384, of their contingent claims for indemnity and/or contribution in the event that appellant prevailed against them in its District of Columbia lawsuit.

Present at the March 26, 1990 hearing on the merits of appellant's claim against the Estate were counsel for the Estate, counsel for the Angel partners, and counsel for the the RSH & DiS partners. Neither appellant nor its counsel was present. After listening to the uncontradicted testimony of the Estate, the trial court, in an order entered on July 12, 1990, denied appellant's claim against the Estate. The Order provides as follows:

Order OF THE COURT

AND NOW, this 12[th] day of July, 1990, it is ORDERED, ADJUDGED and DECREED that the Claim of Square 106 Associates against the Estate of Harold R. Schmidt, Deceased is denied.

Order, 7/12/90.*fn6

Appellant filed exceptions to the order of July 12, 1990. In the exceptions, appellant stated that the orphans' court division lacked jurisdiction to adjudicate the merits of appellant's claim. Appellant further contended that the court's jurisdiction was limited to deciding whether to order immediate distribution of the Estate's assets or to defer distribution pending the resolution of the litigation in the District of Columbia. On October 2, 1990, the orphans' court division entered an en banc order dismissing appellant's exceptions and "affirming" the orders of March 22, 1990 [striking Appellant's "withdrawal" of its claim] and July 12, 1990.

[ 408 Pa. Super. Page 360]

Appellant filed the instant appeal from the order of October 2, 1990.

In this appeal, appellant contends that the trial court abused its discretion in striking the withdrawal of its claim because permitting the withdrawal of appellant's claim "would have left the Estate available for distribution to the beneficiaries free of all claim of Square 106 to share in the Estate assets." Appellant's Brief, at 27.

II. JURISDICTION

A. PRESENTING CLAIM

Appellant first argues that the orphans' court division lacked jurisdiction over appellant's claim against the Estate, because appellant never submitted the merits of its claim for the orphans' court division's determination. In support of this contention appellant asserts that 1) the document filed on August 7, 1989 was merely a notice of the existence of a claim and, as such, did not commence an action; 2) appellant did not present its claim for audit; and 3) the proper forum for addressing the Estate's liability to appellant was the District of Columbia.

Appellant asserts that the form filed on August 7, 1989 was not a claim against the Estate, but, rather, a notice of the existence of a claim pursuant to 20 Pa.C.S.A. § 3532(b)(2), which provides as follows:

(b) Rights of claimants against distributed property.

(2) Real property. No claimant shall have any claim against real property conveyed by a personal representative in distribution at his own risk pursuant to subsection (a) hereof, unless such claimant, within one year after the decedent's death, files a written notice of his claim with the clerk. Such claim against real property shall expire at the end of five years after the decedent's death, unless within that time the personal representative files an account or the claimant files a petition to compel an accounting.

[ 408 Pa. Super. Page 36120]

Pa.C.S.A. § 3532(b)(2). According to appellant, since the form filed on August 7, 1987 was merely a notice of a claim, it did not commence an action. The issue before this Court is not whether the form filed by appellant commenced a cause of action. Rather, the issue is whether the orphans' court division had jurisdiction to decide the merits of appellant's claim against the Estate.

The orphans' court division of the court of common pleas has jurisdiction over the administration and distribution of a decedent's estate. Estate of Stephenson, 469 Pa. 128, 364 A.2d 1301 (1976); 20 Pa.C.S.A. §§ 711(1), 762. In the instant case, the claim for $2,036,398.00 against the Estate, which was filed with the orphans' court division on August 7, 1987, made no mention of the District of Columbia action. Indeed, the District of Columbia action had not yet been instituted when appellant filed its claim with the orphans' court division. By filing the claim on August 7, 1987, appellant raised a factual issue concerning the distribution of the estate of Harold R. Schmidt. The orphans' court division of the court of common pleas had jurisdiction to resolve this issue.

Appellant also contends that the orphans' court division lacked jurisdiction to adjudicate the merits of appellant's claim because appellant did not present its claim at the audit. The Probate Code provides as follows:

§ 3386. Failure to present claim at audit

If any claimant whose claim is not reported to the court by the personal representative as an admitted claim shall fail to present it at the call for audit or confirmation, he shall not be entitled to receive any share of the real and personal estate distributed pursuant to such audit or confirmation, whether the estate of the decedent be solvent or insolvent.

20 Pa.C.S.A. § 3386. In the instant case, however, appellant did not fail to present its claim at the call for audit by failing to appear. Instead, appellant filed objections to the Estate's account on January 5, 1990. Appellant also appeared at the call for audit on January 17, 1990, and

[ 408 Pa. Super. Page 362]

    petitioned the orphans' court division for a continuance of the audit. When the court refused to continue the audit pending resolution of litigation in other courts, appellant consented to an order which continued the audit pending the return of Judge Schwartz, who was on vacation. Since appellant appeared at the call for audit and consented to a continuance, the orphans' court division did not err in concluding that it possessed jurisdiction to adjudicate appellant's claim.

Appellant further contends that the proper forum for addressing the merits of the Estate's liability to appellant was in the action brought in the District of Columbia. The Probate Code provides for claims which are being litigated in other forums as follows:

§ 3389. Claims subject to litigation in other courts.

When any claim not proved in the orphans' court division is being litigated in any other division or court, State or Federal, having jurisdiction thereof, the court may make such provision for the distribution or satisfaction of the claim as shall be equitable.

20 Pa.C.S.A. § 3389. Appellant recognizes that, as a claimant against the Estate, it had two options: 1) to prove its claim in the District of Columbia and ask the orphans' court division to defer distribution (See 20 Pa.C.S.A. § 3389); or 2) to present and seek to prove its claim at the Estate's audit in the orphans' court division (See 20 Pa.C.S.A. § 3386). Appellant's Brief, at 10. Appellant acknowledges that, under this second option, a creditor

     may ignore the existence of the res and litigate elsewhere any claims he may have against the estate . . . . His ability to satisfy out of the estate assets any judgment thereby obtained will be eliminated if the estate is distributed in the meantime . . . .

Appellant's Brief, at 9-10. In the instant case, however, appellant did not ignore the existence of the res. Nor did appellant merely file a request that the orphans' court division postpone distribution pending the resolution of the District of Columbia action. Rather, appellant filed a claim

[ 408 Pa. Super. Page 363]

    against the Estate. Furthermore, at the time when appellant filed its claim against the Estate, no litigation was pending in the District of Columbia. For the foregoing reasons, the orphans' court division did not abuse its discretion in concluding that appellant had presented a claim over which the orphans' court division had jurisdiction.

B. WITHDRAWAL

Appellant next contends that the orphans' court division lacked jurisdiction because appellant withdrew its claim prior to the audit. This contention is without merit, because the orphans' court division struck appellant's withdrawal on March 22, 1990. However, appellant asserts that 1) it could withdraw without leave of court and, therefore, the trial court's action in striking the withdrawal was nugatory; and 2) by not appearing at the hearing, appellant nonsuited its own claim.

1. Leave of Court

Appellant supports its argument, that it could withdraw without leave of the court, and that, therefore, the trial court's striking of the withdrawal was nugatory, by relying on the case of Haviland v. Fidelity Ins. Trust & Safe Deposit Co., 108 Pa. 236 (1885). In Haviland, a creditor initially presented three claims against an estate. Thereafter, the creditor sought to withdraw one of the claims. The court disallowed the withdrawal and, subsequently, disallowed the claim against the estate. The creditor brought the same claim in a subsequent action at common law against the executor, who filed a demurrer. On appeal, the Court held that the plaintiff could properly withdraw and, therefore, the court's disallowance of the claim was nugatory and did not affect the instant action. The Court also noted that rules of practice and procedure in the court of common pleas were of no force in the orphans' court, because the two courts were separate and there were no pleadings in the process of distribution. Id., 108 Pa. at 243. Haviland is distinguishable from the instant case. In

[ 408 Pa. Super. Page 364]

    auditing judge, may not withdraw his claim without leave of court.

Fontana, at 500. The trial court affirmed the adjudication of the auditing judge, and, citing In re Cross' Estate, 309 Pa. 418, 164 A. 516 (1932), and Lamb v. Greenhouse, 59 Pa. Super. 329 (1915), held:

[A] claimant against the estate of a decedent has no absolute right to withdraw his claim, especially after a hearing, where such action may prejudice the rights of the estate. Permission to withdraw the claim rests within the sound discretion of the court.

Fontana, at 500. The court reasoned that the estate would have been prejudiced if the auditing judge had allowed the claimant to withdraw his claim.

The vice of claimant's position is that after he had been fully heard, manifestly realizing the weakness of his case, he concluded again to try his fortune in another State. Again to defend against the claim would require the inconvenience and expense of the estate going into another jurisdiction again to meet the same claimant and the same witnesses. This we consider most unjust and inequitable, especially since the claimant himself, in the first instance selected this forum.

Fontana, at 501. Although Fontana is not binding on this Court, we find its reasoning to be persuasive. In the instant case, as in Cross and Fontana, appellant presented evidence to the orphans' court before seeking to withdraw. Appellant filed its claim, filed objections to the Estate's account and audit, and attended a conciliation conference. Accordingly, the determination of whether or not to allow appellant to withdraw was within the discretion of the orphans' court division.*fn7

[ 408 Pa. Super. Page 3662]

. Non-suit

Appellant also argues that the trial court could not reach the merits of appellant's claim against the Estate because, by not appearing at the hearing, appellant nonsuited its claim under Rule 230 of the Pennsylvania Rules of Civil Procedure. Under the Rules of Civil Procedure, a party's "failure to appear when the case is called for trial does not result in a voluntary non-suit under Rule 230, but rather a non-suit under Rule 218." 1 Goodrich-Amram 2d § 230:2 (1991); Farabaugh Chevrolet-Oldsmobile, Inc. v. Covenant Management, Inc., 361 Pa. Super. 234, 522 A.2d 100 (1987). Rule 218 provides as follows:

Rule 218. Party Not Ready When Case is Called for Trial

When a case is called for trial, if without satisfactory excuse a plaintiff is not ready the court may enter a non-suit on motion of the defendant or a non pros on the court's own motion. If without satisfactory excuse a defendant is not ready, the plaintiff may proceed to trial.

The language of Rule 218 is precatory, as opposed to mandatory, indicating that Rule 218 does not provide the exclusive procedures to be followed when a party is not ready for trial. Also, the word "plaintiff" as used in Rule 218 "should be construed as referring to the moving party whether that party be the plaintiff prosecuting his or her original claim or a defendant prosecuting a counterclaim." 1 Goodrich-Amram 2d § 218(a):1. In the instant case, appellant, as a claimant against the Estate, stood in the position of a plaintiff.

The orphans' court division may enter a non-suit in the same manner as in an action at law. 20 Pa.C.S.A. § 779(a).*fn8

§ 779. Nonsuits

[ 408 Pa. Super. Page 367]

Angel claimants and RSH & DiS partners in relitigating appellant's claim in the District of Columbia. See T.C.Op. 7/12/90, at 2-4, 8-9. The trial court concluded that appellant's withdrawal would prejudice the Estate, the Angel claimants, and the RSH & DiS partners. T.C.Op. 7/12/90, at 4. As noted above, appellant filed its claim on August 7, 1989. Appellant filed objections to the Estate's accounting and audit, and requested and attended a conciliation hearing. Not until March 14, 1990 did appellant attempt to withdraw its claim. The trial court properly concluded that the Estate would be prejudiced by appellant's withdrawal. Finding no abuse of discretion, we affirm the trial court's order striking appellant's withdrawal.

IV. CONSTITUTIONAL ARGUMENTS

Appellant argues that, by adjudicating the merits of appellant's claim, the orphans' court division 1) violated the Preemption Clause of the United States Constitution by depriving appellant of its right to remove the dispute to federal court; and 2) denied appellant due process because appellant was afforded no notice that, by filing a claim, it would become a "claimant" on the merits. Since appellant failed to raise these arguments in its exceptions and, instead, raises them for the first time on appeal, they have been waived. Pa.R.A.P. 302(a); In re Abrams' Estate, 419 Pa. 92, 98, 213 A.2d 638, 641 (1965); DeMatteis v. DeMatteis, 399 Pa. Super. 421, 435-36, 582 A.2d 666, 673 (1990). Appellant argues that, although these arguments were not raised in its exceptions, they were mentioned in appellant's brief in support of its exceptions. In the orphans' court division, "issues not included in exceptions or petitions will not be preserved by virtue of their having been argued in the supporting brief or at oral argument." In re Trust of Bachman, 338 Pa. Super. 546, 551, 488 A.2d 27, 29 (1985). For the foregoing reasons, the order of the orphans' court division is affirmed.

We affirm the order of the orphans' court division rather than the opinion in support thereof.

[ 408 Pa. Super. Page 369]

Upon appellate review we are not bound by the reason or reasons advanced by the court below in support of a judgment or order for it is the judgment or order itself which is the subject of review.

Hader v. Coplay Cement Mgf. Co., 410 Pa. 139, 145, 189 A.2d 271, 274 (1963). See also 17 Std.Pa.Prac.2d § 92:47. At the hearing on the merits of appellant's claim against the Estate, appellant did not appear and, thus, no evidence was presented to support its claim. The orphans' court division accordingly entered an order denying appellant's claim against the Estate. Since appellant's claim against the Estate was properly denied by the orphans' court, the order of the orphans' court is affirmed. The orphans' court division is free to continue with Estate proceedings, including distribution, free and clear from any claim by appellant against the Estate.

Order affirmed. Case remanded. Jurisdiction relinquished.

Disposition

Order affirmed. Case remanded. Jurisdiction relinquished.


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