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In re Estate of Ash

Superior Court of Pennsylvania

August 23, 2013


Appeal from the Order of January 16, 2013, in the Court of Common Pleas of Bedford County, Orphans' Court at No. 4 FOR 2011.




This case is an appeal by Joseph Heit, a beneficiary under the will of Ray Ash. We quash this matter.

Ray Ash died testate. His will made several specific cash bequests. It also directed that Ash's remaining personal and real property be sold with the proceeds being divided among three residual beneficiaries—namely, Appellant, James Heit (Appellant's brother) and Duane Fetter. The will devised no realty. Appellant was named as executor.

By deed dated November 4, 2010, Appellant, as executor, conveyed to himself, as an individual, a certain tract of land ("Tract 1") formerly owned by Ash. The conveyance apparently arose in connection with a purported agreement of sale Appellant claimed to have entered, perhaps orally, with Ash prior to his death.

On January 27, 2012, the Orphans' Court set aside the sale of Tract 1, directed the recorder of deeds to void the aforesaid deed in the absence of any appeal within thirty days by Appellant, removed Appellant as executor, and appointed an administratrix.[1] Appellant did not appeal the court's order.

At some point, Duane Fetter expressed an interest in buying Tract 1 along with two adjoining tracts. More precisely, it appears he had entered an agreement to purchase one of the adjoining tracts ("Tract 2") before Ash's death and, after Ash's death, advised the administratrix that he (Fetter) would be willing to buy Tract 1, Tract 2 and the third tract. Apparently, the administratrix intended to sell all the three tracts to Fetter.

In May 2012, Appellant filed a document he titled "Petition to Force Sale of Real Estate." Therein, he indicated his continued willingness to buy Tract 1. He also indicated his belief that Tract 1 would be landlocked unless an easement was granted over Tract 2. Appellant represented in his petition that he would be willing to pay one price for Tract 1 without the aforesaid easement and a higher price for Tract 1 if the easement was in place. He concluded by asking the court to direct the administratrix to grant the aforesaid easement over Tract 2. He also asked the court to halt the sale of Tract 1 until the disputes among the parties regarding the sale of Tract 1 were resolved.[2]

The administratrix took the position that selling all three tracts to Fetter would yield the appraised value on the two adjoining tracts and slightly more than the appraised value on Tract 1.[3] It seems Appellant was not interested in buying the two adjoining tracts outright, his interest being limited to having the easement granted over Tract 2. The administratrix maintained the sale to Fetter would be more advantageous to the estate than would be selling Tract 1 to Appellant, largely because the combined sale to Fetter would dispose of all properties for a profitable price and would avoid the possibility of litigation (i.e., a suit by Fetter) that could ensue if the administratrix attempted to grant an easement over Tract 2 before conveying it to Fetter and Tract 1 to Appellant.

On January 16, 2013, the court entered an order denying Appellant's petition and authorizing the administratrix to enter into a sale agreement for the sale of all three tracts to Fetter. Appellant filed this appeal in which he argues the court abused its discretion by not requiring the administratrix to place Tract 1 for sale at a public auction. Appellant contends selling the property at auction would garner more than $130, 000.00 and would thereby benefit the estate beneficiaries, including himself.

In the case of In re Estate of Stricker, 977 A.2d 1115, 1116 (Pa. 2009), the court addressed the appealability of an Orphans' Court order to sell realty during the process of disposition of an estate. The Supreme Court opined that "[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." Stricker, 977 A.2d at 1118. The court also held that the order in question was not appealable as a collateral order. Id. at 1119. Along those lines, the court observed that Stricker's will did not devise the realty in question but, rather, directed that, after payment of debts, expenses and taxes, the residual estate be given equally to the residual beneficiaries. Id. Because the will directed that the residue be divided among the beneficiaries, the order to sell estate property in pursuit of that division was plainly central to the main cause of action—that cause of action being the distribution of estate property and the overall administration of the estate. Id. The court therefore concluded it was "not possible" for the order in pursuit of the property division set forth by the will to be collateral to the main cause of action. Id. Having found the order was neither final nor collateral but, instead, interlocutory, the court affirmed this Court's order quashing the appeal. Id.

The order on appeal before us authorizes the administratrix to sell real estate formerly belonging to the decedent in order to accomplish the eventual division of the estate assets (i.e., the sale proceeds) among the beneficiaries as directed by Ash's will. Pursuant to Stricker, we conclude this order is neither final nor collateral but, instead, is interlocutory. We note also that the instant interlocutory order is not listed as being appealable by right under Pa.R.A.P. 311, and Appellant did not secure permission to file this interlocutory appeal under Pa.R.A.P. 312. Because the order is not appealable, we lack jurisdiction to address the merits of Appellant's claims. In re Estate of Allen, 960 A.2d 470, 471 (Pa. Super. 2008). Therefore, we quash this matter.

In reaching our result, we are mindful that the Rules of Appellate Procedure addressing the appealability of Orphans' Court orders have changed somewhat since Stricker was decided. At the time of Stricker, Pa.R.A.P. 342 indicated, inter alia, that an order determining an interest in realty would be immediately appealable upon a determination of finality by an Orphans' Court. Effective February 13, 2012, the Supreme Court deleted from Rule 342 the provision concerning the ability of an Orphans' Court to make determinations of finality and, instead, listed various orders that would be ...

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