HomeMy WebLinkAbout07-06-11
1. A05038/11
NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P.gS.
IN RE. ESTATE OF LOTTIE IVY DIXON, 37
DECEASED IN THE SUPERIOR COURT OF
N0. 21-07-0686 PENNSYLVANIA
IN RE: ESTATE OF GEORGE F. DIXON, )R,, ;
DECEASED
N0.21-1994-0754 ,,
APPEAL OF: GEORGE F. DIXON, III AND ~ ~ ~~ ~
v~ _c,
~ l r~
RICHARD E. DIXON, PETITIONERS AND ~~~ r- ~ ~
EXCEPTANTS ~r"x °^ r'
p Y ~'
• No. 818 MDA 201~~ Q ~ `"~ -~~
Appeal from the Order entered April 7, 2010 ~ ~~~
In the Court of Common Pleas of Cumberland County
Orphan's No(s).: 21-07-0686; 21-1994-0754
BEFORE: FORD ELLIOTT, P.].E,, pgNELLA, and FITZGERALD
MEMORANDUM: ~ ))~
FILED: April 5, 2011
Appellants, George F. Dixon, III and Richard E. Dixon, appeal from th
order entered in the Cumberland County Court of Common Pleas, Or e
Division, den m phans'
Y• 9 their petition for the a
ppointment of a substituted
administrator pro tem in the estate of their mother, Lottie Iv
(Mother). We quash as the order is not an a y Dixon
ppealable order.
George F. Dixon, ]r. (Father) and Mother had four children: the abov -
named Appellants, as well as q e
ppellee, Marshall Dixon, and non-party
Charlotte Dixon. Appellee, who was forty-seven years old at the tim
e of the
--
* Former Justice specially assigned to the Superior Court.
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instant petition, lived with his
parents. Petition for A
Administrator Pro Tem, 2/12/10 at PPointment of
¶¶ 9-10.
Father died testate in 1993. The orphan's court noted: "Under his will
part of his estate was given to an existing trust [(Father's Trust)] [ ~ w '
was presumably established .. , ~ hich
to ...provide income to his spouse if she
survived him, and control the eventual beneficiaries.
[ ~-- Trial Ct. OP~,
8/19/10, at 6. The co-trustees of the trust were Appellants and a c
fiduciary. orporate
Mother died testate in 2007. Her will named Appellee as executor
her estate. On July 25, 2008 A of
Ppellee filed a first-and-intermediate
accounting and a petition for adjudication. Appellants filed objections t
accounting, both as individuals and as trustees of Father's Trust. „In ° the
these objections," the court a view of
ppointed Wayne F. Shade, Esq. (Auditor) as
auditor on August 26, 2008. Id, at 7.
Meanwhile, in Father's estate, on January 3p, 2009, Appellants fil
first-and-final accountin and a statement of ed a
g proposed distribution from
Father's Trust. On February 27, 2009 Appellee filed objections in
individual capacity and as executor of Mothers estate. ~ both his
On the same day,
Appellants also filed objections to their own statement of
distribution. Id, at 8. The Orphans' Court noted: Proposed
One of the issues raised in the accountants' response to
the objections was whether their decision not to distribute
income from [Father's Trust to [Mother's Estate was
justified by misconduct of the estate's executor,
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[Appellee], with respect to "the financial affairs of his
mother, Lottie Dixon, prior to her death.
of the objections, [Auditor] was a i ~~~ In view
trust estate as well, on March 3, 2009 anted auditor in this
Upon agreement of the parties the
consolidated for purposes of the auditor's taskcbses were
court dated June 17, 2009.E ~ The auditor has thus been
engaged in the pertormance of his duties in these bitterly
contested and inextricably-related estates for well over a
year. He has indicated that the alleged misconduct of
[Appellee] with respect to the financial affairs of his
mother is a factual issue which he is considering. ~
Id.
The deadline to conduct discovery was September 30, 20
Hearings before the Auditor were scheduled for December 09.1
2009. However, a court order of December 14, 2009 con • 16 through 18,
for q tinued the hearings
ppellants to retain new counsel. A pre-hearing conference wa
scheduled for February 12, 2010, and hearings set for Februa s
26, 2010. ~' 24 through
On January 15, 2010, Appellants retained new counsel and
February 12th, filed in Mother's estate the instant petition fora on
ppointment of
y On October 9, 2009, appellants filed a motion to extend the di
deadline to investigate further Appellee's finances, arguing that A
either unwilling or unable to clari scovery
Mother were gifts or reimbursements, whether certain money re epved f om
10/9/pg, at 2. The court denied the motion without prejudice for A
to renew the motion to the Auditor Motion to Extend Discovery Deadline,
conference in the event that q at the December 9, 2009 ppellants
account statements. Order, 12%ljpg a failed to disclose all of his brokerage
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an administrator pro tem
pursuant to 20 Pa.C.S, § 4301.2 The petition
alleged that Appellee "may have defrauded [Mother] of at least 1
between 1994 and [her] death in June 2007 " ~ ,500,000
when Appellee purchased
expensive clothing, electronic and exercise equipment, and vinta a ca
used Mother's charge cards, and travelled abroad extensive) g rs,
Appointment of Administrator Pro Tem Y Pet. for
2/12/10, at ¶¶ 9, 15-2p• The
petition averred that Mother suffered from cancer and other ill
beginning in 1999 and her "mental health began to deteriorate nesses
in 1999.,.s
z Section 4301 of the Probates, Estates, and Fiduciaries Code
provides:
Whenever and for so long as any fiduciary is in military
service, in other government service, in a
position of
conflicting interest or in any situation where his functioning
as a fiduciary for a temporary period may not be in the
best interests of the estate, the court having jurisdiction
over such fiduciary shall have the power in its discretion:
(1) to authorize the cofiduciary or cofiduciaries, if any, to
exercise all or specified powers of the incapacitated
fiduciary, whether discretionary or ministerial; or
(2) to appoint a substituted fiduciar
place of the incapacitated fiducia y pro tem to act in
substituted fiduciar rY and to authorize the
powers and discretion of the ncapacitated fidluc ary pacified
20 Pa.C.S. § 4301(1)-(2)•
s According to the Auditor, however Appellants "concede
hearing conference on Februa ~ d at the
prove that [Mother] was subject to2incapac~ity or undue influenced pre-
lifetime." Y would not be able to
¶ 9.
Auditors Second Interim Report & Recommendations, 4/6/10 hat
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Id. at ¶ 30. The etition re uested the a
p q ppointment of an administrator pro
tem "for the limited purpose of investigating whether Appellee wr
took assets from Mother, a dut ongfully
Y which Appellee, who "is in a conflict of
interest," "cannot be expected to pertorm." Id. at ¶ 46.
Appellee, in his capacity as administrator of Mother's estate file
response to the petition, arguing that the petition was a "blatant last d a
attempt ... to circumvent q minute
" [ ppellants'] burden of proving their objections at
the [auditor's] hearing. Resp. in Opp'n to Pet. To Appoint Admini
Tem, 2/12/10 at 3. strator Pro
Appellee claimed that since Mother's death in June
2007, Appellants "have sporadically engaged in informal a
discovery directly related to their allegations that [A ell nd formal
account for all of the assets in the estate," and that A ePp ee] failed to
received all of Mother's bank and brokerage statem pp lants had already
entire estate planning file. jd, A ents, tax returns, and
ppellee also pointed out that discovery
ended on September 30, 2009.
The court referred Appellants' petition to the Auditor, who fil
interim report and recommendation. ed an
Meanwhile, apre-hearing conference
was held on February 12, 2010, at which Appellants argued them
their petition fora eats of
ppointment of an administrator pro tem. Second Interim
Report & Recommendations at ¶ 7. On February 23rd, the court d
p g ,
petition, ado tin the Auditors recommendation. enied the
hearing on the objections to the first-and-final accou On February 24th, a
nting was held. Id. at ¶
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8.
Appellants filed exceptions to the denial of their petition, Appellee
again filed a response, and the Auditor filed a second interim report with
recommendation on April 6th. On April 12, 2010,4 the court endorsed the
Auditor's recommendations and again denied Appellants'
Appellants filed a notice of a Petition.
ppeal on May 12, 2010, as well as a court-
ordered Pa.R.A.P. 1925(b) statement.5
4 The order began, "AND NOW, this 7th day of April, 2010"; how
time-stamped as filed on April 12, 2010. Order, 4/12/10. ever, it was
s The text of Appellants' Pa.R.A.P.
and raises twelve issues. The Orphans5(Courtanoted th s leneth pages long
this six-page statement of errors complained of on a 9 Whether
conciseness requirement of Pennsylvania Rule of q
1925(b)(4)(ii) is beyond the scope of this opinion." PPeal comports with the
Because of our holding in this a Ppellate Procedure
Trial Ct. Op, at 2 n.8.
Nevertheless, we remind counsel alofwtheke elevant n°t reach this issue.
1925(b)(4): provisions of Rule
(4) Requirements; waiver.
(ii) The Statement shall concisely identify each ruling
or error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the
judge... .
(iv) The Statement should not be redundant or provide
lengthy explanations as to any error... .
(v) Each error identified in the Statement will be
deemed to include every subsidiary issue contained therein
which was raised in the trial court... .
(continued...)
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We first determine whether the court's April 7, 2010, den i
Appellants' petition for a y ng
ppointment of an administrator pro tem, is
appealable. Neither the Orphans' Court nor the parties raised this issue.
We may raise the issue of a
because it affects our jurisdiction oveathellcase.ua S'°onte
to avoid piecemeal litigation, no a "In order
from an interlocuto PPeal will be permitted
by statute. rY order unless specifically provided for
Otherwise, an appeal must be taken from a
final order."~ ~ qs this Court explained:
An order is not a final order under Pa.R.A.P. 341
unless it disposes of all claims or of all parties. 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. See 20 Pa.C.S, § 3514.
In re Estate of Borkowski, 794 A,2d 388 389.90 (Pa Su
(some citations omitted). per• 2002)
Pennsylvania Rule of Appellate Procedure 342 addresses appeals
Orphans' Court orders: from
(...continued)
Pa.R.A.P. 1925(b)(ii), (iv), (v), The notes to Rule 1925 b e
pertinent part: () xplain, in
Paragraph (b)(4) This Para ra h
parameters for the g P sets forth the
constitutes waiver. Statement and explains what
the concise-yet sufficient y-detaieled requs elment apply with
waiver under either Lineber er v, d avoid
148-49 (Pa. Super. 2006 9 wYeth, 894 A,2d 141,
A.2d 394, 400-03 (Pa. Superl 2003anter v. Epstein, 866
Pa.R.A.p. 1925, note.
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An order of the Orphans' Court Division making a
distribution, or determining an interest in realty or
personalty or the status of individuals or entities,
shall be immediately appealable:
(1) upon a determination of finality by the
Orphans' Court Division, or
(2) as otherwise provided by Chapter 3 of these
rules.
Pa.R.A.P. 342(1)-(2).
To the extent that an argument could be made-and q
made no such ar ument in this case- ppellants have
g that an order den in
of an administrator pro tem under 20 Pa.C,S, y g the appointment
the status of an individual under Rule 34 § 4301 is an order determining
no determination of finalit 2(1)' the Orphans' Court has made
Y Accordingly, an appeal could not have been
taken under that subsection of Rule 342. See In re Estate o
A.2d 767 7 f Sorber, 803
6g (Pa• Super. 2002
(finding no jurisdiction over appeal from
order removing trustee where trial court was not requested t
make, determination of finality), o, and did not
Furthermore, this Court has dismissed an appeal where "th
of distribution had not been filed nor had the adjudication be a schedule
and thus there was no final decree from which an a en confirmed[,
In re Estate of Preston, 560 A.2d 160, 162 (Pa, Suppeal could be taken."
appeal taken from order denying heir's Per. 1989) (dismissing
petition to compel executor to file
exception to estate). In the instant matter, it is clear that
adjudication or distribution has been made in Mother's esta no final
te. Indeed,
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although a hearin
9 was held on the objections to the first-and-final
accounting, the record reveals no disposition on the objection
the court's order did not confirm the final account of th s' Accordingly,
of all the claims or all the a estate, or dispose
parties. See In re Estate of Borkowski, supra
We note that the 2005 amendment to Rule 342 "provi
342 is not the exclusive means fora des that Rule
ppealing orders ...determining ...the
status of individuals." Pa.R.A.P. 342 note, Under sub
rule, "[a~ part section (2) of that
Y may also take an appeal from an interlocutory order." In r
Estate of Celia, e
A.3d , 2010 WL 3123280 at
filed qu 3 (Pa• Super. 2010
g. 10, 2010). Rule 311 lists the t
interlocuto Ypes of orders that allow
rY appeals as of right. Pa.R.A.p. 311(x). The only estate-rel
order included is " ated
[aln order determining the validity of a will or trust."
Pa'R'A'p' 311(a)(g). The instant order does not make suc
h a determination.
Rule 312 provides: "
An appeal from an interlocutory order may be
taken by permission
pursuant to Chapter 13 (interlocutory appeals by
permission." Pa.R,A.P. 312 (emphasis added); see a/so Pa.
However, the Orphans' Court did not indicate that the ord RAP. 1311(b).
er is interlocutory,6
6 42 Pa.C.S, § 702(b) provides:
When a court or other government unit in
interlocutory order in a ~ making an
would be within the jurisdict oneof pan which its final order
ppellate court, shall
be of the opinion that such order involves a controllin
question of law as to which there is substantial ground fog
difference of opinion and that an immediate a
(continued...)
ppeal from
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nor have Appellants sought permission to appeal from the
interlocutory. order as
Finally, Rule 313 allows an a
ppeal from a collateral order, which is
defined as "an order separable from and collateral to the
action where the right involved is too important to be denied main cause of
question presented is such that if review is postponed until final view and the
the case, the claim Judgment in
will be irreparably lost." Pa.R.A,p, 313(a)-(b ,
Appellants make no claim that the order is a collateral one. )
Because the court's order is not final or collateral, and no r
appeal has been taken on interlocuto equest to
ry grounds, we have no jurisdiction to
hear this appeal.
Appeal quashed.
Judgment Entered.
Deputy Prothonotary
Date: April 5, 2011
(...continued)
the order may materially advance the ultimate termination
of the matter, it shall so state in such order. The appellate
court may thereupon, in its discretion
be taken from such interlocutory order. permit an appeal to
42 Pa.C.S. § 702(b).
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