HomeMy WebLinkAbout07-06-11•'
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J. A05038/11
NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P.65.37
IN RE: ESTATE OF LOTTIE IVY DIXON,
DECEASED
NO. 21-07-0686
IN RE: ESTATE OF GEORGE F. DIXON, JR.,
DECEASED
N0. 21-1994-0754
APPEAL OF: GEORGE F. DIXON, III AND
RICHARD E. DIXON, PETITIONERS AND
EXCEPTANTS
IN THE SUPERIOR COURT OF
PENNSYLVANIA
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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.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM:
FILED: April 5, 2011
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Appellants, George F. Dixon, III and Richard E. Dixon, appeal from the
order entered in the Cumberland County Court of Common Pleas, Orphans'
Division, denying their petition for the appointment of a substituted
administrator pro tem in the estate of their mother, Lottie Ivy Dixon
(Mother). We quash as the order is not an appealable order.
George F. Dixon, Jr. (Father) and Mother had four children: the above-
named Appellants, as well as Appellee, Marshall Dixon, and non-party
Charlotte Dixon. Appellee, who was forty-seven years old at the time of the
* Former Justice specially assigned to the Superior Court.
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instant petition, lived with his parents
Administrator Pro Tem, 2/12/10, at ¶¶ 9-10.
Petition for Appointment of
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)], ~ which
was presumably established ... 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 corporate
fiduciary.
Mother died testate in 2007. Her will named Appellee as executor of
her estate. On July 25, 2008, Appellee filed a first-and-intermediate
accounting and a petition for adjudication. Appellants filed objections to the
accounting, both as individuals and as trustees of Father's Trust. "In view of
these objections," the court appointed Wayne F. Shade, Esq. (Auditor) as
auditor on August 26, 2008. Zd. at 7.
Meanwhile, in Father's estate, on January 30, 2009, Appellants filed a
first-and-final accounting and a statement of proposed distribution from
Father's Trust. On February 27, 2009, Appellee filed objections, in both his
individual capacity and as executor of Mother's estate. On the same day,
Appellants also filed objections to their own statement of proposed
distribution. Id. at 8. The Orphans' Court noted:
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. ~" In view
of the objections, [Auditor] was appointed auditor in this
trust estate as well, on March 3, 2009.E ~
Upon agreement of the parties, the cases were
consolidated for purposes of the auditor's task by order of
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, 2009.1
Hearings before the Auditor were scheduled for December 16 through 18,
2009. However, a court order of December 14, 2009 continued the hearings
for Appellants to retain new counsel. A pre-hearing conference was
scheduled for February 12, 2010, and hearings set for February 24 through
26, 2010.
On January 15, 2010, Appellants retained new counsel and on
February 12th, filed in Mother's estate the instant petition for appointment of
1 On October 9, 2009, Appellants filed a motion to extend the discovery
deadline to investigate further Appellee's finances, arguing that Appellee was
either unwilling or unable to clarify whether certain money received from
Mother were gifts or reimbursements. Motion to Extend Discovery Deadline,
10/9/09, at 2. The court denied the motion without prejudice for Appellants
to renew the motion to the Auditor at the December 9, 2009 pre-hearing
conference in the event that Appellee failed to disclose all of his brokerage
account statements. Order, 12/1/09.
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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 $1,500,000
between 1994 and [her] death in June 2007," when Appellee purchased
expensive clothing, electronic and exercise equipment, and vintage cars,
used Mother's charge cards, and travelled abroad extensively. Pet. for
Appointment of Administrator Pro Tem, 2/12/10, at ¶¶ 9, 15-20. The
petition averred that Mother suffered from cancer and other illnesses
beginning in 1999 and her "mental health began to deteriorate in 1999."3
2 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 fiduciary pro tem to act in
place of the incapacitated fiduciary and to authorize the
substituted fiduciary pro tem to exercise all or specified
powers and discretion of the incapacitated fiduciary.
20 Pa.C.S. § 4301(1)-(2).
s According to the Auditor, however, Appellants "conceded at the pre-
hearing conference on February 12, 2010, that they would not be able to
prove that [Mother] was subject to incapacity or undue influence during her
lifetime." Auditor's Second Interim Report & Recommendations, 4/6/10, at
¶ 9.
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Id, at ¶ 30. The petition requested the appointment of an administrator pro
tem "for the limited purpose of" investigating whether Appellee wrongfully
took assets from Mother, a duty 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, filed a
response to the petition, arguing that the petition was a "blatant last-minute
attempt ... to circumvent [Appellants'] burden of proving their objections at
the [auditor's] hearing." Resp. in Opp'n to Pet. To Appoint Administrator Pro
Tem, 2/12/10, at 3. Appellee claimed that since Mother's death in June
2007, Appellants "have sporadically engaged in informal and formal
discovery directly related to their allegations that [Appellee] failed to
account for all of the assets in the estate," and that Appellants had already
received all of Mother's bank and brokerage statements, tax returns, and
entire estate planning file. Id. Appellee also pointed out that discovery
ended on September 30, 2009.
The court referred Appellants' petition to the Auditor, who filed an
interim report and recommendation. Meanwhile, apre-hearing conference
was held on February 12, 2010, at which Appellants argued the merits of
their petition for appointment of an administrator pro tem. Second Interim
Report & Recommendations at ¶ 7. On February 23rd, the court denied the
petition, adopting the Auditor's recommendation. On February 24th, a
hearing on the objections to the first-and-final accounting 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' petition.
Appellants filed a notice of appeal 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"; however, it was
time-stamped as filed on April 12, 2010. Order, 4/12/10.
s The text of Appellants' Pa.R.A.P. 1925(b) statement is seven pages long
and raises twelve issues. The Orphans' Court noted this length: "Whether
this six-page statement of errors complained of on appeal comports with the
conciseness requirement of Pennsylvania Rule of Appellate Procedure
1925(b)(4)(ii) is beyond the scope of this opinion." Trial Ct. Op. at 2 n.8.
Because of our holding in this appeal, we likewise do not reach this issue.
Nevertheless, we remind counsel of the relevant provisions of Rule
1925(b)(4):
(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, denying
Appellants' petition for appointment of an administrator pro tem, is
appealable. Neither the Orphans' Court nor the parties raised this issue.
We may raise the issue of appealability sua sponte
because it affects our jurisdiction over the case. "In order
to avoid piecemeal litigation, no appeal will be permitted
from an interlocutory order unless specifically provided for
by statute. Otherwise, an appeal must be taken from a
final order."~ ~ As 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. Super. 2002)
(some citations omitted).
Pennsylvania Rule of Appellate Procedure 342 addresses appeals from
Orphans' Court orders:
(...continued)
Pa.R.A.P. 1925(b)(ii), (iv), (v). The notes to Rule 1925(b) explain, in
pertinent part:
Paragraph (b)(4) This paragraph sets forth the
parameters for the Statement and explains what
constitutes waiver. It should help counsel to comply with
the concise-yet sufficiently-detailed requirement and avoid
waiver under either Lineberger v. Wyeth, 894 A.2d 141,
148-49 (Pa. Super. 2006)[,] or Kanter v. Epstein, 866
A.2d 394, 400-03 (Pa. Super. 2003) ... .
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 Appellants have
made no such argument in this case-that an order denying the appointment
of an administrator pro tem under 20 Pa.C.S. § 4301 is an order determining
the status of an individual under Rule 342(1), the Orphans' Court has made
no determination of finality. Accordingly, an appeal could not have been
taken under that subsection of Rule 342. See In re Estate of Sorber, 803
A.2d 767, 769 (Pa. Super. 2002) (finding no jurisdiction over appeal from
order removing trustee where trial court was not requested to, and did not
make, determination of finality).
Furthermore, this Court has dismissed an appeal where "the schedule
of distribution had not been filed nor had the adjudication been confirmed[,
and thus there was no final decree from which an appeal could be taken."
In re Estate of Preston, 560 A.2d 160, 162 (Pa. Super. 1989) (dismissing
appeal taken from order denying heir's petition to compel executor to file
exception to estate). In the instant matter, it is clear that no final
adjudication or distribution has been made in Mother's estate. Indeed,
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although a hearing was held on the objections to the first-and-final
accounting, the record reveals no disposition on the objections. Accordingly,
the court's order did not confirm the final account of the estate, or dispose
of all the claims or all the parties. See In re Estate of Borkowski, supra.
We note that the 2005 amendment to Rule 342 "provides that Rule
342 is not the exclusive means for appealing orders ...determining ...the
status of individuals." Pa.R.A.P. 342, note. Under subsection (2) of that
rule, "[a] party may also take an appeal from an interlocutory order." In re
Estate of Ce//a, A.3d 2010 WL 3123280 at *3 (Pa. Super. 2010
filed Aug. 10, 2010). Rule 311 lists the types of orders that allow
interlocutory appeals as of right. Pa.R.A.P. 311(a). The only estate-related
order included is "[a)n order determining the validity of a will or trust."
Pa.R.A.P. 311(a)(8). The instant order does not make such 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.R.A.P. 1311(b).
However, the Orphans' Court did not indicate that the order is interlocutory,6
e 42 Pa.C.S. § 702(b) provides:
When a court or other government unit, in making an
interlocutory order in a matter in which its final order
would be within the jurisdiction of an appellate court, shall
be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from
(continued...)
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nor have Appellants sought permission to appeal from the order as
interlocutory.
Finally, Rule 313 allows an appeal from a collateral order, which is
defined as "an order separable from and collateral to the main cause of
action where the right involved is too important to be denied review and the
question presented is such that if review is postponed until final judgment in
the case, the claim 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 request to
appeal has been taken on interlocutory grounds, we have no jurisdiction to
hear this appeal.
Appeal quashed.
Judgment Entered.
Deputy Prothonotary
April 5, 2011
Date:
(...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, permit an appeal to
be taken from such interlocutory order.
42 Pa.C.S. § 702(b).
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