In Re: Estate of Moskowitz, L.

J-A28015-14

2015 PA Super 23

IN RE: ESTATE OF LEONARD J. : IN THE SUPERIOR COURT OF
MOSKOWITZ, DECEASED : PENNSYLVANIA
:
:
APPEAL OF: MICHAEL B. FEIN AND :
BERNICE FEIN : No. 3302 EDA 2013

Appeal from the Decrees filed October 31, 2013
In the Court of Common Pleas of Delaware County
Orphans’ Court at No(s): 546 of 2009

BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

OPINION BY GANTMAN, P.J.: FILED FEBRUARY 04, 2015

Appellants, Michael B. Fein and Bernice Fein, appeal from the decree

entered in the Delaware County Court of Common Pleas, which granted

partial summary judgment in favor of Appellee, Estate of Leonard J.

Moskowitz, Deceased (“Estate”), and ordered Appellants to transfer certain

assets to the Estate. Appellants also challenge the court’s decree, which

denied Appellant Ms. Fein’s motion for discovery. We affirm in part and

quash in part.

The relevant facts and procedural history of this case are as follows.

Bernice Fein was the longtime companion of Leonard Moskowitz

(“Decedent”). Appellant Michael B. Fein is Appellant Ms. Fein’s son. On

February 4, 2000, Decedent executed a New Jersey power of attorney

(“POA”), naming Appellant Mr. Fein as his agent. The POA document

provided in relevant part as follows:
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I. POWERS

In connection with any property or any other interest
whatsoever which I may hold, my attorney shall have full
power to control or dispose of my property, to execute
contracts or other obligations which shall be binding upon
me, and to take any action, in my name and on my behalf,
which I could take in my own name and on my own behalf.

II. OTHER PROVISIONS

A. Except to the extent that I have expressly provided
otherwise, the exercise of any of the powers granted to my
attorney shall be in my attorney’s sole discretion. The
decisions of my attorney to exercise, or to refrain from
exercising, any power, arrived at in good faith, shall be
binding upon me and my heirs, executors, administrators,
and assigns.

(Administrator’s Motion for Partial Summary Judgment, Exhibit A, filed

7/30/12; R.R. at 35a). Decedent executed a last will and testament on

January 2, 2007. In his will, Decedent (1) named Appellant Ms. Fein and

Joshua Taylor as co-executors; (2) bequeathed his personal property to

Appellant Ms. Fein and left the balance of the Estate in trust for Appellant

Ms. Fein; (3) named Mr. Taylor and Joseph Fine 1 as trustees of the trust

created for the benefit of Appellant Ms. Fein; and (4) named Joseph Fine as

the beneficiary of the trust upon the death of Appellant Ms. Fein.

In early 2009, while Decedent was still alive, Appellant Michael B. Fein

exercised his POA to conduct a series of transactions involving Decedent’s

assets. On January 16, 2009, Appellant Mr. Fein transferred various

1
Joseph Fine is Decedent’s nephew. He is not to be confused with Appellant
Michael B. Fein, who is unrelated to Decedent but named as Decedent’s
agent under the POA.

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securities valued at $584,490.13, from Decedent’s solely owned TD

Ameritrade account (“TD Account 1”) to a TD Ameritrade account jointly

owned by Decedent and Appellant Ms. Fein (“TD Account 2”). Appellant Mr.

Fein also transferred securities valued at approximately $47,769.88, from

Decedent’s Citibank Smith Barney account to Decedent’s TD Account 1 on

February 19, 2009. That same day, Appellant Mr. Fein transferred these

same securities from TD Account 1 to TD Account 2. On March 3, 2009,

Appellant Mr. Fein transferred these securities in TD Account 2, then valued

at approximately $533,164.41,2 to a different TD Ameritrade account owned

jointly only by Appellants Ms. Fein and Mr. Fein (“TD Account 3”). Appellant

Mr. Fein also conveyed a property located on S. 5th Street in Philadelphia

(“Philadelphia property”) from Decedent, to Appellant Ms. Fein and Decedent

as tenants by the entireties, by deed dated February 6, 2009. Decedent

died on March 18, 2009.

On April 28, 2009, Mr. Taylor filed a petition seeking appointment as

sole executor of the Estate. In the petition, Mr. Taylor alleged that Appellant

Mr. Fein had exercised his POA unlawfully to retitle certain of Decedent’s

solely owned assets as jointly owned by Decedent and Appellant Ms. Fein.

In new matter in her answer to the petition, Appellant Ms. Fein claimed

Decedent’s will should be admitted to probate in New Jersey, thereby raising

a question of Decedent’s domicile upon death. On July 24, 2009, the

2
By this time, the assets had depreciated in value.

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Delaware County Register of Wills issued an order declaring Decedent was

domiciled in New Jersey at time of death.

Mr. Taylor appealed the decision to the Delaware County Orphans’

court. The Orphans’ court reversed the order on April 4, 2011, and directed

the Register of Wills to receive and act upon a petition to probate Decedent’s

will. The Register of Wills subsequently certified to the Orphans’ court Mr.

Taylor’s petition seeking appointment as sole executor of the Estate. In

November 2011, Mr. Taylor and Appellant Ms. Fein both renounced their

rights to administer the Estate in favor of a neutral administrator. The

Orphans’ court appointed Stephen Carroll as administrator de bonis non cum

testamento annexo3 of the Estate on November 10, 2011.

The Estate, through Mr. Carroll, filed a petition on February 15, 2012,

to compel Appellant Mr. Fein to file an accounting of his actions as agent for

Decedent under the POA. Appellant Mr. Fein filed an answer and objections

to the petition. On April 4, 2012, the court entered a decree directing

Appellant Mr. Fein to prepare a complete accounting of all actions

undertaken as Decedent’s agent under the POA. Appellant Mr. Fein filed an

initial accounting4 and a petition for adjudication/statement of proposed

3
When a vacancy occurs in the office of an executor, a court will appoint an
administrator d.b.n.c.t.a. to administer and complete distribution of the
estate. 20 Pa.C.S.A. § 3159.
4
Appellant Mr. Fein’s initial accounting listed each of the transactions he
engaged in as POA in the months before Decedent’s death, except for the

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distribution on May 17, 2012.

On July 30, 2012, the Estate filed a petition for a preliminary

injunction, a motion for partial summary judgment, and a “petition for return

of trust assets,” seeking imposition of a constructive trust on the assets

listed in Appellant Mr. Fein’s initial accounting. The court issued a

preliminary injunction on August 8, 2012, which enjoined Appellants from

transferring, disbursing, or otherwise dissipating the assets. Appellant Mr.

Fein filed a response in opposition to the Estate’s motion for partial summary

judgment on September 14, 2012. On October 2, 2012, the court denied

the Estate’s motion for partial summary judgment without prejudice,

pending resolution of Appellant’s Mr. Fein’s appeal to this Court from a

separate declaratory judgment action. The court also ordered a new

accounting of the assets referenced in the decree granting the Estate a

preliminary injunction. Appellant Mr. Fein submitted a purported accounting,

but the court found the accounting failed to comply with the October 2, 2012

decree and ordered a new accounting to be filed by February 8, 2013.

On March 18, 2013, the Estate filed objections to the initial accounting

of Appellant Mr. Fein and petition for adjudication. The following day,

Appellant Mr. Fein submitted a purported new accounting. The court

subsequently issued a decree finding Appellant Mr. Fein had willfully

disobeyed the court’s multiple decrees directing the filing of a full

final transfer of the securities from the TD Account 2 to the TD Account 3
(the account jointly held by Appellants only).

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accounting. Appellant Mr. Fein filed another accounting on May 31, 2013.

This accounting clarified that the securities referenced in the initial

accounting had been ultimately transferred into joint ownership of Appellants

prior to Decedent’s death.

On July 26, 2013, Appellant Ms. Fein filed a “Petition to Show Cause

Why Letters Of Administration Issued to Stephen Carroll, Esquire Should Not

Be Revoked.” Appellant Ms. Fein filed a motion for leave to obtain discovery

in aid of the petition on October 1, 2013.

By separate decrees dated October 29, 2013, and filed on October 31,

2013, the Orphans’ court granted the Estate partial summary judgment and

directed Appellants to return to the Estate all assets Appellant Mr. Fein had

transferred from Decedent under the POA, as identified in the accountings.

The court also denied Appellant Ms. Fein’s motion for leave to obtain

discovery in aid of her petition to revoke letters of administration issued to

Stephen Carroll, Esquire. Appellants filed a timely notice of appeal on

Monday, December 2, 2013.5 The court ordered Appellants to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

Appellants timely complied.

5
Under the Pennsylvania Rules of Appellate Procedure, Appellants were
obligated to appeal the court’s grant of partial summary judgment
immediately to avoid waiver. See Pa.R.A.P. 342(a)(6), (c) (providing appeal
may be taken as of right from Orphans’ court order “determining an interest
in real or personal property[,]” and failure to do so “shall constitute a waiver
of all objections to such order and such objections may not be raised in any
subsequent appeal”). Therefore, this portion of the appeal is properly before
us.

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Appellants raise the following issues for our review, which we have

reordered for ease of disposition:

WAS ADMINISTRATOR’S ACTION FOR SPECIFIC RECOVERY
OF PROPERTY CLAIMING THAT [APPELLANT MR. FEIN’S]
ACTS WERE GIFTS NOT AUTHORIZED BY THE POWER
CONFERRED ON HIM BARRED BY 42 PA.C.S.A. § 5524?

IS THE STATUTE OF LIMITATIONS RUNNING AGAINST AN
ESTATE’S ACTION TO RECOVER PROPERTY FOUNDED ON
ALLEGED TORTIOUS CONDUCT TOLLED UNTIL A
PERSONAL REPRESENTATIVE OBTAINS LETTERS OF
ADMINISTRATION?

DID [APPELLANT MR. FEIN] MAKE AN INTER VIVOS GIFT
TO [APPELLANT MS. FEIN] UNDER HIS POWER OF
ATTORNEY?

IS A DECISION BY AN AGENT TO MAKE A GIFT OF HIS
PRINCIPAL’S PROPERTY UNDER HIS POWER OF ATTORNEY
INCONSISTENT WITH THE LAWS OF THIS
COMMONWEALTH?

SHALL A POWER OF ATTORNEY EXECUTED IN NEW JERSEY
IN CONFORMITY WITH THE LAWS OF NEW JERSEY WITH
RESPECT TO AUTHORITY OF [APPELLANT MR. FEIN] TO
MAKE A GIFT BE CONSIDERED VALID IN THIS
COMMONWEALTH WITH RESPECT TO THAT AUTHORITY?

WAS THE INTERLOCUTORY DECREE DENYING [APPELLANT
MS. FEIN’S] MOTION FOR AUTHORIZATION TO TAKE
DISCOVERY IN AID OF PETITION TO SHOW CAUSE AN
ABUSE OF DISCRETION?

(Appellants’ Brief at 5-6).

In their first two issues combined, Appellants argue the Estate’s action

for recovery of “retitled” assets is governed by the two-year statute of

limitations under 42 Pa.C.S.A. § 5524. Appellants contend this Court

quashed Mr. Fein’s previous appeal solely due to the absence of an actual

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controversy between the parties, without addressing the statute of

limitations issue. Appellants assert the Estate commenced the action to

recover Decedent’s former property on July 30, 2012, more than three years

after Appellant Mr. Fein retitled the assets in question. According to

Appellants, the statute of limitations began to run when Appellant Mr. Fein

performed these transactions. Appellants further emphasize they did not

waive their statute of limitations defense because they raised it in new

matter in opposition to the Estate’s motion for partial summary judgment.

Appellants conclude the Estate’s action to recover property is time-barred by

the applicable statute of limitations or, alternatively, the doctrine of laches.

We disagree.

Generally, in an action at law, “the statute of limitations begins to run

at the time when a complete cause or right of action accrues or arises, which

occurs as soon as the right to institute and maintain a suit arises.” Centre

Concrete Co. v. AGI, Inc., 522 Pa. 27, 31, 559 A.2d 516, 518 (1989).

Section 5524 of the Pennsylvania Judicial Code provides in relevant part as

follows:

§ 5524. Two year limitation

The following actions and proceedings must be commenced
within two years:

* * *

(3) An action for taking, detaining or injuring personal
property, including actions for specific recovery thereof.

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* * *

(7) Any other action or proceeding to recover
damages for injury to person or property which is
founded on negligent, intentional, or otherwise tortious
conduct or any other action or proceeding sounding in
trespass, including deceit or fraud, except an action or
proceeding subject to another limitation specified in this
subchapter.

* * *

42 Pa.C.S.A. § 5524.

Nevertheless, “equity courts may not rely solely on statutes of

limitation in determining if a claim is timely.” United Nat. Ins. Co. v. J.H.

France Refractories Co., 542 Pa. 432, 441, 668 A.2d 120, 125 (1995).

“[F]or an action in equity, the applicable statute of limitations is used only as

a frame of reference to evaluate any purported delay in support of a claim of

laches.”6 Lipschutz v. Lipschutz, 571 A.2d 1046, 1051 (1990), appeal

denied, 527 Pa. 601, 589 A.2d 692 (1990). See also Lake v. Hankin

Group, 79 A.3d 748, 756 (Pa.Cmwlth. 2013), appeal denied, ___ Pa. ___,

89 A.3d 1286 (2014) (reversing summary judgment for defendant where

trial court determined plaintiffs’ equitable claims were barred by relevant

statute of limitations, because court failed to make necessary factual

determinations as to whether plaintiffs had established laches).

6
“The doctrine of laches is an equitable bar to the prosecution of stale
claims and is ‘the practical application of the maxim[:] those who sleep on
their rights must awaken to the consequence that they have disappeared.’”
Fulton v. Fulton, ___ A.3d ___, 2014 PA Super 270 *2 (filed Dec. 5,
2014).

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“The question of whether laches applies is a question of law; thus, we

are not bound by the trial court’s decision on the issue.” Fulton, supra at

*2.

Laches bars relief when the complaining party is guilty of
want of due diligence in failing to promptly institute the
action to the prejudice of another. Thus, in order to
prevail on an assertion of laches, respondents must
establish: a) a delay arising from petitioner’s failure to
exercise due diligence; and, b) prejudice to the
respondents resulting from the delay.

Id. at *3 (quoting In re Estate of Scharlach, 809 A.2d 376, 382-83

(Pa.Super. 2002)). “The question of laches itself, however, is factual…and is

determined by examining the circumstances of each case.” Fulton, supra

at *2. Laches arises when a party’s position or rights “are so prejudiced by

length of time and inexcusable delay, plus attendant facts and

circumstances, that it would be an injustice to permit presently the assertion

of a claim against him.” Nilon Bros. Enterprises v. Lucente, 461 A.2d

1312, 1314 (Pa.Super. 1983).

Unlike the application of the statute of limitations, exercise
of the doctrine of laches does not depend on a mechanical
passage of time. Indeed, the doctrine of laches may bar a
suit in equity where a comparable suit at law would not be
barred by an analogous statute of limitations. Moreover,

[t]he party asserting laches as a defense must
present evidence demonstrating prejudice from the
lapse of time. Such evidence may include
establishing that a witness has died or become
unavailable, that substantiating records were lost or
destroyed, or that the defendant has changed his
position in anticipation that the opposing party has
waived his claims.

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Fulton, supra at *3 (internal citations omitted). “In the absence of

prejudice to the one asserting laches, the doctrine will not be applied.”

Brodt v. Brown, 404 Pa. 391, 394, 172 A.2d 152, 154 (1961). In other

words, “prejudice to the defendant must be shown as a prerequisite to the

application of laches.” Miller v. Hawkins, 416 Pa. 180, 190, 205 A.2d 429,

434 (1964) (citing id.).

Importantly, a single co-executor or co-administrator generally has

authority to act unilaterally on behalf of an estate only if the act falls within

the ordinary course of administering the estate. See Fesmyer v. Shannon,

143 Pa. 201, 208, 22 A. 898, 899 (1891) (holding single co-executor’s

release of mortgage debt paid to estate was valid and binding on estate

because “acts of any [co-executor] in respect to the administration of the

effects [of the estate] are deemed to be the acts of all; as where one

releases a debt or settles an account of a person with the deceased, or

surrenders a term, or sells the goods and chattels of the estate, his act binds

the others”; characterizing conversion of decedent’s personal property into

cash as act “in due course of administration” of estate); Holmes v.

Lankenau Hosp., 627 A.2d 763, 768 (Pa.Super. 1993), appeal denied, 538

Pa. 671, 649 A.2d 673 (1993) (holding estate was bound by single co-

administrator’s execution of agreement releasing doctors and hospital from

liability for accident that killed decedent, in exchange for cash settlement).

By contrast, in cases where a co-executor’s individual act fell outside

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the ordinary administration of the estate, our courts have held the act did

not bind the estate. See Hall v. Boyd, 6 Pa. 267, 270 (1847) (holding

estate was not bound by single co-executor’s confession of judgment for

claims regarding decedent’ debts, even though “acts done by one [co-

executor] which relate to the testator’s goods, such as sale, delivery,

possession…are considered as equivalent to the acts of all, as they possess a

joint authority”); Benezet v. Hess, 63 Pa.Super. 408, 411 (1915) (holding

unanimity among co-executors was required to exercise power under will to

exchange decedent’s real estate for other real estate because co-executors

“were not merely executors engaged in the duty of winding up the estate

and distributing it to those entitled to it under the will, but were engaged in

duties which ordinarily do not come within the scope of executors”).

Courts in other jurisdictions have likewise held that acts outside the

normal course of administering the estate, including the commencement of

litigation, require the consent of all executors or administrators. See, e.g.,

Stone v. Jones, 530 So.2d 232, 235 (Ala. 1988) (stating: “[I]n cases

involving the use of discretion in decisionmaking not within the regular

course of administering the deceased’s estate, co-executors must act

unanimously in reaching those decisions. We further hold that an executor’s

filing of a lawsuit is discretionary, not ministerial, in nature”); May v.

duPont, 216 A.2d 870, 873 (Del. 1966) (stating: “An action of executors is

either in the regular course of the administration of an estate or it is not. If

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in the regular course of administration, the act of one executor binds all; if

not in the regular course, unanimous action by all executors is required”);

Highland v. Empire Nat. Bank of Clarksburg, 172 S.E. 544, 547 (W.Va.

1933) (explaining that power of single coexecutor to bind all in affairs of

estate “is confined to functions arising in the ordinary course of

administration”); In re Leopold’s Estate, 181 N.E. 570, 571 (N.Y. 1932)

(stating: “[A] single administrator can without the co-operation of his

coadministrator, act for the estate only when performing his ministerial

duties”); French v. Peters, 59 N.E. 449, 450 (Mass. 1901) (stating: “The

doctrine of the common law is that a suit in favor of the estate of a person

deceased must be brought in the name of all living executors or

administrators…”). The Probate, Estates and Fiduciaries (“PEF”) Code

provides in relevant part as follows:

§ 3328. Disagreement of personal representatives

(a) Decision of majority.—If a dispute shall arise among
personal representatives, the decision of the majority shall
control unless otherwise provided by the governing
instrument, if any. …

(b) When no majority.—When a dispute shall arise
among personal representatives as to the exercise or
nonexercise of any of their powers and there shall be no
agreement of a majority of them, unless otherwise
provided by the governing instrument, the court, upon
petition filed by any of the personal representatives or by
any party in interest, aided if necessary by the report of a
master, in its discretion, may direct the exercise or
nonexercise of the power as the court shall deem for the
best interest of the estate.

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20 Pa.C.S.A. § 3328.

Instantly, in early 2009, Appellant Mr. Fein exercised his POA to

transfer Decedent’s real estate and various security holdings into joint

ownership of Decedent and Appellant Ms. Fein. Appellant Mr. Fein then

transferred the securities into an account held jointly by Appellants only.

Upon Decedent’s death on March 18, 2009, his will named Appellant Ms. Fein

and Joshua Taylor as co-executors. On April 28, 2009, Mr. Taylor filed a

petition to be appointed sole executor, based on his belief that Appellant Mr.

Fein as POA had unlawfully transferred Decedent’s assets to Appellant Ms.

Fein. In the petition, Mr. Taylor alleged Appellant Ms. Fein “has given no

indication that she will return the real estate or the brokerage account

proceeds to…Decedent’s estate and has a conflict with [Mr. Taylor’s] request

to open an estate for litigation purposes to recover…Decedent’s assets.”

(See Mr. Taylor’s Petition attached as Exhibit C to Petition for Citation Sur

Appeal of the Register’s Order Declaring Leonard J. Moskowitz a Resident of

the State of New Jersey, which was filed 9/4/09.) In response to Mr.

Taylor’s petition, Appellant Ms. Fein argued Decedent’s will should be

admitted to probate in New Jersey. These disputes delayed probate of the

will in Delaware County until late 2011, when Appellant Ms. Fein renounced

her right to administer Decedent’s estate in favor of a court-appointed

administrator.7 The court appointed Stephen Carroll as administrator

7
Mr. Taylor also renounced his right to act as co-executor.

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d.b.n.c.t.a. of the Estate on November 10, 2011. Mr. Carroll filed a petition

on February 15, 2012, to compel Appellant Mr. Fein to file an accounting of

his actions as POA for Decedent.

Assuming without deciding that the two-year statute of limitations

applies to the Estate’s claims arising from Appellant Mr. Fein’s transactions

under POA, and the limitations period began to run when Appellant Mr. Fein

performed the transactions in early 2009, Appellant Ms. Fein’s position as

one of two named executors of the Estate prevented the Estate from

bringing any action within a two-year period.8 Appellant Ms. Fein had a

conflict with co-executor Joshua Taylor in relation to bringing an action on

behalf of the Estate to recover the assets which Appellant Mr. Fein, as

Decedent’s agent, allegedly transferred to Appellant Ms. Fein. Instituting

litigation in this matter was not a ministerial act that would fall within the

regular course of administering the estate. See Hall, supra; Benezet,

supra; Stone, supra. Therefore, Mr. Taylor could not have taken action to

recover the assets on behalf of the Estate, absent Appellant Ms. Fein’s

agreement. See id.

8
The Estate also argues Appellants waived their statute of limitations
defense for failure to raise it in response to the Estate’s objections to
Appellant Mr. Fein’s accounting, filed on March 18, 2013. Appellant Mr. Fein,
however, raised the statute of limitations in his answer to the Estate’s
petition to compel the filing of an accounting, in his accounting and petition
for adjudication, and in his response to the Estate’s partial summary
judgment motion. In light of the convoluted procedural history of this case,
we decline to apply waiver to Appellants’ statute of limitations defense.

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Instead, one month after Decedent’s death, Mr. Taylor filed a petition

to be appointed sole executor so he could bring an action on behalf of the

Estate to recover Decedent’s assets. Appellant Ms. Fein then claimed

Decedent’s will should be probated in New Jersey. Litigation on the issue of

Decedent’s domicile continued until April 2011, and delayed both the

resolution of Mr. Taylor’s petition to be appointed sole executor and the

probate of Decedent’s will. In November 2011, Appellant Ms. Fein and Mr.

Taylor agreed to renounce their rights to administer the estate. Thus, the

Estate could not have brought legal action against Appellants before

November 10, 2011, when the court appointed Mr. Carroll as administrator

of the Estate. Just three months later, on February 15, 2012, Mr. Carroll

filed a petition on behalf of the Estate to compel Appellant Mr. Fein to file an

accounting. Excluding the time during which Appellant Ms. Fein’s legal

positions prevented the Estate from bringing any claims, the present action

falls well within any statute of limitations that might apply.

Significantly, the Estate’s action in the Orphans’ court to recover the

transferred assets was equitable in nature. See Fulton, supra (defining as

action in equity, estate’s action to set aside conveyances made by

decedent’s agent under POA, and to impose constructive trust). Thus, a

statute of limitations does not control whether the Estate’s claims are time-

barred. See United Nat. Ins. Co., supra; Fulton, supra; Lipschutz,

supra. Nevertheless, Appellants failed to raise the defense of laches in

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response to the Estate’s pleadings. Therefore, Appellants waived any

defense or argument based on laches. See In re Estate of Scharlach,

supra (holding appellee waived laches for failure to raise it in any pleading

before Orphans’ court).

Moreover, most of the time between Appellant Mr. Fein’s transfers as

POA and the start of the present action passed as a result of Appellant Ms.

Fein’s domicile contest and her inherent conflict of interest. As co-executors

of the Estate, Mr. Taylor needed Appellant Ms. Fein’s consent to file a claim

for return of property to Decedent’s estate, where Mr. Taylor could not

institute the litigation on his own. Because Appellant Ms. Fein had a

conflicting interest in the subject property and would not agree to return the

property to the Estate, Mr. Taylor sought his appointment as sole executor

immediately after Decedent died, in a petition which put Appellants on notice

of the Estate’s interests and allegations. That petition stalled while Appellant

Ms. Fein contested Decedent’s domicile at time of his death, which was not

resolved until April 2011. Appellant Ms. Fein further refused to renounce her

right to administer the estate until November 2011. After the appointment

of Stephen Carroll as administrator d.b.n.c.t.a. of the Estate on November

10, 2011, the Estate promptly commenced the instant action on February

15, 2012. Therefore, Appellants’ own conduct was the primary cause of the

delay in the proceedings. Appellants cannot now claim they were unduly

prejudiced, when the Estate brought its claims against Appellants as soon as

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it could. See Nilon Bros. Enterprises, supra. Based on the foregoing, we

hold the Estate’s action at issue was equitable in nature; therefore, the

statute of limitations is only a frame of reference to evaluate any delay in

commencing the action. See Lipschutz, supra; Lake, supra. We further

hold the facts and circumstances of this case would not support a defense of

laches as a matter of law, even if Appellants had properly preserved it.

Thus, we agree with the trial court’s decision to allow the Estate’s claims

against Appellants to proceed and affirm that decision, albeit on other

grounds. See Wilson v. Transport Ins. Co., 889 A.2d 563, 577 n.4

(Pa.Super. 2005) (citing Boyer v. Walker, 714 A.2d 458 (Pa.Super. 1998))

(stating appellate court can affirm trial court’s decision on “any valid basis,

as long as the court came to the correct result, which in this case was to

deny Appellant relief”).

In their third, fourth, and fifth issues combined, Appellants argue

Appellant Mr. Fein’s action of retitling Decedent’s assets into joint ownership

of Decedent and Appellant Ms. Fein did not constitute an inter vivos gift

because prevailing law makes clear Decedent retained ownership of the

account jointly held with Appellant Ms. Fein. Appellants claim that even if

the transactions could be classified as “gifts,” the transfers were a valid

exercise of Appellant Mr. Fein’s New Jersey POA, where at the time the POA

was executed, New Jersey law allowed agents to transfer gratuitously a

principal’s property even without specific authorization in the POA document.

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Appellants contend Appellant Mr. Fein’s actions as POA were also consistent

with Pennsylvania law, where Pennsylvania law allows a POA agent to make

gifts in this context if, as examples, the POA (1) was executed in

Pennsylvania before the effective date of the 1999 amendments to the POA

Law; (2) was executed in Pennsylvania after the 1999 Amendments and

expressly provided authority for unlimited gifts; or (3) was executed in

Pennsylvania after the 1999 Amendments and expressly provided authority

for limited gifts.

Appellants also declare, without any explanation, that the exception in

Section 5611 of the POA statute simply does not apply to gifts under a POA.

Appellants aver a New Jersey POA that conforms to New Jersey law with

respect to the authority to make a gift is valid in this Commonwealth.

Appellants insist the plain meaning of Section 5611 indicates that Appellant

Mr. Fein’s retitling transactions should be evaluated under New Jersey law

governing the form and language requirements of POAs to make gifts.

Appellants assert the retitling transactions were valid under New Jersey law

as it existed when the POA in this case was executed in 2000.9

Appellants further renew their statute of limitations defense to the

proceedings and submit the Orphans’ court erred in rejecting it. Appellants

9
As of the effective date of August 1, 2003, New Jersey changed its POA law
and instituted a prohibition on gratuitous transfers of property of the
principal except to the extent expressly authorized in the POA. Appellants
submit Appellant Mr. Fein’s POA was “grandfathered,” as it was executed
before the amendment. Appellants aver the amendment to New Jersey POA
law does not apply to this POA or the transfers at issue.

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complain the relevant statute of limitations “clearly and obviously bars” the

Estate’s “late” claims for property. For all these reasons, Appellants

conclude the court erred in refusing to declare as time-barred the Estate’s

action for specific recovery of property. We disagree.

Our standard of review of a grant of summary judgment requires us to

determine whether the trial court abused its discretion or committed an

error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344 (Pa.Super.

2006). Our scope of review is plenary. Pappas v. Asbel, 564 Pa. 407,

418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct.

2618, 153 L.Ed.2d 802 (2002). In reviewing a court’s grant of summary

judgment:

[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material
fact and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be
entered. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

“[P]owers of attorney are strictly construed and the grant of special

powers is not to be enlarged unless this is clearly intended.” In re Estate

of Cambest, 756 A.2d 45, 52 (Pa.Super. 2000). The relevant Pennsylvania

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POA law is codified at 20 Pa.C.S.A. §§ 5601-5611 and begins with general

provisions. 20 Pa.C.S.A. §§ 5601-5601.1. Section 5601.2 deals with an

agent’s authority under a POA to make gifts and provides in relevant part:

§ 5601.2. Special rules for gifts

(a) General rule.—A principal may empower an agent
to make a gift in a power of attorney only as provided in
this section.

(b) Limited gifts.—A principal may authorize an agent
to make a limited gift as defined under section 5603(a)(2)
(relating to implementation of power of attorney) by the
inclusion of:

(1) the language quoted in section 5602(a)(1)
(relating to form of power of attorney); or

(2) other language showing a similar intent on the
part of the principal to empower the agent to make a
limited gift.

(c) Unlimited gifts.—A principal may authorize an
agent to make any other gift only by specifically providing
for and defining the agent’s authority in the power of
attorney.

* * *

20 Pa.C.S.A. § 5601.2(a)-(c). Section 5602 of the statute, inter alia,

enumerates various powers a principal may confer on an agent, “by inclusion

of the language quoted in any of the following paragraphs or by inclusion of

other language showing a similar intent on the part of the principal.” 20

Pa.C.S.A. § 5602. “The Powers of Attorney statute does not confine the way

powers given in a power of attorney may be defined. … [G]eneral language

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may be used to show the ‘similar intent on the part of the principal,’ if such

general language, according to its common usage, encompasses such power

or powers.” In re Weidner, 595 Pa. 263, 273, 938 A.2d 354, 360 (2007)

(holding attorney-in-fact lawfully exercised POA to change beneficiaries of

decedent’s life insurance policy, where POA was executed before 1999

amendments to statute and incorporated by reference “powers enumerated

in statute,” which included authority to engage in insurance transactions,

and POA specifically stated that grant of specific powers was not intended to

limit general powers conferred).10

The applicable version of Section 5602 stated a principal may

empower an agent to make limited gifts by inclusion of the language, “To

make limited gifts.” 20 Pa.C.S.A. § 5602(a)(1). The class of permissible

donees for a limited gift consists solely of the “principal’s spouse, issue and a

spouse of the principal’s issue.” 20 Pa.C.S.A. § 5603(a)(2)(i). 11 An agent

cannot make any gift under power of attorney unless the power of attorney

specifically states the agent is authorized to do so. Metcalf v. Pesock, 885

A.2d 539 (Pa.Super. 2005) (holding broad language in power of attorney

authorizing agent to purchase, sell, or “otherwise dispose” of principal’s real

property interests was insufficient to empower agent to make gift of

10
Under the 1999 amendments to the POA statute, the principal could no
longer authorize the agent to make unlimited gifts simply by incorporating
the statutory power by reference.
11
This text is also derived from the version of the statute in effect at the
time Appellant Mr. Fein exercised his POA to transfer Decedent’s assets.

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J-A28015-14

property). When Appellant Mr. Fein performed the transfers in question,

Pennsylvania POA law regarding out-of-state powers of attorney provided as

follows:

§ 5611. Validity

A power of attorney executed in another state or
jurisdiction and in conformity with the laws of that state or
jurisdiction shall be considered valid in this
Commonwealth, except to the extent that the power
of attorney executed in another state or jurisdiction
would allow an agent to make a decision
inconsistent with the laws of this Commonwealth.

20 Pa.C.S.A. § 5611 (emphasis added).12

A valid inter vivos gift requires donative intent, delivery, and

acceptance. In re Sipe’s Estate, 492 Pa. 125, 422 A.2d 826 (1980);

Estate of Korn, 480 A.2d 1233 (Pa.Super. 1984). “[T]here must be

evidence of an intention to make a [g]ift accompanied by [d]elivery, actual

or constructive, of a nature sufficient not only to divest the donor of all

dominion over the property, but to invest the donee with complete control.”

12
On July 2, 2014, the legislature passed Act No. 2014-95, which rewrote
Section 5611. The amended version of Section 5611 eliminated the
language: “except to the extent that the power of attorney executed in
another state or jurisdiction would allow an agent to make a decision
inconsistent with the laws of this Commonwealth.” Nevertheless, Section 9
of Act No. 2014-95 states: “Except as provided by this section, the
provisions of this act apply to powers of attorney created before, on or after
the respective effective dates of such provisions, but do not apply to the
acts or omissions of agents, or third parties presented with
instructions by agents, that occur before such respective effective
dates.” 2014 Pa. Legis. Serv. Act 2014-95 (H.B. 1429) (emphasis added).
Therefore, the prior or superseded version of Section 5611 applies to
Appellant Mr. Fein’s transfers, which occurred in 2009, long before the
effective date of the recent amendments.

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J-A28015-14

In re Tippins’ Estate, 487 Pa. 107, 114, 408 A.2d 1377, 1381 (1979). “All

of the circumstances must be considered in determining whether a gift was

made….” Sipe’s Estate, supra at 129, 422 A.2d at 827. Donative intent

can be inferred from the relationship between the donor and donee. Estate

of Korn, supra at 1237.

In the present case, Appellant Mr. Fein’s POA gave him, “[i]n

connection with any property or any other interest whatsoever” held by

Decedent, “full power to control or dispose of [Decedent’s] property, to

execute contracts or other obligations which shall be binding upon

[Decedent], and to take any action, in [Decedent’s] name and on [his]

behalf, which [Decedent] could take in [his] own name and on [his] own

behalf.” (See Exhibit A attached to Administrator’s Motion for Partial

Summary Judgment, filed 7/30/12; R.R. at 35a.) In early 2009, Appellant

Mr. Fein exercised the POA to transfer securities held in Decedent’s sole

name into a joint account titled in the names of Decedent and Appellant Ms.

Fein. Less than one month before Decedent’s death, Appellant Mr. Fein then

transferred these securities into a joint account held by Appellants only.

These combined transactions divested Decedent of all control over the

securities during Decedent’s lifetime. Appellant Mr. Fein thus exercised his

POA to effect a complete transfer of the securities from Decedent to

Appellants. Therefore, on behalf of Decedent, Appellant Mr. Fein gave

himself and Appellant Ms. Fein an inter vivos gift. See Sipe’s Estate,

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J-A28015-14

supra; Tippins’ Estate, supra. Likewise, when Appellant Mr. Fein used the

POA to retitle the Philadelphia property from Decedent’s name only to

Decedent and Appellant Ms. Fein as tenants by the entireties, Appellant Mr.

Fein purportedly gave Appellant Ms. Fein an interest in the property. To the

extent this title was lawful, given that Decedent and Appellant Ms. Fein were

not married to each other, the act also constituted an inter vivos gift. See

id. See also Estate of Reigle, 652 A.2d 853, 855 (Pa.Super. 1995),

appeal denied, 542 Pa. 672, 668 A.2d 1135 (1995) (holding that where deed

purports to create tenancy by entireties between two people who are not

husband and wife, joint tenancy with right of survivorship is created).13

These gifts must be deemed “unlimited” because neither Appellant fell

within the class of permissible donees for “limited” gifts under the statute.

See 20 Pa.C.S.A. §§ 5601.2, 5603(a)(2). The POA, however, did not

specifically provide Appellant Mr. Fein with the power to make unlimited

gifts. Thus, Appellant Mr. Fein had no power to make these transfers as

gifts on Decedent’s behalf. See 20 Pa.C.S.A. § 5601.2; Metcalf, supra.

The broad discretion otherwise afforded Appellant Mr. Fein in the POA to

control and dispose of Decedent’s property was insufficient to endow

13
Regarding these transfers of assets from Decedent’s sole ownership to
joint ownership with Appellant Ms. Fein, we are not required to accept as
true the notion that the transfers were “done for good and adequate
consideration.” Appellants fail to detail or explain that consideration. As
presented, the statement is a conclusion of law, not a well-pled fact.
Moreover, Decedent and Appellant Ms. Fein were not spouses,
notwithstanding Appellants’ continued reference to Appellant Ms. Fein as
Decedent’s “wife.”

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J-A28015-14

Appellant Mr. Fein with the power to make unlimited gifts, absent an express

and specific grant of this power. See id. Accordingly, Appellant Mr. Fein

acted outside the authority conferred in the POA when he performed the

transfers in question. Regardless of whether New Jersey law allowed Mr.

Fein to make gifts under the POA, his transactions were inconsistent with

Pennsylvania law, rendering them void under the version of the statute in

place at the time of the transfers.14 See 20 Pa.C.S.A. § 5611.

In their sixth issue, Appellants argue Stephen Carroll is not a neutral

administrator because he engaged the same attorney as former co-executor

Joshua Taylor. Appellants assert that in Appellant Ms. Fein’s motion for

14
In any event, the New Jersey Revised Durable Power of Attorney Act now
provides that a “power of attorney shall not be construed to authorize the
attorney-in-fact to gratuitously transfer property of the principal to the
attorney-in-fact or to others except to the extent that the power of attorney
expressly and specifically so authorizes. An authorization in a power of
attorney to generally perform all acts which the principal could perform if
personally present and capable of acting, or words of like effect or meaning,
is not an express or specific authorization to make gifts.” N.J.S.A. § 46:2B-
8.13a. Although the statute became effective after Decedent executed the
POA, this section codified the preexisting common law principle: “No power
[of attorney], unless it contains very clear language on the subject, should
be construed as having invested the attorney with authority to appropriate
to himself his principal’s assets or to give them away.” Manna v. Pirozzi,
130 A.2d 55, 57 (N.J.Super. A.D. 1957). Additionally, New Jersey law
requires substantially the same elements as Pennsylvania law to establish an
inter vivos gift: “(1) a donative intent on the part of the donor; (2) an actual
or symbolic delivery of the subject matter of the gift; and (3) an absolute
and irrevocable surrender by the donor of ownership and dominion over the
subject matter of the gift, at least to the extent practicable or possible,
considering the nature of the thing to be given.” Jennings v. Cutler, 672
A.2d 1215, 1219 (N.J.Super. A.D. 1996). Under New Jersey law, Appellant
Mr. Fein’s transfers were also “gifts.” Even if the gifts were permissible
under New Jersey POA law at the time of the transfers, the gifts were
inconsistent with applicable Pennsylvania law and therefore impermissible.

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J-A28015-14

leave to obtain discovery in aid of her petition to revoke letters of

administration issued to Mr. Carroll, Appellant Ms. Fein stated why this

discovery was necessary as required by the local Orphans’ court rules.

Appellants contend the court should have at least requested Appellant Ms.

Fein to explain further the necessity of discovery. Appellants insist fairness

required the court to grant Appellant Ms. Fein’s discovery request because

the court had previously granted three petitions for discovery to the Estate.

Appellants conclude the court abused its discretion when it denied the

discovery request. We decline to address this issue.

As a general rule:

The appealability of an order directly implicates the
jurisdiction of the court asked to review the order. Estate
of Considine v. Wachovia Bank, 966 A.2d 1148, 1151
(Pa.Super. 2009). “[T]his Court has the power to inquire
at any time, sua sponte, whether an order is appealable.”
Id. Pennsylvania law makes clear:

[A]n appeal may be taken from: (1) a final order or
an order certified as a final order (Pa.R.A.P. 341);
(2) an interlocutory order as of right (Pa.R.A.P. 311);
(3) an interlocutory order by permission (Pa.R.A.P.
312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a
collateral order (Pa.R.A.P. 313).

Stahl v. Redcay, 897 A.2d 478, 485 (Pa.Super. 2006),
appeal denied, 591 Pa. 704, 918 A.2d 747 (2007).

In re Estate of Cella, 12 A.3d 374, 377-78 (Pa.Super. 2010) (some

internal citations omitted). Pa.R.A.P. 341 defines “final orders” and states,

in pertinent part:

Rule 341. Final Orders; Generally

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J-A28015-14

(a) General rule. Except as prescribed in subdivisions
(d), and (e) of this rule, an appeal may be taken as of
right from any final order of an administrative agency or
lower court.

(b) Definition of final order. A final order is any order
that:

(1) disposes of all claims and of all parties; or

(2) is expressly defined as a final order by statute; or

(3) is entered as a final order pursuant to subdivision
(c) of this rule.

(c) Determination of finality. When more than one
claim for relief is presented in an action, whether as a
claim, counterclaim, cross-claim, or third-party claim or
when multiple parties are involved, the trial court or other
governmental unit may enter a final order as to one or
more but fewer than all of the claims and parties only upon
an express determination that an immediate appeal would
facilitate resolution of the entire case. Such an order
becomes appealable when entered. In the absence of such
a determination and entry of a final order, any order or
other form of decision that adjudicates fewer than all the
claims and parties shall not constitute a final order. In
addition, the following conditions shall apply:

(1) The trial court…is required to act on an application
for a determination of finality under subdivision (c)
within 30 days of entry of the order. During the time
an application for a determination of finality is pending
the action is stayed.

* * *

Pa.R.A.P. 341.

Under Pa.R.A.P. 313, an “appeal may be taken as of right from a

collateral order of an administrative agency or lower court.” Pa.R.A.P.

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J-A28015-14

313(a). A “collateral order” is “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(b). “All three elements must be satisfied to permit review of an

interlocutory appeal under the collateral order rule.” Jacksonian v.

Temple University Health System Foundation, 862 A.2d 1275, 1279

(Pa.Super. 2004). “[I]n general, discovery orders are not final, and are

therefore unappealable.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056

(Pa.Super. 2008). “However, discovery orders involving privileged material

are nevertheless appealable as collateral to the principal action pursuant to

Pa.R.A.P. 313 (‘Collateral Orders’).” Id.

Additionally, Pennsylvania Rule of Appellate Procedure 342 provides

that certain Orphans’ court orders are appealable as of right:

Rule 342. Appealable Orphans’ Court Orders.

(a) General rule. An appeal may be taken as of right
from the following orders of the Orphans’ Court
Division:

(1) An order confirming an account, or authorizing or
directing a distribution from an estate or trust;

(2) An order determining the validity of a will or trust;

(3) An order interpreting a will or a document that forms
the basis of a claim against an estate or trust;

(4) An order interpreting, modifying, reforming or
terminating a trust;

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J-A28015-14

(5) An order determining the status of fiduciaries,
beneficiaries, or creditors in an estate, trust, or
guardianship;

(6) An order determining an interest in real or personal
property;

(7) An order issued after an inheritance tax appeal has
been taken to the Orphans’ Court pursuant to either
72 Pa.C.S. § 9186(a)(3) or 72 Pa.C.S. § 9188, or
after the Orphans’ Court has made a determination
of the issue protested after the record has been
removed from the Department of Revenue pursuant
to 72 Pa.C.S. § 9188(a); or

(8) An order otherwise appealable as provided by
Chapter 3 of these rules.

Pa.R.A.P. 342(a).

Instantly, the Orphans’ court’s October 31, 2013 decree denying

Appellant Ms. Fein’s motion for leave to take discovery did not dispose of all

claims and parties or satisfy any other conditions necessary to be deemed a

“final order.” See Pa.R.A.P. 341. Moreover, the discovery decree did not

give rise to an interlocutory appeal as of right under Rule 311. See

Pa.R.A.P. 311. Likewise, the decree is not appealable as a “collateral order”

because it did not compel the production of any privileged information, and

Appellants make no argument that 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.” See

313(b); T.M., supra. Additionally, unlike the decree granting the Estate

partial summary judgment, the decree denying Appellant Ms. Fein’s

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discovery request does not fall within any of the categories of Orphans’ court

orders appealable as of right under Rule 342. See Pa.R.A.P. 342.

Therefore, we lack jurisdiction to entertain Appellants’ appeal of the court’s

order denying her motion for leave to take discovery in aid of her petition to

revoke letters of administration issued to Stephen Carroll, Esquire. See

Estate of Cella, supra.

Based on the foregoing, we hold the Orphans’ court properly granted

the Estate partial summary judgment and ordered Appellants to

transfer/return certain assets to the Estate. We quash that portion of the

appeal challenging the court’s decree that denied Appellant Ms. Fein’s

discovery motion.

Decree granting partial summary judgment affirmed; appeal from

decree denying discovery quashed. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/4/2015

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