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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ERNEST J. KOEBERLEIN, TRUST : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: ERNEST J. KOEBERLEIN : No. 652 WDA 2015
Appeal from the Order Entered January 15, 2015,
in the Court of Common Pleas of Allegheny County,
Orphans’ Court at No(s): No. 5314 of 2011
BEFORE: BOWES, OLSON, and STRASSBURGER, JJ.*
MEMORANDUM BY: STRASSBURGER, J.: FILED FEBRUARY 9, 2016
Ernest J. Koeberlein (Appellant) appeals pro se from the order entered
January 15, 2015, which granted a motion for nonsuit against him and in
favor of the Ernest J. Koberlein Trust (the Trust). We quash this appeal.
The relevant factual and procedural history can be summarized as
follows. Appellant is the father of both Ernest J. Koeberlein, III (Ernest) and
Dana D. Koeberlein (Dana) (collectively, Trustees). In 2003, Appellant
created a revocable trust (the Trust), the only asset of which was a working
farm in Gibsonia, Pennsylvania. Appellant appointed Ernest and Dana as co-
trustees. Appellant and Dana resided together on the farm, while Ernest
lived in California. On April 28, 2005, Appellant executed an amendment to
the Trust which changed it from being revocable to being irrevocable.
On August 31, 2011, Appellant, through counsel, filed a petition for
the removal of Trustees. Specifically, he claimed that Dana was misusing
the farm in numerous ways. Notably, Appellant contended that when he
brought “a lady friend to the farm,” Dana caused “rancor and disagreement.”
*Retired Senior Judge assigned to the Superior Court.
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Petition, 8/31/2011, at ¶ 12(g). He claims that Dana then “charged
[Appellant] with misconduct, had him arrested and removed from the Farm
and den[ied] him the right of re-entry.” Id. at ¶ 12(h). Thus, Appellant
claimed that he was left homeless.
The orphans’ court issued a rule to show cause, and Trustees filed an
answer. In that answer, they stated that Dana was not misusing the farm in
any way, that any depletion in assets of the Trust was caused by Appellant,
and that the issues with Appellant’s “lady friend” arose when she assaulted
Appellant with a beer bottle and Dana learned that she had “an extensive
criminal record.” Answer, 10/20/2011, at ¶ 12(g). The orphans’ court
scheduled a pre-trial conference and issued an order with a discovery
schedule and hearing date.
On January 30, 2012, Appellant filed an amended petition to remove
Trustees. Once again, Trustees filed an answer, and the orphans’ court
scheduled a hearing. A hearing was held on June 12, 2012, and on that day,
the orphans’ court denied Appellant’s petition.
Nothing further happened with this case until April 2, 2014, when
Appellant pro se filed a petition for, inter alia, a rule to show cause why the
Trust should not be declared invalid. Trustees filed an answer, and the
orphans’ court scheduled a conference. After the conference, the orphans’
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court issued an order requiring Trustees to file an accounting of Trust
activity. Trustees filed a first and partial accounting pursuant to the order.
On October 8, 2014, Appellant filed objections to the accounting. The
parties appeared before the orphans’ court on October 20, 2014. After the
parties were unable to reach a settlement, the orphans’ court ordered the
parties to file pre-trial statements and scheduled a hearing.
Trustees filed a pre-trial statement in accordance with the orphans’
court order. Appellant also filed a pre-trial statement, but did so just two
days before the hearing. Appellant’s pre-trial statement did not set forth
which witnesses he wished to call at the hearing or what evidence he
intended to present.
The orphans’ court held a hearing on the objections to the accounting
on January 14, 2015. At that hearing, there was a dispute about what
appeared in Appellant’s pre-trial statement and what he wished to litigate at
the hearing. Eventually, Appellant was permitted to call Dana to testify.
Appellant questioned Dana about the status of the Trust between 2003 and
2011. Dana testified that prior to 2011, Appellant “was in control of the
accounting, the taxes” through a power of attorney. N.T., 1/14/2015, at 40,
45. She testified that after 2011, Trustees “obtained all the information.”
Id. Since 2011, all taxes have been paid. Appellant did not call other
witnesses and declined the opportunity to testify. At that point, Trustees
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moved for a nonsuit. The orphans’ court entered an order, which provided
the following: “[A]fter review of the objections filed to the First and Partial
Accounting, hearing on the objections in open court and upon motion by
[Trustees] for nonsuit, [the orphans’ court] finds that [Appellant] has not
presented sufficient evidence to sustain any of his objections.” Order,
1/15/2015. Thus, the orphans’ court granted a nonsuit.
Appellant timely filed a notice of appeal from that order, and complied
with the orphans’ court’s directive to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925.
Before we reach the issues presented by Appellant, we consider
whether this Court has jurisdiction over the order from which Appellant has
appealed. See Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)
(“[S]ince we lack jurisdiction over an unappealable order[,] it is incumbent
on us to determine, sua sponte when necessary, whether the appeal is taken
from an appealable order.”). Instantly, Appellant has filed a notice of appeal
from an order granting a nonsuit.
Pennsylvania Rule of Civil Procedure 224 authorizes a trial court
to enter a nonsuit for the plaintiff’s failure to plead and prove a
prima facie case. The order entering a nonsuit is not a final
appealable order triggering the exclusive appellate jurisdiction of
the Superior Court…. The right to appeal does not exist until a
motion to have a nonsuit taken off is first filed with and denied
by the trial court.
Conte v. Barnett's Bootery, Inc., 467 A.2d 391, 392 (Pa. Super. 1983).
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Furthermore, “[t]he orphans’ court division may enter a nonsuit under
the same circumstances, subject to review in the same manner and with the
same effect as in an action at law.” 20 Pa.C.S. § 779(a). “[A] nonsuit may
be entered against a party where the disposition of the case depends on an
issue on which that party has the burden of proof and has failed to satisfy
that burden.” Id. at (c).
Instantly, the hearing held on January 14, 2015 was to permit
Appellant to produce evidence as to why the orphans’ court should sustain
Appellant’s objections to the accounting offered by Trustees. Because
Appellant did not “present sufficient evidence to sustain his objections,” the
orphans’ court entered a nonsuit. Order, 1/15/2015. As such, Appellant was
required under the rules to file a motion to remove the nonsuit before filing
a notice of appeal to this Court. Appellant did not do so, and therefore,
there is no final order from which an appeal can be taken.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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