J-S39042-18
2018 PA Super 272
IN RE: THE ESTATE OF INGRID : IN THE SUPERIOR COURT OF
HUBER, DECEASED : PENNSYLVANIA
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APPEAL OF: MICHAEL BERGER, :
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: No. 1303 MDA 2017
Appeal from the Decree July 17, 2017
in the Court of Common Pleas of Bradford County,
Orphans' Court at No(s): 5 Orphans 2017
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
OPINION BY MUSMANNO, J.: FILED OCTOBER 05, 2018
Michael Berger (“Berger”) appeals from the Decree denying his Motion
to Issue Citation for Appointment of Personal Representative (“Motion for
Appointment”) for the Estate of Ingrid Huber, deceased (“Estate”), granting
the Petition for Grant of Letters of Administration C.T.A. (“Petition for Letters”)
filed by Kathleen Lewis Yarbrough (“Kathleen”), and directing the Register of
Wills to issue Letters of Administration C.T.A. for the Estate to Kathleen. We
vacate the Decree.
Ingrid Huber (“the Deceased”) died testate on November 25, 2016,
without issue. The Deceased was survived by her sister, Christiane Yarbrough
(“Yarbrough”), as well as Berger and Andrew Linton (“Linton”), her nephews
(Yarbrough’s sons). The Deceased’s Last Will and Testament (the “Will”),
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dated January 7, 2003, named Yarbrough as her sole beneficiary.1 The Will
named Berger as the alternative residual beneficiary, notwithstanding a
$5,000 specific bequest to Linton. Additionally, the Will designated Yarbrough
as the Executrix of the Estate.
On April 13, 2017, Berger filed a Motion for Appointment, asserting that
Yarbrough was incapacitated and incapable of performing her duties as
Executrix.2 Berger requested that the Orphans’ Court issue a Citation to
Yarbrough and Linton to show cause why the court should not appoint Berger,
or another competent party, to serve as the personal representative of the
Estate. The Orphans’ Court subsequently issued Citations to Yarbrough and
Linton, directing them to show cause why Berger’s Petition should not be
granted.
On May 19, 2017, Kathleen, as attorney-in-fact for Yarbrough, filed an
Answer and New Matter, as well as a Petition for Letters, asserting that
Yarbrough had executed a Power of Attorney in Kathleen’s favor before her
incapacitation. Kathleen stated that Yarbrough, through Kathleen as her
attorney-in-fact, refused to renounce in favor of Berger “under any
circumstances.” Kathleen also stated that she had obtained a renunciation in
her favor from Linton. Additionally, Kathleen argued that Berger had
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1In his Motion for Appointment, Berger states that the Will was filed in the
Office of the Register of Wills of Bradford County on December 16, 2016.
However, there is nothing in the certified record to confirm when the Will was
admitted to probate.
2 Yarbrough had been diagnosed with dementia.
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subsequently procured Yarbrough’s signature on a Power of Attorney,
appointing him as her attorney-in-fact, despite her incapacity. Kathleen asked
the court to deny Berger’s Motion for Appointment, and requested that the
court direct Berger to show cause why Letters of Administration C.T.A. should
not be issued to her. On May 25, 2017, the Orphans’ Court filed a Preliminary
Decree, directing Berger to show cause why Kathleen should not be issued
Letters of Administration C.T.A. for the Estate. Berger filed an Answer on June
30, 2017.
By Decree entered on July 17, 2017, the Orphans’ Court denied Berger’s
Motion for Appointment, granted Kathleen’s Petition for Letters, and directed
the Register of Wills to issue Letters of Administration C.T.A. for the Estate to
Kathleen. Berger filed both a Motion for Reconsideration and a Notice of
Appeal on August 16, 2017.
On August 24, 2017, the Orphans’ Court entered an Order, indicating
that because Berger filed both his Motion for Reconsideration and his Notice
of Appeal on the thirtieth day after the entry of the Decree, the court did not
have jurisdiction to act on the Motion for Reconsideration. On August 25,
2017, the Orphans’ Court ordered Berger to file a concise statement of matters
complained of on appeal, pursuant to Pa.R.A.P. 1925(b), within 21 days of the
date of the Order, and instructed him that “[i]ssues not properly included in
the statement timely filed and served pursuant to this [O]rder and Rule
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1925(b) are waived.” Order, 8/25/17. Berger did not file his Concise
Statement until September 22, 2017.3, 4
On appeal, Berger raises the following question for our review:
Did the [Orphans’ C]ourt err in making findings and failing to hold
a hearing on [Berger’s] Motion for Citation for Appointment of
Personal Representative despite the existence of substantial
factual issues raised in the pleadings?
Brief for Appellant at 1.
Berger claims that the Orphans’ Court improperly entered its Decree,
without first conducting an evidentiary hearing, and in spite of the following
factual issues: (1) Yarbrough claimed that Berger is unemployed and a
convicted felon, but he has been employed for 25 years, and had been
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3Berger, through counsel, filed his Concise Statement more than 21 days after
the date of the Orphans’ Court Order instructing him to do so. See Greater
Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225
(Pa. Super. 2014) (en banc) (stating that “[w]henever a trial court orders an
appellant to file a concise statement of errors complained of on appeal
pursuant to Rule 1925(b), the appellant must comply in a timely manner” in
order to preserve issues for our review (emphasis in original; citation and
brackets omitted)). We observe that the certified record contains a copy of
the Notice, dated August 28, 2017, informing Berger that the concise
statement Order had been filed. However, there is no indication from the
docket that service was actually effectuated on that date. Because we are
unable to determine the date of service of the Order due to the lack of
recordation in the docket, we decline to find Berger’s claim waived on this
basis. See Pa.R.C.P. 236(b) (providing that “[t]he prothonotary shall note in
the docket the giving of notice” of the entry of an order).
4 On October 2, 2017, this Court issued an Order indicating that the Decree
had not been entered on the docket, and directing the Orphans’ Court to do
so. The Orphans’ Court timely responded by submitting a time-stamped copy
of the Decree, along with a copy of the docket indicating that the Decree had
been filed on July 17, 2017.
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pardoned for his crime; (2) Yarbrough had no contact with the Deceased for
several years prior to her death; (3) Yarbrough had “effectively blocked” the
Deceased’s cremation, and did not promptly come forward as the personal
representative; (4) there is pending litigation in Florida regarding Kathleen’s
Power of Attorney; and (5) Berger is named as an alternative residual
beneficiary in the Will. Brief for Appellant at 5-7. Berger also argues that, as
a residual beneficiary, he should have been appointed personal representative
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pursuant to 20 Pa.C.S.A. § 3155(b)(1).5 Brief for Appellant at 8-9. Berger
asserts that the Register of Wills should have granted him Letters of
Administration C.T.A., or the Orphans’ Court should have conducted an
evidentiary hearing to make factual findings. Id. at 9.
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5Section 3155(b) prioritizes the various classes of “persons entitled” to letters
of administration as follows:
20 Pa.C.S.A. § 3155. Persons entitled
(b) Letters of administration.-- Letters of administration shall be granted
by the register, in such form as the case shall require, to one or more of those
hereinafter mentioned and, except for good cause, in the following order:
(1) Those entitled to the residuary estate under the will.
(2) The surviving spouse.
(3) Those entitled to the intestate law as the register, in his discretion,
shall judge will best administer the estate, giving preference, however,
according to the sizes of the shares of those in this class.
(4) The principal creditors of the decedent at the time of his death.
(5) Other fit persons.
(6) If anyone of the foregoing shall renounce his right to letters of
administration, the register, in his discretion, may appoint a nominee of
the person so renouncing in preference to the persons set forth in any
succeeding paragraph.
(7) A guardianship support agency serving as guardian of an
incapacitated person who dies during the guardianship administered
pursuant to Subchapter F of Chapter 55 (relating to guardianship
support).
(8) A redevelopment authority formed pursuant to the act of May 24,
1945 (P.L. 991, No. 385), known as the Urban Redevelopment Law.
20 Pa.C.S.A. § 3155(b).
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Initially, we examine whether the Orphans’ Court had the requisite
subject matter jurisdiction to grant Kathleen’s Petition and direct the Register
of Wills to issue to her Letters of Administration C.T.A. for the Estate.
“It is well-settled that the question of subject matter jurisdiction
may be raised at any time, by any party, or by the court sua
sponte.” B.J.D. v. D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011)
(quoting Grom v. Burgoon, 448 Pa. Super. 616, 672 A.2d 823,
824-25 (1996)). Our standard of review is de novo, and our scope
of review is plenary. Id. (citing Commonwealth v. Jones, 593
Pa. 295, 929 A.2d 205, 211 (2007)). “Generally, subject matter
jurisdiction has been defined as the court’s power to hear cases of
the class to which the case at issue belongs.” Verholek v.
Verholek, 741 A.2d 792, 798 (Pa. Super. 1999) (citing
Lowenschuss v. Lowenschuss, 396 Pa. Super. 531, 579 A.2d
377, 380 n.2 (1990)).
Jurisdiction is the capacity to pronounce a judgment
of law on an issue brought before the court through
the due process of law. It is the right to adjudicate
concerning the subject matter in a given case….
Without such jurisdiction, there is no authority to give
judgment and one so entered is without force or
effect. The trial court has jurisdiction if it is competent
to hear or determine the controversies of the general
nature of the matter involved sub judice. Jurisdiction
lies if the court had power to enter upon the inquiry,
not whether it might ultimately decide that it could not
give relief in the particular case.
Aronson v. Spring Spectrum, L.P., 767 A.2d 564, 568 (Pa.
Super. 2001) (quoting Bernhard v. Bernhard, 447 Pa. Super.
118, 668 A.2d 546, 548 (1995)).
In re Estate of Ciuccarelli, 81 A.3d 953, 958 (Pa. Super. 2013).
Pursuant to the Decedents, Estates and Fiduciaries Code, jurisdiction
over decedents’ estates and their fiduciaries is vested in the Orphans’ Court
division. See 20 Pa.C.S.A. § 711. However, jurisdiction to grant letters to a
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personal representative is vested in the Register of Wills. Id. § 901 (providing
that “the register shall have jurisdiction of … the grant of letters to a personal
representative”); see also id. § 711(12) (stating that the Orphans’ Court shall
have jurisdiction over, inter alia, the appointment of fiduciaries, “except that
the register shall continue to grant letters testamentary and of
administration to personal representatives as heretofore.” (emphasis
added)); In re Estate of Tigue, 926 A.2d 453, 456 (Pa. Super. 2007) (stating
that “it is the register who has the authority and duty to issue letters.”).
The Orphans’ Court may, in some instances, exercise jurisdiction over
matters concerning letters of administration. The Orphans’ Court may review
the Register’s decision if a party files an appeal from the Register’s grant of
letters.6 See In re Estate of Tigue, 926 A.2d at 456; see also 20 Pa.C.S.A.
§ 711(18) (providing that the Orphans’ Court has jurisdiction over “[a]ppeals
from and proceedings removed from registers.”). If the Orphans’ Court
determines that the Register abused its discretion in appointing a particular
administrator, the court may then direct the Register to issue letters of
administration to the appropriate individual. See In re Estate of Simmons-
Carton, 644 A.2d 791, 795 (Pa. Super. 1994). Additionally, the Orphans’
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6 We note that when a party appeals from the Register’s appointment of an
administrator, the Orphans’ Court is not required to conduct an evidentiary
hearing. See generally In re Estate of Tigue, 926 A.2d at 456. However,
if the Orphans’ Court declines to conduct a hearing and receive evidence, this
Court’s subsequent review is limited to determining if the Register, rather
than the Orphans’ Court, abused its discretion. Id.; see also Estate of Fritz
v. Fritz, 798 A.2d 243, 244-45 (Pa. Super. 2002).
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Court has the authority to remove a personal representative. See In re
Estate of Mumma, 41 A.3d 41, 49 (Pa. Super. 2012); see also 20 Pa.C.S.A.
§ 3183 (providing that “[t]he court on its own motion may, and on the petition
of any party in interest alleging adequate grounds for removal shall, order the
personal representative to appear and show cause why he should not be
removed, or, when necessary to protect the rights of creditors or parties in
interest, may summarily remove him.”); id. § 3182 (setting forth the grounds
for removal of a personal representative). “Upon removal [of a personal
representative], the court may direct the grant of new letters testamentary or
of administration by the register to the person entitled….” 20 Pa.C.S.A.
§ 3183 (emphasis added).
Here, there is no confirmation in the certified record of when—or even
whether—the Will was admitted to probate. The certified record also lacks
any indication of whether the Register of Wills had, at any time prior to the
filing of Berger’s Motion for Appointment, issued letters testamentary to
Yarbrough, or letters of administration to any other party. There is
additionally no other indication that an initial Register of Wills determination
was appealed to the Orphans’ Court. Cf. 20 Pa.C.S.A. § 711(18). Further,
although the parties seem to agree that Yarbrough lacks capacity to serve as
Executrix of the Estate, the Orphans’ Court did not remove Yarbrough as
Executrix before issuing Letters of Administration C.T.A. to Kathleen. Cf. id.
§ 3183. Accordingly, this case does not fall within one of the circumstances
in which the Orphans’ Court may direct the Register of Wills to grant new
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letters. Moreover, it does not appear that the Register of Wills had the
opportunity to consider the parties’ respective statuses and order of priority
under section 3155(b), or to determine whether there was good cause to
deviate from the statutory order of priority, as it is required to do. See In re
Estate of Tigue, 926 A.2d at 459 (vacating the Order of the Orphans’ Court,
which affirmed the register’s appointment of an administrator, where the
register appointed appellee “without any evidence that the register applied
the relevant law, either by following the order of appointees set forth in
[section] 3155(b) or by exercising his discretion to deviate from that order for
good cause.”). Thus, as the Register of Wills, rather than the Orphans’ Court,
had jurisdiction to grant letters of administration in this matter, see 20
Pa.C.S.A. §§ 901, 711(12), we must vacate the Orphans’ Court Decree, which
denied Berger’s Motion for Appointment, granted Kathleen’s Petition for
Letters, and directed the Register of Wills to issue Letters of Administration
C.T.A. for the Estate to Kathleen.
Decree vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2018
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