Estate of Richard L. Michael

J-S38015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF RICHARD L. : IN THE SUPERIOR COURT OF
MICHAEL, DECEASED : PENNSYLVANIA
:
:
APPEAL OF: CARLA STIEHLER :
:
:
:
: No. 501 WDA 2021

Appeal from the Order Entered March 30, 2021
In the Court of Common Pleas of Butler County Orphans' Court at No(s):
OC No. 2011-150

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: March 15, 2022

Carla Stiehler (“Appellant”),1 executrix of the estate of Richard L.

Michael, deceased, appeals from the order entered on March 30, 2021, by the

Court of Common Pleas of Butler County Orphans’ Court, declaring subject

matter jurisdiction over the proceeds of the decedent’s, Richard L. Michael

(“Decedent”), 401(k) retirement account and life insurance policy.2 After

careful consideration, we affirm.

This matter arises from a controversy over the disposition of the

proceeds from Decedent’s 401(k) retirement plan and life insurance policy. In

his Last Will and Testament, Decedent named his two daughters, Ashley

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* Retired Senior Judge assigned to the Superior Court.

1 We glean from the record that Appellant was formerly known as Carla Flick.

2As explained infra, we deem the March 30, 2021 order appealable as of right
pursuant to Pa.R.A.P. 311(b)(2).
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Michael (a/k/a Ashley Gamble) (“Ms. Gamble”) and Amber Michael, as the sole

beneficiaries of his estate, and designated his sister, Appellant, as the

executrix of the estate. Findings of Fact, 12/4/20, at 2 ¶¶4-5. Decedent

passed away on August 14, 2010. Id. at 2 ¶3. Letters testamentary were

issued to Appellant on September 17, 2010. Id. at 2 ¶4. At the time of his

death, Decedent owned a 401(k) retirement account and a life insurance

policy. Id. at 2 ¶6.

Prior to his death, Decedent named his then-wife, Shirley A. Cupec (“Ms.

Cupec”), as the beneficiary on both the 401(k) account and the life insurance

policy. Id. at 2 ¶7. The parties thereafter divorced and entered into an

agreement dated March 18, 2006 (“Marital Settlement Agreement”), wherein

each party waived “any right, title or interest to any claim” to the other’s

respective retirement accounts and life insurance policies. Id. at 1 ¶1 (citation

to record omitted).3 Decedent failed, however, to remove Ms. Cupec as the

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3The Marital Settlement Agreement further provided that each party waived
and released

any and all right, titles and interests, or claims against the
property … of the other or against the estate of the other, of
whatever nature and wheresoever situate, which she or he now
has or at any time hereafter may have against such other …
whether arising out of any former acts, [or] contracts…. It is the
intention of Husband and Wife to give to each other by the
execution of this Agreement a full, complete and general release
with respect to any and all property of any kind or nature, real,
person (sic) or mixed.

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beneficiary on these accounts after their divorce. Orphans’ Court Opinion

(“OCO”), 5/12/21, at 2. As such, upon notice of Decedent’s death, pursuant

to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1101

et seq. (“ERISA”), the plan administrator of the 401(k) account and life

insurance policy paid out the proceeds therefrom to Ms. Cupec, the named

beneficiary.4 OCO at 2.

After paying the appropriate inheritance tax on the proceeds, Ms. Cupec

gave $75,394.91 to Appellant,5 “because [Appellant] was the [e]xecutrix of

the [e]state … and she intended for [her] to distribute these proceeds

according to the Last Will and Testament of the Decedent.” Id. at 2-3.

Appellant was aware that the funds she received from Ms. Cupec represented

the proceeds from Decedent’s retirement plan and life insurance policy;

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Id. at 1 ¶2 (citation to record omitted).

4 “Under ERISA, plan administrators and fiduciaries are required ‘to discharge
[their] duties with respect to a plan solely in the interest of the participants
and beneficiaries, … in accordance with the documents and instruments
governing the plan….’” In re Estate of Sauers, 32 A.3d 1241, 1253 (Pa.
2011) (quoting 29 U.S.C. § 1104(a)(1)(D)) (emphasis added in Sauers).
5 Ms. Cupec paid the sum of $75,394.91 to Appellant in the form of two
personal checks—one dated May 2, 2011, in the amount of $50,820.91, and
a second dated April 16, 2012, in the amount of $24,574.00—made payable
to “Carla Flick.” N.T. Hearing, 7/26/21, at 9. Appellant deposited both checks
into her personal checking account. Id.

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however, she did not distribute any portion of the $75,394.91 to the

beneficiaries of the estate. Id. at 3; Findings of Fact at 3 ¶13.

On February 7, 2019, at the request of Ms. Gamble, the orphans’ court

issued a rule directing Appellant to show cause why, inter alia, “[s]he should

not be surcharged the sum of $75,394.91 for her failure to distribute that

money to … Decedent’s heirs[.]” Rule, 2/8/19, at ¶1 (single page).6 During

a status conference on the matter, Appellant’s counsel questioned the

orphans’ court’s jurisdiction over the 401(k) account and life insurance policy

proceeds. OCO at 3. Thus, the court directed the parties to brief the issue as

to whether Ms. Cupec’s transfer of funds to Appellant “involves the [e]state…,

or if this is a cause of action between said individuals involving breach of

contract or fraud.” Orphans’ Court Order, 12/4/19, at 1. The parties

complied.

A hearing was scheduled for November 25, 2020, in order to determine

whether the orphans’ court had subject matter jurisdiction over the disputed

proceeds. OCO at 3. After careful consideration of the testimony given at the

hearing and the briefs submitted by the parties, the orphans’ court issued the

following conclusions of law:

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6 “When the executor of an estate fails to fulfill his fiduciary duty of care, the
court may impose a surcharge against him. A surcharge is a penalty imposed
to compensate the beneficiaries for loss of estate assets due to the fiduciary’s
failure to meet his duty of care….” In re Estate of Miller, 18 A.3d 1163,
1174 (Pa. Super. 2011) (citation omitted).

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14. The … 401(k) retirement account and life insurance policy
were the personal assets of … Decedent … during his life.

15. The proceeds therefrom were paid to the named beneficiary
of said retirement account and life insurance policy, [Ms.]
Cupec, pursuant to … []ERISA[].

16. [Ms. Cupec] waived any and all right to and interest in these
proceeds in the March 18, 2006[] Marital Settlement
Agreement.

17. The estate of Richard L. Michael, deceased, has a claim to
the proceeds of said retirement account and life insurance
policy.

18. The orphans’ court has subject matter jurisdiction over the
disputed proceeds and the disposition of [the] same.

Conclusions of Law, 12/4/20, at 3 (unnecessary capitalization omitted).

Accordingly, the orphans’ court entered an order on December 4, 2020,

declaring its subject matter jurisdiction over the proceeds of Decedent’s

401(k) retirement account and life insurance policy. Orphans’ Court Order,

12/4/20 (single page).7 On March 30, 2021, at the request of Appellant, the

orphans’ court amended its December 4, 2020 order to include the following
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7Appellant filed an appeal from the December 4, 2020 order; however, the
appeal was quashed by this Court because the order was not final or otherwise
appealable. Per Curiam Order, 3/19/21 (single page) (noting the order did
not state that “a substantial issue of venue or jurisdiction is presented”) (citing
Pa.R.A.P. 311(b)(2)). Rule 311(b)(2) states:

An appeal may be taken as of right from an order in a civil action
or proceeding sustaining the venue of the matter or jurisdiction
over the person or over real or personal property if … the court
states in the order that a substantial issue of venue or jurisdiction
is presented.

Pa.R.A.P. 311(b)(2).

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language: “a substantial issue of jurisdiction exists in the instant case.”

Orphans’ Court Order (“Amended Order”), 3/30/21 (single page).8

On April 20, 2021, Appellant filed a timely notice of appeal,9 followed by

a timely court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, Appellant presents the following issues for

our review:

A. Whether after [Ms.] Cupec’s comingling of the fungible
401[(k)] funds with her personal funds, said funds ceased to
be the 401[(k)] funds[] and[,] thus[,] the orphans’ court could
not have proper jurisdiction over same?

B. Whether the orphans’ court exercises mandatory jurisdiction
over the 401[(k)] funds?

C. Whether the orphans’ court exercises proper jurisdiction over
Appellant vis-à-vis her transaction with [Ms.] Cupec?

D. Whether the orphans’ court exercises proper non-mandatory
jurisdiction over the 401[(k)] funds?

Appellant’s Brief at 4 (unnecessary capitalization omitted).10
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8 Although the orphans’ court’s original order sustaining jurisdiction over
Decedent’s personal property was an interlocutory and unappealable order,
we discern that the appeal from its Amended Order is properly before us, as
it contains the language prescribed by Rule 311(b)(2). See Aerospace
Finance Leasing, Inc. v. New Hampshire Ins. Co., 696 A.2d 810, 812 n.9
(Pa. Super. 1997) (citing Shears v. Rigley, 623 A.2d 821, 823 n.1 (Pa.
Super. 1993)).
9 See Martin v. Gerner, 481 A.2d 903, 905 (Pa. Super. 1984) (stating that
the thirty-day appeal period under Pa.R.A.P. 903 does not begin to run until
the lower court certifies an otherwise unappealable interlocutory order as
appealable as of right under Pa.R.A.P. 311(b)(2)).
10 While the orphans’ court has identified the issue in this matter to be
regarding its subject matter jurisdiction over the proceeds from Decedent’s

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All of Appellant’s issues implicate the orphans’ court’s exercise of

jurisdiction in this matter. Our standard of review for questions involving

jurisdiction is as follows:

A court’s decision to exercise or decline jurisdiction is subject to
an abuse of discretion standard of review and will not be disturbed
absent an abuse of that discretion. Under Pennsylvania law, an
abuse of discretion occurs when the court has overridden or
misapplied the law, when its judgment is manifestly unreasonable,
or when there is insufficient evidence of record to support the
court’s findings. An abuse of discretion requires clear and
convincing evidence that the trial court misapplied the law or
failed to follow proper legal procedures.

R.M. v. J.S., 20 A.3d 496, 500 (Pa. Super. 2011) (citation omitted).

Preliminarily, we note that orphans’ courts are charged with the

“administration and distribution of the real and personal property of

decedents’ estates….” 20 Pa.C.S. § 711(1). See In re Estate of Ciuccarelli,

81 A.3d 953, 958 (Pa. Super. 2013) (noting that the orphans’ court division

has “mandatory and exclusive jurisdiction” over the administration and

distribution of estate assets). Orphans’ courts must also adjudicate disputes

concerning the title and rightful possession of a decedent’s property. Sauers,

32 A.3d at 1249. Where a dispute arises that involves “substantial questions

concerning matters enumerated in section 711 [of the Probate, Estates and

Fiduciaries Code (20 Pa.C.S. §§ 101-8815) (“PEF Code”)] and also matters

not enumerated in that section[,]” the orphans’ court may exercise non-

mandatory jurisdiction over the matter. 20 Pa.C.S. § 712(3).
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401(k) account and life insurance policy, we observe that the parties focus
primarily on the 401(k) proceeds.

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Instantly, Appellant claims that the orphans’ court erred in determining

it has subject matter jurisdiction over the disputed proceeds because said

funds do not constitute property of the estate. Appellant’s argument is

premised on her insistence that the money she received from Ms. Cupec

should not be treated as 401(k) funds but, rather, as private funds due to Ms.

Cupec’s comingling of the proceeds with her various other private accounts.

Appellant’s Brief at 11. She states that money is fungible and once comingled

with other funds, the funds do not remain directly traceable to the original

funds. Id. at 11 (citation omitted). Here, Ms. Cupec testified that she rolled

the 401(k) proceeds into her own personal 401(k) account. She then

withdrew funds from her 401(k) account, paid the appropriate penalties, fees,

and taxes associated with the proceeds received from Decedent’s accounts,

and then deposited the remaining funds into her private checking account.

Id. The money paid to Appellant was in the form of personal checks written

from Ms. Cupec’s private checking account to Appellant. Id. at 12.

Appellant admits that there is no precedential commentary directly on

point, but suggests that “a presumption that the monies removed from [Ms.]

Cupec’s private 401[(k)] account were her own 401[(k)] funds, rather than

the funds derived from Decedent’s 401[(k),] … is most appropriate.” Id. She

states that if this approach is adopted, “[Ms.] Cupec would be free to do

whatever she pleases with said withdrawn funds, and [Ms. Gamble] would be

just as free to retrieve Decedent’s 401[(k)] funds from [Ms.] Cupec’s private

401[(k)] account, because [the funds] never left.” Id. at 12-13.

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Ergo, the legal and financial reality here is that the funds [Ms.]
Cupec transferred to Appellant were not the actual 401[(k)] funds,
let alone estate funds…. There is simply no argument whatsoever
which would support proper [o]rphans’ [c]ourt jurisdiction over
the transfer of private funds between two private individuals. That
is clearly the providence of the [c]ivil [c]ourts in a contract or
equitable action.

Id. at 13-14.

Alternatively, in the event this Court deems the disputed funds to be the

proceeds from Decedent’s 401(k) account, Appellant argues that said funds

are clearly exempted from the estate by section 6108 of the PEF Code, which

provides:

The designation of beneficiaries of life insurance, annuity or
endowment contracts, or of any agreement entered into by an
insurance company in connection therewith, supplemental thereto
or in settlement thereof, and the designation of beneficiaries
payable upon or after the death of a participant under any
pension, bonus, profit-sharing, retirement annuity, or other
employee-benefit plan, shall not be considered testamentary and
shall not be subject to any law governing the transfer of property
by will.

Appellant’s Brief at 14 (quoting 20 Pa.C.S. § 6108(a) (emphasis added)). She

interprets section 6108 to mean that “all such funds … pass to the designated

beneficiary outside of probate, and said funds are not testamentary, i.e.[,]

cannot be considered the object of a devise and[,] thus[,] cannot exist within

the corpus of the estate itself.” Id. at 14-15. Appellant concludes, therefore,

“that the instant 401[(k)] funds do not fall under the [o]rphans’s [c]ourt’s

mandatory jurisdiction set forth within 20 Pa.C.S. § 711 because they are

[section] 6108 funds, and thus are not, and cannot be, estate funds.” Id. at

16.

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We are not convinced by Appellant’s argument that the funds in dispute

should be treated merely as an exchange of personal funds between Ms. Cupec

and Appellant. This claim ignores a number of critical points established by

the orphans’ court’s factual findings.

First, [the Findings of Facts] establish that … Decedent’s
retirement account and life insurance policy were his personal
assets at the time of his death. Administrators of estates have a
duty to take possession of, maintain, and administer the personal
assets of decedents, and to ensure the proper distribution of the
proceeds therefrom. In re Estate of Sauers, 32 A.3d 1241,
1249 (Pa. 2011). Next, they establish that [Ms.] Cupec waived
any right to the proceeds from these assets in the Marital
Settlement Agreement, and that … Decedent did not name an
alternative beneficiary thereto. Thus, given [Ms.] Cupec’s waiver,
once the proceeds were paid to her, the estate had a duty to
enforce the Marital Settlement Agreement and, there being no
named alternative beneficiary thereto, to collect and administer
these proceeds as part of … Decedent’s estate.

These facts further establish that … Decedent died testate, and
that his entire estate, including any residue, of which the
retirement benefits and life insurance policy proceeds were now
included, was devised to his two children; neither [Ms.] Cupec
[nor Appellant] were beneficiaries thereof. Fourth, the facts
establish that [Appellant] was the executrix of the estate of
[Decedent]; hence, she owed a fiduciary duty thereto. Fifth, they
establish that [Ms.] Cupec knew, at the time she gave the money
to [Appellant], that [Appellant] was a person authorized to receive
money and assets on behalf of the estate of … Decedent. Sixth,
the facts establish that [Appellant], as the executrix of the estate,
had actual knowledge that the money given to her by [Ms.] Cupec
represented the proceeds Ms. Cupec received from … Decedent’s
retirement account and life insurance policy. Thus, [Appellant],
as the executrix of the estate, was aware of the origin and nature
of the money given to her[] and was in actual possession of the
retirement policy and life insurance proceeds. These proceeds

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were now estate assets,[11] and [Appellant], as the executrix of
the estate … had a fiduciary duty to distribute those proceeds
according to the Last Will and Testament of … [Decedent], i.e., to
… Decedent’s children. This court undoubtedly has jurisdiction
over the proper application and distribution of estate assets held
by [Appellant], as the executrix of the estate….

OCO at 7-9 (unnecessary capitalization omitted).

Moreover, we reject Appellant’s claim that the 401(k) funds are “section

6108 funds” and are therefore exempt from Decedent’s estate. As opined by

the orphans’ court,

[section 6108(a)] speaks only to the designation of beneficiaries[]
and requires plan participants who wish to change their
beneficiary designations on certain enumerated accounts to do so
pursuant to plan contractual requirements[. T]he plan participant
may not use his or her Last Will and Testament as a mechanism
to change such designations. However, the court is unaware of
any case law, and [Appellant] has not provided the court with any
case law, that would suggest that title 20 Pa.C.S.[] § 6108
precludes an estate from, on the basis of a preexisting marital
settlement agreement, … subsequently accepting proceeds paid
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11The orphans’ court notes the fact that Ms. Cupec did not designate
Appellant’s capacity as the executrix of the estate on the personal checks she
wrote to Appellant totaling $75,394.91 “is of no consequence.” OCO at 9.
“That moneys collected by an agent or other person acting in a
fiduciary capacity do not, simply because of being deposited in his
individual name, cease to belong to the principal or beneficiary,
and that they may be followed into the orphans’ court as against
the creditors or the depositor, are propositions too well[-
]established to require the citation of authority….” In re
Trought’s Estate, 1903 WL 2406[] at *1 (Pa. Orph. 1903). See
also[] Gordon v. Hamilton Sav. & Loan Ass’n, 217 A.2d 843
(Pa. Super. 1966) (bank that, in good faith, paid estate funds to
the decedent’s son in his individual capacity, whom they knew to
be the executor of [the] decedent’s estate, held not liable for son’s
subsequent misappropriation of said funds. Son removed as
fiduciary and surcharged by the orphans’ court).

Id.

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pursuant to a retirement plan or life insurance policy and
distributing them through an estate as estate assets. Thus,
[Appellant’s] reliance upon [section] 6108 to divest the orphans’
court of jurisdiction is misplaced, as its mandates do not extend
past the distribution of plan and insurance proceeds to the named
beneficiaries therein, and do not affect the ultimate disposition of
said proceeds as determined by subsequent legal proceedings.

Id. at 4-5 (unnecessary capitalization and internal citation omitted).

Next, Appellant points to section 6111.2 of the PEF Code, which

provides, in relevant part:

[I]f an individual … designates the individual’s spouse as
beneficiary of the individual’s life insurance policy, annuity
contract, pension or profit-sharing plan or other contractual
arrangement providing for payments to the spouse; and … at the
time of the individual’s death is divorced from the spouse … [a]ny
designation … in favor of the individual’s spouse or former spouse
that was revocable by the individual at the individual’s death shall
become ineffective for all purposes and shall be construed as if
the spouse or former spouse had predeceased the individual….
Unless restrained by court order, no insurance company, pension
or profit-sharing plan trustee or other obligor shall be liable for
making payments to a spouse or former spouse which would have
been proper in the absence of this section…. Any spouse or former
spouse to whom payment is made shall be answerable to anyone
prejudiced by the payment.

20 Pa.C.S. § 6111.2. Based on the foregoing, Appellant asserts that “the

chain of liability for the wrongful transfer of [proceeds from a decedent’s

retirement fund or life insurance policy] in the context of an ex-spouse

recipient should begin, and end, at the actual recipient of the funds, at least

with regard to liability accrued to claimed rightful beneficiaries thereof.”

Appellant’s Brief at 19.

Applying section 6111.2 to the instant matter, Appellant asserts that

Ms. Cupec wrongfully received the proceeds from Decedent’s 401(k) account,

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because she waived her rights to any such funds in the Marital Settlement

Agreement. Id. Hence, Ms. Cupec “shall be answerable to anyone prejudiced

by the payment,” id. at 21 (quoting 20 Pa.C.S. § 6111.2), and liability to the

rightful beneficiaries thereof “should begin[] and end” with her. Id. at 19.

Appellant again emphasizes that she is merely the recipient of “private funds”

from the “actual wrongful recipient.” Id. at 21. She claims that the orphans’

court lacks jurisdiction over her because Ms. Cupec, as the named beneficiary

on the 401(k) account, is the only proper subject of Ms. Gamble’s claim over

the proceeds. Id. at 11, 18. As such, Appellant concludes Ms. Gamble’s

bringing an action against her in orphans’ court was improper. Id. at 21. She

suggests, rather, that Ms. Gamble should have brought a civil action against

Ms. Cupec in family court to disgorge her of the funds. Id. Appellant’s claims

are wholly without merit.

First, to the extent that Appellant’s argument implies a lack of personal

jurisdiction, we deem any such claim to be waived.12 Unlike subject matter

jurisdiction, a defendant may consent to personal jurisdiction or may waive

any objections thereto by taking action on the merits of the case. Frontier

Leasing Corp. v. Shah, 931 A.2d 676, 680 (Pa. Super. 2007) (stating,

“[p]ersonal jurisdiction can be established by consent”); McCullough v.

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12 Personal jurisdiction is “[a] court’s power to bring a person into its
adjudicative process[.]” Black’s Law Dictionary (10th ed. 2014). Personal
jurisdiction is readily waivable. See Grimm v. Grimm, 149 A.3d 77, 83 (Pa.
Super. 2016).

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Clark, 784 A.2d 156, 157 (Pa. Super. 2001) (finding a “party may expressly

or impliedly consent to a court’s personal jurisdiction”); Ball v. Barber, 621

A.2d 156, 158 (Pa. Super. 1993) (“Once a party takes action on the merits of

a case, he waives his right to object to defective service of process.”).

Appellant has clearly consented to personal jurisdiction in the present matter.

See Orphans’ Court Order, 4/18/19 (single page) (indicating Appellant

appeared at the status conference on the rule returnable and that her counsel

“indicated a willingness to cooperate” relative to any necessary trial

preparation); N.T. Deposition of Appellant, 6/25/19, at 1-20 (documenting

Appellant’s deposition testimony in preparation for trial); Appellant’s

Responsive Brief to Petitioner’s Memorandum of Law, 2/18/20, at 1-7

(unnumbered) (briefing the merits of whether the money transferred between

Ms. Cupec and Appellant should be litigated as part of the estate or whether

the transaction gives rise to a cause of action between the two individuals).

Second, we have already rejected Appellant’s claim that the funds she

received from Ms. Cupec were merely “private funds.” We uphold the orphans’

court’s determination that said funds should be treated as 401(k) funds and

therefore, as part of the estate. Third, while Appellant is correct in stating

that a civil action could have been brought against Ms. Cupec by the estate,

this was unnecessary here. The evidence adduced at the hearing

demonstrated that Ms. Cupec voluntarily remitted the proceeds to Appellant,

as the executrix. See OCO at 9.

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Nevertheless, Appellant’s reliance on section 6111.2 to establish that

Ms. Cupec’s beneficiary designation was rendered ineffective by her divorce

from Decedent, is wholly misplaced. The Supreme Court of Pennsylvania was

called to decide in Sauers whether, and to what degree, ERISA preempts

section 6111.2 of the PEF Code. See Sauers, supra. “ERISA contains an

express provision, stating that ERISA ‘shall supersede any and all State laws

insofar as they may now or hereafter relate to any employee benefit plan’

controlled or covered by ERISA.” Id. at 1250 (quoting 29 U.S.C. § 1144(a)).

After an in-depth analysis of ERISA’s legislative purpose and an examination

of the United States Supreme Court decision in Egelhoff v. Egelhoff, 532

U.S. 141 (2001), a factually similar case, the Sauers Court concluded that

section 6111.2 impermissibly “relates to” ERISA and, therefore, “is

superseded by the vast reach of the federal ERISA statute. Sauers, 32 A.3d

at 1257 (citing 29 U.S.C. § 1144(a)) (determining the courts below erred as

a matter of law by ordering the ex-spouse, the named and unmodified primary

beneficiary of the ERISA-governed insurance policy, to surrender all

entitlement and interests in the proceeds of that policy). Thus, the plan

administrator of Decedent’s retirement account and life insurance policy in the

instant matter properly distributed the proceeds to Ms. Cupec in accordance

with ERISA. See 29 U.S.C. § 1104(a)(1)(D) (requiring administrator of

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benefits to make payments to a beneficiary “in accordance with the documents

and instruments governing the plan”).13

In her final claim, Appellant asserts that the orphans’ court improperly

relied on the non-precedential decision in Estate of Harmon v. Harmon,

2020 WL 1490932 (Pa. Super. March 27, 2020) (unpublished memorandum),

as persuasive authority in asserting nonmandatory jurisdiction over the

401(k) proceeds pursuant to the catchall provision of section 712(3) of the

PEF Code.14 Appellant’s Brief at 22 (citing 20 Pa.C.S. § 712(3)). In
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13We further observe that “ERISA’s focus is on the administration of employee
benefit plans, not on the benefits, per se.” In re Estate of Easterday, 209
A.3d 331, 346 (Pa. 2019). Thus, section 1144(a) of ERISA does not preempt
a state law breach of contract claim to recover funds that were paid pursuant
to an ERISA-qualified employee benefit plan. Id.
Once the plan administrator makes payment in accordance with
the plan documents, it satisfies ERISA’s goals of regulating
employee benefit plans and the administration thereof, protecting
the plan administrator from double liability, and ensuring that the
named beneficiary receives her benefits in a prompt manner.
There is no indication that in drafting ERISA, Congress was
concerned with the named beneficiary’s right to retain the
benefits. To the contrary, this consideration is wholly beyond the
scope of ERISA because it is beyond the scope of plan
administration.

Id. (citations omitted). Accordingly, if Ms. Cupec was found to still be in
possession of proceeds from Decedent’s accounts, ERISA would not preempt
an action by the estate to enforce the Marital Settlement Agreement and to
recover said funds. As indicated supra, no such action is required in the
instant matter, however, as Ms. Cupec voluntarily relinquished the funds to
Appellant as the executrix of the estate.
14 Harmon involved a question of jurisdiction similar to the issues presented
in the instant matter. In Harmon, the estate of Mr. Harmon filed a breach of
contract action in the Court of Common Pleas civil division, at the divorce

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determining that the orphans’ court had non-mandatory jurisdiction under

section 712(3), the Harmon Court opined:

A matter must be heard in the orphans’ court if it concerns, among
other things, the “administration of the real and personal property
of decedents’ estates[.]” 20 Pa.C.S. § 711; see also In re Estate
of Sauers, 32 A.3d 1241, 1249 (Pa. 2011) (“[A]dministrators of
estates are charged with taking possession of, maintaining, and
administering [life insurance proceeds], see 20 Pa.C.S. § 3311(a),
and the Orphans’ Courts are vested with the authority to ensure
the[ir] proper distribution[.]”). A key exception is when a case
involves “substantial questions concerning matters enumerated in
section 711 and also matters not enumerated in that section.” 20
Pa.C.S. § 712(3) (emphasis added). In that event, it is not
mandatory for the court of common pleas to exercise jurisdiction
through its orphans’ court division. See id.

We agree with the Estate that the issues involved in this case fall
outside the exclusive purview of the orphans’ court. Essentially,
the Estate’s action turned on the enforceability of a waiver of
rights in a divorce decree. Such contractual disputes are not
statutorily enumerated issues that must be adjudicated by an
orphans’ court. See generally 20 Pa.C.S. § 711. It is rather the
type of case where the orphans’ court has only non-mandatory
jurisdiction because it concerns not just administration of an
estate, but also the enforcement of contractual terms incorporated
into a divorce degree. See … [20 Pa.C.S. §] 712(3).

____________________________________________

docket number, to recover the life insurance policy proceeds that were paid
to Mr. Harmon’s ex-wife. Similar to the present matter, Mrs. Harmon had
been named the primary beneficiary of the policy during their marriage. The
parties later entered into a marital settlement agreement, whereby they each
relinquished any interest in the other’s life insurance policies. However, at
the time of Mr. Harmon’s death, Mrs. Harmon remained the named beneficiary
on the decedent’s policy and, thus, the proceeds were distributed to her in
accordance with ERISA. Mrs. Harmon objected to the estate’s breach of
contract matter being heard in the civil division, arguing that the orphans’
court had exclusive subject matter jurisdiction. Harmon, 2020 WL 1490932
at *1-2.

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Harmon, 2020 WL 1490932 at *3 (emphasis added).

Appellant argues that Harmon is distinguishable from the instant

matter and therefore lacks any persuasive value on this case. Appellant’s

Brief at 23. Appellant is correct in stating that the orphans’ court found

Harmon persuasive.15 Moreover, “[she] is correct that the facts in Harmon

are distinguishable from the instant facts in one important respect, being that,

in the facts before this [c]ourt, [Ms.] Cupec voluntarily remitted the …

[]$75,394.91[] … to the [e]state … via Carla [] Flick, the [e]xecutrix thereof,

such that a civil or family court action to enforce the contractual waiver was

unnecessary as to these funds.” OCO at 6 (emphasis added). Appellant’s

assertion that the orphans’ court asserted nonmandatory jurisdiction under

section 712(3), however, is incorrect. Neither the December 4, 2020 order

____________________________________________

15 The orphans’ court explained in its Rule 1925(a) opinion:

Although the Harmon case was an unpublished opinion, this
[c]ourt disclosed that Harmon was being cited for persuasive
value only per Pa.St. Super. Ct. I.O.P. § 65.37 and Pa.R.A.P.
126(b) in its December 4, 2020[] Findings of Fact, Conclusions of
Law, Discussion and Order of Court, at page 4. However, as the
Harmon Court relied upon relevant precedent set forth in …
Sauers, [supra] …, as well as clear statutory language, and as
the facts therein were analogous to the facts of this case (spouse
waived right to retirement account in marital settlement
agreement but was not removed by owner of account, proceeds
paid to spouse, action by estate to recover proceeds), this [c]ourt
found the Superior Court’s analysis of jurisdiction compelling and
persuasive.

OCO at 6.

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declaring that the orphans’ court has subject matter jurisdiction over the

proceeds of Decedent’s 401(k) account and life insurance policy, nor the March

30, 2021 Amended Order from which this appeal was taken, make any

reference to nonmandatory jurisdiction or 20 Pa.C.S. § 712(3). Moreover, the

orphans’ court clearly explained in its Rule 1925(a) opinion that the civil action

in Harmon that placed that matter in the nonmandatory jurisdiction category

under section 712(3) is lacking here, “leaving at issue only the distribution of

said proceeds through the administration of … Decedent’s estate, which is

clearly within the jurisdiction of the [o]rphans’ [c]ourt.” OCO at 6. Thus, it is

evident that the orphans’ court’s declaration of subject matter jurisdiction is

pursuant to section 711(1). See 20 Pa.C.S. § 711(1) (providing that orphans’

courts have mandatory jurisdiction over the administration and distribution of

real and personal property of the decedent’s estate).

Based on the foregoing, we discern no abuse of discretion in the

orphans’ court’s determination that it has subject matter jurisdiction over the

distribution of proceeds from Decedent’s 401(k) account and life insurance

policy. Accordingly, we affirm the March 30, 2021 Amended Order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

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Date: 3/15/2022

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