J-A04016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF CATHERINE : IN THE SUPERIOR COURT OF
PERKINS, DECEASED : PENNSYLVANIA
:
:
APPEAL OF: FRANKLIN RUSSELL :
PERKINS :
:
:
: No. 1466 EDA 2021
Appeal from the Order Entered June 30, 2021
In the Court of Common Pleas of Philadelphia County Orphans' Court at
No(s): 201900894DE
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 29, 2022
Appellant Franklin Russell Perkins appeals from the decree and order
sustaining the preliminary objections of Appellee Angela Perkins to his
amended petition to quiet title and strike deed. We affirm.
The trial court summarized the facts and procedural history of this
matter as follows:
On January 7, 1981, Catherine E. Perkins (hereinafter “Decedent”)
died intestate without a spouse. Decedent was survived by six
(6) children: Gloria Perkins; Mary Perkins; Norman Perkins, Jr.;
Norma Perkins; John Perkins; and [Appellant]. Decedent was
predeceased by one child, Charles Perkins, who was survived by
two issue: Tracy and Tony Perkins. At the time of her death,
Decedent was the sole owner of 647 S. 55th Street, Philadelphia,
PA 19143 (hereinafter “the Property”).
On March 9, 1981, Letters of Administration were granted to
Norman Perkins Jr. by the Register of Wills of Philadelphia County.
The Petition for Letters identified Norman Perkins Jr. and Norma
Perkins as Decedent’s only heirs. On January 18, 1992, Norma
Perkins passed away leaving her son Robert Perkins as her sole
heir.
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By deed dated May 23, 2000, Norman Perkins Jr., as Administrator
of Decedent’s Estate, and Robert Perkins, as sole heir of Norma
Perkins, conveyed the Property to [Appellee] for the sum of
$45,000.00. The Deed was recorded at the City of Philadelphia
Department of records on August 24, 2000 [(the Deed)].
On July 23, 2019, Appellant filed a Petition for Citation directed to
Appellee to show cause why the Deed should not be stricken, and
why the court should not enter an order of ejectment removing
Appellee from the Property. Preliminary objections to the Petition
were sustained in part by decree dated October 1, 2020, and
Appellant was ordered to refile the Petition in conformity with the
rules of Orphans’ Court.[FN1]
[FN1]Preliminary objections to Appellant’s failure to list the
names of all interested parties as required by Pa.O.C. Rule
3.4(a)(5) and failure to include a proper verification were
sustained, while the preliminary objection as to service of
the Petition was overruled.
On November 7, 2020, Appellant filed an Amended Petition to
Quiet Title and Strike Deed dated May 23, 2000. On December 1,
2020, Appellee filed preliminary objections to the Amended
Petition, claiming that:
1. The Amended Petition is untimely;
2. [Appellant] cannot allege an action to quiet title and
ejectment simultaneously;
3. The Petition is legally insufficient to allege an action in
ejectment;
4. Norman Perkins Jr. as Administrator of the Estate had the
absolute right to convey the Premises; and
5. The Statute of limitations [had] expired.
On December 9, 2020, Appellant filed an answer to the
preliminary objections arguing that the court should accept his
petition as timely filed, that there is no claim for Ejectment, that
Norman Perkins Jr. did not have the absolute right to convey the
Property, and that fraudulent concealment tolled the time for an
appeal from the Register of Wills to be taken.
On April 28, 2021, oral argument on the preliminary objections
was conducted at which time Appellee withdrew the preliminary
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objections concerning ejectment as Appellant had not alleged
ejectment in his Amended Petition.
On June 30, 2021, the court entered an order sustaining
Appellee’s first and fourth preliminary objections, that the
Amended Petition was untimely, and that Norman Perkins Jr., as
Administrator of the Estate, had the absolute right to convey the
premises. Appellee’s fifth preliminary objection, that the statute
of limitations had expired, was overruled.
Orphans’ Ct. Op., 9/13/21, at 1-3 (some formatting altered).
Appellant timely filed an appeal and Pa.R.A.P. 1925(b) statement of
errors complained of on appeal.
Appellant raises the following issues for review:
1. Did the trial court abuse its discretion and commit an error of
law in sustaining Appellee Angela Perkins’ preliminary objection
that Appellant’s amended petition was untimely filed where
Appellee’s substantive rights were not affected as a result of
said filing?
2. Did the trial court abuse its discretion and commit an error of
law in sustaining Appellee Angela Perkins’ preliminary objection
in the nature of a demurrer that [the] administrator of the
Estate of [Decedent], had the absolute right to convey the
subject property, which could not be impeached where Mr.
Perkins committed fraud upon the Register of Wills in becoming
appointed as administrator, and failed to act in good faith when
he sold the premises.
Appellant’s Brief at 8 (formatting altered).
In reviewing an order from the [o]rphans’ [c]ourt, our standard is
narrow: we will not reverse unless there is a clear error of law or
an abuse of discretion. Our scope of review is also limited: we
determine only whether the court’s findings are based on
competent and credible evidence of record.
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In re Estate of Karschner, 919 A.2d 252, 255-56 (Pa. Super. 2007) (citation
omitted).
Timeliness
The Orphans’ Court Rules provide that the rules “shall be liberally
construed to secure the just, timely and efficient determination of every action
or proceeding to which they are applicable. The court at every stage of any
action or proceeding may disregard any error or defect of procedure that does
not affect the substantive rights of the parties in interest.” Pa.O.C.R. 1.2(a)
(emphasis added). Subsequent to the disposition of preliminary objections
filed in orphans’ court, “[i]f the filing of an amended petition or a new petition
is allowed or required, it shall be filed within 20 days after entry of the order
concerning such amended or new petition or within such other time as the
court shall direct.” Pa.O.C.R. 3.9(e)(2) (emphasis added).1
In Appellant’s first issue, he argues that the orphans’ court erred by
dismissing his petition as untimely, where Appellee’s substantive rights were
not affected. Appellant’s Brief at 16. In support of his argument Appellant
cites In re Chiara’s Estate, 359 A.2d 756, 760 (Pa. 1979), and contends
that it is reversible error for a court “to not disregard a parties’ [sic] failure to
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1 In Pennsylvania, the word “shall” is understood to be unambiguous. See,
e.g., In re Canvass of Absentee Ballots of November 4, 2003 General
Election, 843 A.2d 1223, 1231-32 (Pa. 2004) (stating that while “some
contexts may leave the precise meaning of the word ‘shall’ in doubt, . . . . this
Court has repeatedly recognized the unambiguous meaning of the word in
most contexts” (citations omitted)).
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comply with an Orphans[’] Court Rule where the substantive rights of a party
has not been affected.” Appellant’s Brief at 16-17.
At the hearing on the preliminary objections, counsel for Appellant
stated:
But the reason why there was a delay, and I would have my client
testify to that, is, as Your Honor heard, there is only one remaining
spouse—I’m sorry—one remaining heir of [Decedent]. The others,
there [are] about 11 heirs that were children of my client’s
siblings, and it took them a while to find this information.
. . . . There’s 11, and they are all across the various northeast
area. And my client doesn’t live in this area, if he were to testify.
He lives in Oklahoma, I believe. So he had to find all this
information to be able to include them because that was one of
the requirements here, is that all heirs be served with this . . . .
petition.
So there was no prejudice whatsoever to [Appellee], and we think
that when there’s no effect of substandard [sic] rights, then the
case law is pretty clear that an individual may be able—the [c]ourt
may be able to allow for an untimely petition to proceed.
N.T. H’rg, 4/28/21, at 11-12.
With regard to Appellant’s first issue, the court observed:
On October 1, 2020, the [c]ourt entered a [d]ecree directing
Appellant to “refile his Petition to Quiet Title, Strike Deed dated
May 23, 2000, and for Ejectment, originally filed July 23, 2019, so
that it conforms to the rules of the Orphans’ Court.” Pursuant to
Pa.O.C. Rule 3.9(e)(2), Appellant had twenty days from October
1, 2020, to file an amended petition. Appellant filed his Amended
Petition on November 7, 2020, more than twenty days[2] after the
October 1, 2020, [o]rder without providing a sufficient explanation
for the delay.
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2Appellant’s amended petition was filed thirty-nine days after the date of the
order.
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Orphans’ Ct. Op. at 4.
Appellant’s reliance on Chiara’s Estate is unavailing, and the
circumstances in that case are distinguishable from the instant matter. In
Chiara’s Estate, the issues on appeal were “whether [assets were] of the
decedent’s estate, or whether, on the contrary, the money had been given by
decedent in her lifetime to her [son].” Id., 359 A.2d at 758. When
determining the status of a particular savings certificate, the orphans’ court
noted that no formal objection had been made, so the proceeds should be
distributed in accordance with the schedule proposed by the administrator.
Id. at 760. The Supreme Court observed that it could not tell
whether the court did not pass on the question because no formal
objection was made or whether the auditing judge overlooked the
fact that the proceeds of the certificate were not in fact included
in the proposed schedule of distribution, having been repaid by
the administrator to [the son] at an earlier time . . . .
Id.
Ultimately, our Supreme Court concluded that while the item in question
should have been the subject of a formal objection:
failure to do so should not prove fatal in this case. The trial
memorandum presented to the court on [the daughter’s] behalf
before hearing on the objections and the brief submitted before
decision was rendered were in effect, amendments to the formal
objections, and should have been so treated by the court.
Id. Conversely, in the instant case, the orphans’ court addressed the formal
objection that was filed in the form of a preliminary objection in its decision.
Cf. id.
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Pursuant to the rules and appropriate case law, the court may construe
the rules liberally where it concludes such a construction is appropriate to
protect the rights of litigants, but is not required to do so, particularly where
other orphans’ court rules require the dismissal of untimely petitions.
Pa.O.C.R. 1.2(a), 3.9(e); see also In re Canvass of Absentee Ballots of
November 4, 2003 General Election, 843 A.2d at 1231-32; cf. In re
Chiara’s Estate, 359 A.2d at 760. In the instant case, the orphans’ court
refused to consider an untimely amended petition, where Appellant offered no
reasonable explanation for the delay other than the fact that he lived in
Oklahoma and had retained counsel in Pennsylvania since the filing of the first
petition. We discern no abuse of discretion and conclude that Appellant and
no relief is due. See Estate of Karschner, 919 A.2d at 255-56.3
Order affirmed.
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3 We need not reach Appellant’s second issue as our conclusion concerning
Appellant’s first issue is dispositive of this appeal. However, were we to
address the second issue, we would agree with the orphans’ court that
Appellant did not plead and prove with specificity, his allegations of fraud, or
lack of good faith; nor did he establish that the Administrator was unqualified
to serve as a personal representative. See Orphans’ Ct. Op. at 5-6; see also
Lange v. Burd, 800 A.2d 336, 339 (Pa. Super. 2002); Kern v. Kern, 892
A.2d 1, 8 (Pa. Super. 2005); see also Estate of Karschner, 919 A.2d at 256
(stating that “[a]llegations must be specific in order to compel the court to
conduct a hearing” (citation omitted)); Pa.O.C.R. 3.3(c) (providing that
“[a]verments of fraud or mistake shall be averred with particularity”). Thus,
because it is “clear and free from doubt that [Appellant] will be unable to prove
facts legally sufficient to establish the right to relief[,]” we see no error of law
or abuse of discretion in the orphans’ court order sustaining Appellee’s
preliminary objections and striking Appellant’s complaint. See Catanzaro v.
Pennell, 238 A.3d 504, 507-08 (Pa. Super. 2020).
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Judge McLaughlin joins the memorandum.
Judge Lazarus concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2022
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