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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF NAOMI R. CHERUP, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: LISA A. CHERUP,
EXECUTRIX OF THE ESTATE OF NAOMI
R. CHERUP, DECEASED
No. 409 WDA 2016
Appeal from the Order February 23, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): No. 02-15-4102
IN RE: NAOMI R. CHERUP, A PARTIALLY IN THE SUPERIOR COURT OF
INCAPACITATED PERSON PENNSYLVANIA
APPEAL OF: LISA A. CHERUP,
EXECUTRIX OF THE ESTATE OF NAOMI
R. CHERUP, DECEASED
No. 410 WDA 2016
Appeal from the Order February 23, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): No. 02-12-4185
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 22, 2017
Lisa A. Cherup, in her capacity as Executrix of the Estate of Naomi R.
Cherup, deceased, filed these appeals in two separate action numbers from
an order that struck a judgment. We quash.
* Retired Senior Judge assigned to the Superior Court.
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On June 28, 2012, Lori L. Cherup petitioned at action number 02-12-
4185 for the appointment of a permanent guardian of the person and estate
of Naomi R. Cherup, who had three adult children: Lori, Lisa, and David
Cherup. Lori averred that her mother Naomi was incapacitated and that
David, who was living with his mother, was taking advantage of her. On
February 19, 2013, with the consent of Naomi and Lori, the court appointed
for Naomi a limited permanent guardian of the person, Dr. Samuel G.
Rankin, who was Naomi’s brother, and a limited permanent guardian of the
estate, Smithfield Trust Company (“Smithfield”).
When the guardianship proceeding was instituted, the orphans’ court
revoked Naomi’s previously executed power of attorney. The orphans’ court
further ordered that Naomi’s residence, which had been transferred to
David, be deeded back into her name. After Dr. Rankin resigned as
guardian of the person, Lori was appointed as limited permanent guardian of
Naomi’s person.
Naomi died on June 21, 2015, at age ninety-two. On August 10,
2015, at docket number 02-15-4102, the Director of the Department of
Court Records, Wills/Orphans’ Court Division, for the County of Allegheny
(the “Director”),1 admitted to probate a last will and testament of Naomi
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1
This office was formerly known as the Register of Wills of Allegheny
County.
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dated November 5, 2008, and it granted letters testamentary to Lisa under
the November 5, 2008 will.
Due to Naomi’s death, at the guardianship proceeding at case number
02-12-4185, Smithfield prepared a first and final account and a petition for
distribution. In the petition, Smithfield proposed distributing the assets of
the guardianship to Lisa, as Executrix under the will dated November 5,
2008. On August 17, 2015, the court conducted a hearing in the
guardianship case, and David appeared, maintaining that the assets should
not be distributed to Lisa as Executrix under the November 5, 2008 will.
David argued that Naomi executed subsequent documents, either a will or
trust agreement, that superseded the November 5, 2008 will and altered the
personal representative and manner in which Naomi’s probate assets were
to be distributed.
On September 9, 2015, David’s oral objections were denied, and the
judge in the guardianship matter entered a decree ordering that the
guardianship assets be distributed to Lisa, as Executrix under the November
5, 2008 will. David filed written exceptions to the decree and again argued
that there were subsequent wills or a trust agreement that superseded the
November 5, 2008 will admitted to probate. In his exceptions to the
September 9, 2015 decree entered in the guardianship proceedings, David
asked that the guardianship funds be retained by Smithfield until the
orphans’ court decided whether Naomi had executed a valid, subsequent
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testamentary document that superseded the November 5, 2008 will. David
also filed a petition for rule to show cause why the September 9, 2015
decree should not be vacated.
Separately, in the estate matter at action number 02-15-4102, David
obtained a citation on September 1, 2015. That citation directed Lisa to
show cause why her letters should not be revoked and why a subsequent
testamentary document should not be admitted to probate.
Then, in the guardianship case, Lisa filed a motion to strike David’s
exceptions to the September 9, 2015 decree of distribution. Lisa’s motion to
strike David’s exceptions was denied on November 5, 2015. On February
16, 2016, despite the pending citation that was entered against her and the
fact that the court refused to strike David’s exceptions, Lisa filed a praecipe
in the guardianship case, and she praeciped for a deemed denial of the
exceptions filed by David and to enter judgment on the September 9, 2015
decree of distribution, in which the guardianship assets were ordered to be
distributed to Lisa, as Executrix under the November 5, 2008 will. Even
though Lisa obtained entry of judgment, with interest from September 9,
2015, against Smithfield and in her favor, she did not send notice of her
praecipe to Smithfield. By having the Director enter judgment in her favor
and against Smithfield, Lisa sought to force Smithfield to transfer the
guardianship assets to her as Executrix under the November 5, 2008 will.
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David filed a motion to strike the judgment entered by the Director.
His motion was granted on February 23, 2016. In its February 23, 2016
order, the court explained that, when the order was entered denying Lisa’s
motion to strike David’s exceptions to the September 9, 2015 decree, that
order implicitly sustained the exceptions filed by David.2 The orphans’ court
ruled that the Director had improperly entered the praecipe of the deemed
denial of the exceptions and judgment against Smithfield. Concomitantly, in
the February 23, 2016 order, the orphans’ court struck both the entry of
judgment against Smithfield and the September 9, 2015 decree of
distribution. It ordered that Smithfield continue to hold the guardianship
assets until such time as it determined whether the November 5, 2008 will
had been revoked or superseded by a later testamentary document.
These appeals followed. In its brief, Smithfield maintains that these
appeals are interlocutory and must be quashed. We concur with this
assessment. As a general rule, this Court has jurisdiction only over appeals
taken from final orders. Angelichio v. Myers, 110 A.3d 1046 (Pa.Super.
2015); 42 Pa.C.S. § 742 (emphasis added) (“The Superior Court shall have
exclusive appellate jurisdiction of all appeals from final orders of the
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2
While the trial court may have intended to grant the exceptions, we
disagree with the court’s indication that its order denying Lisa’s motion to
strike David’s exceptions also implicitly granted the exceptions. The order in
question resolved only the motion to strike.
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courts of common pleas, regardless of the nature of the controversy or
the amount involved,” except in cases within the exclusive jurisdiction of the
Supreme Court or the Commonwealth Court). A final order is one that “(1)
disposes of all claims and of all parties; (2) is explicitly defined as a final
order by statute; or (3) is entered as a final order pursuant to Pennsylvania
Rule of Appellate Procedure 341(c).” McGrogan v. First Commonwealth
Bank, 74 A.3d 1063, 1075 (Pa.Super. 2013); Pa.R.A.P. 341.
In addition, the rules of appellate procedure allow this Court to
exercise jurisdiction over specifically-delineated interlocutory orders,
including “an interlocutory order as of right (Pa.R.A.P. 311 [or Pa.R.A.P. 342
in estate cases]); . . . an interlocutory order by permission (Pa.R.A.P. 312,
1311, 42 Pa.C.S.A. § 702(b)); or . . . a collateral order (Pa.R.A.P. 313).”
Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1068 (Pa.Super. 2014)
(citation omitted).
Initially, we note that the order in this case clearly was interlocutory.
It struck the decree of distribution judgment, and placed the parties back in
the same position they occupied when Smithfield filed the first and final
account and petition for distribution. The decree ordering distribution of the
assets to Lisa, as Executrix under the November 5, 2008 will, was vacated,
and the assets were left in Smithfield’s possession until the question of how
the guardianship assets were to be distributed was determined.
Additionally, as the order struck a judgment rather than entered a judgment,
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Pa.R.A.P. 311(a) is inapplicable. Pa.R.A.P. 311(a)(1) (emphasis added) (“An
appeal may be taken as of right and without reference to Pa.R.A.P. 341(c)
from . . . [a]n order refusing to open, vacate, or strike off a judgment.”).
As we observed in United Parcel Serv. v. Hohider, 954 A.2d 13, 16
(Pa.Super. 2008), under Pa.R.A.P. 311(a)(1), “where an order is issued that
grants a motion to strike a judgment, such an order is generally not
appealable, i.e., it is not an interlocutory order from which an appeal as of
right may lie. Such an order anticipates further litigation because the parties
are placed back in the position they were in prior to the entry of the
judgment.” The orders on appeal specifically struck a judgment and
envisioned further proceedings to determine whether Lisa, as executrix
under the November 5, 2008 will, or a person named in a subsequent
testamentary document, is entitled to distribution of the guardianship
property.
In response to Smithfield’s position in its appellee’s brief, wherein this
issue was raised for the first time, Appellant, in her reply brief, makes
various arguments as to why the appeals are properly before us. She relies
first upon Pa.R.A.P. 311(a)(2), granting an appeal as of right from an “order
confirming, modifying, dissolving, or refusing to confirm, modify or dissolve
an attachment, custodianship, receivership, or similar matter affecting the
possession or control of property[.]” Herein, the order in question had
nothing to do with an attachment, custodianship or receivership.
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It likewise decidedly did not affect possession or control of property.
The court indicated in its February 23, 2016 order that it, in fact, intended to
decide how the property was to be distributed. The order merely returned
the status of the guardianship action to a request for distribution from
Smithfield. The request was not resolved and, instead, was deferred until
the court concluded whether the November 5, 2008 will governed the
disposition of Naomi’s guardianship assets.
Additionally, contrary to Appellant’s position, the February 23, 2016
order did not reverse the September 9, 2015 decree distributing the
guardianship assets to her. Rather, the decree was vacated, and the court
expressly indicated that it would decide whether that decree was correct.
The orphans’ court may, in fact, find that Appellant is entitled to the
guardianship assets and that there were no valid testamentary documents
executed by Naomi after November 5, 2008. In that case, another, identical
decree would be entered.
We summarily reject Appellant’s reliance upon Pa.R.A.P. 311(a)(4),
which grants immediate review of an order that “grants or denies, modifies,
or refuses to modify, continues or refuses to continue or dissolves or refuses
to dissolve an injunction[.]” The order in question had nothing to do with
any type of injunctive relief.
This Court likewise discounts Appellant’s reliance upon the collateral
doctrine outlined in Pa.R.A.P. 313, which states:
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(a) General Rule. An appeal may be taken as of right
from a collateral order of an administrative agency or
lower court.
(b) Definition. 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. “All three prongs of Rule 313(b) must be met before an
order may be subject to a collateral appeal; otherwise, the appellate court
lacks jurisdiction over the appeal.” Commonwealth v. Harris, 32 A.3d
243, 248 (Pa. 2011); Commonwealth v. Sabula, 46 A.3d 1287 (Pa.Super.
2012).
In the present case, the third element of the collateral order exception
is not satisfied. Appellant may prevail in the anticipated orphans’ court
proceedings, in which case she will not need to appeal. If David is
successful and the orphans’ court holds that a document other than the
November 5, 2008 will controls disposition of Naomi’s property, Appellant
can obtain review of the propriety of that decision as well as an appellate
ruling as to whether the February 23, 2016 interlocutory order was correct.
True R.R. Assocs., L.P. v. Ames True Temper, Inc., 152 A.3d 324, 335
(Pa.Super. 2016) (citation omitted) (“When an appeal is properly filed from
the final order entered in a case, any prior interlocutory order can be called
into question.”).
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Finally, Appellant posits that Pa.R.A.P. 342(a)(5) applies.3 That rule
states that, “An appeal may be taken as of right from the following orders of
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3
Pa.R.A.P. 342 states in full:
(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;
(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.
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the Orphans' Court Division . . . [a]n order determining the status of
fiduciaries, beneficiaries, or creditors in an estate, trust, or guardianship.”
As delineated above, the order vacated a previous decree that determined
who should receive the guardianship assets and indicated that, in the future,
that matter would be decided. Thus, it did the opposite of determining the
status of the guardianship matter. It placed the guardianship proceeding
and the question of the distribution of its assets in a suspended state. Under
the same reasoning, we discount Appellant’s position that the order
determined an “interest in real or personal property,” which is appealable
under Pa.R.A.P. 342(6). The February 23, 2016 order left open who had the
interest in the guardianship property. We reject Appellant’s assorted
attempts to invoke our jurisdiction and thus quash.
Appeals quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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