J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF GEORGE

PORUPSKI

APPEAL OF: JOSEPH M. PORUPSKI :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1201 WDA 2021

Appeal from the Decree Entered September 9, 2021 In the Court of Common Pleas of Fayette County

Orphans ’ Court at 541 OC 1979

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.: FILED: NOVEMBER 7, 2022

Joseph M. Porupski (Appellant) appeals from trial court ’ s decree of

distribution

, awarding to participant Margaret Gunnoe (Gunnoe) a one

- quarter

(1/4) interest in the E state of George Porupski (Decedent), comprised of

certain real property in Fayette Count y, Pennsylvania . After careful review,

we affirm.

In a prior appeal, this Court summarized the case history as follows :

The pleadings and notes of testimony to the January 14, 2021, hearing indicate the following. ... [Decedent] died testate

in 1979. He owned 61 acres of real property in Nicholson Township, Fayette County, which included a residence.

Decedent ’ s will devised a life estate in the residence to his daughter, [Gunnoe] , subject to her upkeep of the house and payment of taxes and insurance. Decedent further bequeathed the rest and residue of his Estate in equal shares to his four

children: [Gunnoe] ; Joseph R. Porupski [, the E state ’ s executor
and Appellant ’ s father] (Executor)

... ; and two additional children. Appellant, who was 57 years old i n 2021, is Decedent ’ s grandson

and Executor ’ s son. Appellant is also [Gunnoe ’ s] nephew.J

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- In 1992, the house was destroyed by a fire. Subsequently, [Gunnoe] lived in a mobile home, and then a modular home, on the property. Appellant alleged that in 1994, [Gunnoe] agreed to relinquish her one

- fourth interest in the residual estate, in exchange for Executor purchasing the $36,022.50 modular home

for her. N.T., 1/14/21, at 35, 39. [Gunnoe] , however, denied

that she ever waived her interest. Id. at 18.

The other two siblings transferred their one

- fourth interests

in the Estate to Executor in 1983 1 and 1993. 2 Appellant alleged that until 2006, Executor solely paid the real estate taxes, insurance, and maintenance costs for the property. N.T. at 32

- 33. Executor eventually borrowed money from his son

— Appellant

— to pay these expenditures. Id. at 40. In 2006,

Executor
, acting in his individual capacity and as Executor,

transferred the deed to the property to Appellant, as

satisfaction of the loan. 3 Id. at 40, 57. Appellant testified that in 2006, Executor informed [Gunnoe] of this transfer. Id. at 41. [Gunnoe] , on the other hand, testified that she did not learn about the transfer until 2018, when she consulted an attorney about transferring her share of the estate to her sons. Id. at 18.

Appellant also averred that since 2006, he has solely paid

the insura nce, real estate taxes, and maintenance costs for the
property. N.T. at 30, 33, 44. Meanwhile, [Gunnoe] testified her modular home was assessed separately from the land, and she has paid the taxes on the home since 1994. Id. at 48

- 49.

_________________ __________ ______ ____ _______

1 The 1983 Deed from Frank Porupski to Joseph Porup s ki states consideration for the conveyance in the amount of one dollar ($1.00). Record Book (BK) 1324 page 762. However, the Deed later states: “The true and actual consideration for this conveyance is $4,000. BK 1324

, page 763.

2 The 1994 Deed from George Porupski, Jr., to Joseph Porupski state s consideration for the conveyance in the amount of seven thousand, six hundred fifty dollars ($7,65 0.00). BK 1 1 78

, page 97. No additional

statement of consideration is included in the deed.

3 This conveyance was made by means of a “Corrective Deed” from Joseph Porupski, Executor, to Joseph Porupski (Appellant), for consideration of one dollar ($1.00 ). BK 3002

, page 1238. No additional statement of consideration

is included in the deed.J

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- 3

- Executor died in 2010, without having filed any accounting of the Estate. The two other siblings are also

deceased.

On February 12, 2019, [Gunnoe] filed the underlying counseled motion to appoint a substitute administrator for the

Estate. Appellant filed an answer. On May 22, 2019, the orphans ’ court appointed Simon John, Esquire (Administrator). On January 14, 2021, the court heard oral argument on various issues, as well as testimony from Appellant, [Gunnoe] , and [Gunnoe ’ s] daughter

in

- law. The court did not enter any rulings on the record at this

time. See N.T. at 77

- 78.

On February 5, 2021, the orphans ’ court issued an order, which, inter alia : (1) stated [Gunnoe] “ did not execute a valid release to her interest in the [E]state; ” (2) re jected Appellant ’ s claim of laches because [Gunnoe ’ s] interest in the residual estate

“ vested as of the date of death; ” and (3) directed the parties to provide Administrator with any information necessary to file an inventory of the Estate. Order, 2/5/21, at 1

- 2. This order did not include any discussion of the court ’ s conclusions.

On August 10, 2021, Administrator filed a first accounting of the Estate, listing only one asset, the real property. The accounting did not include any expenses. Administrat or also filed a proposed distribution, recommending that: (1) Appellant receive

a three

- fourths interest in the property and [Gunnoe] receive a

one

- fourth interest; (2) Appellant transfer a one

- fourth interest in the property to [Gunnoe] ; and (3) [Gunnoe] was liable to the residuary heirs for real estate taxes paid from Decedent ’ s death to the fire that destroyed the house.

In Re: Estate of Porupski

, 2022 Pa. Super. Unpub. LEXIS 697, at * 1

- 5 ( Pa.

Super. Mar. 18, 2022) (emphasis and footn otes added)

.

In addition to the first accounting, the Administrator filed a proposed

decree of distribution. On August 15, 2021, Appellant filed exceptions to the

first account ing and proposed decree of distribution. On September 9, 2021,

the trial co urt entered its decree of distribution. Appellant filed both a noticeJ

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of appeal and motion for reconsideration on October 7, 2021. Thereafter,

Appellant filed a court ordered Pa.R.A.P. 1925(b) concise statement. The

orphans ’ court filed a statement in lieu of opinion on November 3, 2021.

On March 18, 2022, t his Court remanded the case for the orphans ’ court

to file an o pinion addressing Appellant ’ s issues

. In Re: Estate of Porupski

,

2022 Pa. Super. Unpub . LEXIS 697, at *6. The orphans’ court filed its opinion

on March 28, 2022. The matter is now before us for review.

Appellant presents f ive issues for our review :

1. Whether the [orphans ’ ] court had subject matter jurisdiction and did the [orphans ’ ] court err in awarding an interest in real

estate when the executor transferred the real estate for

valuable consideration?

2. Whether the [orphans ’ ] court erred when it did not rule on the

issue that [Gunnoe] was guilty of laches?

3. Did the [orphans ’ ] court e rr when it failed to conduct a hearing on the exceptions filed to the proposed decree?

4. Did the [orphans ’ ] court err in failing to address [the] unjust

enrichment of [Gunnoe] ?

5. Whether the [orphans’] court erred in directing [] Appellant to pay fiduciary fees in an estate that Appellant was not an heir, legatee or devisee?

Appellant ’ s Brief at 6 ( unnecessary capitalization omitted; num b er

designations added).

When we review an orphans ’ court decree

, we employ a deferential

standard of review

, and “ determine whether the record is free from legal error

and the court ’ s factual findings are supported by the evidence. ” In reJ

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-

Fiedler , 132 A.3d 1010, 1018 (Pa. Super. 2016) ( en banc ) (citation omitted).

B ecause the orphans ’ court sits as the factfinder , we will not reverse credibility

determinations absent an abuse of discretion. Id. “ However, we are not

constrained to give the same deference to any resulting legal

conclusions. ” Id. (citati on omitted).

In his first issue, Appellant purport s to challenge the subject matter

jurisdiction of the orphans ’ court. See Appellant’s Brief at 14 ; see also

Pa.R.A.P. 1925(b) Statement of Errors

, 10/20/21, at ¶ 1 (challenging

jurisdiction of the court). In the argument section of his brief

, Appellant

defines “ jurisdiction ” but offers no argument supporting his claim that the

orphans ’ court lacked subject matter jurisdiction. Instead, Appellant ar gues

th e Executor had the authority to sell real estate that was not specifically

devised by the Decedent . Appellant ’ s Brief at 16. Appellant asserts : “ The

issue now before this Court is whether the Lower Court can invalidate a deed

made in 2006 by the Executor of an Estate when valuable consideration has

been made. ” Appellant’s Brief at 15.

Appellant claims that although Decedent devised his residuary estate,

including the real estate, to his four children, “ [D]ecedent did not specifically

devise his farm to any of his heirs. ” Id. at 17. Appellant maintains th e

Executor sold the real estate to satisfy an “ outstanding debt for paying real

estate taxes, insurance and maintenance. ” Id. at 21. Appellant asserts that

Gunnoe “ has not paid anything towards these items for over forty years afterJ

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the decedent passed on. ” Id. According to Appellant

, Executor had the

authority to sell the real estate to pay the costs for administration and

maintenance of the real estate. Id. at 2 1.

Thus, w hile Appellant baldly challenges the orphans ’ court ’ s subject

matter jurisdiction, he fails to develop a supporting argument

. He instead

argues the propriety of the Executor ’ s actions. “ The Pennsylvania Rules of

Appellate Procedure require that each question an appellant raises be

supported by discussion and analysis of pertinent authority, and failure to do

so constitutes waiver of the claim. ” Commonwealth v. Buterbaugh , 91

A.3d 1247, 1 262 (Pa. Super. 2014). See Pa.R.A.P. 2119(a)

- (b). Because

Appellant failed to develop his issue regarding jurisdiction, it is waived. 4

Buterbaugh , 91 A.3d at 1262.

In his second issue, Appellant argues the orphans ’ court erred “ when it

did not rule on the issue that [Gunnoe] was guilty of laches[.] ” Appellant ’ s

Brief at 22. Appellant state s ,

[Gunnoe] waited from September 2006 until February [] 2019 to assert a claim of ownership of a one

- fourth interest after the real

estate had been transfe rred for an outstanding debt for payment of real estate taxes, insurance and maintenance.

_________________ __________ ______ ____ _______

4 Appellant offers no legal authority to support a claim that the orphans’ court lacks subject matter jurisdiction over the administration of a will where the

former executor failed to administer the estate. See 20 Pa.C.S.A. § 71 1(1) (conferring mandatory jurisdiction on the orphans’ court for t he “administration and distribution of real and personal property of decedents’ estates”).J

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Id. at 23

- 24. Appellant points out that the Executor died on December 16,

2010, and is not available to testify. Id. at 24. F urther, Appellant claims

Gunnoe “ he rself cannot remember details about what happened years ago. ”

Id. Appellant emphasizes Gunnoe ’s 25

- year delay in asserting her claim. Id.

According to Appellant, he has expended substantial funds for the taxes and

improvements on the property. Id. at 24

- 25.

This Court has summarized the principles applicable to a laches defense

as follows :

The question of whether laches applies is a question of law; thus,

we ar e not bound by the trial court ’ s decision on the issue.

Laches bars relief when the complaining party is guilty of want of due diligence in failing to promptly institute the action to the prejudice of another. Thus, in order to prevail on an

assertion of laches, respondents must establish: a) a delay arising from petitioner ’ s failure to exercise due diligence; and, b) prejudice to the respondents resulting from the delay.

The question of laches itself, however, is factual and is determined by examining the circumstances of each case. Laches arises when
a party ’ s position or rights are so prejudiced by length of time and inexcusable delay, plus attendant facts and circumsta nces, that it would be an injustice to permit presently the assertion of a claim against him.

Unlike the application of the statute of limitations, exercise of the doctrine of laches does not depend on a mechanical passage of time. Indeed, the doctrine o f laches may bar a suit in equity where a comparable suit at law would not be barred by an analogous statute of limitations. Moreover,

the party asserting laches as a defense must present evidence demonstrating prejudice from the lapse of

time. Such evidence may include establishing that a witness has died or become unavailable, that substantiating records were lost or destroyed, or thatJ

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- the defendant has changed his position in anticipation that the opposing party has waived his claims.

In the absence of prejudice to the one asserting laches, the

doctrine will not be applied. In other words, prejudice to the

defendant must be shown as a prerequisite to the application

of laches

.

In re Estate of Moskowitz

, 115 A.3d 372, 380 (Pa. Super. 2015) ( citations

and quotation marks omitted).

Our review of the record reveals no error in the orphans’ court ’ s

determination that laches does not apply

. L aches is an equitable doctrine

.

See id. “ [H] e who seeks equity must do equity. ” In re Estate of Aiello

,

993 A.2d 283, 28 8 (Pa. Super. 2010) (citation omitted). That is, a party

seeking equitable relief must come before the court with clean hands. Id. “ A

court may deprive a party of equitable relief where, to the detriment of the

other party, the party applying for such relief is guilty of bad conduct relating

to the matter at issue. ” Id.

In stantly

, t he orphans ’ court declined to find laches to be applica ble,

based in part on the actions of the Executor and Appellant

. The court

e xplained :

In [the court ’ s] Order dated February 5 th

, 2021, [the court] rejected Appellant ’ s claim of laches, because [Gunnoe ’ s] interest

in the residual estate ve sted as of the date of death, meaning that

her one fourth (1/4) interest is secured and does not require her

to institute any other action or prosecute any other claim to be

valid. To even suggest [Gunnoe] failed to exercise due diligence

in a case where the Executor filed no accounting, no inheritance
tax, and transferred real estate from the estate to his family

members who were not beneficiaries set forth in the Will

, defies

all notions of logic and common sense. It is the Executor ’ s dutyJ

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-

to gather the assets, pay the bills, file the necessary tax returns,

prepare an account and make distribution to the beneficiaries

. None of that was done by this Executor. “ An Executor is a fiduciary no less than is a trustee and as such primarily owes a duty of loya lty to a beneficiary of his trust. ” In Re: Noonan ’ s
Estate

, 361 Pa. 26 (1949). Executors, as well as other fiduciaries,

are under an obligation to make a full disclosure to beneficiaries respecting their rights and to deal with them with the utmost
fairness. Id. at 29.

... [T]he failure of the Executor to respon sibly perform his duties,

as defined by our Supreme Court, is the primary cause for the delay in administering this estate. Further, we find no credible

evidence that there is any prejudice to Appellant resulting from

this delay, as he and/or the Executor received and have been dealing with this property as their own to the detriment of [Gunnoe]. Accordingly, Appellant has failed to establish either of

the two requirements necessary to prevail on a laches claim [.]

Orphans ’ Court Opinion, 3/28/22, at 3

- 4. Upon review, we agree with the

orphans’ court and adopt its reasoning with regard to Appellant’s second issue.

See id.

In his third issue, Appellant challenges the orphans ’ court ’ s failure t o

conduct a hearing on hi s e xceptions to the proposed decree. Appellant ’ s Brief

at 25. Appellant asserts he filed substantial documentation of his

expenditures for maintenance and improvements to the real estate. Id.

Appellant challenges the Administrator’s listing the real estat e as an asset on

the Inventory

, “ although [it] had been in the Appellant ’ s name since 2006. ”

Id. Appellant points out the Administrator listed no values or credit for

Appellant ’ s expenditures. Id. at 25

- 26. According to Appellant, the trial court

also erred in directing Appellant to pay one

- half of the fiduciary fees, without

reimbursement for his expenditures. Id. at 26

- 27.J

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In his Pa.R.A.P. 1925(b ) statement , Appellant preserved the following

claim: “ The trial court failed to hold a hearing on the Exceptions filed by

[Appellant]. ” Pa.R.A.P. 1925(b) Statement of Errors, 10/20/21 , ¶ 2. Orphans ’

Court Rule 8.1 specifically provides: “ Except as provided in Rule 8.2, no

exceptions or post

- trial motions may be filed to any order or decree of the

court. ” Pa.R.O.C. P. 8.1. Rule 8.2 all ows a party to request “ reconsideration ”

of any order , but do es not require a hearing on a motion for reconsideration.

Pa.R.O.C.P. 8.2. Thu s, Appellant ’ s claim based on the lack of hearing on his

“ Exceptions ” does not warrant relief. 5

In his fourth is sue, Appellant argues the orphans’ court erred by “ failing

to address the unjust enrichment ” of Gunnoe. Appellant ’ s Brief at 27.

Appellant asserts Gunnoe was unjustly enriched by (1) the Executor ’ s

payment of real estate taxes for the entire property ; (2 ) the Executor ’ s

purchase of a mobile home for Gunnoe; and (3) the Executor ’ s advance of

$35,022.00 for the purchase of another mobile home Gunnoe titled in the

name of her sons. Id. at 28. According to Appellant, Gunnoe received an

amount in excess of what was devised to her

. Id. at 29.

_________________ __________ ______ ____ _______

5 Notably, t he orphans ’ court observed Appellant “ raised no specific factual dispute that would require any testimony or evidence

, nor any authority which require s [the court] to conduct a hearing on the exceptions. ” Orphans Court Opinion, 3/28/22, at 4. For the reasons set forth in our discussion of Appellant ’ s fourth issue , we agree.J

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To succeed on an unjust enrichment claim, a plaintiff must prove: “ (1)

benefits [were] conferred on defendant by plaintiff; (2) appreciation of such

benefits by defendant; and (3) acce ptance and retention of such benefits

under such circumstances that it would be inequitable for defendant to retain

the benefit without payment of value. Wilson v. Parker , 227 A.3d 343, 353

(Pa. Super. 2020) (citation omitted). “ In determining if the doc trine applies,

our focus is not on the intention of the parties, but rather on whether the

defendant has been unjustly enriched. ” Id. (citation and emphasis omitted).

“ Unjust enrichment is an equitable remedy, defined as ‘ the retention of

a benefit conferred by another, without offering compensation, in

circumstances where compensation is reasonably expected, and for which the

beneficiary must make restitution. ’” Commonwealth v. Golden Gate Nat ’ l

Senior Care LLC , 194 A.3d 1010, 1034 ( Pa. 201 8) (quoting Roethlein v.

Portnoff Law Assocs., Ltd. , 81 A.3d 816, 825 n.8 (Pa. 2013) )

.

The orphans ’ court addressed Appellant’s unjust enrichment claim as

follows:

Any payments made were voluntary and we are unable to ascertain how [Gunnoe ] was unjustly enriched when Appellant and/or Executor had the benefit of the use of one hundred percent (100%) of the property for the last forty (40) years or more. The Appellant and the Executor dealt with this property as their own despite the clear l anguage set forth in the Will, and now want reimbursement for these voluntary payments. Contrary to the

assertion t hat [Gunnoe] would be unjustly enriched, this [c]ourt believes that the real injustice would be if [Gunnoe] was stripped

of her interest in the estate. The Executor and his heir would

benefit from the ir self

- dealing activities over the last fort y (40)J

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-

years and they would be unjustly enriched to the detriment of the named beneficiary in the Will of her one quarter (1/4) interest.

Orphans ’ Co urt Opinion, 3/28/22, at 4

- 5. Again, w e agree with and adopt the

reasoning of the orphans ’ court. See id. ; In re Estate of Aiello , 993 A.2d

at 28 8 (recognizing a party seeking equitable relief must come before the

court with clean hands ). See also 72 P.S. § 5511.12 (providing a tenant in

common may pay protect his interest in the property by paying his

proportionate share of the taxes owed); Bednar v. Bednar , 688 A.2d 1200,

1204 (Pa. Super. 1997) ( “ In light of section 5511.12, it becomes eviden [t]

that a cotenant who assumes the tax obligations of his fellow tenant does so

as a volunteer. ” ) ; Gallagher, Magner & Solomento, Inc. v. Aetna Cas. &

Sur. Co. , 252 A.2d 206, 207 ( Pa. Super. 1969) ( recognizing “ a tenant in

common who paid more than his propo rtionate share of the real estate taxes

charged against the land held in common, is not entitled to contribution from

his co

- tenants in common for his excess tax payments. ” (citing Lohr ’ s Estate

,

200 A. 135 ( Pa. Super. 1938 )).

Finally, in Appellant’s fifth issue, he claims the orphans ’ court erred in

directing him to pay fiduciary fees to the Administrator “ in an estate that

Appellant was not an heir , legatee or devisee. ” Appellant ’ s Brief at 30 (some

capitalization omitted). Appellant as serts the orphans ’ court had no legal basis

for charging him fiduciary fees. Id. According to Appellant, the result, where

he has paid the property ’ s taxes and maintenance, “ is unjust and inequitable. ”

Id. at 32.J

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In his Rule 1925(b) statement of errors, Appellant averr ed the orphans’

court lacked “ jurisdiction over [him] to order him to pay any expenses

involving the decedent’s estate,” because he “was never named in the Will of

George Porupski. ” Pa.R.A.P. 1925(b) Statement of Errors, 10/20/21, ¶ 6

(emphasis added)

. We address this claim , as it is the claim Appellant

preserved for review.

Unlike subject matter jurisdiction, “[p] ersonal jurisdiction can be

established by consent of the parties[.]” Frontier Leasing Corp. v. Shah

,

931 A.2d 676, 680 (Pa. Super. 2007)

. A “party may expressly or impliedly

consent to a court’s personal jurisdiction.” McCullough v. Clark , 784 A.2d

156, 157 ( Pa. Super. 2001). A defendant manifests an intent to submit to the

court ’ s jurisdiction when the defendant takes “ some action (beyond merely

entering a written appearance) going to the merits of the case, which

evidences an intent to forego objection to t he defective service. ” Fleehr v.

Mummert , 857 A.2d 683, 685 (Pa. Super. 2005) (citation omitted).

O ur review discloses that Appellant appeared in this case, and on March

8, 2019, filed an “Answer to Motion to Appoint Fiduciary

, ” in which he

challeng ed ownership of the real estate. Appellant also filed objections to the

First Account and Proposed Decree of the Administrator . Objections to First

Account, 8/16/21. Thus, the record reflects Appellant consented to the

personal jurisdiction of t he orphans’ court. See Frontier Leasing Corp.

, 931

A.2d at 680.J

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-

Additionally, it is well settled that a fiduciary , in the instant matter the

Administrator, is entitled to “ reasonable and jus t ” compensation for the

services he provides. In re Estate of Sonovick , 541 A.2d 374, 376 (Pa.

Super. 1988). “ [W]hen reviewing the judgment of the Orphans ’ Court

regarding the allowance or disallowance of a fiduciary ’ s fees and commissions,

we will not int erfere with the lower court ’ s decision absent an abuse of

discretion or a ‘ palpable error ’

. ” Id.

Appellant presents no support for his claim that the fees awarded to the

Administrator were unreasonable, or constituted a palpable abuse of the

orphans’ court’s discretion. Further, our review discloses no abuse of

discretion by the orphans’ court in awarding the fees. See Orphans’ Court

Opinion

, 3/28/22, at 5

- 6 (discussing equities of the case and the executor’s

inaction over decades, and determining that division of fees between Appellant

and Gunnoe wa s proper).

Decree affirmed.

Judge McLaughlin joins the memorandum.

Judge Stabile files a concurring/dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/7/2022