J-A26001-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF VERNELL SMITH, 

DECEASED

APPEAL OF: ARTHUR SANDERS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 378 EDA 2022

Appeal from the Order Entered December 29, 2021

In the Court of Common Pleas of Philadelphia County Orphans' Court at 

No(s): 5DE of 2017

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED MARCH 24, 2023

Arthur Sanders appeals from the December 29, 2021 order granting a 

petition in ejectment filed by Richard Costigan, Esquire, in his capacity as

administrator of the estate of Vernell L. Smith (“the decedent”) with respect 

to Mr. Sanders’s occupation of real property located at 3718 Fairmount 

Avenue, Philadelphia, Pennsylvania (“3718 Fairmount” or “the property”).1 

We vacate and remand with instructions.

We glean the relevant factual and procedural history from the certified 

record. This civil controversy was precipitated by the intestate passing of the 

decedent on January 3, 2016. She was survived by her three children: 

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* Retired Senior Judge assigned to the Superior Court.

1

 This order is final and appealable pursuant to Pennsylvania Rule of Appellate 

Procedure 342(a)(6), which provides that an appeal may be taken as of right 

from an order of the orphans’ court that renders a determination with respect 

to “an interest in real or personal property[.]” Pa.R.A.P. 342(a)(6).
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William Smith, James Smith, and Eric Smith (collectively, “the Smith heirs”). 

Although the decedent was unmarried at the time of her death, she had cohabitated with her long-term paramour, Mr. Sanders, for several decades at 

the property. See N.T. Hearing, 12/13/21, at 27-28. The Philadelphia County 

Register of Wills initially granted letters of administration to William Smith. 

Several months later, however, that decree was vacated and Mr. Sanders was 

appointed administrator as the decedent’s putative common-law spouse. 

William Smith sought to overturn this superseding decree by challenging the 

validity of the alleged common-law marriage. See id. at 1-2. The orphans’

court held the marriage was valid. On appeal, this Court reversed after finding 

insufficient evidence of verba in praesenti, or an exchange of words 

manifesting the intent to create a present-tense marital relationship. See In 

re: Estate of V.S., 209 A.3d 1045 (Pa.Super. 2019) (unpublished 

memorandum at 9-10) (“The words testified to by Sanders merely evidence 

the couple’s intent to marry at some point in the future.” (emphasis in 

original)). Our Supreme Court denied a petition for review. See In re: Estate 

of V.S., 218 A.3d 852 (Pa. 2019). No further appeal was taken.

Throughout these proceedings, Mr. Sanders continued to reside at 3718 

Fairmount. At some point after the decedent’s passing, Eric Smith also began 

to reside at the property. We gather from the record that neither William 

Smith or James Smith resides at, or otherwise uses, 3718 Fairmount.

On remand, Attorney Costigan (“the Administrator”), took over 

administration of the decedent’s estate. In January 2020, he filed a citation 
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to show cause as to why, inter alia, Mr. Sanders should not be ejected from 

the property. See Petition for Citation, 1/10/20, at ¶¶ 1-8. With respect to 

title, the Administrator asserted that he was “the legal and record owner of 

the [p]roperty.” Id. at ¶ 6. We note that no supporting documentation 

attesting to the decedent’s ownership of 3718 Fairmount was attached to this

petition. The orphans’ court directed Mr. Sanders to show cause as to why he 

should not be ejected. See Preliminary Decree, 1/16/20, at 1. Mr. Sanders 

timely filed an answer and new matter in response that, inter alia, specifically 

denied the Administrator possessed legal title to the property. See Answer 

and New Matter, 1/27/20, at ¶ 6. Thereafter, the proceedings were delayed 

for approximately one year due to the COVID-19 pandemic. 

A hearing on the Administrator’s petition for ejectment and other estate 

matters was held in December 2021, wherein Mr. Sanders argued that the 

Administrator had not demonstrated an actual ownership interest in 3718 

Fairmount for the purposes of ejectment.

2

 See N.T. Hearing, 12/13/21, at 

80-81 (“[H]is burden of proof in an action for ejectment requires him to show 

and prove he is the legal owner, and he has not done that.”). Mr. Sanders 

also filed a brief expounding upon the same argument. See Brief, 12/15/21, 

at 1-3. Ultimately, the orphans’ court granted the Administrator’s petition for 

ejectment, provided Mr. Sanders sixty days to vacate the property, and stated 

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2

 Separate from the ejectment proceedings, the Smith heirs challenged the 

Administrator’s stewardship of the decedent’s estate and sought various forms 

of relief, including an accounting and the removal of the Administrator. These 

issues are not before us in the instant appeal.
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that he would be “held in contempt” if he refused to comply with the order. 

See Decree, 12/28/21, at ¶¶ 1-2.

On January 10, 2022, Mr. Sanders filed a timely notice of appeal and a 

petition for supersedeas pursuant to 42 Pa.C.S. § 5105(e). In addition to 

seeking a stay, the latter filing also asserted that the orphans’ court’s 

jurisdiction had been impacted by an alleged failure to join certain

“indispensable parties” to the litigation, i.e., the Smith heirs. See Petition for 

Stay, 1/10/22, at ¶¶ 3-6. Further, Mr. Sanders reasserted his position that 

the Administrator had failed to adduce proof that he was “in possession of” 

3718 Fairmount. Id. at ¶ 7. The orphans’ court stayed the proceedings

pending resolution of the instant appeal. No further relief was granted.

On February 15, 2022, the orphans’ court directed Mr. Sanders to file a 

concise statement of errors pursuant to Pa.R.A.P. 1925(b). See Order, 

2/15/22, at 1. He timely submitted a thirteen-page filing that was neither 

concise nor entirely precise in its enumeration of the alleged errors committed 

by the orphans’ court.3 See Concise Statement, 2/22/22, at 3-4 (“The 

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3

 In his statement pursuant to Pa.R.A.P. 1925(b), Mr. Sanders also attempted 

to advance both a motion for modification of the orphans’ court’s holding and 

a motion for judgment non obstante veredicto. See Concise Statement, 

2/22/22, at 12-13. No such motions or claims were advanced prior to 

Appellant’s filing of his notice of appeal or the orphans’ court directing practice 

pursuant to Rule 1925. It is well-established that “[a] party cannot rectify the 

failure to preserve an issue by proffering it in response to a Rule 1925(b) 

order” since a statement of matters complained of on appeal “is not a vehicle 

in which issues not previously asserted may be raised for the first time.” 

Hinkal v. Pardoe, 133 A.3d 738, 746 (Pa.Super. 2016) (en banc). Thus, we 

will not address the merits of these ancillary motions. See Pa.R.A.P. 302(a).
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reasons for a [sic] trial court’s rulings are vague or not discernable from the 

record and accordingly, the [concise statement] has identified the errors only 

in general terms.”). The court filed a responsive Rule 1925(a) opinion that 

addressed the arguable merits of Mr. Sanders’s claims.

4

Mr. Sanders has raised the following claims for our consideration:5

I. Whether the orphans’ court erred in asserting subject 

matter jurisdiction?

II. Whether the orphans’ court erred in granting the 

Administrator’s petition for ejectment?

III. Whether the orphans’ court erred in issuing sanctions 

against Mr. Sanders?

Appellant’s brief at 3 (cleaned up). Our standard of review of an ejectment 

action is “limited to a determination of whether the [orphans’] court 

committed an error of law or an abuse of discretion.” Roberts v. Estate of 

Pursley, 718 A.2d 837, 840 (Pa.Super. 1998) (cleaned up). We will not 

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4

 In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court avers that 

Mr. Sanders has waived all his appellate claims due to the non-specific nature 

of his “concise” statement. See Orphans’ Court Opinion, 6/14/22, at 1-2. 

While the statement filed by Mr. Sanders is not a model of clarity, it is equally 

clear from the orphans’ court’s opinion that it was able to identify the matters 

for which Mr. Sanders was seeking review. Id. at 16-21. Thus, we decline to 

find waiver under these circumstances. See Munoz v. Children’s Hospital 

of Philadelphia, 265 A.3d 801, 805 n.4 (Pa.Super. 2021).

5

 On September 14, 2022, the Administrator sent a letter advising this Court 

that he would not be filing a brief in this appeal. See Letter, 9/14/22, at 1. 

Eric Smith is also listed as a participant and, similarly, declined to file a brief. 

The remaining Smith hers are not listed as participants in this matter and they 

have not filed briefs in this Court.
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disturb the decision of the orphans’ court in this context “unless it is 

unsupported by the evidence or demonstrably capricious.” Id. To the extent 

these claims implicate subject matter jurisdiction, such an inquiry is a pure 

question of law over which our standard of review is de novo and our scope of 

review is plenary. See Prensky v. Talaat, ___ A.3d ___, 2023 WL 2230408, 

at *3 (Pa.Super. Feb. 27, 2023).

With these basic legal principles in mind, we turn to Mr. Sanders’s 

arguments concerning the jurisdiction of the orphans’ court. Specifically, Mr. 

Sanders has invoked the defense of failure to join an indispensable party. See 

Pa.R.C.P. 1032(b) (“Whenever it appears by suggestion of the parties . . . that 

there has been a failure to join an indispensable party, the court shall order 

that . . . the indispensable party be joined[.]”). Under this rule, “[i]f an 

indispensable party is not joined, a court is without jurisdiction to decide the 

matter. The absence of an indispensable party renders any order or decree 

of the court null and void. The issue of the failure to join an indispensable 

party cannot be waived.” Hart v. O’Malley, 647 A.2d 542, 529 (Pa.Super. 

1994) (cleaned up). A party is considered “indispensable when his or her

rights are so connected with the claims of the litigants that no decree can be 

made without impairing those rights.” Sprague v. Casey, 550 A.2d 184, 189

(Pa. 1988). However, an important “corollary of this principle is that a party 

against whom no redress is sought need not be joined. In this connection, if 
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the merits of a case can be determined without prejudice to the rights of an 

absent party, the court may proceed.” Id. (cleaned up).

Mr. Sanders submits the Smith heirs are indispensable parties to the 

instant action as beneficiaries of the decedent’s estate and, consequently, the 

holders of title to 3718 Fairmount.

6

 See Appellant’s brief at 10 (“The Smith 

heirs were indispensable parties to the ejectment action since they were the 

legal owners and in actual possession of the [property].”) Accordingly, Mr. 

Sanders argues the failure to join the Smith heirs as parties deprived the 

orphans’ court of jurisdiction.7 In support of this contention, Mr. Sanders

relies upon 20 Pa.C.S. § 301(b), which provides that “[l]egal title to all real 

estate of a decedent shall pass at [her] death to [her] heirs or devisees[.]”

Mr. Sanders is correct in that owners of real estate are generally 

considered to be indispensable parties to proceedings that may affect their 

ownership interests or adversely impact their use and enjoyment of the at-

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6 The succession of the decedent’s estate is governed by 20 Pa.C.S. 

§ 2103(1), which provides that her “entire estate” passes to her “issue,” i.e., 

the Smith heirs. See 20 Pa.C.S. § 2101(a). Thus, it is undisputed that the 

Smith heirs are the intestate beneficiaries of the “entirety” of the decedent’s 

estate, including title to any real property that she owned at the time of her 

death. See 20 Pa.C.S. §§ 301(b), 2101(a), 2103(1).

7

 Our review of the record indicates that Eric Smith was a party to the 

ejectment action, including being represented by counsel at the hearing. See 

N.T. Hearing, 12/13/21, at 4. Furthermore, Eric Smith testified at length 

regarding the merits of the Administrator’s petition. Id. at 26-40. He is listed 

as a participant in the instant appeal, although he has declined to file a brief. 

However, there is no indication that either William or James Smith were

parties to the instant ejectment action.
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issue property. See Columbia Gas Transmission Corp. v. Diamond Fuel 

Co., 346 A.2d 788, 789 (Pa. 1975); In re Estate of Moore, 871 A.2d 196, 

203 (Pa.Super. 2005). However, Mr. Sanders’s arguments have largely

conflated the distinct concepts of possession and ownership that arise in this 

matter. We emphasize that the instant proceedings sound solely in ejectment, 

which has historically been a vehicle for asserting possession of property, as 

opposed to adjudicating ownership interests. See Soffer v. Beech, 409 A.2d 

337, 341 (Pa. 1979) (“The writ of ejectment has long been the general method 

for obtaining possession of real property.” (emphasis added)). This Court 

defines ejectment as “an action filed by a plaintiff who does not possess the 

land but has the right to possess it, against a defendant who has actual 

possession.” Billig v. Skvarla, 853 A.2d 1042, 1049 (Pa.Super. 2004). Thus,

“the only necessary or indispensable party to an ejectment action is the person 

in actual possession of the land[.]”8 Bannard v. New York State Nat. Gas. 

Corp., 172 A.2d 306, 310 (Pa. 1961); see also Robb v. Weida, 276 A.3d 

259 (Pa.Super. 2022) (non-precedential decision at 3) (same).

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8

 As noted above, the certified record indicates that Eric Smith also resides 

at 3718 Fairmount with Mr. Sanders. See N.T. Hearing, 12/13/21, at 20. 

Assuming, arguendo, that Eric Smith’s possession and occupation of the 

property requires him to be joined as an indispensable party under 

Pennsylvania law, we note that he was a full participant in the ejectment 

proceeding and testified at the hearing in opposition to the petition. Id. at 

26-40. To the extent that Mr. Sanders suggests that Eric Smith was not a 

party to these proceedings, such an assertion is fully belied by the record.
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Since an ejectment action does not implicate or concern an adjudication 

of ownership or title, there is no requirement that all potential owners of a 

property be joined as indispensable parties to such proceedings.9 Id. This 

matter relates solely to Mr. Sanders’s ongoing occupation of the property and 

will only affect his rights and circumstances. Since the outcome of this 

litigation will not prejudice the property rights of the Smith heirs, we cannot 

conclude that they are indispensable parties to this ejectment action. See 

Sprague, supra at 189. Accordingly, we find the orphans’ court properly 

exercised jurisdiction in this case.

In his second claim for relief, Mr. Sanders asserts that the Administrator 

failed to demonstrate that he possessed “paramount” title to 3718 Fairmount 

for the purposes of ejectment. See Appellant’s brief at 15 (“[The 

Administrator] did not plead or prove at the filing of the petition or at trial that 

he was the ‘record owner of the property[.]’”). We agree.

As noted above, ejectment is a possessory matter and the plaintiff’s 

right to possession is the central consideration in such a controversy. See 

Soffer, supra at 340-41; Billig, supra at 1049. Therefore,

[t]he plaintiff’s burden in an action in ejectment at law is clear: 

they must establish their right to immediate exclusive possession. 

Recovery can be had only on the strength of their own title, not 

the weakness of defendant’s title. The crux of an ejectment 

action, therefore, rests with the plaintiffs’ ability to identify, by a 

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9

 Concomitantly, our precedent provides that “all parties who claimed title to 

the property at issue must be joined as indispensable parties” in a quiet title 

action. Orman v. Mortgage I.T., 118 A.3d 403, 406-07 (Pa.Super. 2015).
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preponderance of the evidence, the boundaries of a parcel of land 

to which they are out of possession but for which they maintain 

paramount title.

Doman v. Brogan, 592 A.2d 104, 108 (Pa.Super. 1991) (cleaned up).

Instantly, the Administrator’s title to 3718 Fairmount is entirely 

dependent upon the decedent’s alleged ownership of the property at the time 

of her death:

(a) Personal representative.—A personal representative shall 

have the right to and shall take possession of, maintain and 

administer all the real and personal estate of the decedent, 

except real estate occupied at the time of death by an heir or 

devisee with the consent of the decedent. He shall collect the 

rents and income from each asset in his possession until it is sold 

or distributed, and, during the administration of the state, shall 

have the right to maintain any action with respect to it and shall 

make all reasonable expenditures necessary to preserve it. The 

court may direct the personal representative to take possession 

of, administer and maintain real estate so occupied by an heir or 

a devisee if this is necessary to protect the rights of claimants or 

other parties. Nothing in this section shall affect the personal 

representative’s power to sell real estate occupied by an heir or 

devisee.

20 Pa.C.S. § 3311(a) (emphasis added); see also 20 Pa.C.S. § 301(b) (noting 

that the ownership interests of an intestate decedent’s heirs is subject “to all 

the powers granted to the personal representative by this title and lawfully by 

the will and to all orders of the court.”).

Reviewing the transcripts of the ejectment hearing, it is clear the 

Administrator never provided a copy of a title or deed attesting to the 

decedent’s ownership of 3718 Fairmount at the time of her death. See N.T. 

Hearing, 12/13/21, at 83-84. Indeed, attorneys for both Mr. Sanders and Eric 
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Smith brought this deficiency to the attention of the orphans’ court and 

asserted that the Administrator had failed to demonstrate a concrete 

ownership interest in 3718 Fairmount. Id. at 84. (“[I]t appears that some 

title needs to be shown and attached to the complaint, and that’s a condition 

precedent to an ejectment that he is the owner of the property and holds legal 

title. I don’t know how the deed is written currently and what it says[.]”). 

Furthermore, a searching review of the certified record confirms no other 

documentation attesting to decedent’s ownership of 3718 Fairmount has 

previously been filed. In response to these concerns, the orphans’ court 

merely stated its belief that the title to the property “would be in the 

decedent’s name.” Id. at 84. 

We cannot countenance the orphans’ court reliance upon a mere 

assumption of ownership in this ejectment action. As this Court has held:

[T]o prevail in an ejectment action, the plaintiff must show title 

at the commencement of the action and can recover, if at 

all, only on the strength of his own title, not because of 

weakness or deficiency of title in the defendant. If a plaintiff in 

ejectment has presented at trial prima facie evidence that it has 

title to the property at issue, the burden then shifts to the 

defendant, . . . . Conversely, if the plaintiff’s claimed chain 

of title is faulty, the plaintiff has not shown a prima facie

case, and the plaintiff’s ejectment case fails.

Becker v. Wishard, 202 A.3d 718, 722 (Pa.Super. 2019) (emphasis added).

Moreover, the absence of a link in the chain of title is fatal to a claim for 

ejectment. See Busin v. Whiting, 535 A.2d 1078, 1081 (Pa.Super. 1987)
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(“The plaintiff does not establish title in ejectment when possession is not 

shown and an essential deed in the chain of title is missing.”).

Consistent with this case law, it was entirely incumbent upon the 

Administrator to establish the existence of valid title to 3718 Fairmount to 

prevail in ejectment. He failed to do so. In the absence of any documentation 

that speaks definitively to the decedent’s ownership of 3718 Fairmount, we 

must conclude that the Administrator failed to establish a prima facie case of 

ejectment. See Becker, supra at 722; Busin, supra at 1081. Thus, the 

orphans’ court erred in granting the petition for ejectment with respect to Mr. 

Sanders. Accordingly, we will vacate the December 29, 2021 order of the 

orphans’ court and remand for further proceedings consistent with this writing. 

Due to the nature of our relief, we need not address the merits of Mr. 

Sanders’ third claim for relief.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2023