J

- A02040

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF JULIANNA M. GENNARO, DECEASED

APPEAL OF: JOSEPH GENNARO :

:

:

:

:

:

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 758 WDA 2022

Appeal from the Order Entered June 24, 2022 In the Court of Common Pleas of Allegheny County Orphans ’ Court at No(s): 02

- 20

- 03721

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

MEMORANDUM BY MURRAY, J.: FILED: February 9, 2023

Joseph Gennaro (Appellant) appeals from the order denying hi s request

to serve as administrator of the estate of his daughter, Julia n na, and granting

letters of administration to Heidi Charles , who is Julia n na’s mother (Mother)

.

We affirm.

The orphans’ court summarized the factual and procedural case history

as follows :

Julianna M. Gennaro died, intestate, on June 24, 2020, at the age of fifteen (15). The parents of Julianna had never married and had long resided, separately, [M]other , residing in Allegheny County and the father, [Appellant] , residing in adjacent Beaver County. It is not disputed that at all times pertinent to this matter, [M] other ha d been the primary custodial parent of Julianna and

Julianna had resided with [M] other. Nor is it disputed that Julianna was, at all times, a resident of Allegheny County.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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- Julianna ’ s death occurred

... when she was struck by a train near her home in Allegh eny County. The death certificate

identified Julianna ’ s residence as the residence of [M] other on Morgan Hollow Road, South Fayette Township, Allegheny County. Thereafter, on August 10, 2020, [M] other caused a caveat to be filed with the Allegheny Count y Department of Court Records, Orphans ’ Court Division, requesting that no letters testamentary or letters of administration be issued without notice having first been provided either directly to [M] other or to her counsel. On August 13, 2020, Julianna ’ s f ather, [Appellant] , caused a petition

to be filed with the Register of Wills Office in Beaver County, Pennsylvania, entitled “ Petition to Show Cause Why [Appellant]

Should Not Be Named Sole Administrator of the Estate of Julianna

Gennaro .” In that petition, [Appellant] averred that, at the time of her death, Julianna had been a resident of Beaver County.

Approximately nine months later, on May 4, 2021, upon

consideration of preliminary objections having been filed in
response to [Appellant ’s] Petition to Show Cause, the Beaver County Court of Common Pleas Orphans ’ Court directed that the proceedings be transferred to Allegheny County. On that same date, the Petition to Show Cause was filed with the Orphans ’ Court

Division of Allegheny Coun ty on behalf of [Appellant] , recaptioned, however, as an Amended Petition for Citation. Apart from a

corrected averment that Julianna had been a resident of Allegheny County, rather than Beaver County, at the time of her death, the allegations set forth i n the amended petition filed in Allegheny County were substantially unaltered from those contained in the petition that had been filed in Beaver County. In the amended petition, the term “ Beaver ” had been scratched out of the original petition and “ Allegh eny ” had been handwritten above that scratch

out.

Subsequently, following presentation and argument before Hearing Officer Timothy Finnerty at the Allegheny County Register of Wills, Findings of Fact and Conclusions of Law were issued regarding the Petiti on to Show Cause. Among the findings of fact set forth by Hearing O fficer Finnerty was that, although Julianna ’ s death certificate stated that she had been a resident of Allegheny County at the time of her death, [Appellant] had alleged otherwise in the p etition which he had earlier caused to be filed with the Register of Wills Office in Beaver County, asserting in that petition that Julianna was a resident of Beaver County.J

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- Among the further findings made by Hearing Officer Finnerty

was that [Appellant] had not seen Julianna regularly and that [Appellant’s] actions of filing in Beaver County for his Citation to Show Cause, signing a verification to that false pleading and falsely portraying the amount of time he had, in fact, spent in

person w ith Julianna negatively affected the ability [of Appellant]

to administer the Estate. Accordingly, on April 19, 2022, Hearing Officer Finnerty entered an order issuing [a] letter of administration solely to [M] other. Objections to the hearing

office r ’ s f indings of fact, conclusions of law and order and a request for a de novo hearing before an Orphans ’ Court judge

followed.

A conference went forward before the [orphans’ court] on June 22, 2022. At that conference, counsel for [Appellant]

asserted that t here was no basis on the existing record upon which

to exclude [Appellant] from an appointment as, at least, a co

administrator of his daughter ’ s estate. More specifically, counsel urged that there are four factors to be considered when determining the fi tness of an individual for appointment as an administrator and those factors are whether the individual (1) is a resident of Pennsylvania; (2) is insolvent; (3) has been convicted of a crime; or (4) has a hostile interest in the matter.

That list of facto rs is derived from the decision in Fleming's

Estate 32 Pa. D & C 245, 252 (1938)

. As noted in the decision rendered on appeal in that case, however, the bases for excluding or removing a fiduciary are anchored in statute and may be expressed more broadly than had been set forth in the common pleas court opinion. [ See In re Fleming's Estate , 135 Pa. Super. 423, 427, 5 A.2d 599, 600 (1939) .]

...

Orphans’ Court Opinion, 9/ 6 /22, at 1

- 4 (footnotes omitted).

On June 23, 2022, the orphans’ court entered an order den ying

Appellant ’ s request for a de novo hearing on the order grant ing letters of

administration to Mother

. 1 The next day , the orphans’ court ent ered an order

_________________ __________ ______ ____ _______

1 The orphans’ court used a pen to cross through the language in the proposed order drafted by Appellant’s counsel and hand wr o te “DENIED

. ” See Order, 6/23/22.J

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denying Appellant’s petition for citation to show cause why the Register’s April

19, 2022 , order sho uld not be rev ers ed. Order, 6/24/22. The orphans’ court

explain ed:

An uncontested fact in this case is that [] Appellant, Joseph, opened an estate in a county that was not t he last family or principal residence of his daughter. [Appellant]’ s action was, if not deliberately contrary to law, then certainly an inexplicable disregard of the death certificate and in gross error. For that

reason, [Appellant]’ s request to be appointed administrator either

in lieu of or jointly with [M] other was denied.

Orphans’ Court Opinion, 9/ 6 /22, at 5

- 6.

Appellant timely filed a single notice of appeal to both orders on June

29, 2022 , and a court

- ordered Pa.R.A.P. 1925(b) concise statem ent on July

14, 2022.

On August 1, 2022, this Court issued a rule to show cause for Appellant

to address the appeal’s timeliness. We stated:

the orders do not appear to be final or otherwise appealable under Pa.R.A.P. 342 (governing appealability of orphans ’ court orders and permitting appeal from enumerated orders). See, e.g., McCutcheon v. Philadelphia Elec. Co. , 788 A.2d 345, 349 (Pa. 2002) (stating that appeal properly lies only from final order unless otherwise permitted by rule or statute); see also Pa.R.A.P. 341(b)(1) (defining final order as one that disposes of all claims in and parties to action); see also In re: Estate of Cherwinski

, 856 A.2d 165, 166

- 6 7 (Pa. Super. 2004)

... (providing that in estate case, generally, confirm ation of final account represents final order, subject to filing and disposition of any exceptions).

Order, 8/1/22.

Appellant responded that the orphans’ court “ made a final decision

...

when it denied Appellant’s request for a de novo hearing and deniedJ

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Appellant’s petition for citation to show cause why the Order granting letters

of administration should not be reversed. ” Appellant’s Response, 8/15/22, at

1. Appellant emphasized his c halleng e to the orphans’ court’s decision that

he is “not fit to administer the Estate of his daughter, who died in a train

accident.” Id. He argu ed:

The Orphans’ Court granted letters of administration to [Mother]

and [she] has instituted a lawsuit rel ating to the incident which
caused decedent’s death. The claims adjudicated in the Orphans’ Court related solely to who would administer the Estate of

decedent. The Orphan s ’

, Court made a final decision in this regard when it denied Appellant’s request for a de novo hearing and denied Appellant’s petition for citation to show cause why the Order granting letters of administration should not be reversed. In other words, [Mother ] can administer the Estate in the underlying lawsuit, while the Appellant has no say in the matter. Therefore, Appellant’s claims have been disposed of.

***

The basis of Appellant’s claim is that he should be able to administer the Estate of his daughte r during the underlying lawsuit. Once the underlying lawsuit is over, Appellant’s claims are moot. If this Court were to quash Appellant’s appeal, Appellant would have no right to make important decisions in the administration of his daughter’s Estate.

Id. at 1

- 2 (citing In re Est. of Tigue , 926 A.2d 453, 456

– 57 (Pa. Super.

2007) ).

On September 9, 2022, t his Court entered an order quash ing Appellant’s

appeal from the June 23, 2022, order . We stated

,

t he appeal is QUASHED in part insofar as it is taken from the June 23, 2022 order denying Appellant’s motion for de novo hearing. McCutcheon v. Philadelphia Elec. Co. , 788 A.2d 345, 349 (Pa. 2002) (reiterating that appeal properly lies only from final order unless otherwise permitted by rule or statute); see also Pa.R.A.P.J

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341(b)(1) (defining final order as one that disposes of all claims in and parties to action).

Order , 9/9/22.

As to the June 24, 2022, order, we stated:

The rule is discharged, and the appeal shall proceed only insofar as it is taken from the June 24, 2022 order denying Appellant’s petition for citation to show cause. This ruling, however, is not binding upon this Court as a final determination as to the propriety of the appeal. The parties are advised that the issues may be revisited by the merits panel to be assigned to this appeal, and the parties should be prepared to address, in their briefs or at the time of oral argument, any concerns the panel may have concerning these issues.

Id.

Appealability

W e are persuaded by Appellant’s finality argument and his reliance on

In re Est. of Tigue , as well as Pa.R.A.P. 342 (a)(5) (titled “Appealable

Orphans’ Court Orders” and provid ing “an appeal may be taken as of right ...

from an order determining the status of fiduciaries, beneficiaries, or creditors

in an estate, trust, or guardianship” )

. 2

Appellant correctly observes that the June 24, 2022, order disposed of

Appellant’s challeng e to Mother ’s administrat ion of Julianna’s estate. It

appears that as administrator , Mother would impact “the status of fiduciaries

,

beneficiaries, or creditors,” contrary to Rule 342.

_________________ __________ ______ ____ _______

2 Appellant cites Pa.R.A.P. 341 (Final Orders; Generally) as the basis for this Court’s jurisdiction in his brief. See Appellant’s Brief at 1. However, in his docketing statement, Appellant indicates that in addition to Rule 341, Pa.R.A.P. 301 (Requisites for an Appealabl e Order) and 342 (Appealable Orphans’ Court Orders) support this appeal. See Superior Court of Pennsylvania, Civil Docketing Statement, 7/14/22, at 1.J

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More over , we have stat ed : The register ’ s decision to issue letters is a judicial act. Estate of

Osborne

, 363 Pa. Super. 200, 525 A.2d 788, 794 n. 9 (1987). A party contesting that act may appeal to the orphans ’ court. [ In

re Estate of

] Dilbon

, 690 A.2d [1216]

, 1218

- 1219 [(Pa. Super. 1997)]

. In turn, a party challenging a ruling of the orphans ’ court may, of course, appeal to this Court

. See [ In re
Estate of] Klink

, 743 A.2d [482,] 484 [(Pa. Super. 1999)] ; 42 Pa.C.S.A. § 742.

In re Est. of Tigue , 926 A.2d at 4 56 (emphasis added).

As indicated above

, there is precedent for this Court to review a claim

that the orphans’ court improperly “ determine [d] the proper individual to act

as administrator [.]” I n re Est. of Klink , 743 A.2d at 485. See also Est. of

Fritz v. Fritz , 798 A.2d 243 (Pa. Super. 2002) ( deciding appeal and vacating

orphans’ court order affirming Register of Wills ’ grant of letter s of

administration to first executor and denying letters of administration to second

executor )

. Most recently, we affirmed the orphans’ court order affirming the

Register of Wills’ refusal to appoint the a ppellant as administrator of an estate

in In re Est. of Schwartz , 275 A.3d 1032 (Pa. Super. 2022)

. Accordingly,

we address Appellant’s substantive issue.

Appellant’s Challenge to Mother as Administrator

Appellant presents the following question for our review :

1. Whether the trial court erred by denying Appellant’s Petition for Citation to Show Cause Why the Register’s Order of April 19, 2022 Should Not be Reversed, when the Hearing Officer and Trial Judge relied on facts that are immaterial to the analysis of whether one is qualified to serve as an administrator?

Appellant’s Brief at 4.J

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We have explained:
If the orphans’ court has held an evidentiary hearing, we will then

afford the court’s findings the same weight as a jury verdict, and we will disturb the court’s decree only if it is unsupported by the

evidence or if it includes an error of law. Dilbon

, 690 A.2d at

1218. However, if the orphans’ court did not take evidence, then our appellate review is limited to determining if the register abused its discretion

. Klink

, 743 A.2d at 484. An abuse of discretion is not merely an error in judgment. In Re

Paxson Trust I

, 893 A.2d 99, 112 (Pa. Super. 2006). Rather, it involves bias, partiality, prejudice, ill

- will, or misapplication of

law. Id.

In re Est. of Tigue , 926 A.2d at 457 (emphasis added)

.

Here, the orphans’ court conducted a conference and heard argument

but did not “take evidence.” See id. We thus consider whether the Register

abused its discretion. Id.

Appellant argues he was erroneously disqualified “ from serving as an

administrator of his da ughter’s estate on the grounds that he failed to properly

identify her county of residence.” Ap pellant’s Brief at 9 (citing In re Friese’s

Estate , 176 A. 225, 227 (Pa. 1934))

. 3 Appellant argues the decision was

based on “external factors that do not properly indicate [A]ppellant’s ability to

serve as administrator.” Id.

The Register of Will s grants letters of administration pursuant to the

following statutory provi sions :

_________________ __________ ______ ____ _______

3 Mother counters : ”Appellant was not disqualified; rather , [Mother] was

determined to be the individu al who would best administer the Estate.” Appellee’s Brief at 8.J

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(b) Letters of administration.

-- Letters of administration shall be granted by the register, in such form as the case shall require, to one or more of those hereinafter mentioned and, except for good cause, in the following order:

(1) Those entitled to the residuary estate under the will.

(2) The surviving spouse.

(3) Those entitled under the intestate law as the register, in his discretion, shall judge will best administer

the estate , giving preference, however, according to the sizes

of the shares of those in this class.

(4) The principal creditors of the decedent at the time of his

death.

(5) Other fit persons.

(6) If anyone of the foregoing shall renounce his right to letters of administration, the register, in his discretion, may appoint a nominee of the person so renouncing in preference to the persons set forth in any succeeding paragraph.

(7) A gu ardianship support agency serving as guardian of an incapacitated person who dies during the guardianship administered pursuant to Subchapter F of Chapter 55 1 (relating to guardianship support).

(8) A redevelopment authority formed pursuant to the act of May 24, 1945 (P.L. 991, No. 385), known as the Urban Redevelopment Law.

20 Pa.C.S.A. § 3155 (b) (emphasis added , footnotes omitted )

.

We have stated:

As Section 3155 makes clear, it is the register who has the authority and duty to issue letters. When doing so, the register has some degree of discretion in selecting the appointee. However, that discretion must be exercised within the strictures of 20 Pa.C.S.A. § 315 5. More specifically, the register can exercise discretion only within the class of entitled personsJ

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and cannot, without good cause, deviate from the order of appointment set forth in the statute.

In re Est. of Tigue , 926 A.2d at 456 (citations omitted).

Section 3155 “ preserves a register ’ s ability to deny letters of

administration for ‘ good cause. ’ 20 Pa.C.S.A. § 3155(b). ” In re Est. of

Schwartz , 275 A.3d at 1035. R eferenc ing the note to § 3156, which governs

persons who are not qualified to administer an estate , we have observed that

the statutory scheme was intended to be “declaratory of existing law [...] in allowing the register to disregard unfit persons [citing Friese's Estate .]” 20 Pa.C.S.A. § 3156 Editor ’ s Note (Jt.

St. G ovt. Comm.

– 1949).

Id.

Our recent decision in In re Est. of Schwartz is instructive. In that

case, the appellant was a creditor of the decedent and unsuccessfully sought

appointment as administrator of the estate. 4 On appeal, t his Court concluded

that “ the record supports a finding of good cause for the register ’ s decision to

deny [a] ppellant ’ s petition ” seeking to be granted letters of administration.

Id. at 1037. Our decision was informed by the appellant’s “lack of candor.”

Id. at 1036, n. 5. We stated:

Appellant did not disclose that he intervened in Decedent ’ s action to set aside the tax sale, and that the matter is still pending. Nor did Appellant disclose [the a] ppellee ’ s mortgage acti on pertaining to the Property.

.. . In other words, the record supports a

_________________ __________ ______ ____ _______

4 Appellant purchased the decedent’s home “ at the upset tax sale, and [d] ecedent ’ s action to set the tax sale aside, in which [the a] ppellant has intervened, remain [ed] pending

. ” In re Est. of Schwartz , 275 A.3d at 1035

.J

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finding that Appellant was less than fully forthcoming in his petitions

.

Id. at 1036 ( emphasis added, footnote omitted).

Here

, the orphans’ court likewise observ ed:

Even if, as asserted by counsel for [Appellant] , there had been no intentional misrepresentation on [Appellant’s] part to the effect that his daughter was residing with him in Beaver County, [Appellant’s] averment of [Julianna’s] residence in Beaver County

was nonetheless in disregard of the Regist e r ’ s Certification of Death and indicative of either a failure to responsibly review or an inability to comprehend that certification. The record establishes the disconcerting fact of an unsupportable assertion u nder oath that Julianna resided in Beaver County.

Orphans’ Court Opinion, 9/6/22, at 6.

The court reasoned :

The decision to exclude [Appellant] as administrator or co

administrator rested upon the uncontroverted fact of [Appellant’s] assertion under oath that his daughter resided in Beaver County. Indeed, in the Petition for Citation filed on [Appellant’s] behalf it

is “ denie[d] that [ Appellant ] knew that Decedent was a resident of Allegheny County. ” A death certificate constitutes only prima
facie evidence of its contents. Certainly, however, an application for letters of administration, which includes the submission of a death certificate as p art of the necessary process, anticipates the applicant ’ s knowledge of fundamental components of the death

certificate. An application that is inconsistent with, disregards or indicates an incapacity to comprehend such components of the

death certificate would seem to suggest unfitness for competent administration of an estate and incapacity to serve responsibly in

the role of administrator of an estate.

This matter concerns a Petition to Show Cause Why the

Resister ’ s Order of April 19, 2022, should not be reversed. The

R egister awarded letters of administration to [M] other and declined to, instead, issue letters to [Appellant]

. The burden

rested with [Appellant] to demonstrate cause for setting aside the Register ’ s Order. That bu rden consisted both of demonstrating

the unfitness of the then

- current administratrix and alsoJ

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demonstrating the fitness and appropriateness of [Appellant] to
assume the role of administrator. Even assuming that it had been

demonstrated in this case that [M] other was unfit to serve as

a dministratrix, it would not necessarily have followed that the [Appellant] should then, by default, be appointed as

administrator. Based on the record presented, it could not be

concluded that [Appellant] could serve resp onsibly as an

administrator of the estate

.

Id. at 6

- 7 (footnote omitted)

.

T he orphans’ court’s rationale is supp orted by “the record presented.”

See id. Consistent with both the record and prevailing legal authority, we

discern no abuse of discretion in the Register’s appointment of Mother as

admin i strator

. We thus affirm the denial of Appellant’s p etition for c itation to

s how c ause w hy the R egister’s o rder of April 19, 2022 s hould not be reversed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/9/2023