J-S38015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF RICHARD L. 

MICHAEL, DECEASED

APPEAL OF: CARLA STIEHLER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 501 WDA 2021

Appeal from the Order Entered March 30, 2021

In the Court of Common Pleas of Butler County Orphans' Court at No(s): 

OC No. 2011-150

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: March 15, 2022

Carla Stiehler (“Appellant”),1 executrix of the estate of Richard L. 

Michael, deceased, appeals from the order entered on March 30, 2021, by the 

Court of Common Pleas of Butler County Orphans’ Court, declaring subject 

matter jurisdiction over the proceeds of the decedent’s, Richard L. Michael 

(“Decedent”), 401(k) retirement account and life insurance policy.

2

 After 

careful consideration, we affirm. 

This matter arises from a controversy over the disposition of the 

proceeds from Decedent’s 401(k) retirement plan and life insurance policy. In 

his Last Will and Testament, Decedent named his two daughters, Ashley 

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* Retired Senior Judge assigned to the Superior Court.

1 We glean from the record that Appellant was formerly known as Carla Flick. 

2 As explained infra, we deem the March 30, 2021 order appealable as of right 

pursuant to Pa.R.A.P. 311(b)(2). 
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Michael (a/k/a Ashley Gamble) (“Ms. Gamble”) and Amber Michael, as the sole 

beneficiaries of his estate, and designated his sister, Appellant, as the 

executrix of the estate. Findings of Fact, 12/4/20, at 2 ¶¶4-5. Decedent 

passed away on August 14, 2010. Id. at 2 ¶3. Letters testamentary were 

issued to Appellant on September 17, 2010. Id. at 2 ¶4. At the time of his 

death, Decedent owned a 401(k) retirement account and a life insurance 

policy. Id. at 2 ¶6.

Prior to his death, Decedent named his then-wife, Shirley A. Cupec (“Ms. 

Cupec”), as the beneficiary on both the 401(k) account and the life insurance 

policy. Id. at 2 ¶7. The parties thereafter divorced and entered into an 

agreement dated March 18, 2006 (“Marital Settlement Agreement”), wherein 

each party waived “any right, title or interest to any claim” to the other’s 

respective retirement accounts and life insurance policies. Id. at 1 ¶1 (citation 

to record omitted).

3

 Decedent failed, however, to remove Ms. Cupec as the 

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3 The Marital Settlement Agreement further provided that each party waived 

and released

any and all right, titles and interests, or claims against the 

property ... of the other or against the estate of the other, of 

whatever nature and wheresoever situate, which she or he now 

has or at any time hereafter may have against such other ... 

whether arising out of any former acts, [or] contracts.... It is the 

intention of Husband and Wife to give to each other by the 

execution of this Agreement a full, complete and general release 

with respect to any and all property of any kind or nature, real, 

person (sic) or mixed.
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beneficiary on these accounts after their divorce. Orphans’ Court Opinion 

(“OCO”), 5/12/21, at 2. As such, upon notice of Decedent’s death, pursuant 

to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1101 

et seq. (“ERISA”), the plan administrator of the 401(k) account and life 

insurance policy paid out the proceeds therefrom to Ms. Cupec, the named

beneficiary.4 OCO at 2. 

After paying the appropriate inheritance tax on the proceeds, Ms. Cupec 

gave $75,394.91 to Appellant,5 “because [Appellant] was the [e]xecutrix of 

the [e]state ... and she intended for [her] to distribute these proceeds 

according to the Last Will and Testament of the Decedent.” Id. at 2-3. 

Appellant was aware that the funds she received from Ms. Cupec represented 

the proceeds from Decedent’s retirement plan and life insurance policy; 

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Id. at 1 ¶2 (citation to record omitted). 

4 “Under ERISA, plan administrators and fiduciaries are required ‘to discharge 

[their] duties with respect to a plan solely in the interest of the participants 

and beneficiaries, ... in accordance with the documents and instruments 

governing the plan....’” In re Estate of Sauers, 32 A.3d 1241, 1253 (Pa. 

2011) (quoting 29 U.S.C. § 1104(a)(1)(D)) (emphasis added in Sauers). 

5 Ms. Cupec paid the sum of $75,394.91 to Appellant in the form of two 

personal checks—one dated May 2, 2011, in the amount of $50,820.91, and 

a second dated April 16, 2012, in the amount of $24,574.00—made payable 

to “Carla Flick.” N.T. Hearing, 7/26/21, at 9. Appellant deposited both checks 

into her personal checking account. Id. 
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however, she did not distribute any portion of the $75,394.91 to the 

beneficiaries of the estate. Id. at 3; Findings of Fact at 3 ¶13. 

On February 7, 2019, at the request of Ms. Gamble, the orphans’ court 

issued a rule directing Appellant to show cause why, inter alia, “[s]he should 

not be surcharged the sum of $75,394.91 for her failure to distribute that 

money to ... Decedent’s heirs[.]” Rule, 2/8/19, at ¶1 (single page).6 During 

a status conference on the matter, Appellant’s counsel questioned the 

orphans’ court’s jurisdiction over the 401(k) account and life insurance policy

proceeds. OCO at 3. Thus, the court directed the parties to brief the issue as 

to whether Ms. Cupec’s transfer of funds to Appellant “involves the [e]state...,

or if this is a cause of action between said individuals involving breach of 

contract or fraud.” Orphans’ Court Order, 12/4/19, at 1. The parties 

complied. 

A hearing was scheduled for November 25, 2020, in order to determine 

whether the orphans’ court had subject matter jurisdiction over the disputed 

proceeds. OCO at 3. After careful consideration of the testimony given at the 

hearing and the briefs submitted by the parties, the orphans’ court issued the 

following conclusions of law:

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6 “When the executor of an estate fails to fulfill his fiduciary duty of care, the 

court may impose a surcharge against him. A surcharge is a penalty imposed 

to compensate the beneficiaries for loss of estate assets due to the fiduciary’s 

failure to meet his duty of care....” In re Estate of Miller, 18 A.3d 1163, 

1174 (Pa. Super. 2011) (citation omitted). 
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14. The ... 401(k) retirement account and life insurance policy 

were the personal assets of ... Decedent ... during his life. 

15. The proceeds therefrom were paid to the named beneficiary 

of said retirement account and life insurance policy, [Ms.]

Cupec, pursuant to ... []ERISA[]. 

16. [Ms. Cupec] waived any and all right to and interest in these 

proceeds in the March 18, 2006[] Marital Settlement 

Agreement. 

17. The estate of Richard L. Michael, deceased, has a claim to 

the proceeds of said retirement account and life insurance 

policy. 

18. The orphans’ court has subject matter jurisdiction over the 

disputed proceeds and the disposition of [the] same. 

Conclusions of Law, 12/4/20, at 3 (unnecessary capitalization omitted). 

Accordingly, the orphans’ court entered an order on December 4, 2020, 

declaring its subject matter jurisdiction over the proceeds of Decedent’s 

401(k) retirement account and life insurance policy. Orphans’ Court Order, 

12/4/20 (single page).7 On March 30, 2021, at the request of Appellant, the 

orphans’ court amended its December 4, 2020 order to include the following 

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7 Appellant filed an appeal from the December 4, 2020 order; however, the 

appeal was quashed by this Court because the order was not final or otherwise 

appealable. Per Curiam Order, 3/19/21 (single page) (noting the order did 

not state that “a substantial issue of venue or jurisdiction is presented”) (citing 

Pa.R.A.P. 311(b)(2)). Rule 311(b)(2) states:

An appeal may be taken as of right from an order in a civil action 

or proceeding sustaining the venue of the matter or jurisdiction 

over the person or over real or personal property if ... the court 

states in the order that a substantial issue of venue or jurisdiction 

is presented. 

Pa.R.A.P. 311(b)(2). 
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language: “a substantial issue of jurisdiction exists in the instant case.” 

Orphans’ Court Order (“Amended Order”), 3/30/21 (single page).8

On April 20, 2021, Appellant filed a timely notice of appeal,9followed by 

a timely court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. Herein, Appellant presents the following issues for 

our review:

A. Whether after [Ms.] Cupec’s comingling of the fungible 

401[(k)] funds with her personal funds, said funds ceased to 

be the 401[(k)] funds[] and[,] thus[,] the orphans’ court could 

not have proper jurisdiction over same?

B. Whether the orphans’ court exercises mandatory jurisdiction 

over the 401[(k)] funds?

C. Whether the orphans’ court exercises proper jurisdiction over 

Appellant vis-à-vis her transaction with [Ms.] Cupec?

D. Whether the orphans’ court exercises proper non-mandatory 

jurisdiction over the 401[(k)] funds?

Appellant’s Brief at 4 (unnecessary capitalization omitted).10 

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8 Although the orphans’ court’s original order sustaining jurisdiction over 

Decedent’s personal property was an interlocutory and unappealable order, 

we discern that the appeal from its Amended Order is properly before us, as 

it contains the language prescribed by Rule 311(b)(2). See Aerospace 

Finance Leasing, Inc. v. New Hampshire Ins. Co., 696 A.2d 810, 812 n.9

(Pa. Super. 1997) (citing Shears v. Rigley, 623 A.2d 821, 823 n.1 (Pa. 

Super. 1993)). 

9 See Martin v. Gerner, 481 A.2d 903, 905 (Pa. Super. 1984) (stating that 

the thirty-day appeal period under Pa.R.A.P. 903 does not begin to run until 

the lower court certifies an otherwise unappealable interlocutory order as 

appealable as of right under Pa.R.A.P. 311(b)(2)). 

10 While the orphans’ court has identified the issue in this matter to be 

regarding its subject matter jurisdiction over the proceeds from Decedent’s 
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All of Appellant’s issues implicate the orphans’ court’s exercise of 

jurisdiction in this matter. Our standard of review for questions involving 

jurisdiction is as follows:

A court’s decision to exercise or decline jurisdiction is subject to 

an abuse of discretion standard of review and will not be disturbed 

absent an abuse of that discretion. Under Pennsylvania law, an 

abuse of discretion occurs when the court has overridden or 

misapplied the law, when its judgment is manifestly unreasonable, 

or when there is insufficient evidence of record to support the 

court’s findings. An abuse of discretion requires clear and 

convincing evidence that the trial court misapplied the law or

failed to follow proper legal procedures. 

R.M. v. J.S., 20 A.3d 496, 500 (Pa. Super. 2011) (citation omitted). 

Preliminarily, we note that orphans’ courts are charged with the 

“administration and distribution of the real and personal property of 

decedents’ estates....” 20 Pa.C.S. § 711(1). See In re Estate of Ciuccarelli, 

81 A.3d 953, 958 (Pa. Super. 2013) (noting that the orphans’ court division 

has “mandatory and exclusive jurisdiction” over the administration and 

distribution of estate assets). Orphans’ courts must also adjudicate disputes 

concerning the title and rightful possession of a decedent’s property. Sauers, 

32 A.3d at 1249. Where a dispute arises that involves “substantial questions 

concerning matters enumerated in section 711 [of the Probate, Estates and 

Fiduciaries Code (20 Pa.C.S. §§ 101-8815) (“PEF Code”)] and also matters 

not enumerated in that section[,]” the orphans’ court may exercise nonmandatory jurisdiction over the matter. 20 Pa.C.S. § 712(3). 

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401(k) account and life insurance policy, we observe that the parties focus 

primarily on the 401(k) proceeds. 
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Instantly, Appellant claims that the orphans’ court erred in determining 

it has subject matter jurisdiction over the disputed proceeds because said

funds do not constitute property of the estate. Appellant’s argument is 

premised on her insistence that the money she received from Ms. Cupec 

should not be treated as 401(k) funds but, rather, as private funds due to Ms. 

Cupec’s comingling of the proceeds with her various other private accounts. 

Appellant’s Brief at 11. She states that money is fungible and once comingled 

with other funds, the funds do not remain directly traceable to the original 

funds. Id. at 11 (citation omitted). Here, Ms. Cupec testified that she rolled 

the 401(k) proceeds into her own personal 401(k) account. She then 

withdrew funds from her 401(k) account, paid the appropriate penalties, fees, 

and taxes associated with the proceeds received from Decedent’s accounts, 

and then deposited the remaining funds into her private checking account. 

Id. The money paid to Appellant was in the form of personal checks written 

from Ms. Cupec’s private checking account to Appellant. Id. at 12. 

Appellant admits that there is no precedential commentary directly on 

point, but suggests that “a presumption that the monies removed from [Ms.] 

Cupec’s private 401[(k)] account were her own 401[(k)] funds, rather than 

the funds derived from Decedent’s 401[(k),] ... is most appropriate.” Id. She 

states that if this approach is adopted, “[Ms.] Cupec would be free to do 

whatever she pleases with said withdrawn funds, and [Ms. Gamble] would be 

just as free to retrieve Decedent’s 401[(k)] funds from [Ms.] Cupec’s private 

401[(k)] account, because [the funds] never left.” Id. at 12-13. 
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Ergo, the legal and financial reality here is that the funds [Ms.] 

Cupec transferred to Appellant were not the actual 401[(k)] funds, 

let alone estate funds.... There is simply no argument whatsoever 

which would support proper [o]rphans’ [c]ourt jurisdiction over 

the transfer of private funds between two private individuals. That 

is clearly the providence of the [c]ivil [c]ourts in a contract or 

equitable action.

Id. at 13-14. 

Alternatively, in the event this Court deems the disputed funds to be the 

proceeds from Decedent’s 401(k) account, Appellant argues that said funds 

are clearly exempted from the estate by section 6108 of the PEF Code, which 

provides: 

The designation of beneficiaries of life insurance, annuity or 

endowment contracts, or of any agreement entered into by an 

insurance company in connection therewith, supplemental thereto 

or in settlement thereof, and the designation of beneficiaries 

payable upon or after the death of a participant under any 

pension, bonus, profit-sharing, retirement annuity, or other 

employee-benefit plan, shall not be considered testamentary and 

shall not be subject to any law governing the transfer of property 

by will. 

Appellant’s Brief at 14 (quoting 20 Pa.C.S. § 6108(a) (emphasis added)). She

interprets section 6108 to mean that “all such funds ... pass to the designated 

beneficiary outside of probate, and said funds are not testamentary, i.e.[,] 

cannot be considered the object of a devise and[,] thus[,] cannot exist within 

the corpus of the estate itself.” Id. at 14-15. Appellant concludes, therefore, 

“that the instant 401[(k)] funds do not fall under the [o]rphans’s [c]ourt’s 

mandatory jurisdiction set forth within 20 Pa.C.S. § 711 because they are 

[section] 6108 funds, and thus are not, and cannot be, estate funds.” Id. at 

16. 
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We are not convinced by Appellant’s argument that the funds in dispute 

should be treated merely as an exchange of personal funds between Ms. Cupec 

and Appellant. This claim ignores a number of critical points established by 

the orphans’ court’s factual findings. 

First, [the Findings of Facts] establish that ... Decedent’s 

retirement account and life insurance policy were his personal 

assets at the time of his death. Administrators of estates have a 

duty to take possession of, maintain, and administer the personal 

assets of decedents, and to ensure the proper distribution of the 

proceeds therefrom. In re Estate of Sauers, 32 A.3d 1241, 

1249 (Pa. 2011). Next, they establish that [Ms.] Cupec waived 

any right to the proceeds from these assets in the Marital 

Settlement Agreement, and that ... Decedent did not name an 

alternative beneficiary thereto. Thus, given [Ms.] Cupec’s waiver, 

once the proceeds were paid to her, the estate had a duty to 

enforce the Marital Settlement Agreement and, there being no 

named alternative beneficiary thereto, to collect and administer 

these proceeds as part of ... Decedent’s estate. 

These facts further establish that ... Decedent died testate, and 

that his entire estate, including any residue, of which the 

retirement benefits and life insurance policy proceeds were now 

included, was devised to his two children; neither [Ms.] Cupec 

[nor Appellant] were beneficiaries thereof. Fourth, the facts 

establish that [Appellant] was the executrix of the estate of 

[Decedent]; hence, she owed a fiduciary duty thereto. Fifth, they 

establish that [Ms.] Cupec knew, at the time she gave the money 

to [Appellant], that [Appellant] was a person authorized to receive 

money and assets on behalf of the estate of ... Decedent. Sixth, 

the facts establish that [Appellant], as the executrix of the estate, 

had actual knowledge that the money given to her by [Ms.] Cupec 

represented the proceeds Ms. Cupec received from ... Decedent’s 

retirement account and life insurance policy. Thus, [Appellant], 

as the executrix of the estate, was aware of the origin and nature 

of the money given to her[] and was in actual possession of the 

retirement policy and life insurance proceeds. These proceeds 
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were now estate assets,[11] and [Appellant], as the executrix of 

the estate ... had a fiduciary duty to distribute those proceeds 

according to the Last Will and Testament of ... [Decedent], i.e., to 

... Decedent’s children. This court undoubtedly has jurisdiction 

over the proper application and distribution of estate assets held 

by [Appellant], as the executrix of the estate.... 

OCO at 7-9 (unnecessary capitalization omitted).

Moreover, we reject Appellant’s claim that the 401(k) funds are “section 

6108 funds” and are therefore exempt from Decedent’s estate. As opined by 

the orphans’ court, 

[section 6108(a)] speaks only to the designation of beneficiaries[] 

and requires plan participants who wish to change their 

beneficiary designations on certain enumerated accounts to do so 

pursuant to plan contractual requirements[. T]he plan participant 

may not use his or her Last Will and Testament as a mechanism 

to change such designations. However, the court is unaware of 

any case law, and [Appellant] has not provided the court with any 

case law, that would suggest that title 20 Pa.C.S.[] § 6108 

precludes an estate from, on the basis of a preexisting marital 

settlement agreement, ... subsequently accepting proceeds paid 

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11 The orphans’ court notes the fact that Ms. Cupec did not designate 

Appellant’s capacity as the executrix of the estate on the personal checks she 

wrote to Appellant totaling $75,394.91 “is of no consequence.” OCO at 9. 

“That moneys collected by an agent or other person acting in a 

fiduciary capacity do not, simply because of being deposited in his 

individual name, cease to belong to the principal or beneficiary, 

and that they may be followed into the orphans’ court as against 

the creditors or the depositor, are propositions too well[-

]established to require the citation of authority....” In re 

Trought’s Estate, 1903 WL 2406[] at *1 (Pa. Orph. 1903). See 

also[] Gordon v. Hamilton Sav. & Loan Ass’n, 217 A.2d 843 

(Pa. Super. 1966) (bank that, in good faith, paid estate funds to 

the decedent’s son in his individual capacity, whom they knew to 

be the executor of [the] decedent’s estate, held not liable for son’s 

subsequent misappropriation of said funds. Son removed as 

fiduciary and surcharged by the orphans’ court).

Id. 
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pursuant to a retirement plan or life insurance policy and 

distributing them through an estate as estate assets. Thus, 

[Appellant’s] reliance upon [section] 6108 to divest the orphans’ 

court of jurisdiction is misplaced, as its mandates do not extend 

past the distribution of plan and insurance proceeds to the named 

beneficiaries therein, and do not affect the ultimate disposition of 

said proceeds as determined by subsequent legal proceedings. 

Id. at 4-5 (unnecessary capitalization and internal citation omitted). 

Next, Appellant points to section 6111.2 of the PEF Code, which 

provides, in relevant part:

[I]f an individual ... designates the individual’s spouse as 

beneficiary of the individual’s life insurance policy, annuity 

contract, pension or profit-sharing plan or other contractual 

arrangement providing for payments to the spouse; and ... at the 

time of the individual’s death is divorced from the spouse ... [a]ny 

designation ... in favor of the individual’s spouse or former spouse 

that was revocable by the individual at the individual’s death shall 

become ineffective for all purposes and shall be construed as if 

the spouse or former spouse had predeceased the individual.... 

Unless restrained by court order, no insurance company, pension 

or profit-sharing plan trustee or other obligor shall be liable for 

making payments to a spouse or former spouse which would have 

been proper in the absence of this section.... Any spouse or former 

spouse to whom payment is made shall be answerable to anyone 

prejudiced by the payment. 

20 Pa.C.S. § 6111.2. Based on the foregoing, Appellant asserts that “the 

chain of liability for the wrongful transfer of [proceeds from a decedent’s 

retirement fund or life insurance policy] in the context of an ex-spouse 

recipient should begin, and end, at the actual recipient of the funds, at least 

with regard to liability accrued to claimed rightful beneficiaries thereof.” 

Appellant’s Brief at 19. 

Applying section 6111.2 to the instant matter, Appellant asserts that 

Ms. Cupec wrongfully received the proceeds from Decedent’s 401(k) account, 
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because she waived her rights to any such funds in the Marital Settlement 

Agreement. Id. Hence, Ms. Cupec “shall be answerable to anyone prejudiced 

by the payment,” id. at 21 (quoting 20 Pa.C.S. § 6111.2), and liability to the 

rightful beneficiaries thereof “should begin[] and end” with her. Id. at 19. 

Appellant again emphasizes that she is merely the recipient of “private funds”

from the “actual wrongful recipient.” Id. at 21. She claims that the orphans’ 

court lacks jurisdiction over her because Ms. Cupec, as the named beneficiary 

on the 401(k) account, is the only proper subject of Ms. Gamble’s claim over 

the proceeds. Id. at 11, 18. As such, Appellant concludes Ms. Gamble’s 

bringing an action against her in orphans’ court was improper. Id. at 21. She 

suggests, rather, that Ms. Gamble should have brought a civil action against 

Ms. Cupec in family court to disgorge her of the funds. Id. Appellant’s claims 

are wholly without merit. 

First, to the extent that Appellant’s argument implies a lack of personal 

jurisdiction, we deem any such claim to be waived.12 Unlike subject matter 

jurisdiction, a defendant may consent to personal jurisdiction or may waive 

any objections thereto by taking action on the merits of the case. Frontier 

Leasing Corp. v. Shah, 931 A.2d 676, 680 (Pa. Super. 2007) (stating, 

“[p]ersonal jurisdiction can be established by consent”); McCullough v. 

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12 Personal jurisdiction is “[a] court’s power to bring a person into its 

adjudicative process[.]” Black’s Law Dictionary (10th ed. 2014). Personal 

jurisdiction is readily waivable. See Grimm v. Grimm, 149 A.3d 77, 83 (Pa. 

Super. 2016). 
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Clark, 784 A.2d 156, 157 (Pa. Super. 2001) (finding a “party may expressly 

or impliedly consent to a court’s personal jurisdiction”); Ball v. Barber, 621 

A.2d 156, 158 (Pa. Super. 1993) (“Once a party takes action on the merits of 

a case, he waives his right to object to defective service of process.”). 

Appellant has clearly consented to personal jurisdiction in the present matter. 

See Orphans’ Court Order, 4/18/19 (single page) (indicating Appellant 

appeared at the status conference on the rule returnable and that her counsel 

“indicated a willingness to cooperate” relative to any necessary trial 

preparation); N.T. Deposition of Appellant, 6/25/19, at 1-20 (documenting 

Appellant’s deposition testimony in preparation for trial); Appellant’s 

Responsive Brief to Petitioner’s Memorandum of Law, 2/18/20, at 1-7 

(unnumbered) (briefing the merits of whether the money transferred between 

Ms. Cupec and Appellant should be litigated as part of the estate or whether 

the transaction gives rise to a cause of action between the two individuals). 

Second, we have already rejected Appellant’s claim that the funds she 

received from Ms. Cupec were merely “private funds.” We uphold the orphans’ 

court’s determination that said funds should be treated as 401(k) funds and 

therefore, as part of the estate. Third, while Appellant is correct in stating 

that a civil action could have been brought against Ms. Cupec by the estate, 

this was unnecessary here. The evidence adduced at the hearing 

demonstrated that Ms. Cupec voluntarily remitted the proceeds to Appellant, 

as the executrix. See OCO at 9. 
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Nevertheless, Appellant’s reliance on section 6111.2 to establish that 

Ms. Cupec’s beneficiary designation was rendered ineffective by her divorce 

from Decedent, is wholly misplaced. The Supreme Court of Pennsylvania was 

called to decide in Sauers whether, and to what degree, ERISA preempts 

section 6111.2 of the PEF Code. See Sauers, supra. “ERISA contains an 

express provision, stating that ERISA ‘shall supersede any and all State laws 

insofar as they may now or hereafter relate to any employee benefit plan’ 

controlled or covered by ERISA.” Id. at 1250 (quoting 29 U.S.C. § 1144(a)). 

After an in-depth analysis of ERISA’s legislative purpose and an examination 

of the United States Supreme Court decision in Egelhoff v. Egelhoff, 532 

U.S. 141 (2001), a factually similar case, the Sauers Court concluded that 

section 6111.2 impermissibly “relates to” ERISA and, therefore, “is 

superseded by the vast reach of the federal ERISA statute. Sauers, 32 A.3d 

at 1257 (citing 29 U.S.C. § 1144(a)) (determining the courts below erred as 

a matter of law by ordering the ex-spouse, the named and unmodified primary 

beneficiary of the ERISA-governed insurance policy, to surrender all 

entitlement and interests in the proceeds of that policy). Thus, the plan 

administrator of Decedent’s retirement account and life insurance policy in the 

instant matter properly distributed the proceeds to Ms. Cupec in accordance 

with ERISA. See 29 U.S.C. § 1104(a)(1)(D) (requiring administrator of 
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benefits to make payments to a beneficiary “in accordance with the documents 

and instruments governing the plan”).13

In her final claim, Appellant asserts that the orphans’ court improperly 

relied on the non-precedential decision in Estate of Harmon v. Harmon, 

2020 WL 1490932 (Pa. Super. March 27, 2020) (unpublished memorandum), 

as persuasive authority in asserting nonmandatory jurisdiction over the 

401(k) proceeds pursuant to the catchall provision of section 712(3) of the 

PEF Code.

14

 Appellant’s Brief at 22 (citing 20 Pa.C.S. § 712(3)). In 

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13 We further observe that “ERISA’s focus is on the administration of employee 

benefit plans, not on the benefits, per se.” In re Estate of Easterday, 209 

A.3d 331, 346 (Pa. 2019). Thus, section 1144(a) of ERISA does not preempt 

a state law breach of contract claim to recover funds that were paid pursuant 

to an ERISA-qualified employee benefit plan. Id. 

Once the plan administrator makes payment in accordance with 

the plan documents, it satisfies ERISA’s goals of regulating 

employee benefit plans and the administration thereof, protecting 

the plan administrator from double liability, and ensuring that the 

named beneficiary receives her benefits in a prompt manner. 

There is no indication that in drafting ERISA, Congress was 

concerned with the named beneficiary’s right to retain the 

benefits. To the contrary, this consideration is wholly beyond the 

scope of ERISA because it is beyond the scope of plan 

administration. 

Id. (citations omitted). Accordingly, if Ms. Cupec was found to still be in 

possession of proceeds from Decedent’s accounts, ERISA would not preempt 

an action by the estate to enforce the Marital Settlement Agreement and to 

recover said funds. As indicated supra, no such action is required in the 

instant matter, however, as Ms. Cupec voluntarily relinquished the funds to 

Appellant as the executrix of the estate. 

14 Harmon involved a question of jurisdiction similar to the issues presented 

in the instant matter. In Harmon, the estate of Mr. Harmon filed a breach of 

contract action in the Court of Common Pleas civil division, at the divorce 
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determining that the orphans’ court had non-mandatory jurisdiction under 

section 712(3), the Harmon Court opined:

A matter must be heard in the orphans’ court if it concerns, among 

other things, the “administration of the real and personal property 

of decedents’ estates[.]” 20 Pa.C.S. § 711; see also In re Estate 

of Sauers, 32 A.3d 1241, 1249 (Pa. 2011) (“[A]dministrators of 

estates are charged with taking possession of, maintaining, and 

administering [life insurance proceeds], see 20 Pa.C.S. § 3311(a), 

and the Orphans’ Courts are vested with the authority to ensure 

the[ir] proper distribution[.]”). A key exception is when a case 

involves “substantial questions concerning matters enumerated in 

section 711 and also matters not enumerated in that section.” 20 

Pa.C.S. § 712(3) (emphasis added). In that event, it is not 

mandatory for the court of common pleas to exercise jurisdiction 

through its orphans’ court division. See id. 

We agree with the Estate that the issues involved in this case fall 

outside the exclusive purview of the orphans’ court. Essentially, 

the Estate’s action turned on the enforceability of a waiver of 

rights in a divorce decree. Such contractual disputes are not 

statutorily enumerated issues that must be adjudicated by an 

orphans’ court. See generally 20 Pa.C.S. § 711. It is rather the 

type of case where the orphans’ court has only non-mandatory

jurisdiction because it concerns not just administration of an 

estate, but also the enforcement of contractual terms incorporated 

into a divorce degree. See ... [20 Pa.C.S. §] 712(3). 

____________________________________________

docket number, to recover the life insurance policy proceeds that were paid 

to Mr. Harmon’s ex-wife. Similar to the present matter, Mrs. Harmon had 

been named the primary beneficiary of the policy during their marriage. The 

parties later entered into a marital settlement agreement, whereby they each 

relinquished any interest in the other’s life insurance policies. However, at 

the time of Mr. Harmon’s death, Mrs. Harmon remained the named beneficiary 

on the decedent’s policy and, thus, the proceeds were distributed to her in 

accordance with ERISA. Mrs. Harmon objected to the estate’s breach of 

contract matter being heard in the civil division, arguing that the orphans’ 

court had exclusive subject matter jurisdiction. Harmon, 2020 WL 1490932 

at *1-2. 
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Harmon, 2020 WL 1490932 at *3 (emphasis added). 

Appellant argues that Harmon is distinguishable from the instant 

matter and therefore lacks any persuasive value on this case. Appellant’s 

Brief at 23. Appellant is correct in stating that the orphans’ court found 

Harmon persuasive.

15

 Moreover, “[she] is correct that the facts in Harmon

are distinguishable from the instant facts in one important respect, being that, 

in the facts before this [c]ourt, [Ms.] Cupec voluntarily remitted the ... 

[]$75,394.91[] ... to the [e]state ... via Carla [] Flick, the [e]xecutrix thereof, 

such that a civil or family court action to enforce the contractual waiver was

unnecessary as to these funds.” OCO at 6 (emphasis added). Appellant’s 

assertion that the orphans’ court asserted nonmandatory jurisdiction under 

section 712(3), however, is incorrect. Neither the December 4, 2020 order 

____________________________________________

15 The orphans’ court explained in its Rule 1925(a) opinion: 

Although the Harmon case was an unpublished opinion, this 

[c]ourt disclosed that Harmon was being cited for persuasive 

value only per Pa.St. Super. Ct. I.O.P. § 65.37 and Pa.R.A.P. 

126(b) in its December 4, 2020[] Findings of Fact, Conclusions of 

Law, Discussion and Order of Court, at page 4. However, as the 

Harmon Court relied upon relevant precedent set forth in ... 

Sauers, [supra] ..., as well as clear statutory language, and as 

the facts therein were analogous to the facts of this case (spouse 

waived right to retirement account in marital settlement 

agreement but was not removed by owner of account, proceeds 

paid to spouse, action by estate to recover proceeds), this [c]ourt 

found the Superior Court’s analysis of jurisdiction compelling and 

persuasive. 

OCO at 6. 
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declaring that the orphans’ court has subject matter jurisdiction over the 

proceeds of Decedent’s 401(k) account and life insurance policy, nor the March 

30, 2021 Amended Order from which this appeal was taken, make any 

reference to nonmandatory jurisdiction or 20 Pa.C.S. § 712(3). Moreover, the 

orphans’ court clearly explained in its Rule 1925(a) opinion that the civil action 

in Harmon that placed that matter in the nonmandatory jurisdiction category 

under section 712(3) is lacking here, “leaving at issue only the distribution of 

said proceeds through the administration of ... Decedent’s estate, which is 

clearly within the jurisdiction of the [o]rphans’ [c]ourt.” OCO at 6. Thus, it is 

evident that the orphans’ court’s declaration of subject matter jurisdiction is 

pursuant to section 711(1). See 20 Pa.C.S. § 711(1) (providing that orphans’ 

courts have mandatory jurisdiction over the administration and distribution of 

real and personal property of the decedent’s estate). 

Based on the foregoing, we discern no abuse of discretion in the 

orphans’ court’s determination that it has subject matter jurisdiction over the 

distribution of proceeds from Decedent’s 401(k) account and life insurance 

policy. Accordingly, we affirm the March 30, 2021 Amended Order. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary
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Date: 3/15/2022