J-A01012-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF NAOMI R. CHERUP, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: LISA A. CHERUP, 

EXECUTRIX OF THE ESTATE OF NAOMI 

R. CHERUP, DECEASED

No. 409 WDA 2016

Appeal from the Order February 23, 2016

In the Court of Common Pleas of Allegheny County

Orphans' Court at No(s): No. 02-15-4102

IN RE: NAOMI R. CHERUP, A PARTIALLY 

INCAPACITATED PERSON

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: LISA A. CHERUP, 

EXECUTRIX OF THE ESTATE OF NAOMI 

R. CHERUP, DECEASED

No. 410 WDA 2016

Appeal from the Order February 23, 2016

In the Court of Common Pleas of Allegheny County

Orphans' Court at No(s): No. 02-12-4185

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED MAY 22, 2017

Lisa A. Cherup, in her capacity as Executrix of the Estate of Naomi R. 

Cherup, deceased, filed these appeals in two separate action numbers from 

an order that struck a judgment. We quash. 
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On June 28, 2012, Lori L. Cherup petitioned at action number 02-12-

4185 for the appointment of a permanent guardian of the person and estate 

of Naomi R. Cherup, who had three adult children: Lori, Lisa, and David 

Cherup. Lori averred that her mother Naomi was incapacitated and that 

David, who was living with his mother, was taking advantage of her. On 

February 19, 2013, with the consent of Naomi and Lori, the court appointed 

for Naomi a limited permanent guardian of the person, Dr. Samuel G. 

Rankin, who was Naomi’s brother, and a limited permanent guardian of the 

estate, Smithfield Trust Company (“Smithfield”). 

When the guardianship proceeding was instituted, the orphans’ court 

revoked Naomi’s previously executed power of attorney. The orphans’ court 

further ordered that Naomi’s residence, which had been transferred to 

David, be deeded back into her name. After Dr. Rankin resigned as 

guardian of the person, Lori was appointed as limited permanent guardian of 

Naomi’s person. 

Naomi died on June 21, 2015, at age ninety-two. On August 10, 

2015, at docket number 02-15-4102, the Director of the Department of 

Court Records, Wills/Orphans’ Court Division, for the County of Allegheny 

(the “Director”),1admitted to probate a last will and testament of Naomi 

____________________________________________

1 This office was formerly known as the Register of Wills of Allegheny 

County. 
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dated November 5, 2008, and it granted letters testamentary to Lisa under 

the November 5, 2008 will. 

Due to Naomi’s death, at the guardianship proceeding at case number 

02-12-4185, Smithfield prepared a first and final account and a petition for 

distribution. In the petition, Smithfield proposed distributing the assets of 

the guardianship to Lisa, as Executrix under the will dated November 5, 

2008. On August 17, 2015, the court conducted a hearing in the 

guardianship case, and David appeared, maintaining that the assets should 

not be distributed to Lisa as Executrix under the November 5, 2008 will. 

David argued that Naomi executed subsequent documents, either a will or 

trust agreement, that superseded the November 5, 2008 will and altered the 

personal representative and manner in which Naomi’s probate assets were 

to be distributed. 

On September 9, 2015, David’s oral objections were denied, and the 

judge in the guardianship matter entered a decree ordering that the 

guardianship assets be distributed to Lisa, as Executrix under the November 

5, 2008 will. David filed written exceptions to the decree and again argued 

that there were subsequent wills or a trust agreement that superseded the 

November 5, 2008 will admitted to probate. In his exceptions to the 

September 9, 2015 decree entered in the guardianship proceedings, David 

asked that the guardianship funds be retained by Smithfield until the 

orphans’ court decided whether Naomi had executed a valid, subsequent 
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testamentary document that superseded the November 5, 2008 will. David 

also filed a petition for rule to show cause why the September 9, 2015 

decree should not be vacated. 

Separately, in the estate matter at action number 02-15-4102, David 

obtained a citation on September 1, 2015. That citation directed Lisa to 

show cause why her letters should not be revoked and why a subsequent 

testamentary document should not be admitted to probate. 

Then, in the guardianship case, Lisa filed a motion to strike David’s 

exceptions to the September 9, 2015 decree of distribution. Lisa’s motion to 

strike David’s exceptions was denied on November 5, 2015. On February 

16, 2016, despite the pending citation that was entered against her and the 

fact that the court refused to strike David’s exceptions, Lisa filed a praecipe 

in the guardianship case, and she praeciped for a deemed denial of the 

exceptions filed by David and to enter judgment on the September 9, 2015 

decree of distribution, in which the guardianship assets were ordered to be 

distributed to Lisa, as Executrix under the November 5, 2008 will. Even 

though Lisa obtained entry of judgment, with interest from September 9, 

2015, against Smithfield and in her favor, she did not send notice of her 

praecipe to Smithfield. By having the Director enter judgment in her favor 

and against Smithfield, Lisa sought to force Smithfield to transfer the 

guardianship assets to her as Executrix under the November 5, 2008 will. 
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David filed a motion to strike the judgment entered by the Director. 

His motion was granted on February 23, 2016. In its February 23, 2016 

order, the court explained that, when the order was entered denying Lisa’s 

motion to strike David’s exceptions to the September 9, 2015 decree, that 

order implicitly sustained the exceptions filed by David.2 The orphans’ court 

ruled that the Director had improperly entered the praecipe of the deemed 

denial of the exceptions and judgment against Smithfield. Concomitantly, in 

the February 23, 2016 order, the orphans’ court struck both the entry of 

judgment against Smithfield and the September 9, 2015 decree of 

distribution. It ordered that Smithfield continue to hold the guardianship 

assets until such time as it determined whether the November 5, 2008 will 

had been revoked or superseded by a later testamentary document. 

These appeals followed. In its brief, Smithfield maintains that these 

appeals are interlocutory and must be quashed. We concur with this 

assessment. As a general rule, this Court has jurisdiction only over appeals 

taken from final orders. Angelichio v. Myers, 110 A.3d 1046 (Pa.Super. 

2015); 42 Pa.C.S. § 742 (emphasis added) (“The Superior Court shall have 

exclusive appellate jurisdiction of all appeals from final orders of the 

____________________________________________

2

 While the trial court may have intended to grant the exceptions, we 

disagree with the court’s indication that its order denying Lisa’s motion to 

strike David’s exceptions also implicitly granted the exceptions. The order in 

question resolved only the motion to strike. 
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courts of common pleas, regardless of the nature of the controversy or 

the amount involved,” except in cases within the exclusive jurisdiction of the 

Supreme Court or the Commonwealth Court). A final order is one that “(1) 

disposes of all claims and of all parties; (2) is explicitly defined as a final 

order by statute; or (3) is entered as a final order pursuant to Pennsylvania 

Rule of Appellate Procedure 341(c).” McGrogan v. First Commonwealth 

Bank, 74 A.3d 1063, 1075 (Pa.Super. 2013); Pa.R.A.P. 341. 

In addition, the rules of appellate procedure allow this Court to 

exercise jurisdiction over specifically-delineated interlocutory orders, 

including “an interlocutory order as of right (Pa.R.A.P. 311 [or Pa.R.A.P. 342 

in estate cases]); . . . an interlocutory order by permission (Pa.R.A.P. 312, 

1311, 42 Pa.C.S.A. § 702(b)); or . . . a collateral order (Pa.R.A.P. 313).” 

Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1068 (Pa.Super. 2014) 

(citation omitted). 

Initially, we note that the order in this case clearly was interlocutory. 

It struck the decree of distribution judgment, and placed the parties back in 

the same position they occupied when Smithfield filed the first and final 

account and petition for distribution. The decree ordering distribution of the 

assets to Lisa, as Executrix under the November 5, 2008 will, was vacated, 

and the assets were left in Smithfield’s possession until the question of how 

the guardianship assets were to be distributed was determined. 

Additionally, as the order struck a judgment rather than entered a judgment, 
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Pa.R.A.P. 311(a) is inapplicable. Pa.R.A.P. 311(a)(1) (emphasis added) (“An 

appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) 

from . . . [a]n order refusing to open, vacate, or strike off a judgment.”). 

As we observed in United Parcel Serv. v. Hohider, 954 A.2d 13, 16 

(Pa.Super. 2008), under Pa.R.A.P. 311(a)(1), “where an order is issued that 

grants a motion to strike a judgment, such an order is generally not 

appealable, i.e., it is not an interlocutory order from which an appeal as of 

right may lie. Such an order anticipates further litigation because the parties 

are placed back in the position they were in prior to the entry of the 

judgment.” The orders on appeal specifically struck a judgment and 

envisioned further proceedings to determine whether Lisa, as executrix 

under the November 5, 2008 will, or a person named in a subsequent 

testamentary document, is entitled to distribution of the guardianship 

property. 

In response to Smithfield’s position in its appellee’s brief, wherein this 

issue was raised for the first time, Appellant, in her reply brief, makes 

various arguments as to why the appeals are properly before us. She relies 

first upon Pa.R.A.P. 311(a)(2), granting an appeal as of right from an “order 

confirming, modifying, dissolving, or refusing to confirm, modify or dissolve 

an attachment, custodianship, receivership, or similar matter affecting the 

possession or control of property[.]” Herein, the order in question had 

nothing to do with an attachment, custodianship or receivership. 
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It likewise decidedly did not affect possession or control of property. 

The court indicated in its February 23, 2016 order that it, in fact, intended to 

decide how the property was to be distributed. The order merely returned 

the status of the guardianship action to a request for distribution from 

Smithfield. The request was not resolved and, instead, was deferred until 

the court concluded whether the November 5, 2008 will governed the 

disposition of Naomi’s guardianship assets. 

Additionally, contrary to Appellant’s position, the February 23, 2016 

order did not reverse the September 9, 2015 decree distributing the 

guardianship assets to her. Rather, the decree was vacated, and the court 

expressly indicated that it would decide whether that decree was correct. 

The orphans’ court may, in fact, find that Appellant is entitled to the 

guardianship assets and that there were no valid testamentary documents 

executed by Naomi after November 5, 2008. In that case, another, identical 

decree would be entered.

We summarily reject Appellant’s reliance upon Pa.R.A.P. 311(a)(4), 

which grants immediate review of an order that “grants or denies, modifies, 

or refuses to modify, continues or refuses to continue or dissolves or refuses 

to dissolve an injunction[.]” The order in question had nothing to do with 

any type of injunctive relief. 

This Court likewise discounts Appellant’s reliance upon the collateral 

doctrine outlined in Pa.R.A.P. 313, which states:
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(a) General Rule. An appeal may be taken as of right 

from a collateral order of an administrative agency or 

lower court. 

(b) Definition. A collateral order is an order separable 

from and collateral to the main cause of action where 

the right involved is too important to be denied 

review and the question presented is such that if 

review is postponed until final judgment in the case, 

the claim will be irreparably lost. 

Pa.R.A.P. 313. “All three prongs of Rule 313(b) must be met before an 

order may be subject to a collateral appeal; otherwise, the appellate court 

lacks jurisdiction over the appeal.” Commonwealth v. Harris, 32 A.3d 

243, 248 (Pa. 2011); Commonwealth v. Sabula, 46 A.3d 1287 (Pa.Super. 

2012). 

In the present case, the third element of the collateral order exception 

is not satisfied. Appellant may prevail in the anticipated orphans’ court 

proceedings, in which case she will not need to appeal. If David is 

successful and the orphans’ court holds that a document other than the 

November 5, 2008 will controls disposition of Naomi’s property, Appellant 

can obtain review of the propriety of that decision as well as an appellate 

ruling as to whether the February 23, 2016 interlocutory order was correct. 

True R.R. Assocs., L.P. v. Ames True Temper, Inc., 152 A.3d 324, 335 

(Pa.Super. 2016) (citation omitted) (“When an appeal is properly filed from 

the final order entered in a case, any prior interlocutory order can be called 

into question.”). 
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Finally, Appellant posits that Pa.R.A.P. 342(a)(5) applies.3 That rule 

states that, “An appeal may be taken as of right from the following orders of 

____________________________________________

3

Pa.R.A.P. 342 states in full: 

(a) General rule. An appeal may be taken as of right from the 

following orders of the Orphans' Court Division:

(1) An order confirming an account, or authorizing 

or directing a distribution from an estate or trust;

(2) An order determining the validity of a will or 

trust;

(3) An order interpreting a will or a document that 

forms the basis of a claim against an estate or trust;

(4) An order interpreting, modifying, reforming or 

terminating a trust;

(5) An order determining the status of fiduciaries, 

beneficiaries, or creditors in an estate, trust, or 

guardianship;

(6) An order determining an interest in real or 

personal property;

(7) An order issued after an inheritance tax appeal 

has been taken to the Orphans' Court pursuant to 

either 72 Pa.C.S. § 9186(a)(3) or 72 Pa.C.S. § 

9188, or after the Orphans' Court has made a 

determination of the issue protested after the record 

has been removed from the Department of Revenue 

pursuant to 72 Pa.C.S. § 9188(a); or

(8) An order otherwise appealable as provided by 

Chapter 3 of these rules.

Pa.R.A.P. 342. 
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the Orphans' Court Division . . . [a]n order determining the status of 

fiduciaries, beneficiaries, or creditors in an estate, trust, or guardianship.” 

As delineated above, the order vacated a previous decree that determined 

who should receive the guardianship assets and indicated that, in the future, 

that matter would be decided. Thus, it did the opposite of determining the

status of the guardianship matter. It placed the guardianship proceeding 

and the question of the distribution of its assets in a suspended state. Under 

the same reasoning, we discount Appellant’s position that the order 

determined an “interest in real or personal property,” which is appealable 

under Pa.R.A.P. 342(6). The February 23, 2016 order left open who had the 

interest in the guardianship property. We reject Appellant’s assorted 

attempts to invoke our jurisdiction and thus quash. 

Appeals quashed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/22/2017