J-A19030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF KARL E. BUTZ, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: LORRI ZIMMERMAN

No. 3161 EDA 2015

Appeal from the Order Entered October 1, 2015

in the Court of Common Pleas of Monroe County Orphans' Court

at No(s): 26 O.C. 2013

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 19, 2016

Appellant, Lorri Zimmerman, appeals from the judgment entered in 

the Monroe County Court of Common Pleas, Orphans’ Court Division, 

granting Participant’s, Jeffrey T. Butz’s, petition to compel the sale of real 

estate. Appellant contends that the trial court erred by denying her petition 

for the partial distribution of the real estate in question and instead ordering 

the immediate sale of the property. We affirm.

The facts underlying this case are well-known to the parties. For 

purposes of this appeal, we note the following pertinent background gleaned 

from the trial court opinion and from the record. Appellant and Participant 

are brother and sister and are the sole beneficiaries of the estate of Karl E. 

Butz (“Decedent”). Decedent died testate on January 14, 2011. Initially, 

Appellant and Participant served as co-executors but both ultimately 

 

*

Former Justice specially assigned to the Superior Court.
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resigned and the trial court appointed James F. Marsh, Esq., as 

Administrator. 

The estate has remained open as the beneficiaries have long 

attempted to resolve various disputes. After a failed attempt to sell 

Decedent’s home, Administrator Marsh distributed the property in-kind to 

Appellant and Participant. Also in Decedent’s estate is the large farm 

property (“Farm”) here at issue. The Farm, having been in the Butz family 

for generations, was given to Appellant and Participant in Decedent’s Will as 

part of a general bequest. The Farm consists of approximately sixty-four 

acres of unimproved land along Route 715 in Jackson Township, Monroe 

County and was valued at $715,000 for Pennsylvania Inheritance Tax 

purposes. 

On March 21, 2014, Participant filed a petition to compel the sale of 

the Farm. Appellant opposed the sale of the Farm, citing a possible border 

dispute with a neighboring property, which could negatively impact the sale 

price. On July 21, 2014, the trial court conducted a hearing concerning, 

inter alia, the distribution of the Farm. Counsel for Appellant indicated that 

a survey had been performed regarding the Farm but the results were 

unavailable. N.T., 7/21/14, at 26. Counsel for Participant indicated that 

there was no evidence of record regarding a current border dispute and any 

title issue could be rectified through sale. Id. at 60. On July 25, 2014, the 
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trial court issued an order continuing the matter for consideration of any 

survey results and other alternatives for the Farm. 

On April 29, 2015, Appellant filed a petition requesting that the Farm 

be distributed in-kind equally to both beneficiaries. On September 22, 2015, 

the trial court conducted a hearing to consider Appellant’s petition for 

distribution of the Farm and Participant’s petition to sell the Farm. Appellant 

testified and presented evidence of a survey performed during the 

Decedent’s lifetime, which indicated that a border dispute might exist. N.T., 

9/22/15, at 22-23. At the hearing, Joseph Fisher, a certified real estate 

appraiser, also testified. He stated that the value of the Farm had likely 

decreased due to declining values of real estate generally in Monroe County. 

Id. at 26-28. Fisher also opined that any boundary dispute, which could 

reduce the total acreage of the Farm significantly, would result in a lower 

market value at the time of sale. Id. at 34. Conversely, counsel for 

Participant indicated that the most recent survey commissioned by the 

Estate would show a lack of any border dispute. Id. at 70-71. However, the 

survey was not entered into evidence. 

On October 1, 2015, the trial court issued an order and opinion 

denying Appellant’s petition for partial distribution and granting Participant’s 

petition to compel the sale of the Farm. To that end, the court directed that 

Administrator Walsh list the Farm for absolute auction, with no reserve, 

within sixty days of the trial court’s order. The court cited 20 Pa.C.S. § 
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3534, which permits the public sale of any estate property unable to be 

divided, partitioned, or allotted. The trial court specifically noted that no 

definitive expert testimony was presented at trial regarding the boundary 

dispute and a survey, which was done by a reputable title company in 

Monroe County, was not offered into evidence. Trial Ct. Op., 10/1/15, at 2-

3. 

Further, the court found that the Farm could not be fairly divided 

between the parties because the property is not physically contiguous. Id. 

at 4. The court also specifically emphasized that the parties had 

demonstrated the inability to cooperate. Id. Therefore, a joint distribution 

of the Farm would likely devolve into a partition action that would, after 

considerable expense, ultimately also result in the sale of the Farm. Id. 

Thus, the court found that the public sale of the Farm would be the most 

expeditious method to resolve the matter, while allowing either party to buy 

out the other. Id. Further, any title issue could be resolved through the 

sales process. Id.

Appellant filed the instant timely appeal and a court-ordered Pa.R.A.P. 

1925(b) statement of matters complained of on appeal. The trial court 

issued a responsive opinion, referencing the reasoning set forth in the 

court’s October 1, 2015 opinion. Appellant sets forth the following issues for 

review: 

Did the lower Court abuse its discretion and commit an 

error of law by granting the Petition to Compel the Sale of 
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Real Estate filed by [Participant], and denying the Petition 

for Partial Distribution brought by [Appellant] as:

1. any sale by absolute auction without reserve of the 

Property is in contravention of the lower Court’s Order of 

July 25, 2014 as no title search has been completed, and 

thus, [Participant’s] Petition is violative of Pennsylvania 

Supreme Court Orphans’ Court Rule 12.9; 

2. any sale by absolute auction without reserve of the 

Property will irreparably harm the Estate and result in a 

sale price which is far less than the market value and thus 

will result in waste and dissipation, particularly in light of 

existing and unaddressed title issues impacting the 

Property in contravention of the lower Court’s prior Order 

of July 25, 2014;

3. the lower Court made its determinations without 

sufficient reasons to discredit the unrebutted evidence of 

[Appellant] and Fisher and as such, the Court abused its 

discretion and committed an error of law, and the finding 

necessary to support the Opinion and Order are not 

supported by substantial evidence of record?

Appellant’s Brief at 8-9. 

 The crux of all three of Appellant’s arguments concern the possible 

boundary dispute and whether such potential dispute would substantially 

diminish the value received for the Farm at a public sale.1 Accordingly, we 

 

1 To the extent that Appellant contends that Participant’s petition to compel 

the sale of the Farm was deficient under Orphans’ Court Rule 12.9 because it 

did not contain any reference to the possible boundary dispute, we hold such 

argument to be waived. Appellant failed to present this issue to the trial 

court in the over two years since Appellant’s petition was filed and also failed 

to raise it in her Rule 1925(b) statement. It is axiomatic that “[i]ssues not 

raised in the lower court are waived and cannot be raised for the first time 

on appeal.” Pa.R.A.P. 302(a). Further, any issue not raised in a Rule 

1925(b) statement is deemed waived. Pa.R.A.P. 2116(a); In re Estate of 

Daubert, 757 A.2d 962, 963 (Pa. Super. 2000).
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discuss all of Appellant’s contentions together. Appellant specifically avers 

that the trial court erred by granting Participant’s petition to compel the sale 

of the Farm at a public auction because the potential boundary dispute will 

diminish any sale proceeds leading to waste and dissipation of estate assets. 

Appellant contends that the trial court’s July 25, 2014 order acknowledged 

the boundary dispute by continuing the case for review of survey results and 

other alternatives for the Farm. Further, Appellant argues that the trial 

court failed to properly consider the testimony of Appellant and Fisher 

regarding the boundary dispute and the resulting diminished value that the 

Farm would receive at a public sale. We hold Appellant is not due relief. 

We begin by noting our standard of review:

Our standard of review of the findings of an [O]rphans’ 

[C]ourt is deferential. When reviewing a decree entered 

by the Orphans’ Court, this Court must determine whether 

the record is free from legal error and the court’s factual 

findings are supported by the evidence. Because the 

Orphans’ Court sits as the fact-finder, it determines the 

credibility of the witnesses and, on review, we will not 

reverse its credibility determinations absent an abuse of 

that discretion.

As an appellate court we can modify an Orphan’ 

Court decree only if the findings upon which the 

decree rests are unsupported by competent or 

adequate evidence or if there has been an error of 

law, an abuse of discretion or a capricious disbelief of 

competent evidence. The test to be applied is not 

whether we, the reviewing court, would have 

reached the same result, but whether a judicial 

mind, after considering the evidence as a whole, 

could reasonably have reached the same conclusion. 
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In re Devoe, 74 A.3d 264, 267 (Pa. Super. 2013) (quotation marks and 

citations omitted).

Further, it is axiomatic that “the Orphans’ Court Division has 

mandatory and exclusive jurisdiction over the administration and distribution 

of the real and personal property of decedents’ estates.” In re Ciuccarelli, 

81 A.3d 953, 958 (Pa. Super. 2013) (citation omitted). Specifically, 

regarding the sale of real estate by a fiduciary, it is well-settled that when 

“we deal with the estate of a decedent, over which the court exercises a 

supervisory control for the benefit of all interested, it is well recognized that 

not only the power, but also the duty, exists to see that a fair value is 

received.” McCullough’s Estate, 140 A. 865, 867 (Pa. 1928). Further, it is 

beyond cavil “that fiduciaries entrusted with the administration of an estate 

have a duty to exercise the upmost fairness in dealing with beneficiaries.” 

Estate of Bosico, 412 A.2d 505, 507 (Pa. 1980). 

Also pertinent is Section 3534 of the Probate Code, which provides for 

the distribution of estate property as follows:

§ 3534. Distribution in kind

 The court, for cause shown, may order the estate to be 

distributed in kind to the parties in interest, including 

fiduciaries. In such case, when there are two or more 

distributees, distribution may be made of undivided 

interests in real or personal estate or the personal 

representative or a distributee may request the court to 

divide, partition and allot the property, or to direct the sale 

of the property. If such a request is made, the court, after 

such notice as it shall direct, shall fairly divide, partition 

and allot the property among the distributees in proportion 
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to their respective interests, or the court may direct the 

personal representative to sell at a sale confined to the 

distributees, or at a private or public sale not so confined, 

any property which cannot be so divided, partitioned or 

allotted. 

20 Pa.C.S. § 3534.

Instantly, while Appellant is correct that the trial court’s 2015 order 

continued the matter for the review of survey results and potential other 

alternatives for the Farm, Appellant did not present the most current survey 

results, commissioned by the estate, to the court. Therefore, we decline to 

conclude that the trial court erred by entering an order without the benefit of 

such survey.

With respect to Appellant’s argument that the trial court erred by not 

considering her own testimony and that of Fisher to be dispositive regarding 

the existence of a boundary dispute, the determination of witnesses’ 

credibility is a task reserved for the Orphans’ Court as the fact-finder. See 

In re Devoe, 74 A.3d at 267. Thus, we hold that the trial court did not err 

by concluding that conclusive evidence of a boundary dispute was not 

presented. Id. Accordingly, the trial court aptly determined that a public 

sale for the Farm would yield a fair price where the presence of a border 

dispute was not established and any potential encumbrance on the Farm’s 

title could be resolved through the process of sale. See McCullough’s 

Estate, 140 A. at 867. Appellant’s issues on appeal lack merit. 
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Moreover, the trial court was well within its purview by ordering the 

sale of the Farm. The Probate Code specifically permits courts to order the 

sale of real property within an estate, upon request of a distributee, where 

such property cannot be divided, partitioned, or allotted. See 20 Pa.C.S. § 

3534. In this case, the trial court specifically found that any attempt to 

distribute the Farm “in-kind” would likely result in a partition action because 

the parties had demonstrated an inability to cooperate within the confines of 

joint ownership. See Trial Ct. Op. at 4. Further, the non-contiguous nature 

of the Farm itself makes any attempt to fairly divide the property physically 

untenable. Id. Indeed, as noted by the trial court, a public sale of the Farm 

will allow for the efficient distribution of the property and will avoid a likely 

partition action leading to the same end: the sale of the Farm. Therefore, 

we conclude that the trial court did not err in granting Appellant’s petition to 

compel the immediate sale of the Farm and we affirm the trial court’s order.2 

See 20 Pa.C.S. § 3534; In re Ciuccarelli, 81 A.3d at 958.

Order affirmed. 

 

2 Consistent with the trial court’s October 1, 2015 order, we order the 

Administrator to list the Farm with an auctioneer for an absolute sale, 

without reserve, within sixty days. Accordingly, we direct the Administrator 

to prepare the Farm for sale by, inter alia, obtaining clear title for the 

property. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2016