J

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- 18 2018 PA Super 272

IN RE: THE ESTATE OF INGRID HUBER, DECEASED

APPEAL OF: MICHAEL BERGER, : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1303 MDA 2017 Appeal from the Decree July 17, 2017 in the Court of Common Pleas of Bradford County, Orphans' Court at No(s): 5 Orphans 2017 BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J. OPINION BY MUSMANNO, J.: FILED OCTOBER 05, 2018 Michael Berger (“Berger”) appeals from the Decree denying his Motion to Issue Citation for Appointment of Personal Representative (“Motion for Appointment”) for the Estate of Ingrid Huber , deceased (“Estate”), granting the Petition for Grant of Letters of Administration C.T.A. (“Petition for Letters”) filed by Kathle en Lewis Yarbrough (“Kathleen”), and directing the Register of Wills to issue L etters of A dministration C.T.A

. for the Estate to Kathleen. We vacate the Decree

. Ingrid Huber (“ the Deceased ”) died testate on November 25, 2016, without issue. The Deceased was survived by her sister, Christiane Yarbrough (“Yarbrough”), as well as Berger and Andrew Linton (“Linton”), her nephews (Yarbrough’s sons). The Deceased’s Last Will and Testament (the “Will”) ,J

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dated January 7, 2003, named Yarbrough as her sole benefi ciary. 1 The Will named Berger as the alternative residual beneficiary , notwithstanding a $5,000 specific bequest to Linton . Additionally, the Will designated Yarbrough as the Executrix of the Estate.
On April 13, 2017, Berger filed a Motion for Appointm ent , asserting that Yarbrough was incapacitated and incapable of per forming her duties as Executrix. 2 Berger requested that the Orphans’ Court issue a Citation to Yarbrough and Linton to show cause why the court should not appoint Berger, or another compe tent party, to serve as the p ersonal r epresentative of the
Estate. The Orphans’ Court subsequently issued Citations to Yarbrough and
Linto n, directing them to show cause why Berger’s Petition should not be granted. On May 19, 2017, Kathleen , as attorney

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- fact for Yarbrough, filed an Answer and New Matter , a s well as a Petition for Letters , asserting that Yarbrough had executed a Power of Attorney in Kathleen’s favor before her incapacitation

. Kathleen stated that Yarbrough, through Kathleen as her attorney

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- fact, refused to renounce in favor of Berger “under any circumstances.” Kathleen also stated that she had obtained a renunciation in her favor from Linton. Additionally, Kathleen argued that Berger had

_________________ __________ ______ ____ _______ 1 In his Motion for Appointment, Berger states that the Will was filed in the Office of the Register of Wills of Bradford County on December 16, 2016. However, there is nothing in the certified record to confirm when the Will was admitted to probate.

2 Yarbrough had been diagnosed with dementia.J

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subsequently procured Yarbrough’s s ignature on a Power of Attorney, appointing him as her attorney

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- fact, despite her incapacity. Kathleen asked the court to deny Berger’s Motion for Appointment, and requested that the court direct Berger to show cause why L etters of A dministration C.T.A

. should not be issued to her. On May 25, 2017, the Orphans’ Court filed a Preliminary Decree, directing Berger to show cause why Kathleen should not be issued
L etters of A dministration C.T.A

. for the Estate. Berger filed an Answer on June 30, 2017. By Decree entered on July 1 7 , 2017, the Orphans’ Court denied Berger’s
Motion for Appointment, granted Kathleen’s Petition for Letters , and directed the Register of Wills to issue L etters of A dministration C.T.A

. for the Estate to Kathleen. Berger filed both a Motion for Reconsideration and a Notice of Appeal on August 16, 2017. On August 24, 2017, the Orphans’ Court entered an Order, indicating that because Berger filed both his Motion for Reconsideration and h is Notice of Appeal on the thirtieth day after the entry of the Decree, the court did not have jurisdiction to act on the Motion for Reconsideration. On August 25, 2017, the Orphans’ Court ordered Berger to file a concise statement of matters complained o f on appeal , pursuant to Pa.R.A.P. 1925(b) , within 21 days of the date of the Order , and instruct ed him that “[i]ssues not properly included in the statement timely filed an d served pursuant to this [O]rder and RuleJ

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1925(b) are waived.” Order, 8/25/17

. B erger did not file his Concise Statement until September 22, 2017. 3 , 4 On appeal, Berger raises the following question for our review:
Did the [Orphans’ C] ourt err in making findings and failing to hold a hearing on [Berger’s] Motion for Citation for Appointment of Personal Representative despite the existence of substantial factual issues raised in the pleadings? Brief for Appellant at 1. Berger claims that th e Orphans’ Court improperly entered its Decree, without first conducting an evidentiary hearing, and in spite of the following factual issues : (1) Yarbrough claimed that Berger is unemployed and a convicted felon, but he has been employed for 25 years, an d had been

_________________ __________ ______ ____ _______ 3 Berger, through counsel, filed his Concise Statement more than 21 days after the date of the Orphans’ Court Order instructing him to do so. See Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc. , 88 A .3d 222, 225 (Pa. Super. 2014) ( en banc ) (stating that “[w]henever a trial court orders an appellant to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b), the appellant must comply in a timely manner ” in order to preserve issues for our review (emphasis in original; citation and brackets omitted)) . We observe that the certified record contains a copy of the Notice, dated August 28, 2017, informing Berger that the concise statement Order had been filed. However, ther e is n o indication from the docket that service was actually effectuated on that date. Because we are unable to determine the date of service of the Order due to the lack of recordation in the docket, we decline to find Berger’s claim waived on this basis. See Pa.R.C .P. 236(b) (providing that “[t]he prothonotary shall note in the docket the giving of notice” of the entry of an order)

.
4 On October 2, 2 017, this Court issued an Order indicating that the Decree had not been entered on the docket, and directing t he Orphans’ Court to do so. The Orphans’ Court timely responded by submitting a time

- stamped copy of the Decree, along with a copy of the docket indicating that the Decree had been filed on July 17, 2017.J

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pardoned for his crime; (2) Yarbrough had no contact with the Deceased for several years prior to her death; (3) Yarbrough had “effectively blocked” the Deceased ’s cremation, and did not promptly come forward as the personal representative; (4) there is pending litigation in Florida regarding Kathleen’s Power of Attorney; and (5) Berger is named as an alternative residual beneficiary in the Will. Brief for Appellant at 5

- 7. Berger also argues that, as a residual beneficiary, he should have been appointed personal representativeJ

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pursuant to 20 Pa.C.S.A. § 3155(b)(1). 5 Brief for Appellant at 8

- 9. Berger asserts that the Register of Wills should have granted him L etters of
A dministration C.T.A

. , or the Orphans’ Court should have conducted an
evi dentiary hearing to mak e factual findings. Id. at 9.

_________________ __________ ______ ____ _______ 5 Section 3155 (b) prioritizes the various classes of “persons entitled” to letters of administration as follows: 20 Pa.C.S.A. § 3155. Persons entitled (b) Letters of administration. -- Letters of administration shall be granted by the register, in such form as the case s hall 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 to 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 guardianship su pport agency serving as guardian of an incapacitated person who dies during the guardianship administered pursuant to Subchapter F of Chapter 55 (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).J

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Initially, we examine whether the Orphans’ Court had the requisite subject matter jurisdiction to grant Kathleen’s Petition and direct the Register of Wills to issue to her Letters of Administration C.T.A. for the Estate.

“ It is well

- settled that the question of subject matter jurisdiction may be raised at any time, by any party, or by the court sua sponte

. ” B.J.D. v. D.L.C. , 19 A.3d 1081, 1082 (Pa. Super. 2011) (quoting Grom v. Burgoon , 448 Pa. Su per. 616, 672 A.2d 823, 824

- 25 (1996)). Our standard of review is de novo , and our scope of review is plenary. Id. (citing Commonwealth v. Jones , 593 Pa. 295, 929 A.2d 205, 211 (2007)). “ Generally, subject matter jurisdiction has been defined as the cou rt’s power to hear cases of the class to which the case at issue belongs. ” Verholek v. Verholek , 741 A.2d 792, 798 (Pa. Super. 1999) (citing Lowenschuss v. Lowenschuss , 396 Pa. Super. 531, 579 A.2d 377, 380 n.2 (1990)). Jurisdiction is the capacity to pronounce a judgment of law on an issue brought before the court through the due process of law. It is the right to adjudicate concerning the subject matter in a given case.... Without such jurisdiction, there is no authority to give judgment and one so en tered is without force or effect. The trial court has jurisdiction if it is competent to hear or determine the controversies of the general nature of the matter involved sub judice . Jurisdiction lies if the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case. Aronson v. Spring Spectrum, L.P. , 767 A.2d 564, 568 (Pa. Super. 2001) (quoting Bernhard v. Bernhard , 447 Pa. Super. 118, 668 A.2d 546, 548 (1995)). In re Estate of Ciuccarelli , 81 A.3d 953, 958 (Pa. Super. 2013). Pursuant to the Decedents, Estates and Fiduciaries Code , jurisdiction over decedents’ estates and their fiduciaries is vested in the Orphans’ Court division. See 20 Pa.C.S.A. § 711. However, jurisdiction to grant letters to aJ

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personal representative is vested in the Register of Wills. I d. § 901 (providing that “the register shall have jurisdiction of

... the grant of lett ers to a personal representative”); see also id. § 711(12) (stating that the Orphans’ Court shall have jurisdiction over, inter alia , the appointment of fiduciaries, “ except that the register shall continue to grant letters testamentary and of administration to personal representatives as heretofore. ” ( emphasis added)); In re Estate of Tigue , 926 A.2d 453, 456 (Pa. Super. 2007) (stating that “it is the register who has the authority and duty to issue letters.”). The Orphans’ Court may, in some instances, exercise jurisdiction over matters concerning l etters of administration. The Orphans’ Court may review the R egister’s decision if a party files an appeal from the R egister’s grant of letters. 6 See In re Estate of Tigue , 926 A.2d at 456 ; see also 20 Pa.C.S.A. § 711(18) (providing that the Orphans’ Cou rt has jurisdiction over “[a]ppeals from and proceedings removed from registers.”) . If the Orphans’ Court determines that the R egister abused its discretion in appointing a particular administrator, the court may then direct the R egister to issue letters of administration to the appropriate individual. See In re Estate of Simmons Carton , 644 A.2d 791, 795 (Pa. Super. 1994)

. Additionally, the Orphans’

_________________ __________ ______ ____ _______ 6 We note that when a party appeals from the R egister’s appointment of an administrator, the Orphans’ Court is not required to conduct an evidentiary hearing. See generally In re Estate of Tigue , 926 A.2d at 456. However, if the Orphans’ Court declines to conduct a hearing and receive evidence, this Court’s subsequent review is limited to determining if the R egister , rather than the Orphans’ Court, abused its discretion. I d. ; see also Estate of Fritz v. Fritz , 798 A.2d 243, 244

- 45 (Pa. Super. 2002).J

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Court has the authority to remove a personal representative. See In re
Estate o f Mumma , 41 A.3d 41, 49 (Pa. Super. 2012); see also 20 Pa.C.S.A. § 3183 (providing that “[t]he court on its own motion may, and on the petition of any party in interest alleging adequate grounds for removal shall, order the personal representative to appea r and show cause why he should not be removed, or, when necessary to protect the rights of creditors or parties in interest, may summarily remove him.”); id. § 3182 (setting forth the grounds for removal of a personal representative). “ Upon removal [of a personal representative], the court may direct the grant of new letters testamentary or of administration by the register to the person entitled....” 20 Pa.C.S.A. § 3183 (emphasis added). Here, there is no confirmation in the certified record of when

— or e ven whether

— the Will was admitted to probate. The certified record also lacks any indication of whether the Register of Wills had, at any time prior to the filing of Berger’s Motion for Appointment, issued letters testamentary to Yarbrough, or letters of admi nistration to any other party. There is additionally no other indication that an initial Register of Wills determination was appealed to the Orphans’ Court

. Cf. 20 Pa.C.S.A. § 711(18). Further, although the parties seem to agree that Yarbrough lacks capacity to serve as
E xecutrix of the Estate, the Orphans’ Court did not remove Yarbrough as
E xecutrix before issuing Letters of Administration C.T.A. to Kathleen. Cf. id. § 3183. Accordingly, this case does not fall within one of the circumstances in which the Orphans’ Court may direct the Register of Wills to grant newJ

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letters. Moreover, it does not appear that the Register of Wills had the opportunity to consider the p arties’ respective statuses and order of priority under section 3155(b), or to determine whether there was good cause to deviate from the statutory order of priority, as it is required to do. See In re Estate of Tigue , 926 A.2d at 459 (vacating the Order of the Orphans’ Court, which affirmed the register’s appointment of an administrator, where the register appointed appellee “without any evidence that the register applied the relevant law, either by following the order of appointees set forth in [section] 3155(b) or by exercising his discretion to deviate from that order for good cause.”). Thus, as the Register of Wills, rather than the Orphans’ Court , had jurisdiction to grant letters of administration in this matter , see 20 Pa.C.S.A. § § 901, 711(12), we must vacate the O r p hans’ Court Decree, which denied Berger’s Motion for Appointment, granted Kathleen’ s Petition for Letters, and directed the Register of Wills to issue Letters of Administration
C.T.A. for the Estate to Kathleen. Decree vacated. Jurisd iction relinquished.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/05/2018