J-S39042-18

2018 PA Super 272

IN RE: THE ESTATE OF INGRID 

HUBER, DECEASED

APPEAL OF: MICHAEL BERGER,

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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 Kathleen Lewis Yarbrough (“Kathleen”), and directing the Register of 

Wills to issue Letters of Administration 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”), 
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dated January 7, 2003, named Yarbrough as her sole beneficiary.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 Appointment, asserting that 

Yarbrough was incapacitated and incapable of performing 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 competent party, to serve as the personal representative of the 

Estate. The Orphans’ Court subsequently issued Citations to Yarbrough and

Linton, directing them to show cause why Berger’s Petition should not be 

granted.

On May 19, 2017, Kathleen, as attorney-in-fact for Yarbrough, filed an 

Answer and New Matter, as 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-in-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 

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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.
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subsequently procured Yarbrough’s signature on a Power of Attorney, 

appointing him as her attorney-in-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 Letters of Administration 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 

Letters of Administration C.T.A. for the Estate. Berger filed an Answer on June 

30, 2017.

By Decree entered on July 17, 2017, the Orphans’ Court 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. 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 his 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 of on appeal, pursuant to Pa.R.A.P. 1925(b), within 21 days of the 

date of the Order, and instructed him that “[i]ssues not properly included in 

the statement timely filed and served pursuant to this [O]rder and Rule 
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1925(b) are waived.” Order, 8/25/17. Berger 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 the 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, and had been 

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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, there is no 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, 2017, this Court issued an Order indicating that the Decree 

had not been entered on the docket, and directing the 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.
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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 representative
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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 Letters of 

Administration C.T.A., or the Orphans’ Court should have conducted an 

evidentiary hearing to make factual findings. Id. at 9.

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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 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 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 support 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).
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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. Super. 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 court’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 entered 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 a 
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personal representative is vested in the Register of Wills. Id. § 901 (providing 

that “the register shall have jurisdiction of ... the grant of letters 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 letters of administration. The Orphans’ Court may review 

the Register’s decision if a party files an appeal from the Register’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’ Court has jurisdiction over “[a]ppeals 

from and proceedings removed from registers.”). If the Orphans’ Court 

determines that the Register abused its discretion in appointing a particular 

administrator, the court may then direct the Register to issue letters of 

administration to the appropriate individual. See In re Estate of SimmonsCarton, 644 A.2d 791, 795 (Pa. Super. 1994). Additionally, the Orphans’ 

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6 We note that when a party appeals from the Register’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 Register, rather 

than the Orphans’ Court, abused its discretion. Id.; see also Estate of Fritz 

v. Fritz, 798 A.2d 243, 244-45 (Pa. Super. 2002).
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Court has the authority to remove a personal representative. See In re 

Estate of 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 appear 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 even 

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 administration 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 

Executrix of the Estate, the Orphans’ Court did not remove Yarbrough as 

Executrix 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 new 
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letters. Moreover, it does not appear that the Register of Wills had the 

opportunity to consider the parties’ 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 Orphans’ 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. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/05/2018