J-S47017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF RICHARD L. KELLEY, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: GILBERT E. PETRINA

No. 1775 MDA 2014

Appeal from the Decree September 8, 2014

In the Court of Common Pleas of Perry County

Orphans' Court at No(s): 50-01-92

BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 07, 2015

Gilbert E. Petrina brings this appeal from the Decree Nisi entered 

September 8, 2014, in the Court of Common Pleas of Perry County. The 

Decree Nisi, filed in the Estate of Richard. L. Kelley, Deceased (“the Estate”), 

ordered that “the auditor’s report is confirmed nisi,” and provided that 

“[u]nless exceptions ... are filed of record within fifteen (15) days of service 

hereof, the within Auditor’s Report will be confirmed absolutely without 

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* Retired Senior Judge assigned to the Superior Court.
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further Order of Court.” Decree Nisi, 9/8/2014.1 As the Decree Nisi is not 

an appealable order, we quash the appeal.

On August 19, 2013, Patrick M. Kelley, Executor of the Estate, filed a 

“First and Final Account of Patrick M. Kelley, Executor for the Estate of 

Richard L. Kelley,” to which Petrina, a creditor of the Estate, filed objections 

on September 9, 2013. In response to the objections, the court appointed 

Jerry Philpot as auditor on September 16, 2013. The auditor’s report was 

filed on August 21, 2014. Thereafter, the orphans’ court entered the Decree 

Nisi as stated above.

On September 23, 2014, Kelley filed protective exceptions, which he 

withdrew on October 6, 2014, requesting that the Decree Nisi be made 

absolute. Petrina did not file exceptions to the auditor’s report, but filed this 

appeal on October 22, 2014. 

Initially, we must address the issue of jurisdiction. 

As a general rule:

The appealability of an order directly implicates the jurisdiction 

of the court asked to review the order. “[T]his Court has the 

power to inquire at any time, sua sponte, whether an order is 

appealable.” 

In re Moskowitz, 115 A.3d 372, 388 (Pa. Super. 2015) (citations omitted). 

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1The Decree Nisi further provided: “If either party files exceptions and the 

auditor’s fees have not been paid as separately ordered, the party filing 

exceptions shall pay the remaining auditor’s fees before the Court will deal 

with the exceptions.” Decree Nisi, 9/8/2014. 
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Pennsylvania Rule of Appellate Procedure 342 provides that 

certain Orphans’ Court orders are appealable as of right:

Rule 342. Appealable Orphans’ Court Orders.

(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 P.S. § 

9186(a)(3) or 72 P.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 

P.S. § 9188(a); or

(8) An order otherwise appealable as provided by Chapter 3 of 

these rules.

Pa.R.A.P. 342(a). Petrina submits that this Court has jurisdiction under Rule 

342(a)(1), (5), (6) and (8). See Petrina’s Brief, at 1, 14–15. We disagree.

The orphans’ court ordered the auditor’s report to resolve objections 

raised by Petrina to the first and final account. However, even though the 
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auditor’s report has been confirmed, the court has not entered its 

adjudication of the first and final account. See Pa.R.O.C. 6.11 

(“Confirmation of accounts; awards”). In fact, the auditor’s report advised 

that the dollar value of Petrina’s claim stated in the account needs to be 

recomputed by the Estate. See Auditor’s Report, 8/21/2014, at 8 and n.7. 

Before the court can confirm an Account for this Estate, the conclusions of 

the auditor must be incorporated into the First and Final Account, 

presumably through the filing of an amended or subsequent Account. 

Therefore, the Decree Nisi is not “[a]n order confirming an account,” as 

provided in Rule 342(a)(1). 

With regard to Rule 342(a)(5), the Decree Nisi did not determine 

Petrina’s “status” as a creditor, as his “status” as a creditor was not in 

dispute.2 Furthermore, the Decree Nisi did not determine an interest in real 

or personal property, as provided in Rule 342(a)(6). Finally, review reveals 

no basis upon which to conclude, and Petrina points to no other Rule to 

show, that the Decree Nisi is “otherwise appealable as provided by Chapter 

3” of the Rules of Appellate Procedure, under Rule 342(a)(8). 

Accordingly, we quash this appeal.

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2 The Comment to Rule 342 explains with regard to Subsection (a)(5): 

“[A]n appealable Orphans’ Court order concerning the status of individuals 

or entities means an order determining if an individual or entity is a 

fiduciary, beneficiary or creditor, such as an order determining if an alleged 

creditor has a valid claim against the estate.” 
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Appeal quashed. 3

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2015

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3 We note that the orphans’ court deemed the issues raised on appeal 

waived due to Petrina’s failure to file exceptions to the Decree Nisi. See 

Orphans’ Court’s Final Memorandum, 2/4/2015, at 1. However, we need not 

address waiver since we find the September 8, 2014 Decree Nisi is not an 

appealable order.