J

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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

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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.J

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further Order of Cou rt.” 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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1 The 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.” Decre e Nisi, 9/8/2014.J

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Pennsylvania Rule of Appellate Procedure 342 provides that

certain Orphans’ Court orders are appeala ble 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 bee n 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’ c ourt ordered the auditor’s report to resolve objections
raised by Petrina to the first and final account. However, even though theJ

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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 accoun t,” 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

o r 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 Pro cedure, 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, beneficiar y or creditor, such as an order determining if an alleged creditor has a valid claim against the estate.”J

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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 Orph ans’ 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.