J-A03021-19

2019 PA Super 123

IN RE: ESTATE OF ANNA MARIE 

LEIPOLD, DECEASED

APPEAL OF: SCOTT M. HINES AND 

KELLY A. SCHUELTZ

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1192 WDA 2018

Appeal from the Order Entered July 19, 2018

In the Court of Common Pleas of Westmoreland County 

Orphans’ Court Division at No(s): No. 6518-0670

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.: FILED APRIL 23, 2019

Scott M. Hines and Kelly A. Schueltz (“Appellants”) appeal from the 

July 19, 2018 order that denied their petition for a judicial sale of real property 

that was part of the estate of Appellants’ deceased mother, Anna Marie 

Leipold. For the reasons that follow, we reverse and remand for further 

proceedings consistent with this Opinion.

The orphans’ court provided the following relevant background:

This matter is before this Court regarding an appeal of an 

order issued by this Court on July 19, 2018, which denied the 

Petition for Judicial Sale of Real Estate in this matter filed by 

Appellants Scott M. Hines and Kelly A. Schueltz, Administrators of 

the Estate of Anna Marie Leipold.

The estate of Anna Marie Leipold contains real property 

located at 444 North Market Street, Ligonier, Pennsylvania, 15658 

which is presently subject to a mortgage with Quicken Loans 

 

*

 Retired Senior Judge assigned to the Superior Court.
J-A03021-19

- 2 -

[Inc.][1] consisting of an outstanding balance of approximately 

$77,129.41 at the time of death of the decedent. Subsequent to 

their appointment as administrators, [Appellants] received an 

offer of $82,000.00 for the sale of the property, and requested 

court approval for the judicial sale of the property, as the selling 

price would not be sufficient to satisfy the mortgage lien and 

outstanding claims against the property.

[Appellants] requested the sale pursuant to 20 Pa.C.S.A. 

§ 3353, which allows the [c]ourt to authorize sales of encumbered 

or otherwise unavailable real or personal property for the proper

administration and distribution of the estate. 

* * *

Here, Quicken Loans, the mortgage holder and Respondent 

[objected to the petition for judicial sale] at time of presentation 

of [Appellants’ petition]. 

* * *

[Appellants] would argue that the sale would be in the interest of 

the proper administration and distribution of the estate[.] 

[Appellants] cite in their [petition for judicial sale] only to a 

hardship in maintaining the property over time and/or difficulty in 

finding a buyer. These concerns are not out of the ordinary in the 

case of any estate involving real property, and they do not justify 

the exceptional relief of a judicial sale over the express and 

continuing objection over the primary lienholder of the at-issue 

mortgage. The Court simply cannot order a free and clear sale of 

the property without the consent of the mortgagee pursuant to 20 

Pa.C.S.A. § 335[7](b)[.]

Orphans’ Court Order Pursuant to Pa.R.A.P. 1925(a), 8/27/18, at 1-2 (internal 

quotation marks omitted). 

 

1

 Quicken Loans Inc. (“Quicken”) is the mortgagee and a participant in this 

appeal.
J-A03021-19

- 3 -

The orphans’ court denied Appellants’ petition, and Appellants filed a 

timely appeal. Both the orphans’ court and Appellants complied with Pa.R.A.P. 

1925.

On appeal, Appellants raise the following issue for this Court’s 

consideration: “Is a judicial sale under 20 Pa.C.S.A. § 3353 permissible over 

the objection of a secured mortgagee?” Appellants’ Brief at 4. After careful 

review, we answer this question in the affirmative.

We review a decision of the orphans’ court under the following standard:

Our standard of review of the findings of an Orphans’

Court 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.

However, we are not constrained to give the same 

deference to any resulting legal conclusions.

In re Estate of Harrison, 745 A.2d 676, 678–79 (Pa. Super. 

2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000) 

(internal citations and quotation marks omitted). “The Orphans’

Court decision will not be reversed unless there has been an abuse 

of discretion or a fundamental error in applying the correct 

principles of law.” In re Estate of Luongo, 823 A.2d 942, 951 

(Pa. Super. 2003), appeal denied, 577 Pa. 722, 847 A.2d 1287 

(2003).
J-A03021-19

- 4 -

In re Estate of Whitley, 50 A.3d 203, 206–207 (Pa. Super. 2012). This 

Court’s standard of review of questions of law is de novo, and the scope of 

review is plenary, as we may review the entire record in making our 

determination. Kripp v. Kripp, 849 A.2d 1159, 1164 n.5 (Pa. 2004). When 

we review questions of law, our standard of review is limited to determining 

whether the trial court committed an error of law. Kmonk-Sullivan v. State 

Farm Mutual Automobile Ins. Co., 746 A.2d 1118, 1120 (Pa. Super. 1999) 

(en banc).

Appellants cite to In re Estate of Landis, 85 A.3d 506 (Pa. Super. 

2014), in support of their argument that an orphans’ court may permit a 

judicial sale of real property encumbered by a mortgage. Appellants’ Brief at 

10. Appellants assert that such a sale renders the property free and clear of 

any liens or encumbrances, which then attach solely to the proceeds of the 

sale. Id. Appellants aver that the orphans’ court may authorize a judicial 

sale without the mortgagee’s consent. Id. 

Landis dealt primarily with the priority of a mortgagee’s lien, not the 

authority of the orphans’ court to conduct a judicial sale. In Landis, the 

decedent’s real property was encumbered by a mortgage. The decedent died 

testate, and his executrix admitted the decedent’s will to probate. The 

Montgomery County Register of Wills granted Letters Testamentary to the 

executrix. The mortgage was the only secured lien on the property. One of 
J-A03021-19

- 5 -

the relevant statutes in the analysis described in Landis, 42 Pa.C.S. § 8152, 

states, in part, as follows:

Judicial sale as affecting lien of mortgage

(a) General rule.--Except as otherwise provided in this section, 

a judicial or other sale of real estate shall not affect the lien of a 

mortgage thereon, if the lien of the mortgage is or shall be prior 

to all other liens upon the same property[.]

* * *

(b) Property of a decedent, etc.--A judicial sale of the property 

shall divest the lien of a mortgage to the extent authorized by the 

court pursuant to the following provisions of Title 20 (relating to 

decedents, estates and fiduciaries):

Section 3353 (relating to order of court).

Section 3357 (relating to title of purchaser).

42 Pa.C.S. § 8152.

Pursuant to 20 Pa.C.S. § 3353,2the executrix filed a petition for leave 

of court to sell the mortgaged real property. Landis, 85 A.3d at 508. Similar 

 

2

 Section 3353 provides as follows:

Order of court

When the personal representative is not authorized to do so by 

this title or is denied the power to do so by the governing 

instrument, if any, or when it is advisable that a sale have the 

effect of a judicial sale, he may sell any real or personal property 

of the estate, including property specifically devised, at public or 

private sale, or may pledge, mortgage, lease, or exchange any 

such property, or grant an option for the sale, lease, or exchange 

of any such property, under order of the orphans’ court division of 

the county where letters testamentary or of administration were 

granted, upon such terms and upon such security and after such 

notice as the court shall direct, whenever the court shall find such 
J-A03021-19

- 6 -

to the case at bar, the estate of the decedent in Landis was facing insolvency. 

The orphans’ court issued a preliminary decree and citation to the mortgagee 

to show cause why the sale should not be allowed. The mortgagee filed no 

objections to the petition or the sale. Thereafter, the orphans’ court issued 

an uncontested decree, granting the executrix’s petition, authorizing a 

“judicial sale” pursuant to 20 Pa.C.S. § 3353, and discharging all liens on the 

real property, which would allow the property to be transferred with a clear 

title. The real property was then sold. Landis, 85 A.3d at 508. 

The executrix in Landis filed an account of the estate and listed the 

mortgagee as a class six creditor under 20 Pa.C.S. § 3392.3 Thereafter, the 

 

sale, pledge, mortgage, lease, exchange, or option to be desirable 

for the proper administration and distribution of the estate.

20 Pa.C.S. § 3353.

3

 Section 3392 designates the classes of estate creditors.

If the applicable assets of the estate are insufficient to pay all 

proper charges and claims in full, the personal representative, 

subject to any preference given by law to claims due the United 

States, shall pay them in the following order, without priority as 

between claims of the same class:

(1) The costs of administration.

(2) The family exemption.

(3) The costs of the decedent’s funeral and burial, and 

the costs of medicines furnished to him within six 

months of his death, of medical or nursing services 

performed for him within that time, of hospital 

services including maintenance provided him within 

that time, of services provided under the medical 
J-A03021-19

- 7 -

mortgagee filed a petition for distribution of the judicial sale proceeds. The 

mortgagee argued that it was entitled to all of the proceeds from the sale 

because it was the only secured creditor. However, the orphans’ court 

confirmed the executrix’s account and ordered distribution of the estate 

according to the executrix’s proposal. The orphans’ court held that the 

“judicial” sale of the real property extinguished the mortgagee’s lien, along 

with its right of first priority to distribution of the net sale proceeds. Landis, 

85 A.3d at 509. The mortgagee filed an appeal to this Court. 

On appeal, this Court held that under 20 Pa.C.S. § 3357(b),

4

the 

orphans’ court may discharge mortgage liens upon the sale property if the 

 

assistance program provided within that time and of 

services performed for him by any of his employees 

within that time.

(4) The cost of a gravemarker.

(5) Rents for the occupancy of the decedent’s 

residence for six months immediately prior to his 

death.

(5.1) Claims by the Commonwealth and the political 

subdivisions of the Commonwealth.

(6) All other claims.

20 Pa.C.S. § 3392.

4 Section 3357(b) provides as follows:

 

(b) Effect of certain circumstances.--Persons dealing with the 

personal representative shall have no obligation to see to the 

proper application of the cash or other assets given in exchange 

for the property of the estate. Any sale or exchange by a personal 
J-A03021-19

- 8 -

mortgagee consents in writing and files that consent with the court during the 

administration proceedings. Landis, 85 A.3d at 512. “If the mortgagee 

provides written consent, it is not necessary for the mortgagee to file that 

consent before the court enters the preliminary order for the judicial sale.” 

Id. (citation omitted). However, “[e]ven in the absence of a mortgagee’s 

consent [in] writing to a judicial sale, the Orphans’ Court may still authorize 

the sale and discharge all liens upon the sale property when the judicial sale 

purchase price is fair and reasonable.” Id. (citation omitted). Thus, “the 

mortgagee may waive its right to contest a judicial sale, or a mortgagee can 

consent to a judicial sale that divests its lien from the real property, because 

Section 3357 serves to benefit the mortgagee and preserves its secured lien.” 

Id. at 512-513 (citation omitted). “Additionally, a mortgagee may consent 

by accepting payment of the proceeds of the sale.” Id. (citation omitted). 

The Landis Court noted that the mortgagee did not consent in writing 

to the judicial sale or the divestiture of the mortgagee’s lien. Landis, 85 A.3d 

 

representative pursuant to a decree under section 3353 shall have 

the effect of a judicial sale, but the court may decree a sale or 

exchange freed and discharged from the lien of any mortgage 

otherwise preserved from discharge by existing law, if the holder 

of such mortgage shall consent by writing filed in the proceeding. 

No such sale, mortgage, exchange, or conveyance shall be 

prejudiced by the terms of any will or codicil thereafter probated 

or by the subsequent revocation of the letters of the personal 

representative who made the sale, mortgage, exchange, or 

conveyance if the person dealing with the personal representative 

did so in good faith.

20 Pa.C.S. § 3357(b).
J-A03021-19

- 9 -

at 513. Therefore, the judicial sale removed the mortgagee’s lien but, by 

virtue of the sale, the secured lien transferred to the sale proceeds. Id. Thus, 

the mortgagee effectively waived objection to the judicial sale but not to 

extinction of its lien on the proceeds of the sale. Id. 

Thus, this Court concluded that the orphans’ court erred when it found 

that the mortgagee’s lien was extinguished by the judicial sale and approved

the executrix’s proposed distribution schedule that listed the mortgagee as an 

unsecured class six creditor. Landis, 85 A.3d at 513. The lien remained a 

secured claim against the estate and attached to the sale proceeds, and the 

mortgagee’s lien was superior to unsecured claims against the estate following 

the judicial sale. Id. Accordingly, this Court vacated the order approving the 

distribution of the estate and remanded for further proceedings.

Appellants reiterate that the Landis decision states: “Even in the 

absence of a mortgagee’s consent [in] writing to a judicial sale, the Orphans’ 

Court may still authorize the sale and discharge all liens upon the sale property 

when the judicial sale purchase price is fair and reasonable.” Appellants’ Brief 

at 10 (quoting Landis, 85 A.3d at 512). Appellants extrapolate from this 

premise that Landis permits a judicial sale even where the mortgagee 

objects. Appellants’ Brief at 10. We agree.

As revealed by Landis, 42 Pa.C.S. § 8152, 20 Pa.C.S. § 3353, and 20 

Pa.C.S. § 3357 afford the orphans’ court broad power to authorize the 

disposition of a decedent’s real estate. The orphans’ court has jurisdiction, 
J-A03021-19

- 10 -

pursuant to Section 3353, to authorize a judicial sale, but such sale does not 

discharge the mortgage lien where consent in writing was not provided 

pursuant to Section 3357. Pursuant to Landis and Section 3353, the orphans’ 

court has the authority to order the judicial sale, allow the real property to be 

sold at a fair and reasonable price, and cause mortgagee’s lien to attach to 

the proceeds of the judicial sale. 

In the instant case, although the orphans’ court is correct insofar as it 

concluded that Appellants’ concerns with the administration of the estate “are 

not out of the ordinary in the case of any estate involving real property,” 

Orphans’ Court Order Pursuant to Pa.R.A.P. 1925(a), 8/27/18, at 2, we 

disagree with its conclusion that it was required to sustain Quickens’ objection. 

The orphans’ court found that ordering a judicial sale over the express 

objection of the primary lienholder would amount to a “free and clear sale of 

the property[.]” Id. This finding is inaccurate. Following the judicial sale, 

the lien would attach to the sale proceeds. Landis, 85 A.3d at 513. If the 

sale price is not fair and reasonable, the orphans’ court can refuse to authorize 

the judicial sale. 

In the case at bar, Appellants averred that the property at issue was in 

need of maintenance, and they undertook this responsibility. Petition for 

Judicial Sale of Real Estate, 8/16/18.5 On the advice of counsel, Appellants 

 

5

In the certified record, there is a notation that the originally filed Petition 

for Judicial Sale of Real Estate, dated June 25, 2018, was lost, and Appellants 

filed a copy on August 16, 2018. Certified Record at docket entry #16.
J-A03021-19

- 11 -

obtained an appraisal of the property. Id. However, when Appellants 

attempted to sell, Quicken objected. Quicken Loans’ Response in Opposition 

to Petition for Judicial Sale, 7/10/18. 

As discussed above, Section 3353 permits the personal representative 

to sell an encumbered property pursuant to a court order at a judicial sale 

when the court determines that such a sale is desirable for the proper 

administration and distribution of the estate. 20 Pa.C.S. § 3353. This broad 

power afforded to the orphan’s court under Section 3353 permits a judicial 

sale even where the mortgagee objects; however, it does not, by itself 

extinguish the lien, as the lien would attach to the proceeds. Landis, 85 A.3d 

at 513. Sustaining a mortgagee’s objection to a judicial sale when the price 

is fair and reasonable would estop a personal representative from the proper 

administration of an estate; it would have a chilling effect upon anyone who 

is administering an estate from attempting, in good faith, to liquidate 

encumbered real property that is in less than pristine and immediately 

saleable condition. 

Additionally, prohibiting a good-faith judicial sale of encumbered real 

property for a fair and reasonable price based solely on the objection of the 

mortgagee would prevent individuals from endeavoring to accept the position 

of personal representative. Under such a construct, accepting an 

administrative position would require the personal representative to pay for 

the maintenance, repair, and upkeep of an encumbered property until the
J-A03021-19

- 12 -

mortgagee, as opposed to the orphans’ court, deemed the sale price 

acceptable. A mortgagee could thus prevent the administration of an estate 

in perpetuity. We conclude that the broad powers afforded the orphans’ court 

in 42 Pa.C.S. § 8152, 20 Pa.C.S. § 3353, and 20 Pa.C.S. § 3357 prevent a 

capricious refusal and permits a judicial sale despite the objection of the 

mortgagee. Under the facts presented here, we conclude that the orphans’ 

court erred in denying Appellants’ petition for a judicial sale based on the 

mortgagee’s objection.

Accordingly, we reverse the order of the orphans’ court and remand for

the orphans’ court’s consideration of a judicial sale of the encumbered 

property and administration of the estate. Following any judicial sale of the 

property, Quicken’s lien shall remain a secured claim that is superior to 

unsecured claims against the estate. Also, following any judicial sale, 

Appellants shall file with the orphans’ court a proposed schedule of distribution 

of the estate.6

Order reversed. Case remanded with instructions. Jurisdiction 

relinquished.

 

6 We reiterate the suggestion this Court provided to the parties in Landis: 

“At the proceedings, the competing parties might come to some compromise, 

in recognition of the efforts of [Appellants] and [Appellants’ counsel] to 

maximize the value of the Estate.” Landis, 85 A.3d at 515 n.1.
J-A03021-19

- 13 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: April 23, 2019