Waiver: What is an Estate Order “Determining an Interest in Real or Personal Property” Requiring Immediate Appeal Under Pa. R.A.P. 342(a)(6)?
Krasinski is an estate case in which one of the decedent’s four children who claimed ownership of decedent’s real property by virtue of an oral agreement with the decedent:
- unsuccessfully contested on that basis the executor’s 2011 petition to permit the private sale of the real estate,
- unsuccessfully contested on that basis the executor’s 2013 petition to approve the actual sale of the real estate that had occurred as previously permitted, and
- unsuccessfully contested on that basis the executor’s 2014 first and final account that reported on the disposition of the real estate.
The only order the objecting heir appealed was the third and final order disposing of objections to the first and final account. The en banc Superior Court found the issue waived. It agreed with the executor and the trial court that the second order, the 2013 order approving the actual sale of the real estate, was an interlocutory order “determining an interest in real or personal property,” and that pursuant to Pa. R.A.P. 342(a)(6) such an order must be appealed, if at all, within 30 days. Judge Shogun, in dissent, reasoned that the first order, the 2011 order permitting the private sale of the real estate over the objector’s opposition, was the order that determined an interest in real property under Pa. R.A.P. 342(a)(6), because it rejected the objecting heir’s claim to title and permitted the sale, that the 2013 order merely approved the sale that had already occurred so did not determine an interest in property, and that no waiver should be found. The Supreme Court has granted allocatur to again address troubling issues of finality and waiver in Orphans’ Court practice under Pa. R.A.P. 342.
Pa. R.A.P. 342 addresses finality in the context of Orphans’ Court orders and attempts to strike a balance between the competing imperatives of Pa. R.A.P. 341’s “all claims/all parties” general rule of finality and the special circumstances of estate administration where the appealable event is the ruling on the final accounting, but many interlocutory orders may be entered before that time that require immediate review in order to achieve certainty so that orderly administration may proceed. As explained in the Note to Rule 342:
Experience [since the all claims/all parties rule was adopted in 1992] has … proven that it is difficult to analogize civil litigation to litigation arising in estate, trust and guardianship administration. The civil proceeding defines the scope of the dispute, but the administration of a trust or estate does not define the scope of the litigation in Orphans’ Court. Administration of a trust or an estate continues over a period of time. Litigation in Orphans’ Court may arise at some point during the administration, and when it does arise, the dispute needs to be determined promptly and with finality so that the guardianship or the estate or trust administration can then continue properly and orderly. Thus, the traditional notions of finality that are applicable in the context of ongoing civil adversarial proceedings do not correspond to litigation in Orphans’ Court.
Pa. R.A.P. 342 as amended in 2012 therefore specifies several categories of orders typically entered in Orphans’ Court proceedings that are interlocutory but that are appealable immediately, and as to which waiver will occur if not appealed within 30 days of entry. One such category is the one at issue in Krasinski, an order “determining an interest in real or personal property.”
The majority’s opinion in Krasinski may conflict, as the dissent points out, with previous Superior Court decisions that quashed appeals from orders that similarly approved an executor or administrator’s sale of estate property without technically “determining an interest” in property.
The Supreme Court’s grant of allocatur should bring needed clarity to estate-related order finality issues. Waiver is a drastic outcome that most judges seek to avoid, but the current version of Pa. R.A.P. 342 with its requirement that an appeal be taken promptly or not at all promotes effective and orderly estate administration and discourages after-the-fact appeals of issues that if granted could upset property dispositions years down the road.
The specific grant of allocatur is as follows:
The issues, as stated by petitioner, are:
(1) Does Pa.R.A.P. […] 342(a)(6), which provides for an immediate appeal as of right from Orphans’ Court orders “… determining an interest in real or personal property[,”] also allow or require an immediate appeal from an order of the Orphans’ Court permitting or denying the personal representative the authority to sell real or personal property, such that filing the appeal from the Order confirming the [f]irst [and] [f]inal account was deemed to be a waiver of those issues?
(2) Did the Superior Court commit an error of law, and misconstrue Pa.R.A.P. […] 342(a)(6) in its holding that an order confirming the sale of real property of a decedent’s estate was an order determining an interest in real property, and that an appeal from such an order was waived if not filed within thirty […] days of said order?
(3) Did the Superior Court commit an error of law by misconstruing Pa.R.A.P. […] 342(a)(6), and ignoring, or otherwise failing to address controlling authority encompassed by the Superior Court decisions and holdings in In re Estate of Ash, 73 A.3d 1287 (Pa. Super. 2013), and In re Estate of Cherry, […] 111 A.3d 1204 (Pa. Super. 2015)?