Est. of: C. Fellman, Appeal of: Fellman, H.
CourtSuperior Court of Pennsylvania
Date FiledJune 12, 2026
Docket1587 EDA 2025
JudgeLane
StatusPublished
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Full Opinion
J-A10029-26
2026 PA Super 121
ESTATE OF CARLONE S. FELLMAN, : IN THE SUPERIOR COURT OF
DECEASED : PENNSYLVANIA
:
:
:
APPEAL OF: HARLEY FELLMAN, AND :
WALTER KUCZERIAWENKO : No. 1587 EDA 2025
Appeal from the Order Entered May 21, 2025
In the Court of Common Pleas of Montgomery County Orphans’ Court at
No(s): 2020-X3101
BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*
OPINION BY LANE, J.: FILED JUNE 12, 2026
Harley Fellman (“Grandson”) and Walter Kuczeriawenko (“Walter”)
(collectively, “Appellants”) appeal from the order overruling their objections
to the amended accounting of the Estate of Caroline S. Fellman (the
“Decedent”), Deceased (“the Estate’), and affirming the amended accounting.
We hold, inter alia, that pursuant to Pennsylvania Rule of Orphans’ Procedure
2.7, an objector shall include all objections to an estate accounting in the
written objections or risk waiver, and may not raise a novel claim orally at a
hearing on the objections. We affirm.
Grandson was the Decedent’s grandson and, after his mother died, lived
with the Decedent.1 Walter was in a relationship with the Decedent for twelve
years, and together they ran 2UP, LLC (“2UP”), “a promotions company that
. . . put on motorcycle shows.” N.T., 9/18/24, at 71-72. The executor of the
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* Former Justice specially assigned to the Superior Court.
1 See Appellants’ Brief at 14.
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Estate is Decedent’s brother, William Fellman (“Executor”), a retired general
contractor. See N.T., 11/20/24, at 81.
The Decedent died on June 26, 2020, while a resident at Suburban
Woods Health and Rehabilitation Center (“Suburban Woods”), a nursing
facility.
[Decedent’s will] left: (1) a specific $10,000 bequest to a friend;
(2) any business interest she then owned in 2UP, LLC . . . to
Walter, her longtime partner; and, (3) the residue to be divided
55% to [Grandson], 35% to [Executor], and 10% to Walter.
Letters Testamentary were granted to [Executor in November
2020.]
Orphans’ Court Opinion, 8/27/25, at 1-2 (footnote omitted).
Executor filed an accounting of the Estate, and an amended accounting
in February 2023.2 The largest Estate asset was $270,000, representing the
proceeds of the private sale of the Decedent’s house. Bank accounts and
various “refund[s]” comprised the remaining $15,087.07 of the Estate. First
and Final Account, 12/28/22, at 3 (unnecessary capitalization omitted). The
accounting also itemized disbursements paid by the Estate, including: (1)
$72,500 to Suburban Woods; (2) $7,906.20 for the “payoff” of a Buick car
lease; and (3) several medical expenses. Id. at 5.
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2 The amended accounting merely set forth the same assets as those listed in
the original accounting, but made no mention of disbursements, and added a
“reserve of $7,510” for attorneys’ fees and costs for, inter alia, “future matters
surrounding litigation [of] objections to the account.” Amended Account,
2/3/23, at 2.
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In February 2023, Appellants filed joint objections to the accounting,
challenging disbursements paid by the Estate and alleging Executor
improperly withheld 2UP assets from Walter. The Orphans’ Court noted that
this matter “was called for audit . . . on April 3, 2023.” Adjudication, 5/21/25,
at 1.3 The court then held evidentiary hearings over three days, from
September 2024 to January 2025.
During this time, Appellants’ counsel negotiated with Suburban Woods,
which ultimately refunded the $72,500 claim and gave an additional $5,000
to the Estate. The attorney for Suburban Woods, who attended the first and
second days of hearings, denied that its claim against the Estate was
fraudulent, but explained it had decided to “cut their losses[ and] stop
incurring further fees and costs.” N.T., 11/20/24, at 5, 18.
By way of background, we note that issues of waiver pervaded this
matter.4 At the hearings, both Executor and the Orphans’ Court suggested
that Appellants waived many of their claims for failing to include them in the
written objections. See N.T., 9/18/24, at 49-54. The court opined that
Appellants could not raise new objections orally mid-hearing, for which
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3 For identification purposes, we note the underlying order, filed May 21, 2025,
was entered as an “Adjudication” on the trial docket. The title on the face of
the document, however, is “Estate of Caroline S. Fellman, AKA Caroline
Fellman, Deceased.”
4 Because of the large number of issues, we do not review the relevant
procedural history of each claim here, but discuss them in our analyses infra.
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Executor had no notice and thus no opportunity to prepare. See id. at 52-
53, 59. Appellants responded they were unable to raise the claims earlier due
to Executor’s “failure to provide information[,] a breach of [his] fiduciary
duty,” and thus they did not “have enough information to know what to object
[sic].” Orphans’ Court Opinion, 8/27/25, at 6; see also N.T., 9/18/24, at 51.
Executor and the Orphans’ Court then reasoned that Appellants should
have sought any documentation they desired through discovery. See N.T.,
9/18/24, at 48. Appellants replied that this “misses the point,” as their
objection was that Executor bore a fiduciary duty, having “nothing to do with
discovery,” “to provide sufficient information . . . as to the accuracy of the
accounting.” Id. at 48-49. The court disagreed and ruled the issues were
“limited to the objections that [were] filed,” Appellants could not raise new
objections for the first time at the hearing, and they could have instead
amended their objections, “which happens all the time.” Id. at 54, 59.
On May 21, 2025, the Orphans’ Court issued the underlying order,
overruling all of Appellants’ objections, but awarding them $10,000 in
attorneys’ fees in connection with Suburban Woods’ refund of its claim.
Otherwise, the court affirmed the amended accounting. Appellants filed a
timely notice of appeal.5 They and the Orphans’ Court have complied with
Pa.R.A.P. 1925.
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5 See Pa.R.O.C.P. 8.1 (providing that generally, “no exceptions or post-trial
motions may be filed to any order or decree of the” Orphans’ Court).
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Appellants present the following issues for our review:
1. Whether the [Orphans’ Court] erred as a matter of law and/or
fact or committed an abuse of discretion by failing to find
[Executor] breached his fiduciary duty to make full disclosure
to [Appellants], and withholding from [them] evidence
necessary to prove their objections to the accounting.
2. Whether the [Orphans’] Court erred as a matter of law and/or
fact or committed an abuse of discretion when it failed to
disqualify attorney Joseph McDonald[, Esquire (“Attorney
McDonald”),] when he breached his duties as counsel to
“[Executor] as Accountant for the estate.”
3. Whether the [Orphans’] Court erred as a matter of law and/or
fact or committed an abuse of discretion when it failed to
dismiss the accounting where [Executor] was not a licensed
attorney and represented the [E]state, in fact practicing law
without a license Attorney McDonald having asserted he,
McDonald, was representing [Executor] only and had no
fiduciary duty to Beneficiaries [sic].
4. The [Orphans’] Court erred as a matter of law and/or fact or
committed an abuse of discretion when the Adjudication is
unsupported by, and in many instances contrary to, facts on
the record. More concisely:
a. [Orphans’] Court abused its discretion regarding the value
of [the Decedent’s house] where its decision was contrary
to evidence on the record.
b. Objection 1. [Executor] did not produce the lease
contract, it was not on the record and there was no
evidentiary basis for the Court to determine the
contractual obligation for early lease termination on this
vehicle was the amount properly paid by [Executor] as a
fiduciary responsibility to pay the debts of the Estate.
c. The evidentiary record is contrary to the Court’s finding
that it was the Decedent’s clear understanding from the
time she entered the facility that that her room and board
(not services) were to be private pay. Suburban Woods
refunded the paid claim in a private agreement with
[Executor’s] defense attorney to prevent Appellants[] from
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proving that [Executor] failed his fiduciary duty to
determine that Blue Cross had paid the charges.
d. Objections 3 through 6 referred to claims asserted to have
been paid by [Executor] were overruled, the Adjudication
stating, “[Appellants] having the burden of proof, no
evidence was presented by [Appellants] regarding
Objections 3 through 6.” The Court committed an error of
law when it failed to shift the burden of proof to [Executor]
due to a significant discrepancy where [Executor] failed to
produce valid vouchers or disclose facts relevant to the
estate. (See Strickler Estate, [47 A.2d 134 (Pa. 1946)].)
e. [Orphans’] Court committed an error of law when it
overruled the Objection to the discrepancy on the
underpayment of Pennsylvania Inheritance tax when the
burden shifted because a significant discrepancy existed
when the evidence showed an unaccounted for, taxable
distribution from Decedent’s checking account of
approximately $121,949.17, in April 2020, less than three
months prior to Decedent’s death.
f. The Court erred as a matter of law when the issue
regarding the 2UP . . . equipment was not dispositive of
[Executor’s] breach of his fiduciary duty where [Executor]
intentionally destroyed evidence of damages and difficulty
in fixing the exact amount of damages does not constitute
a legal obstacle in the way of their allowance.
Appellants’ Brief at 5-8.
We first observe that, including the sub-issues, Appellants raise an
excessive number of claims — nine. The Orphans’ Court similarly reasoned:
(1) “[t]hroughout this litigation, Appellants question[ed Executor] about each
and every payment he made, no matter how small[;]” and (2) on appeal,
“Appellants have asked the Superior Court to overrule every single one of the
. . . court’s findings . . . (except, not surprisingly, an award of $10,000 for
Appellants’ counsel fees).” Orphans’ Court Opinion, 8/27/25, at 6, 12-13. We
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remind Appellants’ counsel: “The effectiveness of appellate advocacy may
suffer when counsel raises numerous issues, to the point where a presumption
arises that there is no merit to any of them.” Commonwealth v. Snyder,
870 A.2d 336, 340 (Pa. Super. 2005) (citation omitted).
In their first issue, Appellants aver the Orphans’ Court erred in failing to
find Executor “breached his fiduciary duty to make full disclosure . . . and
[withheld] evidence necessary to prove their objections to the accounting.”
Appellants’ Brief at 16. We consider the applicable standard of review:
When reviewing a decree entered by the [O]rphans’ [C]ourt, 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 [O]rphans’ [C]ourt sits as the fact-finder, it
determines the credibility of witnesses and, on review, we will not
reverse its credibility determinations absent an abuse of that
discretion.
As an appellate court we can modify an orphans’ court
decree only if the findings upon which the decree rests
are unsupported by competent or adequate evidence or
if there has been an error of law, an abuse of discretion
or a capricious disbelief of competent evidence. The test
to be applied is not whether we, the reviewing court,
would have reached the same result, but whether a
judicial mind, after considering the evidence as a whole,
could reasonably have reached the same conclusion.
Moreover, “[o]ur scope of review is also limited: we determine
only whether the court’s findings are based on competent and
credible evidence of record.”
In re Beam, 342 A.3d 7, 13-14 (Pa. Super. 2025) (citations omitted).
Pennsylvania Rule of Orphans’ Court Procedure 2.7 governs objections
to an accounting:
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(a) Objections to an Account and/or a petition for
adjudication/statement of proposed distribution shall be filed
with the clerk on or before the time and date of the audit in
those counties holding an audit, and by a specified date in all other
counties, with a copy served on the accountant or the accountant’s
counsel, if represented, and to each interested party and claimant
who received the notice pursuant to Rule 2.5, to the extent known,
pursuant to Rule 4.3.
(b) Objections shall be in writing, with consecutively
numbered paragraphs, signed by counsel, or if not represented by
counsel, then by all the objectors in accordance with Rule 3.12.
Objections shall be verified by at least one of the objectors in
accordance with Rule 3.13.
(c) Each objection shall:
(1) be specific as to description and amount;
(2) raise one issue of law or fact, but if there are several
objections relating to the same issue, all such objections shall
be included in the same paragraph as subparts; and
(3) briefly set forth the reason or reasons in support
thereof.
(d) The court may extend the time for filing objections.
Pa.R.O.C. 2.7(a)-(d) (emphases added).
When interpreting our Rules of Orphans’ Court Procedure, “our standard
of review is de novo and our scope of review is plenary.” In re K.M.D., 261
A.3d 1055, 1059 (Pa. Super. 2021). We apply the Statutory Construction
Act,6 which
directs that the object of all interpretation and construction of
statutes is to ascertain and effectuate the legislature’s intent. 1
Pa.C.S.[A.] § 1921(a)[.] Generally, the best indicator of
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6 See 1 Pa.C.S.A. §§ 1501-1991.
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legislative intent is the plain language of the statute. In
construing statutory language, “[w]ords and phrases shall be
construed according to rules of grammar and according to their
common and approved usage[.]” 1 Pa.C.S.[A.] § 1903(a). When
the words of a statute are clear and unambiguous, there is no
need to look beyond the plain meaning of the statute “under the
pretext of pursuing its spirit.” 1 Pa.C.S.[A.] § 1921(b)[.]
Moreover, “[s]tatutes in pari materia shall be construed together,
if possible, as one statute.” 1 Pa.C.S.[A.] § 1932.
McWilliams v. McWilliams, 324 A.3d 602, 608 (Pa. Super. 2024) (some
citations omitted).
For ease of discussion, we first set forth the Orphans’ Court analysis of
this issue. It reasoned that, pursuant to Pa.R.O.C.P. 2.7, Appellants waived
their claim — that Executor breached his fiduciary duty to provide evidence —
for failure to include it in their written objections. The court reiterated its
opinion that Appellants could not raise new objections for the first time at the
hearing. See Orphans’ Court Opinion, 8/27/25, at 6. On the merits, the court
again reasoned that Appellants should have sought discovery during the
nineteen months between their filing of the objections and the first hearing,
and ultimately, “the parties and the court sat through three full days of
testimony and evidence which did little to support Appellants’ . . . objections.”
Id. at 7.
On appeal, Appellants assert that they “did raise the issue of
[Executor’s] breach of his duty to make full disclosure,” and the court
“incorrectly treat[ed] this [as] a new claim.” Appellants’ Brief at 17.
Appellants further contend that the Orphans’ Court “misapplied the law,”
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because a fiduciary’s “duty to furnish information [is not] conditioned on the
rules of discovery,” and the court “failed to shift the burden to [Executor] for
his breach of his fiduciary duty to provide full information.” Id. at 17-18. On
the merits, Appellants maintain that: they requested bank statements, but
Executor “failed to produce any bank statement showing any of the checks for
the alleged payments” made by the Estate; “the lease on the Buick was never
produced;” and “in each and every occasion, [Executor] and his counsel
evaded, avoided, [and] refused to produce information to enable Appellants
to understand their rights.” Id. at 18-19.
We have not discovered case authority explicitly addressing whether
Pa.R.O.C.P. 2.7 requires an objector to include all objections to an accounting
in their written objections, on pain of waiver, and whether an objector may
raise a new claim orally for the first time at a hearing on the objections. After
review of Rule 2.7, we conclude that a plain reading of the rule supports such
a holding. Subsection (a) explicitly provides that “[o]bjections to an account
. . . shall be filed with the clerk on or before the time and date of the audit in
those counties holding an audit.” Pa.R.O.C.P. 2.7(a) (emphasis added).
Subsections (b) and (c) provide that “[o]bjections shall be in writing,” and
“[e]ach objection shall . . . be specific as to description and amount[.]”
Pa.R.O.C.P. 2.7(b)-(c)(1) (emphases added). The use of the word, “shall,” in
each of these three subsections indicates that the written nature, filing, and
specificity of an objection are mandatory. Furthermore, subsection (a)
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contemplates that an audit may occur and specifies the chronology of events:
first, the filing of objections, and subsequently, the audit. See Pa.R.O.C.P.
2.7(a) (specifying that objections “shall be filed . . . before the time and date
of the audit”).
Pursuant to the plain language of these subsections, especially when
read together, we conclude that Rule 2.7 requires an objector to file written
objections, with specificity, to an estate accounting before either “the time
and date of the audit” or “by a specified date,” where applicable. Pa.R.O.C.P.
2.7(a)-(c). To the extent an objector wishes to raise additional objections,
“[t]he court may extend the time for filing objections.” Pa.R.O.C.P. 2.7(d).
We further hold that under Rule 2.7, the failure to include a claim in the written
objections results in waiver, and an objector may not raise a novel theory or
claim orally at a hearing. Again, subsection 2.7(a) acknowledges that an audit
may be held, and specifies that objections “shall be filed . . . before the time
and date of the audit.” Pa.R.O.C.P. 2.7(a) (emphasis added).
Applying this rule to the case sub judice, we agree with the Orphans’
Court that because Appellants’ written objections did not include any claim
that Executor breached his fiduciary duty to provide financial information, they
waived this issue before the court. We emphasize that this claim was not
presented or even fairly included in the written objections. The written
objections enumerated seven challenges to the disbursements paid by the
Estate only. As the Orphans’ Court pointed out, Appellants did not challenge
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the valuation of any asset, let alone the Decedent’s house. See N.T.,
9/18/24, at 58-59 (Orphans’ Court pointing out that the written objections did
not “challenge the opening balance”). On this point, we further agree with
the Orphans’ Court that permitting Appellants to raise a novel claim, for the
first time at the hearing, would have unfairly prejudiced Executor, as he would
not have had notice nor an opportunity to prepare to address the claim. See
id. at 52.
We further conclude that no relief is due on Appellants’ insistence that
they had no obligation to seek any desired information through discovery or
court procedures because, as they reason, an estate administrator’s fiduciary
duty to provide information is not “conditioned on the rules of discovery.”
Appellants’ Brief at 17. This rationale does not address why Appellants’
written objections did not allege Executor’s breach of fiduciary duty, nor why
Appellants did not seek amendment of their written objections after Executor
purportedly failed to provide the information sought. For the foregoing
reasons, we conclude Appellants waived their allegation — of Executor’s
breach of a fiduciary duty to provide information — for failure to include it in
their written objections. See Pa.R.O.C.P. 2.7.
Moreover, even if Appellants had preserved their issue before the
Orphans’ Court, we would further determine that they have waived their claim
for failure to present a developed argument on appeal. An appellant’s
argument must include “the particular point treated . . . , followed by such
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discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P.
2119(a). “It is well-established that the failure to develop an argument with
citation to, and analysis of, pertinent authority results in waiver of that issue
on appeal.” C.H.L. v. W.D.L., 214 A.3d 1272, 1276 (Pa. Super. 2019).
Here, while Appellants repeatedly insist that Executor failed to provide
certain information, they do not describe what that information would have
shown, nor how it injured them. Appellants claim that Executor bore the
fiduciary duty to produce “bank statements,” “[t]he lease on the Buick,” and
notice that “[t]he house was sold.” Appellants’ Briefs at 18-19. They broadly
conclude that “[b]ecause there were no bank statements supporting any
alleged transactions alluded to the in Accounting, the Court cannot assume
the accounting is valid or accurate.” Appellants’ Brief at 21. Appellants fail to
specify the relief they request, aside from a vague finding that Executor
breached his fiduciary duty or a finding that the accounting was inaccurate.
For the foregoing reasons, no relief is due on Appellants’ first issue.
In their second issue, Appellants aver the trial court erred in not
disqualifying Executor’s attorney, Attorney McDonald, for breaching his duties
as counsel to Executor. By way of background, we summarize the following.
After the first evidentiary hearing, Appellants filed a petition to remove
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Attorney McDonald.7 Appellants relied on a 1995 Montgomery County
Orphans’ Court decision, Pew Trust, 16 Fiduc. Rep. 2d 80 (O.C. Montg.
1995). Appellants summarized that this opinion held: “[W]here the client is
the fiduciary, the fiduciary’s lawyer may be charged with special obligations in
dealing with a non-client beneficiary. Hence, [the attorney’s] duties run not
only to its client, but also to the non-client Trust beneficiaries.” Appellants’
Brief at 25. The Orphans’ Court held hearings in October and November 2024,
and denied Appellants’ petition to remove Attorney McDonald on November
20, 2024.8
Subsequently, at the final evidentiary hearing on the objections,
Attorney McDonald, in response to Appellants’ continued reliance on Pew
Trust, provided the Orphans’ Court with a written argument as to why Pew
Trust was distinguishable.9 Pertinently, this summary stated: “I am
representing [Executor] only in the defense of the objections to the
accounting. So, the only person I owe a fiduciary duty to is [Executor, and I
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7 As Appellants had filed a petition to remove Attorney McDonald, they have
preserved this issue for our review. See Pa.R.A.P. 302(a) (providing that
(“[i]ssues not raised in the trial court are waived and cannot be raised for the
first time on appeal”).
8 See Orphans’ Court Opinion, 8/27/25, at 8. The notes of testimony of these
hearings were not included in the certified record transmitted on appeal.
9 This document spanned one page and two lines, and was entitled “Fellman
Oral Argument on Pew Trust.”
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have no duty to] assist [Appellants] with pursuing objections against the
person who hired me to defend him[.]” N.T., 1/17/25, at 67, 94.
In its opinion, the Orphans’ Court suggested: (1) Appellants did not
appeal from the order denying their petition to remove Attorney McDonald;
and (2) under the doctrine of res judicata, this issue “cannot be heard or
considered again.” Orphans’ Court Opinion, 8/27/25, at 8.
On appeal, Appellants assert that: (1) the order, denying their petition
to remove Attorney McDonald, was not a final order and not appealable; and
(2) neither res judicata nor collateral estoppel barred review of their claim.
See Appellants’ Brief at 23-24. On the merits, Appellants also challenge
Attorney McDonald’s above statement, that he was representing Executor
“only in the defense of the objections to the accounting” and thus he had no
duty to assist Appellants with pursuing the objections filed against his client,
Executor. Appellants again rely on Pew Trust, and argue that Attorney
“McDonald’s responsibility was to assist in supporting facts to support the
accounting, not obstruct Appellants’ right to full information.” Appellants’ Brief
at 27. Appellants request this Court to remand to the Orphans’ Court for the
appointment of “proper counsel for the [E]state.” Id.
As the Orphans’ Court has suggested Appellants failed to appeal from
the earlier order, we first review whether the issue is properly before us in the
present appeal. See, e.g., Calabretta v. Guidi Homes, Inc., 241 A.3d 436,
440 n.6 (Pa. Super. 2020) (stating that “[b]ecause we ‘lack jurisdiction over
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an unappealable order, it is incumbent on us to determine, sua sponte when
necessary, whether the appeal is taken from an appealable order’”). “To be
immediately appealable, a trial court order must be either a final order under
Pennsylvania Rule of Appellate Procedure 341, or a collateral order under
Appellate Rule 313.” Dougherty v. Philadelphia Newspapers, LLC, 85
A.3d 1082, 1084-85 (Pa. Super. 2014). Rule 341 defines a “final order,”
generally, as an order that disposes of all claims and of all parties. Pa.R.A.P.
341(b)(1). With respect to an appeal from a collateral order, the Pennsylvania
Supreme Court
has delineated three requirements that must be satisfied . . .. The
order must be “separable from and collateral to the main cause of
action;” it must involve a right that “is too important to be denied
review;” and, “if review is postponed until final judgment, the
claim will be irreparably lost.” The doctrine is to be narrowly
interpreted[,] as it is an exception to the rule of finality.
Dougherty, 85 A.3d at 1085 (citations omitted).
This Court has permitted an appeal from an order denying a motion to
disqualify an attorney from serving as counsel to another party, where the
appellant established the three collateral order factors above. See id. at
1086. However, this Court has also held that where a party could have taken
an immediate appeal from a collateral order, but opts to wait to appeal from
a subsequent, final order, the party does not waive that issue for appellate
review. See In re Estate of Petro, 694 A.2d 627, 630-31 (Pa. Super. 1997)
(stating that “[w]e can find no rule of law, either statutory or common law,
which states that a collateral order must be appealed within 30 days of its
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entrance or an appeal based upon the substance of the collateral order is
forever precluded”).
Here, Appellants could have sought to appeal from the order denying
their petition to remove Attorney McDonald. See Dougherty, 85 A.3d at
1085. Their decision to not file a notice of appeal at that time, however, did
not result in waiver of appellate review of any challenges to that order. See
In re Estate of Petro, 694 A.2d at 630-31. Thus, we determine Appellants
may challenge, in the present appeal, the denial of their petition to remove
Attorney McDonald.
Nevertheless, we conclude Appellants have waived their issue, for failure
to cite binding, relevant authority to support their argument. See Pa.R.A.P.
2119(a); see also C.H.L., 214 A.3d at 1276 (stating “that the failure to
develop an argument with citation to, and analysis of, pertinent authority
results in waiver of that issue on appeal”). On the merits of their claim,
Appellants cite only the 1995 Court of Common Pleas Pew Trust decision.
See Appellants’ Brief at 25-27. Decisions of the Courts of Common Pleas,
however, are not binding precedent on this Court. See Feather v. Feather,
348 A.3d 1148, 1154 n.3 (Pa. Super. 2025). Appellants have not cited any
applicable appellate authority addressing the role of an attorney in an estate
matter, nor have they averred that after research, they have discovered none.
On this basis of waiver, no relief is due on their second issue.
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In their third issue, Appellants assert that the Orphans’ Court erred in
not dismissing the amended accounting, on the ground Executor was not a
licensed attorney. Appellants reason that Executor “represented the [E]state”
and thus was “in fact practicing law without a license.” Appellants’ Brief at
28. Appellants rely on Norman v. Temple University Health System, 208
A.3d 1115 (Pa. Super. 2015), for the proposition that “an estate can only act
through an agent[, and must] therefore[] be represented by a licensed
attorney, [and t]o permit an unlicensed lay administrator to appear pro se
would be to permit the unauthorized practice of law.” Id. at 30.
The Orphans’ Court reasoned that Appellants have waived this issue,
under Pa.R.O.C.P. 2.7, because they did not include it in their written
objections. See Orphans’ Court Opinion, 8/27/25, at 8. On appeal, Appellants
respond that they could not have included this issue because Attorney
McDonald entered his appearance after they filed the objections. 10 See
Appellants’ Brief at 28.
Appellants offer no explanation, however, why they did not seek to
amend their objections to include this claim, nor why they did not file any
pleading to remove Executor on the ground that he is not an attorney at law.
See Pa.R.O.C.P. 2.7. Additionally, Appellants do not cite the place in the
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10 The trial docket confirms that Attorney McDonald entered his appearance
after Appellants filed their objections. Executor’s first attorney, Michael
VanBuskirk, Esquire (“Attorney VanBuskirk”), had previously filed the
accounting and amended accounting.
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record where they raised this issue before the Orphans’ Court, in
contravention of our Rules of Appellate Procedure. See Pa.R.A.P. 2117(c)(1)-
(4) (requiring the statement of the case to state the place in the proceedings
where the appellant raised and preserved issues), 2119(e) (requiring the
argument to state the same); see also Young v. S. B. Conrad, Inc., 216
A.3d 267, 274 (Pa. Super. 2019) (stating that “[o]ur appellate courts have
long held that an appella[nt] who does not follow Pa.R.A.P. 2117(c) and
Pa.R.A.P. 2119(e) waives the related issues due to the defects in his brief”).
The notes of testimony for the three days of hearings span more than 400
pages. “It is not this Court’s responsibility to scour the record for
substantiation that [an] issue has been properly raised.” Hackett v. Indian
King Residents Ass’n, 195 A.3d 248, 255 (Pa. Super. 2018) (citation
omitted). For the foregoing reasons, we determine Appellants have waived
this issue for our review.11
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11 Moreover, even if Appellants had preserved this issue, no relief would be
due. On the merits, the Orphans’ Court aptly reasoned there is no
requirement that the executor of an estate, or the estate accountant who files
an account, be a licensed attorney. See Orphans’ Court Opinion, 8/27/25, at
8-9 & n.6 (citing 20 Pa.C.S.A. § 3501.1 (governing a personal representative’s
filing of an account), Pa.R.O.C.P. 1.3 (definitions)).
Furthermore, Appellants’ reliance on Norman is misplaced. In that
case, the administrator of the estate — who was the decedent’s son — filed a
pro se medical malpractice complaint on behalf of the estate. See Norman,
208 A.3d at 1117. This Court reasoned that “non-attorneys may not
represent parties [or another person’s interests] before the Pennsylvania
courts and most administrative agencies,” and here, the administrator “filed
(Footnote Continued Next Page)
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Under their fourth issue, Appellants present six additional challenges to
the amended accounting. We reiterate that in review of an Orphans’ Court
decree, we “must determine whether the record is free from legal error and
the court’s factual findings are supported by the evidence,” and we defer to
the court’s credibility determinations. In re Beam, 342 A.3d at 13.
With respect to Executor’s role in the administration of an estate, this
Court has explained: “Orphans’ Court Rule 2.1 provides that an account must
state ‘[t]he dates of all receipts, disbursements and distributions, the sources
of the receipts, and the persons to whom disbursements and distributions are
made and the purpose thereof[.]’” Id. at 14 (citing Pa.O.C.R. 2.1(b)(1)).
By statute, one aspect of the fiduciary duty of the executor is to
“take possession of, maintain and administer all the real and
personal estate of the decedent . . ..” 20 Pa.C.S.A. § 3311. In
other words, the executor bears the responsibility to “preserve
and protect the property for distribution to the proper persons
within a reasonable time.” In the performance of his fiduciary
duties, the executor must exercise the “judgment, skill, care and
diligence that a reasonable or prudent person would ordinarily
exercise in the management of his or her own affairs.”
When the executor of an estate fails to fulfill his fiduciary duty of
care, the court may impose a surcharge against him. A surcharge
is a penalty imposed to compensate the beneficiaries for loss of
estate assets due to the fiduciary’s failure to meet his duty of care;
however, a surcharge cannot be imposed merely for an error in
judgment. Our Supreme Court has held that a standard of
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a complaint on behalf of, and endeavored to represent, the [e]state in this
litigation.” Id. at 1120-21 (emphasis added and citation omitted). Norman
did not hold, as Appellants argue, that an executor must be an attorney in
order to administer the estate and file an accounting. Instead, Norman
concluded that an administrator of an estate could not represent the estate
pro se in a negligence lawsuit against another party.
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negligence is applied when evaluating whether an executor’s
management of an estate warrants a surcharge.
Before the court can impose a surcharge, it must give the executor
an opportunity to be heard. Ordinarily, the party seeking to
surcharge an executor bears the burden of showing a
failure to meet the required standard of care. . . .
In re Estate of Westin, 874 A.2d 139, 144-45 (Pa. Super. 2005) (emphasis
added and some citations omitted).
First, Appellants aver the Orphans’ Court abused its discretion in
affirming “the value of [Decedent’s house, $270,000,] where its decision was
contrary to evidence on the record.” Appellants’ Brief at 32. Appellants allege,
without further explanation: (1) the Orphans’ Court improperly focused on the
“‘price,’ an arbitrary issue,” and “failed to consider [Executor’s] self-dealing;”
(2) “the [E]state would have benefitted by listing the property for sale;” (3)
in addition, Grandson had wished to place a bid on the house, did not have
the opportunity to do so, and thus suffered an “emotional loss;” and (4) the
Estate could have “transfer[ed] the house to [Grandson with] a deed costing
a minimum amount.” Id. at 32-34.
The Orphans’ Court reasoned that Appellants waived any challenge to
the valuation of the house by failing to include it in their written objections.
We agree. Their written objections made no reference whatsoever to the
Decedent’s house, the private sale of it, or the sale amount. As the court
pointed out at the hearing, Appellants’ written objection did not raise any
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challenge to “the opening balance.” N.T., 9/18/24, at 59. Accordingly, we
determine Appellants waived this claim.12 See Pa.R.O.C.P. 2.7.
Second, Appellants aver that because Executor “did not produce the
lease contract for the Buick, it was not on the record and [thus] there was no
evidentiary basis for the [Orphans’] Court to determine the contractual
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12 The Orphans’ Court further opined that in any event, no relief would be due
on the merits. The court pointed out the Decedent’s will specified that
Executor could “sell or exchange by public or private sale, on any terms . .
. any real or personal property.” Orphans’ Court Opinion, 8/27/25, at 10
(quoting Will, 9/4/19, at 4) (emphasis added). As to the sale amount, the
trial court credited the testimony of Executor, a retired licensed general
contractor, that: (1) he believed $270,000 was appropriate, as “[t]here was
a lot of work . . . that needed to be done[, and the] house had fire code
violations;” (2