J-S10036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF LEONARD J.                      IN THE SUPERIOR COURT OF
SMOLSKY, DECEASED                                      PENNSYLVANIA




APPEAL OF: RAYMOND JOSEPH
SMOLSKY

                                                     No. 2182 EDA 2015


                       Appeal from the Decree July 1, 2015
                 in the Court of Common Pleas of Bucks County
                      Orphans’ Court at No.: No. 2013-0650


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 04, 2016

        Appellant, Raymond Joseph Smolsky, appeals pro se from the decree

denying his motion for court approval to lease/purchase the realty of

Decedent, Leonard J. Smolsky. We affirm.

        We take the following facts from the orphans’ court’s July 1, 2015

opinion and our independent review of the record.          Decedent died on

September 8, 2013.         His January 17, 19991 last will and testament was


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The date of February 17, 1999 appears on the page of the will signed by
Decedent, although the page that the notary public signed contains the date
of January 17, 1999. (See Exhibit P-1, Decedent’s Last Will and Testament,
(Footnote Continued Next Page)
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probated by the Register of Wills on December 4, 2013.        Thereafter, the

court appointed Samuel C. Totaro, Jr., Esquire, as administrator of

Decedent’s estate.

      Appellant is Decedent’s son and one of the five residual heirs under

the probated will. He currently is imprisoned at SCI-Mahanoy. On January

2, 2015, he filed the subject motion for court approval to lease/purchase the

Decedent’s realty in Forestville, Pennsylvania. The court held a hearing on

May 8, 2015, at which Appellant appeared pro se via video conference. He

introduced a copy of a June 1, 2012 letter from Decedent to the

Pennsylvania Parole Board, as well as the testimony of Decedent’s longtime

neighbors, Anthony and Doris Locklear; and of his granddaughter, Katie

Smolsky. Appellant maintained that the letter indicates Decedent’s intent to

devise his Forestville, Pennsylvania property to him, and that the testimony

provided further support of such intent.2 Mr. Totaro testified in his position

as administrator of the estate that the subject property was under an

agreement of sale at the time of the hearing, and that he acted in the best

interest of all of the heirs when he agreed to sell the property to the third


                       _______________________
(Footnote Continued)

1/17/99, at 11, 13). For the sake of consistency, we will identify the will as
being dated January 17, 1999.
2
 Appellant argued at the hearing that the letter was a codicil to the will. He
does not advance that argument in this appeal.




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party.     On July 1, 2015, the court denied Appellant’s motion.       Appellant

timely appealed.3

         Appellant raises one issue for this Court’s review:

         I.    Did the [orphans’] court err as a matter of statutory and
         case law, abuse its discretion, show bias[,] or deal unfairly with
         Appellant son of the Deceased by concluding the Administrator
         had no obligation to lease/purchase realty of the deceased to
         Appellant son when Appellant son invoked his 18.25% in kind
         interest and was willing to pay $10,000.00 more and the court
         allowed sale to a stranger?

(Appellant’s Brief, at 3) (most capitalization omitted).       Appellant’s issue

lacks merit.4

         Our standard of review of an orphans’ court’s decree is well-settled:
____________________________________________


3
  Appellant filed a timely concise statement of errors complained of on
appeal on July 23, 2015. See Pa.R.A.P. 1925(b). The court filed a Rule
1925(a) opinion on July 30, 2015. See Pa.R.A.P. 1925(a).

      On August 17, 2015, Appellee filed a motion to quash this appeal,
which we denied per curiam on September 30, 2015, without prejudice to
his raising the issue with this panel. Appellee has not done so. (See
Appellee’s Brief, at 6-10).
4
  The orphans’ court maintains that Appellant’s Rule 1925(b) statement was
overly vague and that we should deem his appeal waived because “[a]n
analysis of Appellant’s Concise Statement provides little guidance to this
[c]ourt as to what issues he is pursuing on appeal.” (Orphans’ Court
Opinion, 7/30/15, at 2). We agree with the court that Appellant’s first two
issues are overly vague.        (See Appellant’s Rule 1925(b) Statement,
7/23/15, at 1); see also In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013)
(observing that “the Rule 1925(b) statement must be specific enough for the
trial court to identify and address the issue an appellant wishes to raise on
appeal. Further, this Court may find waiver where a concise statement is
too vague.”) (citations and internal quotation marks omitted). However,
Appellant’s third claim of error does identify the issue raised on appeal.
Therefore, we decline to find waiver.



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              The findings of a judge of the orphans’ court division,
       sitting without a jury, must be accorded the same weight and
       effect as the verdict of a jury, and will not be reversed by an
       appellate court in the absence of an abuse of discretion or a lack
       of evidentiary support.

             The rule is particularly applicable to the findings of fact
       which are predicated upon the credibility of the witnesses, whom
       the judge has had the opportunity to hear and observe, and
       upon the weight given to their testimony. In reviewing the
       Orphans’ Court’s findings, our task is to ensure that the record is
       free from legal error and to determine if the Orphans’ Court’s
       findings are supported by competent and adequate evidence and
       are not predicated upon capricious disbelief of competent and
       credible evidence. However, we are not limited when we review
       the legal conclusions that [an] Orphans’ Court has derived from
       those facts.

In re Wilton, 921 A.2d 509, 512-13 (Pa. Super. 2007) (citation omitted).

       In this case, Appellant argues that he sought to utilize his legal

interest in the estate toward the purchase the Forestville property, and that

the court erred in refusing to set aside the agreement of sale entered into by

Mr. Totaro with a third party, because it was Decedent’s intent that

Appellant receive the real estate. (See Appellant’s Brief, at 7).5 This issue

does not merit relief.

____________________________________________


5
   We observe that, although Appellant cites precedential boilerplate law
about the construction of wills and the duties of administrators, (see
Appellant’s Brief, at 15, 17), he relies in large part on non-binding caselaw
from the Court of Common Pleas in support of his argument.               (See
Appellant’s Brief, at 7-11, 17, 19); see also Ambrogi v. Reber, 932 A.2d
969, 977 n.3 (Pa. Super. 2007), appeal denied, 952 A.2d 673 (Pa. 2008)
(noting that decisions from court of common pleas have no binding effect on
Superior Court). Additionally, although he acknowledges that there is a
“well-settled distinction between real and personal property,” (Appellant’s
(Footnote Continued Next Page)


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        We are guided by the following legal authority in this matter. Pursuant

to section 3360(a) of the Decedents, Estates, and Fiduciaries Act (the Act):

        When a personal representative shall make a contract . . . the
        receipt of an offer to deal on other terms shall [not] . . . relieve
        the personal representative of the obligation to perform his
        contract or shall constitute ground for any court to set aside the
        contract, or to refuse to enforce it by specific performance or
        otherwise: Provided, That this subsection shall not affect or
        change the inherent right of the court to set aside a contract for
        fraud, accident or mistake.

20 Pa.C.S.A. § 3360(a). In considering the effect of section 3360(a) on the

sales of estate realty, the Pennsylvania Supreme Court observed:

        When called upon to interpret statutory provisions our
        touchstone is the Statutory Construction Act of 1972.[6] In
        pertinent part the Act provides:

              (a) the object of all interpretation and construction of
              statutes is to ascertain and effectuate the intention
              of the General Assembly. Every statute shall be
              construed, if possible, to give effect to all its
              provisions.

              (b) When the words of a statute are clear and free
              from all ambiguity the letter of it is not to be
              disregarded under the pretext of pursuing its spirit.

        1 Pa.C.S.[A.] § 1921.
                       _______________________
(Footnote Continued)

Brief, at 9) (citation omitted), he fails to cite any pertinent caselaw about
distribution of real property. (See id. at 10, 14 (citing Minichello’s Estate,
84 A.2d 511, 513 (Pa. 1951), which addressed stock of closely held
corporation); see also Pa.R.A.P. 2119(a)-(b). However, because this does
not hamper our meaningful appellate review, we will not deem his issue
waived.
6
    Act of December 6, 1972, P.L. 1339, No. 290, § 3.



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           Examining section 3360(a) in this light we note at the
     outset that the section clearly and unambiguously states that
     absent fraud, accident, or mistake a court may not set
     aside an agreement to sell estate property. Furthermore,
     the section goes on to state that a court may not refuse to
     enforce such sales agreements despite inadequacy of
     consideration. The intent of the legislature in enacting this
     statute was to prevent courts from being put in the position of
     being super executors/administrators, and to leave essentially
     private transactions in the hands of the individuals involved.

In re Estate of Hughes, 538 A.2d 470, 472 (Pa. 1988) (case citations

omitted; emphasis added).

     Here, in denying Appellant’s motion, the orphans’ court observed:

     . . . [A]s administrator of [D]ecedent’s estate, Mr. Totaro’s
     obligation is to the estate and the heirs as a whole, rather than
     to a specific beneficiary. Mr. Totaro testified that his “obligation
     [is] to the other five heirs to make certain that the debts are
     paid and that taxes are paid and that whatever is left over is
     distributed to them equally.” (N.T. Hearing, 5/08/15, at 121).
     Further, he testified that the property is currently under an
     agreement of sale. (See id. at [105-06,] 124). We believe that
     it is within Mr. Totaro’s purview and discretion to analyze offers
     made for property within the estate, determine which offers are
     viable, and which would benefit the beneficiaries to the greatest
     extent. [Appellant] testified that he had submitted certain offers
     to purchase the property, but that they were rejected. We hold
     that Mr. Totaro was under no obligation specifically to sell the
     property to [Appellant], and therefore decline to require him to
     do so now.

(Orphans’ Ct. Op., 7/01/15, at 3) (some citation formatting provided). We

agree with the reasoning of the orphans’ court.

     Mr. Totaro testified that he entered into an agreement of sale with a

third party for $100,000.00.     (See N.T. Hearing, 5/08/15, at 105-06).

Appellant did not offer any evidence of fraud, accident or mistake, (see id.

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at 54-127); nor does he argue the existence of these grounds for setting

aside the agreement to sell the property. (See Appellant’s Brief, at 8-19).

Therefore, we conclude that the orphans’ court did not err or abuse its

discretion when it denied Appellant’s request that it set aside the sale to

allow him to purchase the property. See In re Wilton, supra at 512-13.

      Moreover, Appellant’s argument that Decedent intended to devise the

Forestville property to him is not supported by the record. (See Appellant’s

Brief, at 11, 13-14).

             No rule is more settled in regard to wills than the general
      rule that the testator’s intent, if not unlawful, must prevail. The
      common law has consistently proclaimed that the testator’s
      intent is the crux in interpreting every will and that intent must
      be ascertained from the language chosen by the testator.
      Courts will not search for the testator’s intent beyond ‘the four
      corners of his will’ when the language of that document is
      sufficiently clear and unambiguous so as to lead the court to
      believe it can with reasonable certainty effect a distribution in
      accordance with the testator’s desires.

In re Estate of Harper, 975 A.2d 1155, 1160 (Pa. Super. 2009) (citation

omitted).

      Here, Appellant’s only reference to the language of Decedent’s will is

found on page eleven of his brief where he summarizes a portion of

paragraph twelve of the will, the business powers of the administrator. (See

Appellant’s Brief, at 11); (see also N.T. Hearing, 5/08/15, at 60-61);

(Exhibit P-1, Decedent’s Last Will and Testament, 1/17/99, at 8-9 ¶ 12(I)).

However, contrary to Appellant’s assertion that this subsection requires Mr.




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Totaro to sell the Forestville property to him because this is what Decedent

intended, section 12(I) actually states:

      My [estate administrator] . . . shall have the broadest authority
      in dealing with any business interest of mine that may be
      received by [him] as part of my estate or trust, including the
      following powers: . . . In general, to deal with any business
      interest . . . with the same freedom of action that I would have if
      living.

(Exhibit P-1, at 8-9 ¶ 12(I)).

      Appellant fails to argue that this language is ambiguous, and his

attempt to interpret section 12(I) as requiring Mr. Totaro to sell him the

Forestville property because he wanted to use his interest toward it is

unavailing. (See Appellant’s Brief, at 11; see also N.T. Hearing, 5/08/15,

at 61).

      Further, our independent review of the will reveals that it does not

expressly mention the Forestville property at all. (See Exhibit P-1, at 1-13).

Appellant’s name is mentioned only as one of the intended heirs of

Decedent’s residual estate.      (See id. at 4-5 ¶ 8).      In addition to the

language of section 12(I), the will grants Mr. Totaro, as administrator, the

power, inter alia, to “sell, to grant options for the sale of, or otherwise

convert any real . . . property . . . at public or private sale, for such prices,

at such time, in such manner and upon such terms as [he] may think

proper[.]”   (Id. at 6 ¶ 11(C); see id. at 8-9 ¶ 12(I)).      We conclude that

nothing in this language is ambiguous. Therefore, on the basis of the will’s

unambiguous language, the orphans’ court properly denied Appellant’s

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motion to allow him to purchase the already contracted property. See In re

Estate of Harper, supra at 1160.

     In fact, even assuming that the will’s language were ambiguous and

required the orphans’ court to look beyond its four corners to discern

Decedent’s intent, see id., the court properly found that Appellant failed to

prove that Decedent intended to devise the Forestville property to him.

           If a testator intends to make a testamentary gift, it can be
     done in many ways and in many forms, and the intent, as we
     have often said, is the polestar. Papers . . . have been sustained
     as wills where a testamentary disposition of property was clearly
     contained in a letter . . . .

In re Estate of Shelly, 950 A.2d 1021, 1026 (Pa. Super. 2008), appeal

denied, 962 A.2d 1198 (Pa. 2008) (citation omitted).

     In this case, Appellant introduced a letter Decedent wrote to the

Pennsylvania Parole Board as evidence of his alleged testamentary intent

that Appellant recieve the Forestville property. (See N.T. Hearing, 5/08/15,

61-62; Exhibit P-2, Letter from Decedent to Pennsylvania Parole Board,

6/01/12). Regarding this letter, the orphans’ court observed:

           Contrary to [Appellant’s] assertion, [D]ecedent’s letter is
     wholly devoid of testamentary intent. Decedent does express a
     desire for [Appellant] to reside at the property in Forestville
     upon his release from prison, and we believe that it was his
     intent for [Appellant] to reside at the residence after his release.
     However, nowhere in the [June 1], 2012, letter does [D]ecedent
     state an intent to transfer the property to [Appellant]. Decedent
     states within the letter, “I will be having him manage and run
     my Sate (sic) Vehicle Inspection Station located in Forestville,
     Pennsylvania. [The inspection station] also has a house next to
     it with two furnished apartments and a third floor that
     [Appellant] will turn into a third apartment.” [(Exhibit P-2, at

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     3).] Later in the letter, [D]ecedent writes, “[at some point, with
     the Board’s approval, Appellant] plans on turning the full length
     open space above the 4-bay inspection station garage, into
     another apartment/office to work out of and to live in when the
     need arises.”     [(Id. at 4).]    We believe that the above
     referenced language is most accurately read as [D]ecedent
     proposing a housing and employment plan for [Appellant] for
     presentation to the parole board. This is wholly distinguishable
     from an intent to devise the property to [Appellant].

           The language found in the remainder of the letter is
     consistent with the aforementioned portions. [(See id. at 1-6).]
     There is no mention at any point within the letter of a disposition
     of property to [Appellant] upon [D]ecedent’s death─a crucial
     element which must be satisfied to find the presence of
     testamentary intent. [See In re Estate of Shelly, supra at
     1026] Rather, the entirety of the letter is most clearly read as
     an expression of intent to illustrate to the parole board, on
     [Appellant’s] behalf, that [Appellant] would have a place to live
     and work upon his release from prison. [(See, e.g., Exhibit P-2,
     at 1-2 (Decedent writes that he is “beseeching you humbly to
     parole our son[]” because he is “now fully retired and in much
     need of [Appellant] at home . . . where he will first live.”)).]

(Trial Ct. Op., 7/01/15, at 4) (emphases in original; footnote omitted). We

agree with the orphans’ court’s characterization of the letter as a father’s

plea to the parole board on his son’s behalf, and not a letter evidencing

testamentary intent. See In re Estate of Shelly, supra at 1026. Hence,

the orphans’ court did not abuse its discretion or commit an error of law

when it denied Appellant’s motion because he failed to establish that




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Decedent intended to bequeath the Forestville property to him. 7 See In re

Wilton, supra at 512-13.

       In sum, we conclude that the record supports the orphans’ court’s

denial of Appellant’s motion to lease or purchase the Forestville property

where the property was already under contract, Mr. Totaro acted within his

authority in selling it to a third person, and Appellant failed to establish that




____________________________________________


7
   Decedent’s long-time neighbors, Anthony and Doris Locklear, testified at
the hearing. (See N.T. Hearing, 5/08/15, at 87, 96). Although Mrs.
Locklear stated that Decedent wanted to “set [Appellant] up,” (id. at 89),
she testified that Decedent never said that he wanted Appellant to receive
the property “upon his death.” (Id. at 94; see id. at 95). In fact, Mrs.
Lockler testified that Decedent sent money to Appellant in prison and wished
that he was home, but that he only talked about Appellant occasionally, and
he never said that the subject property was the perfect place for Appellant to
live out his life. (See id. at 91, 93). Similarly, Mr. Locklear testified that
Decedent wanted Appellant to come home from prison and establish himself
there before going to work at the Forestville property. (See id. at 98). This
testimony did not establish Decedent’s alleged intent to devise the
Forestville property to Appellant upon Decedent’s death. See In re Estate
of Shelly, supra at 1026.

      Also, we acknowledge that Appellant’s niece, Katie Smolsky, testified
that Decedent wanted Appellant to come home and have the house in
Forestville. (See id. at 102). However, not only did this testimony not
establish Decedent’s testamentary intent to devise the property to Appellant,
it was within the province of the orphans’ court, as finder of fact, to judge
the credibility of the witnesses, and consider the weight to be afforded their
testimony. See In re Wilton, supra at 512. The orphans’ court’s decision
is supported by the evidence of record and cannot be disturbed on appellate
review. See id.




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Decedent had the testamentary intent to devise the real estate to him. See

id.8

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2016




____________________________________________


8
  To the extent Appellant’s argument can be interpreted as claiming that Mr.
Totaro breached a fiduciary duty in the way he has administered Decedent’s
estate, (see Appellant’s Brief, at 14, 17, 19), we observe that he did not
make this argument to the orphans’ court, and we are precluded from
addressing this issue now. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).



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