NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ESTATE OF THOMAS W. BUCHER, : IN THE SUPERIOR COURT OF DECEASED : PENNSYLVANIA : : APPEAL OF: WILSON BUCHER, : CLAIMANT : No. 96 MDA 2013 Appeal from the Order Entered December 14, 2012 In the Court of Common Pleas of Lancaster County Orphans Court at No(s): 36-2008-1522 BEFORE: GANTMAN, J., ALLEN, J., AND MUNDY, J. MEMORANDUM BY GANTMAN, J.: FILED OCTOBER 28, 2013 Appellant, Wilson Bucher, claimant, 1 appeals from the order entered in the Lancaster County Court of Common Pleas, which denied his oral contract claim and confirmed the first and partial account filed on behalf of the Estate of Thomas W. Bucher, deceased ( Estate ). 2 We affirm. This Court previously summarized the relevant facts and procedural history of this case as follows. Decedent was a lifelong bachelor and lived with his parents from age thirty-one to fifty-one. He executed a will in 1991, leaving his estate to his parents and siblings, and another will in 1998, leaving his estate to his niece and nephews, to be held in trust and not distributed until 2021. On April 10, 2003, Decedent executed the will at issue, which left his entire estate to the Lancaster County Public Library (Library). 1 Appellant is a retired Lancaster County Court of Common Pleas judge. 2 This order is appealable as of right per Pa.R.A.P. 342(a)(1).

On July 20, 2008, Decedent died by suicide at age fiftynine, just days before his scheduled retirement from twenty-two years of service as a probation officer. His family did not know of the 1998 will and 2003 will until the latter was presented for probate. On August 19, 2008, a decree of register denied letters of administration to Appellant and granted them to Karen Field (Administratrix), a nominee of the Library. On August [21, 2008], Appellant filed a notice of intention to appeal from the decree of register and a petition for citation sur appeal. Administratrix filed an answer and new matter to Appellant s petition sur appeal, and Appellant filed a reply to the new matter. Appellant also filed a motion for summary judgment, which was denied [on June 30, 2009]. On November 17 and 18, 2009, a hearing was held on Appellant s petition for citation sur appeal. The parties submitted proposed findings of fact and conclusions of law and briefs. On June 21, 2010 the [Orphans ] court issued [an order and opinion] denying Appellant s petition for citation sur appeal. Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The court filed a supplemental opinion on August 23, 2010 in response to Appellant s Pa.R.A.P. 1925(b) statement. In re Estate of Bucher, No. 1049 MDA 2010, unpublished memorandum at 1-3 (Pa.Super. filed June 6, 2011) (internal footnotes omitted). On June 6, 2011, this Court affirmed the Orphans court s decision. The Supreme Court subsequently denied allowance of appeal on January 12, 2012. Meanwhile, on July 9, 2009, nine days after Appellant s motion for summary judgment was denied, Appellant filed a separate claim alleging the existence of an oral contract with Decedent, which named Appellant and his wife as the sole beneficiaries of Decedent s estate. On December 10, 2010, - 2 -

the Estate filed preliminary objections to Appellant s claim. On December 28, 2010, Appellant filed an amended claim. On April 14, 2011, the Estate filed a motion in limine to preclude Appellant s testimony on the oral contract claim pursuant to the Dead Man s Statute. The Estate filed a petition for adjudication, an inventory, and a first and partial account on February 15, 2012. On February 28, 2012, Appellant filed objections to the first and partial account. On May 15, 2012, following a pre-hearing conference, the court ordered Appellant to file a brief in response to the Estate s motion in limine. Thereafter, Appellant filed his response and brief in opposition to the Estate s motion in limine on May 25, 2012. The court granted the Estate s motion in limine by order dated September 7, 2012. On November 28, 2012, Appellant filed a pre-trial conference memo requesting the court to take judicial notice of his prior sworn testimony and the admitted exhibits from the November 2009 hearing. In response, the Estate filed a second motion in limine and supporting brief regarding Appellant s use of his prior sworn testimony and exhibits. On December 12, 2012, Appellant filed a brief in opposition to the Estate s second motion in limine. The court held a hearing on Appellant s oral contract claim on December 14, 2012. Appellant argued he should be permitted to testify on the oral contract pursuant to the Living Witness Rule. The court did not permit Appellant to testify under that rule and granted the Estate s second motion in limine. That same day the court filed its order of adjudication - 3 -

denying Appellant s oral contract claim and confirming the Estate s first and partial account. On Monday, January 14, 2013, Appellant timely filed a notice of appeal and on February 5, 2013, he filed a Rule 1925(b) statement of errors complained of on appeal. On March 15, 2013, the court filed a statement pursuant to Rule 1925, in which the court found its September 7, 2012 order granting the Estate s first motion in limine was a final order, thereby making Appellant s notice of appeal untimely. On April 4, 2013, the Estate filed a motion to quash Appellant s appeal as untimely, to which Appellant filed an answer on April 10, 2013. The Estate has renewed the motion before this panel. Appellant raises the following issues for our review: WHETHER THE ORPHANS COURT ERRED IN ASSERTING IN ITS PA.R.A.P. 1925 STATEMENT THAT ITS SEPTEMBER 7, 2012 ORDER GRANTING THE ACCOUNTANT S FIRST MOTION IN LIMINE WAS A FINAL ORDER AND THAT [APPELLANT S] APPEAL OF THIS ORDER IS UNTIMELY? WHETHER THE ORPHANS COURT ERRED AND COMMITTED AN ABUSE OF DISCRETION IN PRECLUDING [APPELLANT] FROM TESTIFYING AND FURTHER IN NOT TAKING JUDICIAL NOTICE OF [APPELLANT S] PRIOR TESTIMONY AND EXHIBITS PREVIOUSLY ADMITTED IN THIS PROCEEDING? ASSUMING ARGUENDO THAT JUDICIAL NOTICE IS NOT REQUIRED IN ORDER FOR [APPELLANT S] TESTIMONY AND EXHIBITS PREVIOUSLY ADMITTED IN THIS PROCEEDING TO BE CONSIDERED FOR PURPOSES OF DETERMINING THE CONTRACT TO MAKE A WILL CLAIM, DID THE ORPHANS COURT ERR AND COMMIT AN ABUSE OF DISCRETION IN CAPRICIOUSLY IGNORING THE EVIDENCE - 4 -

ALREADY ADMITTED CONCERNING THE CONTRACT TO MAKE A WILL AND IN DISMISSING [APPELLANT S] AMENDED CLAIM? (Appellant s Brief at 5). As a prefatory matter, we address the Estate s motion to quash this appeal. The Estate argues the court s September 7, 2012 order granting the Estate s first motion in limine was a final order under Rule 341(b) of the Pennsylvania Rules of Appellate Procedure. The Estate claims this order was final because it disposed of all claims as to all parties. The Estate maintains this order effectively put Appellant out of court on his oral contract claim because he was the only living person who could testify to the alleged oral agreement, and the September 7, 2012 order barred Appellant from testifying. The Estate concludes Appellant s appeal is untimely. We disagree. Rule 341 of the Pennsylvania Rules of Appellate Procedure was revised in 1992 to eliminate: appeals as of right from orders not ending the litigation as to all claims and as to all parties. Formerly, there was case law [holding] that orders not ending the litigation as to all claims and all parties are final orders if such orders have the practical consequence of putting a litigant out of court. Billig v. Skvarla, 853 A.2d 1042, 1047 (Pa.Super. 2004) (quoting Pa.R.A.P. 341 Note). Prior to the 1992 revision, there were circumstances where courts recognized an appeal even though it did not end the litigation for all claims and all parties. Id. Nevertheless, the revision to Rule 341 has - 5 -

ended this principle of practical finality and now requires a formal end to the litigation prior to taking an appeal. Id. Consequently, a Rule 341 final order is an order that actually resolves all claims as to all parties, not an order that has the practical effect of disposing of all claims. Liberty State Bank v. Northeastern Bank of Pennsylvania, 683 A.2d 889, 889 (Pa.Super. 1996) (holding motion in limine was not final order disposing of all claims or all parties). Additionally, Rule 342(a) of the Pennsylvania Rules of Appellate Procedure provides: 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 been taken to the Orphans Court pursuant to either - 6 -

72 Pa.C.S. 9186(a)(3) or 72 Pa.C.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 Pa.C.S. 9188(a); or (8) An order otherwise appealable as provided by Chapter 3 of these rules. Pa.R.A.P. 342(a). The Note following Rule 342 provides, in relevant part: Subdivisions (a)(1)-(7) list orders that are unique to Orphans Court practice, but closely resemble final orders as defined in Rule 341(b). Subdivision (a)(1) provides that the adjudication of any account, even an interim or partial account, is appealable. Previously, only the adjudication of the final account would have been appealable as a final order under Rule 341. The prior limitation has proven unworkable for estate administration taking years and trusts established for generations during which interim and partial accounts may be adjudicated and confirmed. The remainder of subdivision (a)(1) permits appeals from orders of distribution as Rule 342 always has permitted since its initial adoption. Subdivision (a)(2) is a new placement for orders determining the validity of a will or trust that previously were appealable as interlocutory appeals as of right following the 2005 amendment to Rule 311. See prior Rule 311(a)(8). Subdivision (a)(3) is a new provision that allows an immediate appeal from an order interpreting a will or other relevant document that forms the basis of a claim asserted against an estate or trust. Such orders can include, among other things, an order determining that a particular individual is or is not a beneficiary or determining if an underlying agreement executed by the decedent during life creates rights against the estate. Subdivision (a)(4) addresses trusts and is similar to subdivision (a)(3), but also permits immediate appeals from orders modifying, reforming or terminating a trust since such judicial actions are now permitted under 20 Pa.C.S. 7740 et seq. Subdivision (a)(5) is intended to clarify prior Rule 342 in several respects: First, an appealable Orphans Court order concerning the status of individuals or entities means an order determining if an individual or entity is a fiduciary, beneficiary or creditor, - 7 -

such as an order determining if the alleged creditor has a valid claim against the estate. Second, such orders include orders pertaining to trusts and guardianships as well as estates. Finally, this subdivision resolves a conflict in prior appellate court decisions by stating definitively that an order removing or refusing to remove a fiduciary is an immediately appealable order. Subdivision (a)(6) retains the same language from prior Rule 342. Subdivision (a)(7) permits appeals of an Orphans Court order concerning an inheritance tax appraisement, assessment, allowance or disallowance when such order is issued separately and not in conjunction with the adjudication of an account. Sections 9186 and 9188 of Chapter 72 provide three procedures, outside the context of an accounting, whereby either the personal representative or the Department of Revenue may bring before the Orphans Court a dispute over inheritance taxes imposed. See also In re Estate of Jones, 796 A.2d 1003 (Pa.Super. 2002) (analogizing a petition regarding the apportionment of inheritance taxes to a declaratory judgment petition given that an estate account had not yet been filed). A decision concerning inheritance taxes issued in conjunction with the adjudication of an account would be appealable under subdivision (a)(1). In keeping with the 2005 amendment that added subdivision (2) to prior Rule 342, subdivision (a)(8) tracks subdivision (2) of former Rule 342. Subdivision (2) was adopted in response to In re Estate of Sorber, 803 A.2d 767 (Pa.Super. 2002), a panel decision holding that Rule 342 precluded immediate appeals from orders that would have otherwise been appealable as collateral orders under Rule 313 unless the Orphans Court judge made a determination of finality under Rule 342. Subdivision (a)(8) makes clear that Rule 342, as amended, is still not the sole method of appealing an Orphans Court order and an order not otherwise immediately appealable under Rule 342 may still be immediately appealable if it meets the criteria under another rule in Chapter 3 of these rules. Examples would include injunctions appealable under Rule 311(a)(4), Interlocutory Orders Appealable by Permission under Rules 312 and 1311, Collateral Orders appealable under Rule 313, and an order approving a final accounting which is a true final order under Rule 341. Whether or not - 8 -

such orders require certification or a further determination of finality by the trial court depends on the applicable rule in Chapter 3. Pa.R.A.P. 342 Note. Instantly, the court s September 7, 2012 order granting the Estate s motion in limine was not a final order. See Pa.R.A.P. 341 and 342. Notwithstanding any practical effect of the order, the subsequent hearing on December 14, 2012, indicates the September 2012 order did not bring a formal end to the litigation. See Billig, supra. Moreover, pursuant to Rule 342(a), Appellant has the right to take an appeal from certain orders of the Orphans court, such as those confirming an account, or determining the status of fiduciaries, beneficiaries, or creditors in an estate. See Pa.R.A.P. 342(a)(1), (a)(5). Therefore, the court s December 14, 2012 order formally denying Appellant s oral contract claim and confirming the Estate s first and partial account is the appealable order in this case. Accordingly, we deny the Estate s motion to quash and simultaneously answer Appellant s first claim on appeal. Next, Appellant argues he had an oral contract with Decedent, the essence of which was Appellant would deed certain real and personal property to Decedent in exchange for Decedent willing his estate to Appellant. Appellant thinks the court should have permitted him to testify to the existence of the alleged oral contract with Decedent pursuant to three exceptions to the Dead Man s Statute. First, Appellant alleges he was - 9 -

competent to testify on the oral contract under the discovery waiver rule exception. Appellant maintains his oral contract claim and original will contest claim are two parts of the same proceeding. Therefore, Appellant submits he could testify to events preceding Decedent s death because the court previously found Appellant competent under the Dead Man s Statute to testify in the context of his will contest claim. Second, Appellant contends he was competent to testify under the cross-examination exception to the Statute. Appellant avers the Estate s cross-examination of him in the November 2009 will contest hearing on matters occurring during Decedent s lifetime permits Appellant to testify now to the existence of an oral contract. Finally, Appellant insists he was competent to testify under the Living Witness Rule exception. Appellant avers the court should have allowed him to testify at the December 2012 oral contract hearing to rebut the prior testimony of Decedent s attorney in the November 2009 will contest hearing. According to Appellant, Decedent s attorney testified the deed Appellant conveyed to Decedent was a gift, whereas Appellant claims it was in consideration for the oral contract to make a will. Additionally, Appellant submits the court should have honored his requests for judicial notice of his own sworn testimony and admitted exhibits from the November 2009 will contest hearing under Rule 201(b) and (d) of the Pennsylvania Rules of Evidence. - 10 -

Appellant next argues, in the alternative, if his further testimony and judicial notice are impermissible, Appellant has still met the requirements to prove the existence of an oral contract with Decedent. Appellant claims the testimony and exhibits already admitted in the November 2009 will contest hearing established by clear and convincing evidence that Decedent had entered into an oral contract with Appellant to will Decedent s estate to Appellant in consideration for Appellant s conveyance of certain property to Decedent. Appellant concludes the court erred and abused its discretion in denying his oral contract claim. We disagree. Section 2701(a) of the Pennsylvania Consolidated Statutes provides: 2701. Contracts concerning succession (a) Establishment of contract. A contract to die intestate or to make or not to revoke a will or testamentary provision or an obligation dischargeable only at or after death can be established in support of a claim against the estate of a decedent only by: (1) provisions of a will of the decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. 20 Pa.C.S.A. 2701(a). The comment to Section 2701 further provides: It is the purpose of this section to tighten the methods by which contracts concerning succession may be proved. Oral contracts not to revoke wills have given rise to much litigation in a number of states. - 11 -

This section requires that either the will must set forth the material provisions of the contract, or the will must make express reference to the contract and extrinsic evidence proving the terms of the contract, or there must be a separate writing signed by the decedent evidencing the contract. Oral testimony regarding the contract is permitted if the will makes reference to the contract, but this provision of the statute is not intended to affect normal rules regarding admissibility of evidence. 20 Pa.C.S.A. 2701 Comment. See In re Estate of Balter, 703 A.2d 1038 (Pa.Super. 1997) (holding trial court properly applied Section 2701 to appellant s claim against estate alleging oral contract with decedent for diamond ring because appellant failed to satisfy requirements of statute and where will contained no explanation of terms of alleged contract or any express reference to existence of oral contract). Importantly, we can affirm the Orphans court order on any valid basis, as long as the court came to the correct result, [which in this case was to deny Appellant s oral contract claim]. See Wilson v. Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa.Super. 2005) (citing Boyer v. Walker, 714 A.2d 458 (Pa.Super. 1998) (stating appellate court may affirm order of trial court on any basis if decision is correct); Alco Parking Corp. v. Public Parking Authority of Pittsburgh, 706 A.2d 343 (Pa.Super. 1998), appeal denied, 555 Pa. 725, 725 A.2d 178 (1998) (stating where trial court has reached correct result, its order will be sustained if it can be sustained for any reason)). In re E.M.I., 57 A.3d 1278, 1290 n.6 (Pa.Super. 2012). - 12 -

Instantly, Appellant is unable to prove the existence of an oral contract with Decedent as alleged. None of Decedent s wills contain any provisions of or express reference to any contract with Appellant. Further, Appellant produced no separate writing signed by Decedent and indicating the existence of any contract with Appellant. See 20 Pa.C.S.A. 2701(a). Notwithstanding the timing of the execution of the deed and Decedent s first will, Decedent s first will contained no statement of the material provisions of the alleged contract or made any reference to the deed or any oral contract with Appellant to make a will in exchange for the deed. Neither Decedent s second or third will even mention Appellant s name. To establish his claim, Appellant offered only Decedent s first will, the deed, and Appellant s own oral testimony to connect the two documents. Therefore, Appellant failed to meet the statutory requirements of Section 2701(a) to establish a contract to make a will. See id. Moreover, Appellant s efforts concerning the exceptions to the Dead Man s Statute and his requests for judicial notice of other proceedings serve to demonstrate the very reasons why the legislature created Section 2701 to address contracts in this context. See 20 Pa.C.S.A. 2701 Comment. Thus, the court s order denying Appellant s oral contract claim was ultimately correct, and we affirm albeit on other grounds. See In re E.M.I., supra. Order affirmed. - 13 -

Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/28/2013-14 -