I feel somewhat vindicated by a recent order of the Supreme Court, which confirms my opinion that In re Estate of Briskman, 808 A.2d 928, 2002 PA Super 287 (2002), was wrongly decided.
In Briskman, the Superior Court found that the objectant (my client) in a will contest did not have standing because the objectant was not a beneficiary under a previous will. The Superior Court was able to reach that conclusion, despite the fact that the proponent of the will had never raised the issue in the Orphans’ Court, only by concluding that the issue of standing in an appeal from the probate of a will by a party “aggrieved” under 20 Pa.C.S. § 908 was jurisdictional and could not be waived.
The Superior Court’s interpretation of § 908 conflicted with several decisions from the Supreme Court which held that statutes similar to § 908 are not jurisdictional in nature. See, e.g., Beers v. Unemployment Compensation Board of Review, 534 Pa. 605, 633 A.2d 1158 (1993); accord, Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). It also contradicted a well-developed body of law that the issue of standing cannot be raised sua sponte and is waived if not properly raised. Huddleston v. Infertility Center of America, Inc., 700 A.2d 453, 457 (Pa. Super. 1997).
However, the Supreme Court denied an appeal from the Superior Court decision in Briskman. No. 628 EAL 2002 (9/17/2002).
In a recent order in a different case, the Supreme Court allowed an appeal by one party on an issue arising out of a will contest, but disallowed an appeal by another party, stating that:
[R]espondent waived the issue of petitioner’s standing by failing to raise it in the Superior Court. See Pa.R.A.P. 302(a); In re Condemnation by Urban Redevelopment Authority of Pittsburgh, 913 A.2d 178, 181 n.6 (Pa. 2006) (noting standing in Pennsylvania is nonjurisdictional and therefore waivable (citation omitted)).
In re Estate of Isable Wilner, No. 390 MAL 2014 (11/26/2014).
[2/1/2016 Update: The Superior Court has issued an opinion holding that the issue of standing is waived unless raised in the lower court. The Briskman decision is not mentioned. In re: Estate of Schumacher, 2016 PA Super 17 (1/29/2016).]
