OPINION BY GANTMAN, P.J.
Appellants, Michael B. Fein and Bernice Fein, appeal from the decree entered in the Delaware County Court of Common Pleas, which granted partial summary judgment in favor of Appellee, Estate of
The relevant facts and procedural history of this case are as follows. Bernice Fein was the longtime companion of Leonard Moskowitz ("Decedent"). Appellant Michael B. Fein is Appellant Ms. Fein's son. On February 4, 2000, Decedent executed a New Jersey power of attorney ("POA"), naming Appellant Mr. Fein as his agent. The POA document provided in relevant part as follows:
(Administrator's Motion for Partial Summary Judgment, Exhibit A, filed 7/30/12; R.R. at 35a). Decedent executed a last will and testament on January 2, 2007. In his will, Decedent (1) named Appellant Ms. Fein and Joshua Taylor as co-executors; (2) bequeathed his personal property to Appellant Ms. Fein and left the balance of the Estate in trust for Appellant Ms. Fein; (3) named Mr. Taylor and Joseph Fine
In early 2009, while Decedent was still alive, Appellant Michael B. Fein exercised his POA to conduct a series of transactions involving Decedent's assets. On January 16, 2009, Appellant Mr. Fein transferred various securities valued at $584,490.13, from Decedent's solely owned TD Ameritrade account ("TD Account 1") to a TD Ameritrade account jointly owned by Decedent and Appellant Ms. Fein ("TD Account 2"). Appellant Mr. Fein also transferred securities valued at approximately $47,769.88, from Decedent's Citibank Smith Barney account to Decedent's TD Account 1 on February 19, 2009. That same day, Appellant Mr. Fein transferred these same securities from TD Account 1 to TD Account 2. On March 3, 2009, Appellant Ms. Fein transferred these securities in TD Account 2, then valued at approximately $533,164.41,
On April 28, 2009, Mr. Taylor filed a petition seeking appointment as sole executor
Mr. Taylor appealed the decision to the Delaware County Orphans' court. The Orphans' court reversed the order on April 4, 2011, and directed the Register of Wills to receive and act upon a petition to probate Decedent's will. The Register of Wills subsequently certified to the Orphans' court Mr. Taylor's petition seeking appointment as sole executor of the Estate. In November 2011, Mr. Taylor and Appellant Ms. Fein both renounced their rights to administer the Estate in favor of a neutral administrator. The Orphans' court appointed Stephen Carroll as administrator de bonis non cum testamento annexo
The Estate, through Mr. Carroll, filed a petition on February 15, 2012, to compel Appellant Mr. Fein to file an accounting of his actions as agent for Decedent under the POA. Appellant Mr. Fein filed an answer and objections to the petition. On April 4, 2012, the court entered a decree directing Appellant Mr. Fein to prepare a complete accounting of all actions undertaken as Decedent's agent under the POA. Appellant Mr. Fein filed an initial accounting
On July 30, 2012, the Estate filed a petition for a preliminary injunction, a motion for partial summary judgment, and a "petition for return of trust assets," seeking imposition of a constructive trust on the assets listed in Appellant Mr. Fein's initial accounting. The court issued a preliminary injunction on August 8, 2012, which enjoined Appellants from transferring, disbursing, or otherwise dissipating the assets. Appellant Mr. Fein filed a response in opposition to the Estate's motion for partial summary judgment on September 14, 2012. On October 2, 2012, the court denied the Estate's motion for partial summary judgment without prejudice, pending resolution of Appellant's Mr. Fein's appeal to this Court from a separate declaratory judgment action. The court also ordered a new accounting of the assets referenced in the decree granting the Estate a preliminary injunction. Appellant Mr. Fein submitted a purported accounting, but the court found the accounting failed to comply with the October 2, 2012 decree and ordered a new accounting to be filed by February 8, 2013.
On March 18, 2013, the Estate filed objections to the initial accounting of Appellant Mr. Fein and petition for adjudication. The following day, Appellant Mr. Fein submitted a purported new accounting. The court subsequently issued a decree finding Appellant Mr. Fein had willfully disobeyed the court's multiple decrees directing the
On July 26, 2013, Appellant Ms. Fein filed a "Petition to Show Cause Why Letters Of Administration Issued to Stephen Carroll, Esquire Should Not Be Revoked." Appellant Ms. Fein filed a motion for leave to obtain discovery in aid of the petition on October 1, 2013.
By separate decrees dated October 29, 2013, and filed on October 31, 2013, the Orphans' court granted the Estate partial summary judgment and directed Appellants to return to the Estate all assets Appellant Mr. Fein had transferred from Decedent under the POA, as identified in the accountings. The court also denied Appellant Ms. Fein's motion for leave to obtain discovery in aid of her petition to revoke letters of administration issued to Stephen Carroll, Esquire. Appellants filed a timely notice of appeal on Monday, December 2, 2013.
Appellants raise the following issues for our review, which we have reordered for ease of disposition:
WAS ADMINISTRATOR'S ACTION FOR SPECIFIC RECOVERY OF PROPERTY CLAIMING THAT [APPELLANT MR. FEIN'S] ACTS WERE GIFTS NOT AUTHORIZED BY THE POWER CONFERRED ON HIM BARRED BY 42 PA.C.S.A. § 5524?
IS THE STATUTE OF LIMITATIONS RUNNING AGAINST AN ESTATE'S ACTION TO RECOVER PROPERTY FOUNDED ON ALLEGED TORTIOUS CONDUCT TOLLED UNTIL A PERSONAL REPRESENTATIVE OBTAINS LETTERS OF ADMINISTRATION?
DID [APPELLANT MR. FEIN] MAKE AN INTER VIVOS GIFT TO [APPELLANT MS. FEIN] UNDER HIS POWER OF ATTORNEY?
IS A DECISION BY AN AGENT TO MAKE A GIFT OF HIS PRINCIPAL'S PROPERTY UNDER HIS POWER OF ATTORNEY INCONSISTENT WITH THE LAWS OF THIS COMMONWEALTH?
SHALL A POWER OF ATTORNEY EXECUTED IN NEW JERSEY IN CONFORMITY WITH THE LAWS OF NEW JERSEY WITH RESPECT TO AUTHORITY OF [APPELLANT MR. FEIN] TO MAKE A GIFT BE CONSIDERED VALID IN THIS COMMONWEALTH WITH RESPECT TO THAT AUTHORITY?
WAS THE INTERLOCUTORY DECREE DENYING [APPELLANT MS. FEIN'S] MOTION FOR AUTHORIZATION TO TAKE DISCOVERY IN AID
(Appellants' Brief at 5-6).
In their first two issues combined, Appellants argue the Estate's action for recovery of "retitled" assets is governed by the two-year statute of limitations under 42 Pa.C.S.A. § 5524. Appellants contend this Court quashed Mr. Fein's previous appeal solely due to the absence of an actual controversy between the parties, without addressing the statute of limitations issue. Appellants assert the Estate commenced the action to recover Decedent's former property on July 30, 2012, more than three years after Appellant Mr. Fein retitled the assets in question. According to Appellants, the statute of limitations began to run when Appellant Mr. Fein performed these transactions. Appellants further emphasize they did not waive their statute of limitations defense because they raised it in new matter in opposition to the Estate's motion for partial summary judgment. Appellants conclude the Estate's action to recover property is time-barred by the applicable statute of limitations or, alternatively, the doctrine of laches. We disagree.
Generally, in an action at law, "the statute of limitations begins to run at the time when a complete cause or right of action accrues or arises, which occurs as soon as the right to institute and maintain a suit arises." Centre Concrete Co. v. AGI, Inc., 522 Pa. 27, 31, 559 A.2d 516, 518 (1989). Section 5524 of the Pennsylvania Judicial Code provides in relevant part as follows:
The following actions and proceedings must be commenced within two years:
(3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.
(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter.
42 Pa.C.S.A. § 5524.
Nevertheless, "equity courts may not rely solely on statutes of limitation in determining if a claim is timely." United Nat. Ins. Co. v. J.H. France Refractories Co., 542 Pa. 432, 441, 668 A.2d 120, 125 (1995). "[F]or an action in equity, the applicable statute of limitations is used only as a frame of reference to evaluate any purported delay in support of a claim of laches."
"The question of whether laches applies is a question of law; thus, we are not bound by the trial court's decision on the issue." Fulton, supra at 131.
Id. (quoting In re Estate of Scharlach, 809 A.2d 376, 382-83 (Pa.Super.2002)). "The question of laches itself, however, is factual. . . and is determined by examining the circumstances of each case." Id. Laches arises when a party's position or rights "are so prejudiced by length of time and inexcusable delay, plus attendant facts and circumstances, that it would be an injustice to permit presently the assertion of a claim against him." Nilon Bros. Enterprises v. Lucente, 315 Pa.Super. 343, 461 A.2d 1312, 1314 (1983).
Fulton, supra at 131 (internal citations omitted). "In the absence of prejudice to the one asserting laches, the doctrine will not be applied." Brodt v. Brown, 404 Pa. 391, 394, 172 A.2d 152, 154 (1961). In other words, "prejudice to the defendant must be shown as a prerequisite to the application of laches." Miller v. Hawkins, 416 Pa. 180, 190, 205 A.2d 429, 434 (1964) (citing id.).
Importantly, a single co-executor or co-administrator generally has authority to act unilaterally on behalf of an estate
By contrast, in cases where a co-executor's individual act fell outside the ordinary administration of the estate, our courts have held the act did not bind the estate. See Hall v. Boyd, 6 Pa. 267, 270 (1847) (holding estate was not bound by single co-executor's confession of judgment for
Courts in other jurisdictions have likewise held that acts outside the normal course of administering the estate, including the commencement of litigation, require the consent of all executors or administrators. See, e.g., Stone v. Jones, 530 So.2d 232, 235 (Ala.1988) (stating: "[I]n cases involving the use of discretion in decisionmaking not within the regular course of administering the deceased's estate, co-executors must act unanimously in reaching those decisions. We further hold that an executor's filing of a lawsuit is discretionary, not ministerial, in nature"); May v. duPont, 216 A.2d 870, 873 (Del. 1966) (stating: "An action of executors is either in the regular course of the administration of an estate or it is not. If in the regular course of administration, the act of one executor binds all; if not in the regular course, unanimous action by all executors is required"); Highland v. Empire Nat. Bank of Clarksburg, 114 W.Va. 473, 172 S.E. 544, 547 (1933) (explaining that power of single coexecutor to bind all in affairs of estate "is confined to functions arising in the ordinary course of administration"); In re Leopold's Estate, 259 N.Y. 274, 181 N.E. 570, 571 (1932) (stating: "[A] single administrator can without the co-operation of his coadministrator, act for the estate only when performing his ministerial duties"); French v. Peters, 177 Mass. 568, 59 N.E. 449, 450 (1901) (stating: "The doctrine of the common law is that a suit in favor of the estate of a person deceased must be brought in the name of all living executors or administrators . . ."). The Probate, Estates and Fiduciaries ("PEF") Code provides in relevant part as follows:
20 Pa.C.S.A. § 3328.
Instantly, in early 2009, Appellant Mr. Fein exercised his POA to transfer Decedent's real estate and various security holdings into joint ownership of Decedent and Appellant Ms. Fein. Shortly thereafter, but before Decedent's death, Appellant Ms. Fein transferred the securities into an account held jointly by Appellants only. Upon Decedent's death on March 18, 2009, his will named Appellant Ms. Fein and Joshua Taylor as co-executors. On April 28, 2009, Mr. Taylor filed a petition to be appointed sole executor, based on his belief that Appellant Mr. Fein as POA had unlawfully
Assuming without deciding that the two-year statute of limitations applies to the Estate's claims arising from Appellant Mr. Fein's transactions under POA, and the limitations period began to run when Appellant Mr. Fein performed the transactions in early 2009, Appellant Ms. Fein's position as one of two named executors of the Estate prevented the Estate from bringing any action within a two-year period.
Instead, one month after Decedent's death, Mr. Taylor filed a petition to be appointed sole executor so he could bring an action on behalf of the Estate to recover Decedent's assets. Appellant Ms. Fein then claimed Decedent's will should be probated in New Jersey. Litigation on the issue of Decedent's domicile continued until April 2011, and delayed both the resolution of Mr. Taylor's petition to be appointed sole executor and the probate of Decedent's will. In November 2011, Appellant Ms. Fein and Mr. Taylor agreed to renounce their rights to administer the estate. Thus, the Estate could not have brought legal action against Appellants before November 10, 2011, when the court appointed Mr. Carroll as administrator of the Estate. Just three months later, on February 15, 2012, Mr. Carroll filed a petition on behalf of the Estate to compel Appellant Mr. Fein to file an accounting. Excluding the time during which Appellant Ms. Fein's legal positions prevented the Estate from bringing any claims, the present
Significantly, the Estate's action in the Orphans' court to recover the transferred assets was equitable in nature. See Fulton, supra (defining as action in equity, estate's action to set aside conveyances made by decedent's agent under POA, and to impose constructive trust). Thus, a statute of limitations does not control whether the Estate's claims are time-barred. See United Nat. Ins. Co., supra; Fulton, supra; Lipschutz, supra. Nevertheless, Appellants failed to raise the defense of laches in response to the Estate's pleadings. Therefore, Appellants waived any defense or argument based on laches. See In re Estate of Scharlach, supra (holding appellee waived laches for failure to raise it in any pleading before Orphans' court).
Moreover, most of the time between the transfers at issue and the start of the present action passed as a result of Appellant Ms. Fein's domicile contest and her inherent conflict of interest. As co-executors of the Estate, Mr. Taylor needed Appellant Ms. Fein's consent to file a claim for return of property to Decedent's estate, where Mr. Taylor could not institute the litigation on his own. Because Appellant Ms. Fein had a conflicting interest in the subject property and would not agree to return the property to the Estate, Mr. Taylor sought his appointment as sole executor immediately after Decedent died, in a petition which put Appellants on notice of the Estate's interests and allegations. That petition stalled while Appellant Ms. Fein contested Decedent's domicile at time of his death, which was not resolved until April 2011. Appellant Ms. Fein further refused to renounce her right to administer the estate until November 2011. After the appointment of Stephen Carroll as administrator d.b.n.c.t.a. of the Estate on November 10, 2011, the Estate promptly commenced the instant action on February 15, 2012. Therefore, Appellants' own conduct was the primary cause of the delay in the proceedings. Appellants cannot now claim they were unduly prejudiced, when the Estate brought its claims against Appellants as soon as it could. See Nilon Bros. Enterprises, supra. Based on the foregoing, we hold the Estate's action at issue was equitable in nature; therefore, the statute of limitations is only a frame of reference to evaluate any delay in commencing the action. See Lipschutz, supra; Lake, supra. We further hold the facts and circumstances of this case would not support a defense of laches as a matter of law, even if Appellants had properly preserved it. Thus, we agree with the trial court's decision to allow the Estate's claims against Appellants to proceed and affirm that decision, albeit on other grounds. 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 can affirm trial court's decision on "any valid basis, as long as the court came to
In their third, fourth, and fifth issues combined, Appellants argue Appellant Mr. Fein's action of retitling Decedent's assets into joint ownership of Decedent and Appellant Ms. Fein did not constitute an inter vivos gift because prevailing law makes clear Decedent retained ownership of the account jointly held with Appellant Ms. Fein. Appellants aver the assets had previously been held in a joint account of Decedent and Appellant Ms. Fein for many years, but had been divided into two individual accounts (one owned by Decedent and one owned by Appellant Ms. Fein) a few years before Decedent's death for tax reasons. Appellants contend that when Decedent became sick, he instructed Appellant Mr. Fein to make the initial transfer to reunite the separate accounts of Decedent and Appellant Ms. Fein for Medicaid, inheritance tax, and estate tax purposes. Appellants further assert it is irrelevant, for purposes of determining whether a gift was made, that Appellant Ms. Fein subsequently transferred Decedent's securities into an account jointly held by Appellants only (TD Account 3), because (1) the assets would have belonged to Appellant Ms. Fein as survivor after Decedent died anyway; and (2) the Orphans' court held only that Appellant Mr. Fein's initial transfer was outside his authority under the POA.
Appellants claim that even if the transactions constituted a "gift," this gift was a valid exercise of Appellant Mr. Fein's New Jersey POA, where at the time the POA was executed, New Jersey law allowed agents to transfer gratuitously a principal's property even without specific authorization in the POA document. Appellants contend Appellant Mr. Fein's actions as POA were also consistent with Pennsylvania law, where Pennsylvania law allows a POA agent to make gifts in this context if, as examples, the POA (1) was executed in Pennsylvania before the effective date of the 1999 amendments to the POA Law; (2) was executed in Pennsylvania after the 1999 Amendments and expressly provided authority for unlimited gifts; or (3) was executed in Pennsylvania after the 1999 Amendments and expressly provided authority for limited gifts.
Appellants also declare, without any explanation, that the exception in Section 5611 of the POA statute simply does not apply to gifts under a POA. Appellants aver a New Jersey POA that conforms to New Jersey law with respect to the authority to make a gift is valid in this Commonwealth. Appellants insist the plain meaning of Section 5611 indicates that Appellant Mr. Fein's retitling transactions should be evaluated under New Jersey law governing the form and language requirements of POAs to make gifts. Appellants assert the retitling transactions were valid under New Jersey law as it existed when the POA in this case was executed in 2000.
Appellants further renew their statute of limitations defense to the proceedings and submit the Orphans' court erred in rejecting it. Appellants complain the relevant statute of limitations "clearly and obviously bars" the Estate's "late" claims for property. For all these reasons, Appellants conclude the court erred in refusing to declare as time-barred the Estate's action
Our standard of review of a grant of summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344 (Pa.Super.2006). Our scope of review is plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a court's grant of summary judgment:
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super.2006) (internal citations and quotation marks omitted).
"[P]owers of attorney are strictly construed and the grant of special powers is not to be enlarged unless this is clearly intended." In re Estate of Cambest, 756 A.2d 45, 52 (Pa.Super.2000). The relevant Pennsylvania POA law is codified at 20 Pa.C.S.A. §§ 5601-5611 and begins with general provisions. 20 Pa.C.S.A. §§ 5601-5601.1. Section 5601.2 addressed an agent's authority under a POA to make gifts and provided in relevant part:
* * *
20 Pa.C.S.A. § 5601.2(a)-(c). Section 5602 of the statute, inter alia, enumerates various powers a principal may confer on an agent, "by inclusion of the language quoted in any of the following paragraphs or by inclusion of other language showing a similar intent on the part of the principal." 20 Pa.C.S.A. § 5602. "The Powers of Attorney statute does not confine the way powers given in a power of attorney may be defined.... [G]eneral language may be used to show the `similar intent on the part of the principal,' if such general language, according to its common usage, encompasses such power or powers." In re Weidner, 595 Pa. 263, 273, 938 A.2d 354, 360 (2007) (holding attorney-in-fact lawfully exercised POA to change beneficiaries
The applicable version of Section 5602 stated a principal may empower an agent to make limited gifts by inclusion of the language, "To make limited gifts." 20 Pa.C.S.A. § 5602(a)(1). The class of permissible donees for a limited gift consists solely of the "principal's spouse, issue and a spouse of the principal's issue." 20 Pa.C.S.A. § 5603(a)(2)(i).
A power of attorney executed in another state or jurisdiction and in conformity with the laws of that state or jurisdiction shall be considered valid in this Commonwealth,
20 Pa.C.S.A. § 5611 (emphasis added).
A valid inter vivos gift requires donative intent, delivery, and acceptance. In re Sipe's Estate, 492 Pa. 125, 422 A.2d 826 (1980); Estate of Korn, 332 Pa.Super. 154, 480 A.2d 1233 (1984). "[T]here must be evidence of an intention to make a [g]ift accompanied by [d]elivery, actual or constructive, of a nature sufficient not only to divest the donor of all dominion over the property, but to invest the donee with complete control." In re Tippins' Estate, 487 Pa. 107, 114, 408 A.2d 1377, 1381 (1979). "All of the circumstances must be considered in determining whether a gift was made. . . ." Sipe's Estate, supra at 129, 422 A.2d at 827. Donative intent can be inferred from the relationship between the donor and donee. Estate of Korn, supra at 1237.
These gifts must be deemed "unlimited" because neither Appellant fell within the class of permissible donees for "limited" gifts under the statute. See 20 Pa.C.S.A. §§ 5601.2, 5603(a)(2). The POA, however, did not specifically provide Appellant Mr. Fein with the power to make unlimited gifts. Thus, Appellant Mr. Fein had no power to make these transfers as gifts on Decedent's behalf. See 20 Pa. C.S.A. § 5601.2; Metcalf, supra. The broad discretion otherwise afforded Appellant Mr. Fein in the POA to control and dispose of Decedent's property was insufficient to endow Appellant Mr. Fein with
In their sixth issue, Appellants argue Stephen Carroll is not a neutral administrator because he engaged the same attorney as former co-executor Joshua Taylor. Appellants assert that in Appellant Ms. Fein's motion for leave to obtain discovery in aid of her petition to revoke letters of administration issued to Mr. Carroll, Appellant Ms. Fein stated why this discovery was necessary as required by the local Orphans' court rules. Appellants contend the court should have at least requested Appellant Ms. Fein to explain further the necessity of discovery. Appellants insist fairness required the court to grant Appellant Ms. Fein's discovery request because the court had previously granted three petitions for discovery to the Estate. Appellants conclude the court abused its discretion when it denied the discovery request. We decline to address this issue.
As a general rule:
In re Estate of Cella, 12 A.3d 374, 377-78 (Pa.Super.2010) (some internal citations
Pa.R.A.P. 341.
Under Pa.R.A.P. 313, an "appeal may be taken as of right from a collateral order of an administrative agency or lower court." Pa.R.A.P. 313(a). A "collateral order" is "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." Pa. R.A.P.313(b). "All three elements must be satisfied to permit review of an interlocutory appeal under the collateral order rule." Jacksonian v. Temple University Health System Foundation, 862 A.2d 1275, 1279 (Pa.Super.2004). "[I]n general, discovery orders are not final, and are therefore unappealable." T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa.Super.2008). "However, discovery orders involving privileged material are nevertheless appealable as collateral to the principal action pursuant to Pa.R.A.P. 313 (`Collateral Orders')." Id.
Additionally, Pennsylvania Rule of Appellate Procedure 342 provides that certain Orphans' court orders are appealable as of right:
Pa.R.A.P. 342(a).
Instantly, the Orphans' court's October 31, 2013 decree denying Appellant Ms. Fein's motion for leave to take discovery did not dispose of all claims and parties or satisfy any other conditions necessary to be deemed a "final order." See Pa.R.A.P. 341. Moreover, the discovery decree did not give rise to an interlocutory appeal as of right under Rule 311. See Pa.R.A.P. 311. Likewise, the decree is not appealable as a "collateral order" because it did not compel the production of any privileged information, and Appellants make no argument that the "right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." See 313(b); T.M., supra. Additionally, unlike the decree granting the Estate partial summary judgment, the decree denying Appellant Ms. Fein's discovery request does not fall within any of the categories of Orphans' court orders appealable as of right under Rule 342. See Pa.R.A.P. 342. Therefore, we lack jurisdiction to entertain Appellants' appeal of the court's order denying her motion for leave to take discovery in aid of her petition to revoke letters of administration issued to Stephen Carroll, Esquire. See Estate of Cella, supra. Based on the foregoing, we hold the Orphans' court properly granted the Estate partial summary judgment and ordered Appellants to transfer/return certain assets to the Estate. We quash that portion of the appeal challenging the court's decree that denied Appellant Ms. Fein's discovery motion.
Decree granting partial summary judgment affirmed; appeal from decree denying discovery quashed. Jurisdiction is relinquished.
