HomeMy WebLinkAbout05-21-14 RECORDED OFFICE OF
REGISTER OF VMLLS
� ,1
2014 FmY 21 M 8 05
PETERS& WASILEFSKI
By: Charles E.Wasilefski,Esquire CLERK OF
Attorney ID#21027
Alex M.Hvizda Oft( NAi'±S' COURT
Attorney ID#306565 C;l:,.r� �«i�.D '00., P"is
2931 North Front Street
Harrisburg,PA 17110
717-238-7555,Ext. 110
Attorney for Objectants,
George F. Dixon,III and
Richard E. Dixon
IN RE: IN THE COURT OF
ESTATE OF LOTTIE IVY DIXON COMMON PLEAS FOR
CUMBERLAND COUNTY,
PENNSYLVANIA
21-07-0686 ORPHAN'S COURT
RESPONSE OF OBJECTANTS,
GEORGE F. DIXON III AND RICHARD E. DIXON
IN OPPOSITION TO MOTION TO
(1) APPROVE SUPPLEMENTAL ACCOUNTING,
(2) TAX ATTORNEY'S FEES AGAINST OBJECTANTS, AND
(3) RESIGN AS TRUSTEE
FILED BY INSTITUTIONAL TRUSTEE, M&T BANK
NOW COME, Objectants, George F. Dixon, III and Richard E. Dixon, by and
through their counsel, Peters & Wasilefski, and file this Response in opposition to the
Motion filed by Institutional Trustee, M&T Bank, to Approve Supplemental Accounting,
Tax Attorney's Fees Against Objectants, and Resign as Trustee, as follows:
1. Objectants admit in part and deny in part the allegations contained in
Paragraph 1 of the Motion. It is admitted that the Court's Opinion and Order are dated
March 7, 2014. It is denied that the Opinion and Order were entered on March 7, 2014.
To the contrary, the Opinion and Order were entered on the docket on March 10, 2014.
2. Objectants deny the allegations contained in Paragraph 2 of the Motion. It
is specifically denied that the Opinion and Order contemplated the filing of a
supplemental account. To the contrary, nowhere in the Opinion and Order does the Court
reference the need to file a supplemental account. In further answer, the Opinion and
Order only states "Following this minor correction, the accounting may be confirmed
without the appointment of an auditor." (Opinion and Order at p.4). The plain language
of the Opinion and Order confirms the first and partial account filed by M&T.
3. Objectants admit in part and deny in part the allegations contained in
Paragraph 3 of the Motion. It is admitted only that M&T has finally submitted an
explanation for the two distributions at issue as directed by the Court in its Opinion and
Order. It is denied that the M&T has submitted a supplemental accounting or that a
supplemental account was contemplated by the Opinion and Order. To the contrary, the
Opinion and Order does not contemplate a supplemental accounting. The Opinion and
Order confirms the accounting provided by M&T with the minor correction.
4. Objectants admit in part and deny in part the allegations contained in
Paragraph 3 of the Motion. It is admitted only that on April 1, 2014 Objectants filed a
Notice of Appeal of the Opinion and Order dated March 7, 2014 and entered March 10,
2014. It is denied that the filing of the Notice of Appeal was improvident or improper.
To the contrary, the Opinion and Order is immediately appealable as of right pursuant to
Pa. R.A.P. 341 and 342(a)(1)-(5).
5. Objectants deny the allegations contained in Paragraph 5 of the Motion.
Objectants are advised and therefore aver that said allegations are conclusions of law to
which no response is required. To the extent that an answer may be necessary, to the
contrary the appeal is not improper in anyway. The Opinion and Order is immediately
appealable as of right pursuant to Pa. R.A.P. 341 and 342(a)(1)-(5).
2
6. Objectants admit in part and deny in part the allegations contained in
Paragraph 6 of the Motion. It is admitted only that on or about May 7, 2014, M&T filed
a Motion to Quash with the Superior Court. It is denied that the Motion to Quash has any
merit. To the contrary, M&T's reading of the Opinion and Order ignores the plain
language of the Opinion and Order and overlooks the Explanatory Note following Pa.
R.A.P. 342 which demonstrates that the Opinion and Order is immediately appealable as
of right. In further response, M&T fails to provide any analysis as to whether the
Opinion and Order is appealable pursuant to Pa. R.A.P. 342(a)(2)-(5). In further
response, attached hereto as Exhibits "A" and "B", respectively, are Objectants'
Response in Opposition and Brief in Opposition to the Motion to Quash.
7. Objectants admit in part and deny in part the allegations contained in
Paragraph 7 of the Motion. It is admitted only that M&T has provided a purported
explanation of the two distributions in accordance with the Court's direction in the
Opinion and Order. It is denied that M&T has provided a supplemental accounting. To
the contrary, the Opinion and Order confirmed the account and M&T's filing is merely
an explanation of the two distributions and not a supplemental accounting.
8. Objectants admit in part and deny in part the allegations contained in
Paragraph 8 of the Motion. It is admitted only that the Opinion and Order confirmed the
account leaving nothing for the Court to now confirm upon this Motion. It is denied that
M&T has submitted a supplemental account or that any further proceeding is required.
To the contrary, the Opinion and Order already confirmed the account leaving nothing for
the Court to now confirm upon this Motion.
3
9. Objectants admit in part and deny in part the allegations contained in
Paragraph 9 of the Motion. It is admitted only that due to breaches of trust and fiduciary
duties by M&T, the Trust is illiquid. It is denied that M&T has now filed a supplemental
account. To the contrary, the Opinion and Order confirmed the account leaving nothing
for this Court to confirm upon this Motion.
10. Objectants deny the allegations contained in Paragraph 10 of the Motion.
Objectants are advised and therefore aver that said allegations are conclusions of law to
which no response is required. To the extent that an answer may be necessary, it is
denied that Objectants' exercise of their rights and duties as beneficiaries and co-trustees
caused M&T to incur attorney's fees and denied that M&T's prosecution of its Motion to
Strike Objections was successful. To the contrary, the Opinion and Order holds that
Objectants had standing to raise the objections and sustains in part their objections, thus,
demonstrating the validity of the objections. In further response, M&T cites to no
statutory or other basis whatsoever to support its demand for attorney's fees from
Objectants personally and no such basis exists as well-settled law establishes that to the
extent a trustee is awarded any attorney's fee it is to be paid out of the trust. In
McKinney, 67 A.3d 824, 829 n.5 (Pa. Super. 2013) (citing In re Estate of Browarsky,
437 Pa. 282, 263 A.2d 365 (1970)); see also, In re Wormlev's Estate, 359 Pa. 295, 59
A.2d 98 (1948).
11. Objectants deny the allegations contained in Paragraph 11 of the Motion.
Objectants are advised and therefore aver that said allegations are conclusions of Iaw to
which no response is required. To the extent that an answer may be necessary, M&T
cites to no statutory or other basis whatsoever to support its demand for attorney's fees
4
from Objectants personally and no such basis exists as well-settled law establishes that to
the extent a trustee is awarded any attorney's fee it is to be paid out of the trust. In
McKinney, 67 A.3d 824, 829 n.5 (Pa. Super. 2013) (citing In re Estate of Browarskv,
437 Pa. 282, 263 A.2d 365 (1970)); see also, In re Wormley's Estate, 359 Pa. 295, 59
A.2d 98 (1948).
12. Objectants admit in part and deny in part the allegations contained in
Paragraph 12 of the Motion. It is admitted only that well-settled law establishes that to
the extent a trustee is awarded any attorney's fee it is to be paid out of the trust. In re
McKinney, 67 A.3d 824, 829 n.5 (Pa. Super. 2013) (citing In re Estate of Browarskv,
437 Pa. 282, 263 A.2d 365 (1970)); see also, In re Wormley's Estate, 359 Pa. 295, 59
A.2d 98 (1948). The remaining allegations are denied as conclusions of law to which no
response is required. To the extent that an answer may be necessary, M&T cites to no
statutory or other basis whatsoever to support its demand for attorney's fees from
Objectants personally and no such basis exists. Id.
13. Objectants deny the allegations contained in Paragraph 13 of the Motion.
Objectants are advised and therefore aver that said allegations are conclusions of law to
which no response is required. To the extent that an answer may be necessary, well-
established law holds: "Over and over again we have decided there can be no recovery
for counsel fees from adverse party to a cause, in the absence of express statutory
allowance of the same...or clear agreement by the parties...or some other established
exception. Shapiro v. Ma¢aziner, 418 Pa. 278, 280, 210 A.2d 890, 892 (1965) [citations
omitted]. In further response, M&T cites to no statutory or other basis whatsoever to
support its demand for attorney's fees from Objectants personally and no such basis
5
exists as well-settled law establishes that to the extent a trustee is awarded any attorney's
fee it is to be paid out of the trust. In re McKinney, 67 A.3d 824, 829 n.5 (Pa. Super.
2013) (citing In re Estate of Browarskv, 437 Pa, 282, 263 A.2d 365 (1970)); see also,
In re Wormlev's Estate, 359 Pa. 295, 59 A.2d 98 (1948). . In further response, to the
extent the Trust is unable to stand answerable for M&T's fees, which is denied, such
condition is a direct result of M&,r,s mismanagement of the Trust and breaches of trust
and fiduciary duties as alleged in the objections which are currently on appeal.
14. Objectants deny the allegations contained in Paragraph 14 of the Motion.
Objectants are advised and therefore aver that said allegations are conclusions of law to
which no response is required. To the extent that an answer may be necessary, to the
contrary it is not right, fair or equitable to hold Objectants personally liable for
reimbursement of attorney's fees. It is further denied that the objections were ill-taken.
To the contrary, the objections were sustained in part and the objections that were
overruled are currently on appeal to the Superior Court. In further response, M&T cites
to no statutory or other basis whatsoever to support its demand for attorney's fees from
Objectants personally and no such basis exists as well-settled law establishes that to the
extent a trustee is awarded any attorney's fee it is to be paid out of the trust. In re
McKinney, 67 A.3d 824, 829 n.5 (Pa. Super. 2013) (citing In re Estate of Browarskv,
437 Pa. 282, 263 A.2d 365 (1970)); see also, In re Wormley's Estate, 359 Pa. 295, 59
A.2d 98 (1948).
15. Objectants deny the allegations contained in Paragraph 15 of the Motion.
It is specifically denied that the attorney's fees total $27,676.50 and that said fees are
reasonable, necessary, and/or related to the defense of the objections. M&T has not
6
provided any basis whatsoever for the Court to make such determination if it first
determines that M&T is entitled to any attorney fee. In further response, M&T's
potential reimbursement from the Trust is premature unless and until the appellate
process is concluded.
16. Objectants admit the allegations contained in Paragraph 16 of the Motion.
17. Objectants deny the allegations contained in Paragraph 17 of the Motion.
Objectants are advised and therefore aver that said allegations are conclusions of law to
which no response is required. To the extent that an answer may be necessary, M&T
should not be permitted to resign until the appellate proceedings are concluded.
18. Objectants deny the allegations contained in Paragraph 18 of the Motion.
Objectants are advised and therefore aver that said allegations are conclusions of law to
which no response is required. To the extent that an answer may be necessary, it is
denied that M&T filed a supplemental account that needs to be confirmed. To the
contrary, the Opinion and Order confirms the first and partial account already filed by
M&T and does not on its face or inferentially indicate the need for a supplemental
account for possible confirmation. It is further specifically denied that M&T is entitled to
attorney's fees from Objectants personally. To the contrary, M&T cites to no statutory or
other basis whatsoever to support its demand for attorney's fees from Objectants
personally and no such basis exists as well-settled law establishes that to the extent a
trustee is awarded any attorney's fee it is to be paid out of the trust. In re McKinney, 67
A.3d 824, 829 n.5 (Pa. Super. 2013) (citing In re Estate of Browarsky, 437 Pa. 282, 263
A.2d 365 (1970)); see also, In re Wormley's Estate, 359 Pa. 295, 59 A.2d 98 (1948).
7
In further response, it is denied that M&T's role as trustee is concluded. To the contrary,
the Opinion and Order is on appeal to the Superior Court and no resignation should be
permitted unless and until the appellate process is concluded.
19. Objectants deny the allegations contained in Paragraph 19 of the Motion.
It is denied that M&T is entitled to resign as trustee. To the contrary, the Opinion and
Order is on appeal to the Superior Court and no resignation should be permitted unless
and until the appellate process is concluded.
WHEREFORE, Objectants, George F. Dixon III and Richard E. Dixon
respectfully request entry of an Order: (1) denying M&T's request for confirmation of the
account as moot as the account was confirmed by the March 10, 2014 Opinion and Order;
(2) denying M&T's request for attorney's fees; and (3) denying M&T's request to resign
as trustee.
PETERS & WASILEFSKI
f
By: i
Charles E "asp efski
Attorney ID #21027
Alex M. Hvizda
Attorney ID #306565
2931 North Front Street
Harrisburg, PA 17110-1250
[717] 238-7555, Ext 110
Date: 5_�Q_ Attorney for Objectants
8
IN THE SUPERIOR COURT OF PENNSYLVANIA
IN RE: ESTATE OF LOME IVY DIXON
591 MDA 2014
RESPONSE OF APPELLANTS/OBJECTANTS,
GEORGE F. DIXON, III AND RICHARD E. DIXON,
IN OPPOSITION TO MOTION TO QUASH
FILED BY CORPORATE TRUSTEE,M&T BANK
ENTERED IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVIDION, FILE NO: 21-07-0686
PETERS & WASILEFSKI
Charles E. Wasilefski
Attorney ID #21027
cew @pwlegal.com
Alex M. Hvizda, Esquire
Attorney ID#306565
amh @pwlegal.com
2931 North Front Street
Harrisburg, PA 17110-1250
[717] 238-7555
Attorney for Appellants/Objectants,
George E. Dixon, III and Richard E. Dixon
RESPONSE OF APPELLANTS/OBJECTANTS
GEORGE F. DIXON III AND RICHARD E. DIXON
IN OPPOSITION TO MOTION TO QUASH
FILED BY CORPORATE TRUSTEE M&T BANK
NOW COME Appellants/Objectants, George F. Dixon III and Richard E.
Dixon, by and through their counsel, Peters & Wasilefski, and responds in
opposition to the Motion to Quash filed by Corporate Trustee, M&T Bank, for the
following reasons:
1. Appel lants/Obj ectants admit the allegations contained in Paragraph 1
of the Motion to Quash. In further answer, the explanatory note following Pa.
R.A.P. 342 states: "Subdivision (a)(1) provides that the adjudication of any
account, even an interim or partial account, is appealable."
2. Appel lants/Obj ectants admit the allegations contained in Paragraph 2
of the Motion to Quash. In further answer, as explained at length below and in the
comprehensive Brief in Opposition to Motion to Quash, the objections required the
Orphan's Court to determine the validity of the trust [Pa. R.A.P. 342(x)(2)1;
interpret the trust document in relation to the claims levied by
Appellants/Objectants against M&T [Pa. R.A.P. 342(a)(3)]; interpret the trust as it
relates to Appel lants/Obj ectants rights [Pa. R.A.P. 342(a)(4)]; and determine the
status of the Appel ants/Obj ectants as fiduciaries and beneficiaries of the trust [Pa.
R.A.P. 342(a)(5)]. The Opinion and Order does all of these things rendering the
Order immediately appealable pursuant to Pa. R.A.P. 342(a)(2)-(5).
AppellantslObjectants listed these rules as. the basis for jurisdiction on their
Docketing Statement filed May 1, 2014 and attached hereto as Exhibit "A".
M&T's Motion to Quash provides no analysis of jurisdiction pursuant to Pa.
R.A.P. 342(a)(2)-(5).
3. Appel]ants/Objectants admit the allegations contained in Paragraph 3
of the Motion to Quash. In further answer, as explained at length below and in the
comprehensive Brief in Opposition to Motion to Quash, the Opinion and Order
determines the validity of the trust [Pa. R.A.P. 342(x)(2)1; interprets the trust
document in relation to the claims levied by Appellants/Objectants against M&T
[Pa. R.A.P. 342(a)(3)]; interprets the trust as it relates to Appellants/Objectants
rights [Pa. R.A.P. 342(a)(4)]; and determines the status of the
Appelants/Objectants as fiduciaries and beneficiaries of the trust [Pa. R.A.P.
342(a)(5)]. Therefore, the Opinion and Order is immediately appealable pursuant
to Pa. R.A.P. 342(a)(2)-(5). Appellants/Objectants listed these rules as the basis
for jurisdiction on their Docketing Statement filed May 1, 2014 and attached hereto
as Exhibit "A". M&T's Motion to Quash provides no analysis of jurisdiction
pursuant to Pa. R.A.P. 342(a)(2)-(5). In further answer, the Opinion and Order
states: "Following this minor correction, the accounting may be confirmed without
the appointment of an auditor." (Opinion and Order at p. 4). This statement
indicates that the Orphan's Court confirmed the account, thus, additionally
2
providing the Superior Court with jurisdiction pursuant to Pa. R.A.P. 341 and Pa.
R.A.P. 342(a)(1).
4. Appellants/Objectants admit in part and deny in part the allegations
contained in Paragraph 4 of the Motion to Quash. It is admitted only that the
Opinion and Order is attached to the Motion to Quash as Exhibit "A". It is denied
that the Opinion and Order affirmatively directs M&T Bank to file a further and
supplemental account for review and possible confirmation. To the contrary, the
Opinion and Order contains no such direction either on its face or inferentially.
The Opinion and Order states:
In accordance with the Rules, the court will sustain the Brothers'
objections to these two entries in the accounting and refer the matter
back to M&T to provide an explanation for the purpose of those two
distributions. Following this minor correction, the accounting may be
confirmed without the appointment of an auditor.
(Opinion and Order at p. 4). The Orphan's Court plainly states that it is confirming
the account filed by M&T. In further answer, on or about May 7, 2014 M&T
provided the explanation for the two distributions thus rendering its argument on
this Motion to Quash moot.
5. Appellants/Objectants admit in part and deny in part the allegations
contained in Paragraph 5 of the Motion to Quash. It is admitted only that M&T
has quoted a portion of the Opinion and Order. It is denied that the quoted portion
of the Opinion and Order provides any indication that the Order is interlocutory or
3
that the Order requires M&T to file a further and supplemental account. To the
contrary, the Opinion and Order only says that M&T has to provide an explanation
to Appellants/Objectants for two distributions. In further answer, on or about May
7, 2014 M&T provided an explanation for the two distributions thus rendering its
argument on this Motion to Quash moot.
6. Appel lants/Obj ectants deny the allegations contained in Paragraph 6
of the Motion to Quash. Appellants/Objectants are advised and therefore aver that
said allegations are conclusions of law to which no response is required. To the
extent that an answer may be necessary, to the contrary the Opinion and Order
does not clearly and expressly provide for further proceedings and filings prior to
the confirmation of the account and is not interlocutory. The Opinion and Order
states:
In accordance with the Rules, the court will sustain the Brothers'
objections to these two entries in the accounting and refer the matter
back to M&T to provide an explanation for the purpose of those two
distributions. Following this minor correction, the accounting may be
confirmed without the appointment of an auditor.
(Opinion and Order at p. 4). The Orphan's Court plainly states that it is confirming
the account filed by M&T. The Opinion and Order makes no referencc on its face
or inferentially to the filings of a further and supplemental account for possible
confirmation. In further answer, on or about May 7, 2014 M&T provided an
4
explanation for the two distributions thus rendering its argument on this Motion to
Quash moot.
7. Appel lants/Obj ectants deny the allegations contained in Paragraph 7
of the Motion to Quash. Appellants/Objectants are advised and therefore aver that
said allegations are conclusions of law to which no response is required. To the
extent that an answer may be necessary, to the contrary, the Order is a final order
both pursuant to Pa. R.A.P. 341 and Pa. R.A.P. 342(a)(1)-(5). M&T's
interpretation of the Opinion and Order is plainly contrary to the plain language of
the Opinion and Order. Contrary to M&T's allegations, the Opinion and Order do
not on its face or inferentially direct M&T to file a further and supplemental
account for possible confirmation. In further response, the Official Note following
Pa. R.A.P. 342 states:
Experience has also proven that it is difficult to analogize civil
litigation to litigation arising in estate, trust and guardianship
administration. The civil proceeding defines the scope of the dispute,
but the administration of a trust or estate does not define the scope of
the litigation in Orphans' Court. Administration of a trust or an estate
continues over a period of time. Litigation in Orphans' Court may
arise at some point during the administration, and when it does arise,
the dispute needs to be determined promptly and with finality so that
the guardianship or the estate or trust administration can then continue
properly and orderly. Thus, the traditional notions of finality that
are applicable in the context of ongoing civil adversarial
proceedings do not correspond to litigation in Orphans' Court.
[Emphasis added]. M&T's Motion to Quash simply attempts to treat the Opinion
and Order like a decision on preliminary objections in a civil matter which is
5
contrary to the intent and purpose of Rule 342. In further answer, M&T's Motion
to Quash is devoid of any analysis of Pa. R.A.P. 342(a)(2)-(5).
8. Appellants/Objectants deny the allegations contained in Paragraph 8
of the Motion to Quash. Appellants/Objectants are advised and therefore aver that
said allegations are conclusions of law to which no response is required. To the
extent that an answer may be necessary, to the contrary, the Order is immediately
appealable pursuant to Pa. R.A.P. 342. In further answer, as explained at length
below and in the comprehensive Brief in Opposition to Motion to Quash, the
Opinion and Order determines the validity of the trust [Pa. R.A.P. 342(a)(2)];
interprets the trust document in relation to the claims levied by
Appellants/Objectants against M&T [Pa. R.A.P. 342(a)(3)]; interprets the trust as it
relates to Appellants/Objectants rights [Pa. R.A.P. 342(a)(4)1; and determines the
status of the Appelants/Objectants as fiduciaries and beneficiaries of the trust [Pa.
R.A.P. 342(x)(5)]. Therefore, the Opinion and Order is immediately appealable
pursuant to Pa. R.A.P. 342(a)(2)-(5). Appellants/Objectants listed these rules as
the basis for jurisdiction on their Docketing Statement filed May 1, 2014 and
attached hereto as Exhibit "A". M&T's Motion to Quash provides no analysis of
jurisdiction pursuant to Pa. R.A.P. 342(a)(2)-(5).
9. Appellants/Objectants deny the allegations contained in Paragraph 9
of the Motion to Quash. Appel lants/Obj ectants are advised and therefore aver that
6
said allegations are conclusions of law to which no response is required. To the
extent that an answer may be necessary, to the contrary the Order does not
contemplate further proceedings and confirms the account. In further response, In
further answer, as explained at length below and in the comprehensive Brief in
Opposition to Motion to Quash, the Opinion and Order determines the validity of
the trust [Pa. R.A.P. 342(a)(2)]; interprets the trust document in relation to the
claims levied by Appellants/Objectants against M&T [Pa. R.A.P. 342(a)(3)];
interprets the trust as it relates to Appellants/Objectants rights [Pa. R.A.P.
342(a)(4)1; and determines the status of the Appelants/Objectants as fiduciaries and
beneficiaries of the trust [Pa. R.A.P. 342(a)(5)]. Therefore, the Opinion and Order
is immediately appealable pursuant to Pa. R.A.P. 342(a)(2)-(5).
Appel lants/Objectants listed these rules as the basis for jurisdiction on their
Docketing Statement filed May 1, 2014 and attached hereto as Exhibit "A".
M&T's Motion to Quash provides no analysis of jurisdiction pursuant to Pa.
R.A.P. 342(a)(2)-(5).
10. Appel]ants/Objectants deny the allegations contained in Paragraph 10
of the Motion to Quash. Appellants/Objectants are advised and therefore aver that
said allegations are conclusions of law to which no response is required. To the
extent that an answer may be necessary, to the contrary, the Superior Court has
jurisdiction pursuant to Pa. R.A.P. 342(a)(2)-(5) as alleged in the Docketing
7
Statement filed May 1, 2014. In further answer, M&T simply makes a bald
assertion and provides no explanation or argument for its assertion that Pa. R.A.P.
342 does not apply. Nonetheless, the Opinion and Order notes that
Appellants/Objectants are asserting a breach of trust claim (Opinion and Order at
p.2). [Pa. R.A.P. 342(a)(3),(4),(5)]. The Opinion and Order holds that M&T did
not have a duty to Appellants/Objectants as beneficiaries under the trust or as co-
trustees of the trust until her death in 2007. (Id. at p.2). [Pa. R.A.P. 341 and
342(a)(3),(4),(5)]. The Opinion and Order holds that Appellants/Objectants were
not "true `beneficiaries"' during Lottie Ivy Dixon's lifetime. (Id. at p. 2-3). [Pa.
R.A.P. 342(a)(3),(4),(5)]. The Opinion and Order states that the Trust required
requests for distributions to be in writing. (Id. at p.3). [Pa. R.A.P.
342(a)(3),(4),(5)]. The Opinion and Order hold that there was no breach of this
provision of the Trust because Lottie Ivy Dixon consented to M&T's conduct
based on M&T's bald, unsupported assertion that Lottie Ivy Dixon telephoned
them. (Id. at p. 3). [Pa. R.A.P. 341 and 342(a)(2),(3),(4),(5)]. The Opinion and
Order holds that Appellants/Objectants may lack standing to assert a breach of
trust with regard to the failure to have written requests for distributions. (Id. at p.
4). [Pa. R.A.P. 342(a)(5)]. The Opinion and Order confirms the account following
a minor correction. (Id. at p. 4). [Pa. R.A.P. 341 and 342(a)(1),(2)]. Therefore,
the Opinion and Order satisfies Pa. R.A.P. 341 and 342(a)(1)-(5).
8
11. Appellants/Objectants deny the allegations contained in Paragraph 11
of the Motion to Quash. It is specifically denied that the Opinion and Order does
not enter an order confirming the account. To the contrary, the Opinion and Order
states: "Following this minor correction, the accounting may be confirmed without
the appointment of an auditor." Contrary to M&T's bald assertion, the Opinion
and Order does not either on its face or inferentially contemplate the filing of a
further or supplemental account. In further answer, on or about May 7, 2014 M&T
made the minor correction explaining the two distributions and, therefore, M&T's
argument on this Motion to Quash is moot.
12. Appellants/Objectants deny the allegations contained in Paragraph 12
of the Motion to Quash. It is specifically denied that the Opinion and Order
obviously and on its face contemplates supplemental filings and proceeds prior to
confirmation. To the contrary, the Opinion and Order states: "Following this minor
correction, the accounting may be confirmed without the appointment of an
auditor." In further answer, on or about May 7, 2014 M&T made the minor
correction explaining the two distributions and, therefore, M&T's argument on this
Motion to Quash is moot.
13. Appellants/Objectants deny the allegations contained in Paragraph 13
of the Motion to Quash. Appellants/Objectants are advised and therefore aver that
said allegations are conclusions of law to which no response is required. To the
9
extent that an answer may be necessary, to the contrary the Opinion and Order is
immediately appealable pursuant to Pa. R.A.P. 341 and 342(a)(1)-(5) as explained
in this Response in Opposition and comprehensive Brief in Opposition filed
concurrently.
14. Appellants/Objectants deny the allegations contained in Paragraph 14
of the Motion to Quash. Appellants/Objectants are advised and therefore aver that
said allegations are conclusions of law to which no response is required. To the
extent that an answer may be necessary, the Opinion and Order is immediately
appealable pursuant to Pa. R.A.P. 341 and 342(a)(1)-(5) as explained in this
Response in Opposition and comprehensive Brief in Opposition filed concurrently.
In further answer, the prior appellate proceeding has no bearing on this matter and
is an inappropriate attempt by M&T to curry favor with the Superior Court and
disguise the frivolous, dilatory nature of this Motion to Quash.
10
WHEREFORE, Appellants/Objectants, George F. Dixon III and Richard E.
Dixon, respectfully request entry of an Order denying the Motion to Quash.
PETERS & WASILEFSKI
By:
Charrys E. Wasilefski
Att6rney ID #21027
cew @pwlegal.com
Alex M. Hvizda
Attorney ID #306565
amh @pwlegal.com
2931 North Front Street
Harrisburg, PA 17110-1250
[717] 238-7555, Ext 110
Date: Attorney for Appellants/Objectants
11
SUPERIOR COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE:
ESTATE OF LOTTIE IVY DIXON
Deceased
NO: 591 MDA 2014
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing RESPONSE OF
APPELLANTSIOBJECTANTS, GEORGE F. DIXON, IH AND RICHARD E. DIXON, IN
OPPOSITION TO MOTION TO QUASH FILED BY CORPORATE TRUSTEE, M&T
BANK, has been served on all parties of interest by placing the same in the United States mail,
first-class postage pre-paid, at Harrisburg, Pennsylvania on this day of
2014, and addressed as follows:
Mark D. Bradshaw, Esquire
STEVENS & LEE
Harrisburg Market Square
17 North Second Street, 16a'Floor
Harrisburg, PA 17101
(Attorney for M&T Bank)
Charlotte Dixon
323 Bayview Street
Camden, ME 04843
Kimberly M, Colonna,Esquire
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(Attorney for Executor of the Estate of Lottie Dixon)
Daniel L. Sullivan, Esquire
26 W. High Street
Carlisle, PA 17013
(Attorney for Executor Lottie Dixon, Individually)
IN THE SUPERIOR COURT OF PENNSYLVANIA
IN RE: ESTATE OF LOTTIE IVY DIXON
591 MDA 2014
BRIEF OF APPELLANTS/OBJECTANTS,
GEORGE F. DIXON,III AND RICHARD E. DIXON,
IN OPPOSITION TO MOTION TO QUASH
FILED BY CORPORATE TRUSTEE, M&T BANK
ENTERED IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVIDION, FILE NO: 21-07-0686
PETERS & WASILEFSKI
Charles E. Wasilefski
Attorney ID #21027
cew @pwlegal.com
Alex M. Hvizda, Esquire
Attorney ID 4306565
amh @pwlegal.com
2931 North Front Street
Harrisburg, PA 17110-1250
[717] 238-7555
Attorney for Appellants/Objectants,
George E. Dixon, III and Richard E. Dixon
BRIEF OF APPELLANTS/OBJECTANTS
GEORGE F. DIXON III AND RICHARD E. DIXON,
IN OPPOSITION TO MOTION TO QUASH
FILED BY CORPORATE TRUSTEE, M&T BANK
I. Factual and Procedural Background
Appellants/Objectants, George F. Dixon III and Richard E. Dixon, filed
Objections to the First and Partial Account of Corporate Trustee, M&T Bank. By
Opinion and Order dated March 7, 2014 and entered on the record on March 10,
2014, the Orphans' Court overruled the objections with respect to the management
of the trust and alleged breaches of trust and fiduciary duties by M&T.
Specifically, the Orphans' Court held that Appellants/Objectants could not assert a
claim for mismanagement of the Trust by M&T for the 22-year period prior to
Lottie Ivy Dixon's death because "...as long as Lottie Dixon was alive, M&T only
owed a duty as trustee to her and no other beneficial interest was effective until she
died." (Opinion and Order at p. 2). The Orphans' Court further held that
Appellants/Objectants were not "true `beneficiaries"' of the Trust until their
mother died and that until her death "...the rights of the beneficiaries, including
their right to file a breach of trust action, were subject to the control of Lottie."
(Id. at p. 2-3). The Orphans' Court reached this holding despite the language in
Article VI of the Trust, entitled "Trustee Powers", which explicitly requires M&T
to consider the best interests of the beneficiaries during the continuance of the
Trust:
During the continuance of any trust created hereunder, the Trustee
shall possess, among others, the following powers to be exercised for
the best interests of the beneficiaries:....
[Emphasis added]. Despite this language, the Orphans' Court held that
Appellants/Objectants' claims for breach of the Trust by M&T and breach of
M&T's fiduciary duties fail as a matter of law. (Opinion and Order at p. 3).
Appellants/Objectants further objected that the plain language of the Trust
requires requests for distributions from the Trust to be made in writing and that
M&T produced no such written requests from Lottie Ivy Dixon for the
distributions. The Orphans' Court noted that the Trust does contain such language.
However, the Orphans' Court held that because "M&T claims that Lottie
telephoned them requesting distributions from the Trust", the claims by
Appellants/Objectants are immaterial because Lottie Ivy Dixon "...clearly
consented to M&T's behavior." (Id. at.p. 3). The Orphans' Court further holds
that because Lottie Ivy Dixon "clearly consented to M&T's behavior"
Appellants/Objectants lack standing to raise this objection. (Id. at p. 3-4). Finally,
the Orphans' Court sustained an objection to the failure to include an explanation
of two distributions, but stated "[f]ollowing this minor correction, the accounting
may be confirmed without the appointment of an auditor." (Id. at p. 4).
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On April 1, 2014 Appellants/Objectants filed a Notice of Appeal with the
Orphans' Court. On April 21, 2014 Appellants/Objectants filed a Concise
Statement of Matters Complained Of On Appeal Pursuant to Pa. R.A.P. 1925(b)
("Rule 1925(b) Statement"). The Rule 1925(b) Statement contends that the
Orphans' Court erred by applying 20 Pa. C.S. §7753(a) and holding that the duties
of M&T were only owed to the Lottie Ivy Dixon during her lifetime. With regard
to this point, Appellants/Objectants contend that Section 7753(a) does not apply to
actions of the Trustee prior to its effective date of November 6, 2006.
Additionally, Appel lants/Obj ectants contend that the plain language of the trust, as
quoted above, demonstrates Lottie Ivy Dixon's intent for M&T to owe a duty not
only to her but also to Appellants/Objectants as beneficiaries. Finally,
Appellants/Objectants contend that the Orphans' Court analogy set forth in
footnote 1 of the Opinion and Order demonstrates that Appellants/Objectants may
move forward with their claims because the objections they assert in this matter are
no different than claims for undue influence, fraud and duress.
Appellants/Objectants also contend on appeal that the Orphans' Court erred
by holding that the objection to M&T not requiring Lottie Dixon to request
distributions in writing is irrelevant because she clearly consented to M&T's
behavior. With regard to this point, Appellants/Objectants contend that there is no
record whatsoever to conclude the Lottie Dixon consented to M&T's distributions
3
of the Trust without a written request. The Orphans' Court simply takes M&T's
bald assertion that Lottie Dixon consented to such conduct as a conclusively
established fact. Further, there is the issue of whether Lottie Dixon could even
give consent and whether any consent allegedly given was the product of
diminished capacity or undue influence.
On May 1, 2014, Appellants/Objectants filed their Docketing Statement
which indicates that the Opinion and Order is a final appealable Order pursuant to
Pa. R.A.P. 341(b)(1) and Pa. R.A.P. 342(a)(1)-(5). The Docketing Statement is
attached to the Response in Opposition to Motion to Quash as Exhibit "A". The
Motion to Quash filed by M&T contends only that since the objections were
overruled in part and sustained in part the Opinion and Order is interlocutory and,
thus, appeal may not be had pursuant to Pa. R.A.P. 341(b)(1) and Pa. R.A.P.
342(a)(1). As will be explained below, M&T's Motion to Quash is based on its
interpretation of the Opinion and Order which is contrary to the plain language of
the Opinion and Order and the plain language of Rules 341 and 342 and their
Explanatory Notes. Further, M&T does not analyze the Opinion and Order
pursuant to Pa. R.A.P. 342(a)(2)-(5). Instead, M&T only pays lip service to these
rules by baldy asserting that Opinion and Order "...does not fall within any of the
other expressly recognized orders appealable as of right pursuant to Rule 342."
(Mot. to Quash at ¶ 10). It is submitted that M&T's failure to perform any analysis
4
pursuant to Rule 342(a)(2)-(5) is a waiver as to those Rules and the Motion to
Quash should be denied. Nevertheless, the plain language of Rule 342(a)(2)-(5)
and the Explanatory Notes demonstrate that the Opinion and Order is immediately
appealable. Accordingly, it is submitted that the Motion to Quash must be denied.
II. Statement of Question Presented
IS THE MARCH 10, 2014 OPINION AND ORDER IMMEDIATELY
APPEALABLE AS OF RIGHT PURSUANT TO Pa. R.A.P. 341(b)(1)
AND/OR Pa. R.A.P. 342(a)(1)-(5)?
Suggested Answer: Yes.
III. Legal Discussion
THE MARCH 10, 2014 OPINION AND ORDER IS IMMEDIATELY
APPEALABLE AS OF RIGHT PURSUANT TO Pa. R.A.P. 341(b)(1)
AND/OR Pa. R.A.P. 342(a)(1)-(5).
M&T improperly attempts to equate an order overruling in part and
sustaining in part objections in an Orphans' Court proceeding with the same type
of order in a civil proceeding in direct contravention of Rule 342. The Explanatory
Note following Rule 342, Appealable Orphans' Court Orders, explained that after
the 1992 amendments to Rule 341, "...many Orphans' Court orders that may have
been considered constructive final orders prior to 1992 became unappealable
interlocutory orders." Pa. R.A.P. 342, Note. Therefore, the Supreme Court
revised Rule 342. Id. Amendments were made to Rule 342 in 2005, but in the late
5
2000's the Supreme Court determined that further amendments were required
because:
Experience has also proven that it is difficult to analogize civil
litigation to litigation arising in an estate, trust and guardianship
administration. The civil proceeding defines the scope of the dispute,
but the administration of a trust or estate does not define the scope of
the litigation in the Orphans' Court. Administration of a trust or an
estate continues over a period of time. Litigation in Orphans' Court
may arise at some point during the administration, and when it does
arise, the dispute needs to be determined promptly and with finality so
that the guardianship or the estate or trust administration can then
continue properly and orderly. Thus, the traditional notions of
finality that are applicable in the context of ongoing civil
adversarial proceedings do not correspond to litigation in
Orphans' Court.
Id. [emphasis added]. M&T's argument that the Opinion and Order is
interlocutory because it overrules in part and sustains in part the objections runs
contrary to the plain language of Rule 342 and its Explanatory Note and
improperly attempts to equate a proceeding in the Orphans' Court with a civil
adversarial matter. Accordingly, the Motion to Quash must be denied.
Furthermore, in 2011 the Supreme Court made further amendments to Rule
342 so that "[o]rders falling within subdivisions (a)(1)-(7) no longer require the
lower court to make a determination of finality," and are, therefore, immediately
appealable. Id. "Subdivisions (a)(1)-(7) list orders that are unique to Orphans'
Court practice, but closely resemble final orders as defined in Rule 341(b). Id.
6
Analysis of the individual subparts further demonstrates that the Opinion and
Order is immediately appealable as of right.
Rule 342(a)(1)—"An order confirming an account or
authorizing or directing a distribution from an estate or
trust";
The Explanatory Note states:
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 distributions as Rule 342 always
permitted since its initial adoption.
Id. The Opinion and Order in this matter adjudicates the account filed by M&T in
that it states that "[fJollowing this minor correction, the accounting may be
confirmed without the appointment of an auditor." (Id. at p. 4). This statement
indicates there will be no further examination of the account. Contrary to M&T's
assertion, the plain language of the Opinion and Order does not contemplate any
further proceedings whatsoever or the filing of a further and supplemental account
for possible confirmation. Likewise, the Opinion and Order holds that
Appellants/Objectants may not pursue any claims against M&T for breaches of
trust and fiduciary duties. This is an adjudication and disposes of all claims and
parties thus further providing this Court with jurisdiction pursuant to Pa. R.A.P.
7
F,
341(b)(1). The finality of the Orphans' Court decision is further demonstrated by
the Orphans' Court's extraordinary Postscript equating this matter to World War I
and refusing to permit World War II. Accordingly, the Opinion and Order are
immediately appealable both pursuant to Rule 342(a)(1) and Rule 341.
Rule 342(a)(2)—"An order determining the validity of a will
or trust";
M&T provides no analysis of Rule 342(a)(2)-(5) and, therefore, has
waived any reliance on subdivision (a)(2)-(5). Nonetheless, the Explanatory Note
states: "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)." Id.
The Opinion and Order upholds the validity of the Trust document by refusing to
permit Appellants/Objectants to pursue their breach of trust and fiduciary duties
claims and, consequently, discounting the clear reference in Article VI of the Trust
to administration of the trust in the best interests of the beneficiaries. Further, the
Opinion and Order discounts the claims by Appellants/Objectants of Lottie Ivy
Dixon's diminished capacity and indicia of undue influence and holds that she
clearly consented to M&T not complying with the Trust's stated mandate of
having written requests for distributions. Accordingly, the Opinion and Order is
immediately appealable pursuant to Pa. R.A.P. 342(a)(2).
8
Rule 342(a)(3)—"An order interpreting a will or a
document that forms the basis of a claim against an estate
or trust"•
Rule 342(a)(4)—"An order interpreting modifying
reforming or terminating a trust";
The Explanatory Note states: "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 against asserted against an estate or trust."
It further states: "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." Here, Appellants/Objectants attempted to assert claims against the
Trust for breach of trust and fiduciary duties by the Trustee. The Opinion and
Order refuses to permit Appellants/Objectants to pursue their breach of trust and
fiduciary duties claims and, necessarily, interprets and discounts the clear reference
in Article VI of the Trust to administration of the trust in the best interests of the
beneficiaries. Furthermore, the Opinion and Order interprets the requirement of
the Trust document that requests for distributions be made in writing and then
excuses M&T's failure to comply with that provision of the Trust. Accordingly,
the Opinion and Order is immediately appealable as of right pursuant to Pa. R.A.P.
342(a)(3) and 342(a)(4).
9
Rule 342(a)(5)—"An order determining the status of
fiduciaries, beneficiaries, or credits in an estate trust or
jZuardianship";
The Explanatory Note states:
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, 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.
Here, the Opinion and Order refuses to allow Appellants/Objectants, who are
beneficiaries under the Trust and became co-trustees upon the death of their
mother, from pursuing a claim against the Trust by holding that they have no valid
claim for actions of M&T prior to their mother's death and by holding that they are
not "true `beneficiaries"'. The Orphans' Court provides no explanation what it
means by "true beneficiaries" as Appel]ants/Objectants are beneficiaries under the
plain terms of the Trust and Article VI of the Trust expressly requires the trustee,
M&T, to exercise its powers for the best interests of the beneficiaries. The
Opinion and Order further holds that Appellants/Objectants have no valid claim
against M&T for its failure to require written requests for distributions, as
mandated in the Trust, because either Lottie Ivy Dixon clearly consented to such
10
4
behavior (based solely on M&T's bald assertion and no discovery whatsoever as to
the validity of such bald assertion) or because Appellants/Objectants do not have
standing to bring such a claim. Accordingly, the Opinion and Order is
immediately appealable as of right pursuant to Pa. R.A.P. 342(a)(5).
IV. Conclusion
For the reasons set forth above, it is respectfully submitted that the Motion
to Quash must be denied because the Opinion and Order is immediately appealable
as of right pursuant to Pa. R.A.P. 341 and Pa. R.A.P. 342(a)(1)-(5).
PETERS & W SILEFSKI
By:
Charl . Wasilefski
Atto ey ID #21027
cew @pwlegal.com
Alex M. Hvizda
Attorney ID #306565
amh @pwlegal.com
2931 North Front Street
Harrisburg, PA 17110-1250
[717] 238-7555, Ext 110
Date: Attorney for Appellants/Objectants
11
� 6
SUPERIOR COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE:
ESTATE OF LOTTIE IVY DIXON
Deceased
NO: 591 MDA 2014
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing BRIEF OF
APPELLANTS/OBJECTANTS, GEORGE F. DIXON, III AND RICHARD E. DIXON, IN
OPPOSITION TO MOTION TO QUASH FILED BY CORPORATE TRUSTEE, M&T
BANK, has been served on all parties of interest by placing the same in the United States mail,
first-class postage pre-paid, at Harrisburg, Pennsylvania on this 2D� day of
2014, and addressed as follows:
Mark D. Bradshaw, Esquire
STEVENS & LEE
Harrisburg Market Square
17 North Second Street, 16a' Floor
Harrisburg, PA 17101
(Attorney for M&T Bank)
Charlotte Dixon
323 Bayview Street
Camden, ME 04843
Kimberly M. Colonna, Esquire
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(Attorney for Executor of the Estate of Lottie Dixon)
Daniel L. Sullivan, Esquire
26 W. High Street
Carlisle, PA 17013
(Attorney for Executor Lottie Dixon, Individually)
IN RE: IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
ESTATE OF LOTTIE IVY DIXON PENNSYLVANIA
Deceased
ORPHANS' COURT DIVISION
NO: 21-07-0686
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing RESPONSE OF
OBJECTANTS, GEORGE F. DIXON AND RICHARD E. DIXON, IN OPPOSITION TO
MOTION TO (1)APPROVE SUPPLEMENTAL ACCOUNTING, (2) TAX ATTORNEY'S
FEES AGAINST OBJECTANTS AND (3) RESIGN AS TRUSTEE FILED BY
INSTITUTIONAL TRUSTEE, M&T BANK, has been served on all parties of interest by
placing the same in the United States mail,first-class postage pre-paid,at Harrisburg,Pennsylvania
�a
on this_ day of , 2014, and addressed as follows:
Bradshaw, Esquire
STEVENS & LEE
Harrisburg Market Square
17 North Second Street, 160' Floor
Harrisburg, PA 17101
(Attorney for M&T Bank)
Charlotte Dixon
323 Bayview Street
Camden, ME 04843
Kimberly M. Colonna, Esquire
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-11
(Attorney for Executor of the Estate of Lottie Dixon)
Daniel L. Sullivan, Esquire
26 W. High Street
Carlisle, PA 17013
(Attorney for Executor Lottie Dixon, Individually)