In Re Francis Edward McGillick Foundation ( 1994 )

PAPADAKOS, Justice,

concurring and dissenting.

I join in all portions of the majority opinion except with respect to the conclusion that Anania and both Corbetts are not to be removed as trustees. The majority has correctly cited the applicable section of the law governing grounds for removal (20 Pa.C.S. § 3182) which provides that the court shall have exclusive power to remove a personal representative when he “ ... (1) ... has failed to perform any duty imposed by law.” (Maj. op., p. 200.)

The majority opinion then recognizes that both Corbetts failed to play an active role as trustees and were not involved in any decision making. (Maj. op., p. 200.) They attended meetings as mutes and collected $9,600.00 per annum for their muteness. It is not necessary to delineate what duties imposed by law they did not perform since they performed no duties. Therefore, they failed to perform the duties imposed by law. Anania never prepared an annual accounting for the foundation, though such accounting was required by the trust documents. (Maj. op., p. 200.) Thus, he, too, failed to perform a duty imposed by law.

I believe the lower court was correct in removing Anania and the Corbetts as trustees and they should be surcharged for the fees they received for doing nothing. I, therefore, dissent.

NIX, C.J., joins this concurring and dissenting opinion.