Estate of: Rubert, T., Appeal of: Rubert T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE ESTATE OF: THERESA M. : IN THE SUPERIOR COURT OF
RUBERT : PENNSYLVANIA
:
:
APPEAL OF: BOARD OF TRUSTEES :
OF THE WILLIAM E. AND THERESA :
M. RUBERT MEMORIAL TRUST :
:
: No. 550 EDA 2018
Appeal from the Order January 17, 2018
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): No. 1988-X1158
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 04, 2019
The Board of Trustees (“Trustees”) of the William E. and Theresa M.
Rubert Memorial Trust (“The Trust”), appeals the order entered by the Court
of Common Pleas of Montgomery County appointing a guardian ad litem to
represent particular interests in this instant case. After careful review, we
quash this appeal as interlocutory.
Theresa M. Rubert passed away on March 30, 1988. Her will, inter alia,
established the Trust, which was funded by the residue of her estate. The
Trust provides in pertinent part:
The said Trustees shall use or apply the net income from the Trust
for the following purposes:
(1) By loans and/or advances to students enrolled and actively
pursuing on a full time basis, studies at the Hahnemann University
Nursing and Educational Department leading to such a degree
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* Former Justice specially assigned to the Superior Court.
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and/or certificate in the field of Nursing as the said department
shall establish.
Said loans and/or advances shall be made or granted on such
terms and conditions as the Trustees shall from time to time
establish to assist needy students in the pursuit of said education.
(2) The Trustees shall establish such lectures and/or symposiums
in the field of Human Nursing and/or Human Medicine to the
appropriate public or such segments thereof as the Trustees shall
from time to time select to present to the public the information
concerning new and novel advances in the fields of Nursing and
Medicine.
See William E. and Theresa M. Rubert Memorial Trust, at 1.
The Trustees have been responsible for the administration of the Trust
since Theresa’s death. In 1993, Hahnemann Medical College was acquired by
Allegheny Health, Education, and Research Foundation (“Allegheny”). The
parties agree that as a result of this acquisition, the Hahnemann University
Nursing and Educational Department ceased to exist.
After Allegheny filed for bankruptcy in 1998, Drexel University
(hereinafter “Drexel”) acquired Hahnemann’s educational programs, and
Tenet Health Systems acquired Hahnemann’s clinical facilities. Nevertheless,
Drexel contracted with Tenet Health Systems to continue to use the former
Hahnemann facilities. Thereafter, the Trustees continued to fund scholarships
to students at the nursing program operated by Drexel University’s College of
Nursing and Health Professionals.
On March 17, 2017, the Trustees filed a “Petition to Clarify/Amend
Terms of Trust to Permit Greater Number of Applicants to Participate in
Scholarships” (hereinafter “Petition”) in the Orphans’ Court of Montgomery
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County, asserting that the Trust’s purpose had become impracticable given
that (1) Hahnemann University, as the original named institution, no longer
exists, and (2) the funds entrusted to the Board of Trustees have significantly
increased.1 Specifically, the Trustees sought to amend the Trust to allow for
scholarships to nursing students enrolled in schools in the Greater Delaware
Valley (defined as schools within a fifty-mile radius of Philadelphia, including
schools in New Jersey and Delaware).
On April 25, 2017, the Office of the Attorney General of Pennsylvania
filed an Answer to the Petition, asking the Orphans’ Court to deny the Petition.
On June 30, 2017, Drexel University filed an Answer, although it had not been
served with the Petition, claiming that it had become the successor institution
to the Hahnemann University Nursing and Educational Department named in
the Trust. On July 10, 2017, the Trustees filed a Petition to Strike Drexel’s
Answer, asserting that Drexel had no standing in this matter as it is not a
named beneficiary in the Trust.
On October 19, 2017, Drexel withdrew its Answer and filed a petition for
the appointment of a guardian ad litem to represent the interests of its nursing
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1 Upon its creation, a percentage of the Trust had been devoted to pay
annuities for three named beneficiaries. As these beneficiaries have since
passed away, the payment of the annuities has ceased and those funds are
now part of the Memorial Trust used to fund the scholarships for nursing
students. In addition, the Trustees also asserted that the “increase in value
of the trust corpus has resulted directly from sound financial management and
attention to their duties by the trustees and their agents, servants, and
employees.” Petition, at 3.
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students in this matter.2 On December 8, 2017, the Trustees filed an Answer,
arguing, inter alia, that the Trust funds would be misused if the Trust was
required to pay for a guardian ad litem, again asserting that Drexel nursing
students do not have a cognizable legal interest in the Trust.
On January 17, 2018, the Orphans’ Court entered an order appointing
Adam G. Silverstein, Esquire, pursuant to 20 Pa.C.S.A. § 751,3 as “Guardian
Ad Litem representing the interests of future nursing students at the Drexel
University College of Nursing and Health Professions who may be potential
candidates/beneficiaries of the Rubert Memorial Trust.” Order, 1/17/18, at 1.
Further, the order stated that “[s]ubject to the final order of [the lower court],
the guardian ad litem shall be compensated for his services from the principal
of the Rubert Memorial Trust.” Order, 1/17/18, at 1.
On February 14, 2018, the Trustees filed a timely notice of appeal. On
February 15, 2018, the Orphans’ Court entered an order directing the Trustees
to file a Concise Statement of Errors Complained of on Appeal pursuant to
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2 In the petition for appointment of a guardian ad litem, Drexel expressed its
belief that the Attorney General’s Office would not advocate to protect the
interests of Drexel’s nursing students in this matter. Drexel cited In re Estate
of Feinstein, 527 A.2d 1034 (Pa.Super. 1987) in asserting that the Attorney
General does not represent the interests of individual beneficiaries, but rather
the interests of the public at large “to whom the social and economic benefits
of charitable trusts accrue.” Id. at 1036, n.3.
3 Section 751 provides that the Orphans’ Court division may appoint “a
guardian or a trustee ad litem to represent the interest, not already
represented by a fiduciary, of: (i) a person not sui juris; or (ii) an absentee;
or (iii) a presumed decedent; or (iv) an unborn or unascertained person.”
20 Pa.C.S.A. § 751 (emphasis added).
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Pa.R.A.P. 1925(b) within twenty-one (21) days of its order. The order stated
that “failure to timely file and serve said Statement shall be deemed a waiver
of all claimed errors.” Order, 2/15/18, at 1. The Trustees’ Concise Statement
was not docketed until March 14, 2018.
On March 23, 2018, this Court entered an order to show cause as to
why this appeal should not be quashed. On April 2, 2018, the Trustees filed
a response to the order to show cause, arguing that the January 17, 2018
order was appealable as a collateral order under Pa.R.A.P. 313.
On October 24, 2018, Attorney Silverstein, the appointed guardian ad
litem, filed a motion to quash the appeal, arguing that (1) the issue on appeal
does not satisfy the collateral order doctrine and (2) all of the Trustees’ issues
should be deemed waived by its untimely filing of its Rule 1925(b) statement.
On October 29, 2018, the Trustees filed a response, again asserting that
the appeal was proper from a collateral order. In addition, the Trustees
asserted that they filed and served its Concise Statement in a timely manner,
but noted that the document was not immediately docketed as it was not
accompanied by the required $13.00 fee. The Trustees ask this Court to
overlook the untimely filing of the Concise Statement, asserting that a
breakdown in court processes occurred, as the lower court’s bill of costs did
not list a charge for the filing of a Concise Statement, and the clerk did not
immediately notify the Trustees that the missing fee would result in the
delayed docketing of its Concise Statement.
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As an initial matter, it is necessary to determine whether this appeal is
properly before this Court. “[S]ince we lack jurisdiction over an unappealable
order, it is incumbent on us to determine, sua sponte when necessary,
whether the appeal is taken from an appealable order.” Kulp v. Hrivnak,
765 A.2d 796, 798 (Pa.Super. 2000) (citation omitted).
It is well-established that an appeal may properly lie from “(1) a final
order or an order certified as a final order (Pa.R.A.P. 341); (2) an interlocutory
order as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission
(Pa.R.A.P. 312, 42 Pa.C.S. § 702(b)); or (4) a collateral order (Pa.R.A.P.
313).” In re Estate of McAleer, 194 A.3d 587, 592 (Pa.Super. 2018). This
Court has held that an order appointing a guardian ad litem in civil litigation
is not a final order or an interlocutory order appealable by right or permission.
Rehrer v. Youst, 91 A.3d 183, 187 (Pa.Super. 2014).
In addition, we note that Pa.R.A.P. 342 provides for appeals as of right
from certain orders of the Orphans’ Court Division.4 Specifically, Rule 342
states “[a]n appeal may be taken as of right from … [a]n order determining
the status of fiduciaries, beneficiaries, or creditors in an estate, trust, or
guardianship.” Pa.R.A.P. 342(a)(5). We do not find the lower court’s order
appointing a guardian ad litem to be appealable under this rule as the Orphans’
Court did not definitively determine the status of unascertained Drexel nursing
students who may receive a scholarship from the Trust in the future.
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4Neither party attempted to analyze whether this appeal was proper under
Rule 342.
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As a result, we must determine whether the lower court’s order
constitutes an appealable collateral order. This Court previously outlined the
collateral order doctrine as follows:
Our High Court has delineated three requirements
that must be satisfied in order for the doctrine to apply. The
order must be “separable from and collateral to the main
cause of action;” it must involve a right that “is too
important to be denied review;” and, “if review is postponed
until final judgment, the claim will be irreparably lost.”
Vaccone v. Syken, 587 Pa. 380, 899 A.2d 1103, 1106
(2006). The doctrine is to be narrowly interpreted as it is
an exception to the rule of finality. Id.; see also Rae v.
Pennsylvania Funeral Directors Association, 602 Pa.
65, 977 A.2d 1121, 1126 (2009).
In re Reglan/Metoclopramide Litigation, 81 A.3d 80, 86
(Pa.Super. 2013). Hence, the three essential elements of a
collateral order are “separability, importance and irreparable
loss.” Geniviva v. Frisk, 555 Pa. 589, 725 A.2d 1209, 1211
(1999).
Our Supreme Court codified the elements of a collateral order into
Pa.R.A.P. 313. That rule provides as follows:
(a) General rule. An appeal may be taken as of right from
a collateral order of an administrative agency or a lower
court.
(b) Definition. 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.
Rehrer, 91 A.3d at 187–88. In construing the collateral doctrine narrowly,
“we endeavor to avoid piecemeal determinations and the consequent
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protraction of litigation.” Commonwealth v. Sabula, 46 A.3d 1287, 1291
(Pa.Super.2012) (quoting Rae, 977 A.2d at 1130). As a “specialized, practical
application of the general rule that only final orders are appealable as of right,”
the collateral order doctrine must be interpreted narrowly “to prevent undue
corrosion of the final order rule.” Melvin v. Doe, 575 Pa. 264, 272, 836 A.2d
42, 46–47 (2003) (citation omitted). “To that end, each prong of the collateral
order doctrine must be clearly present before an order may be considered
collateral.” Id.The Trustees rely on Rehrer, in which this Court concluded that a lower
court’s order appointing a guardian ad litem to a disabled minor against the
wishes of the child’s mother was an appealable collateral order. This Court
found that the mother’s right to appeal the appointment of the guardian ad
litem, who would have authority to settle the legal matter, was too important
to be denied review, as parents have a fundamental constitutional right to
make decisions concerning their child. See id. (citing Hiller v. Fausey, 588
Pa. 342, 904 A.2d 875 (2006) (acknowledging due process clause of U.S.
Constitution accords protection to parent's fundamental right to make
decisions concerning care, custody, and control child)).
Moreover, the Rehrer court found that if the mother’s “challenge to the
appointment of the guardian ad litem was postponed until final judgment
[was] entered in the civil litigation, her settlement authority and her
fundamental right to make decisions on her minor daughter's behalf would be
irreparably lost.” Rehrer, 91 A.3d at 188.
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In this case, the Trustees contend that the Orphans’ Court’s order
violates due process as it directed that the guardian ad litem be paid from the
principal of the Trust without first holding a hearing to allow the Trustees an
opportunity to be heard. However, unlike the facts of Rehrer, we do not find
this appeal raises an issue too important to deny review. The mere
appointment of the guardian ad litem in this case did not deprive the Trust of
any rights. The guardian ad litem will be required to petition the lower court
prior to and for an award, at which time the Trustees will be given an
opportunity to be heard.5
In addition, the Trustees have not shown that their claim will be
irreparably lost if review is postponed until final judgment. The Trustees may
challenge the lower court’s decision to require the Trust to pay counsel fees
for the guardian ad litem once a final order is entered. See Brawley
Distributing Co., Inc. v. Heartland Properties, 712 A.2d 331, 332
(Pa.Super. 1998) (order granting counsel fees based on a frivolous pre-trial
filing was interlocutory and unappealable); West v. Andersen, 626 A.2d 606(Pa.Super. 1993) (order awarding counsel fees after plaintiff's counsel refused
to allow deposition of plaintiff was not final appealable order in medical
malpractice action); Fox v. Gabler, 547 A.2d 399 (Pa.Super. 1988) (finding
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5This Court directs that at the time the guardian ad litem petitions for his fee,
Trustees shall have the opportunity to be heard, raising such issues as may
be appropriate, including a challenge to the Orphans’ Court’s authority to
order the fee be paid from Trust principal or whether such fee should be paid
by Drexel, a non-party institution that inserted itself into this litigation to
advocate for the interests of its nursing students.
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order of contempt requiring the posting of a $10,000 bond in an accounting
action is not appealable as a collateral order).
As a result, as the order appealed does not constitute a collateral order
pursuant to Pa.R.A.P. 313, we lack jurisdiction to review the merits of the
Trustees’ claim at this stage of the case.6
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/19
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6 Even assuming arguendo that this appeal was proper under Rule 313, we
note that the Trustees’ sole issue on appeal would be waived by their failure
to file a timely Rule 1925(b) statement. Our courts have recognized a bright-
line rule that “failure to comply with the minimal requirements of Pa.R.A.P.
1925(b) will result in automatic waiver of the issues raised [on appeal].” In
re Estate of Boyle, 77 A.3d 674, 677 (Pa.Super. 2013). We note that the
lower court satisfied its obligations under Rule 1925(b) by filing an order that
specified the number of days in which the Trustees were required to file their
statement, indicated that the statement must be filed of record and served on
the lower court, and clarifying that any issue not included in a timely filed and
served statement would be waived.
In addition, there is no support for the Trustees’ claim that the bill of
costs set by the Court of Common Pleas of Montgomery County failed to list a
charge for the filing of a Concise Statement; this document clearly states that
non-petition filings require a $13.00 fee. Moreover, the Trustees offer no
authority for their claim that the clerk of courts was required to notify them in
a certain period of time that their 1925(b) statement was not accompanied by
the appropriate fee. It is the responsibility of counsel to comply with all filing
requirements. Counsel cannot shift the burden of ensuring that his documents
have been properly submitted with appropriate filing fees onto the court.
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