In Re: Dille Family Trust Appeal of: Williams, L. ( 2023 )

J-A11019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: DILLE FAMILY TRUST : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: LORRAINE DILLE :
WILLIAMS AND ROBERT NICHOLS :
FLINT DILLE :
:
:
: No. 853 WDA 2021
Appeal from the Order Entered July 8, 2021
In the Court of Common Pleas of Lawrence County Orphans' Court at
No(s): No. 43 of 2019 O.C.
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: August 18, 2023
Lorraine Dille Williams (“Lorraine”) and Robert Nichols Flint Dille
(“Robert”) (collectively “Appellants” or “Beneficiaries”) appeal from the order
entered in the Court of Common Pleas of Lawrence County Orphans’ Court on
July 8, 2021, directing them to pay attorneys’ fees and costs totaling
$85,883.00, incurred by Appellees, Louise A. Geer (“Ms. Geer”), the Nowlan
Family Trust (“NFT”), and the Buck Rogers Company (“BRC”), as a result of
the orphans’ court’s finding Appellants in contempt for violating three of its
prior court orders. After careful review, we affirm.
This matter has a complex history and stems from a dispute over the
situs of the Dille Family Trust (“DFT” or “Trust”) and whether Ms. Geer is the
legitimate Trustee of the DFT. We glean the following facts and procedural
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A11019-23
background relevant to this appeal from the record. The DFT was created by
Robert C. Dille (“Mr. Dille”) and Virginia N. Dille (“Mrs. Dille”) (collectively
“Settlors”) on August 16, 1979, in the state of California, and amended on
January 5, 1982. Settlors were the original Trustees of the DFT. Their
children, Lorraine and Robert, are the Trust’s sole beneficiaries. Upon the
death of Mr. Dille on March 30, 1983, Arthur Martin became a Co-Trustee with
Mrs. Dille. On February 1, 1989, the Beneficiaries and the Co-Trustees
executed a document transferring the situs of the DFT to Illinois. Upon Mrs.
Dille’s death in February of 2009, Mr. Martin became the sole Trustee.
On March 8, 2011, Mr. Martin resigned from his position as Trustee and,
pursuant to the terms of the DFT, Dennis Fox was to be appointed as the
successor Trustee. Mr. Fox, however, never acted in his capacity as Trustee
of the DFT and submitted his resignation from the position on May 4, 2011.
American Guarantee & Trust Company (n/k/a RBC Trust Company) was the
last-named successor Trustee listed in the terms of the DFT; however, it
declined to accept the position, leaving the Trust without any named
successor.
Appellants then asked Ms. Geer, an attorney, to become the Trustee,
and she accepted the appointment on June 6, 2011. Immediately following
her appointment, Ms. Geer began acting as the Trustee of the DFT with the
permission and consent of Appellants. She began administering the Trust
from the office of Geer and Herman, P.C., located in Lawrence County,
Pennsylvania. Pennsylvania income tax returns were filed on behalf of the
-2-
J-A11019-23
DFT by Ms. Geer for the years 2011 through 2016, a Trust bank account was
opened in Pennsylvania, and Ms. Geer conducted all DFT business from her
office in Lawrence County, Pennsylvania.
A dispute arose between the DFT and the NFT over the ownership of the
United States trademark and related rights to Buck Rogers.1 Litigation ensued
before the United States Patent and Trademark Office, the Patent and
Trademark Appeals Board, and the federal district court in the Eastern District
of Pennsylvania. Meanwhile, on November 28, 2017, Ms. Geer – purporting
to act as Trustee – filed for Chapter 11 bankruptcy on behalf of the DFT. Ms.
Geer did not seek the permission of Appellants prior to the bankruptcy filing,
nor did she notify them after the filing. On August 26, 2018, after learning of
the Chapter 11 filing from the Bankruptcy Court, Appellants sent written notice
to Ms. Geer, informing her that she was no longer representing the DFT as
Trustee. Despite receiving the August 26, 2018 notice, Ms. Geer continued to
act and hold herself out as Trustee of the DFT.
During the bankruptcy action, Ms. Geer and her husband, Daniel
Herman, acting as individuals, together with the NFT submitted a joint offer
____________________________________________
1 By way of background, the fictional character known as the 25th Century
space explorer, Buck Rogers, was created by John F. Dille in 1928. In
approximately 1928-1929, John F. Dille contracted with Phillip Francis Nowlan
to create the Buck Rogers comic strip. On May 14, 1942, Mr. Nowlan, through
his estate, assigned all intellectual property rights to Buck Rogers to John F.
Dille. These rights ultimately became the property of the DFT. In 1981, the
DFT registered Buck Rogers as a trademark with the United States Trademark
Office. However, as a result of its failure to properly renew its trademark, the
DFT’s United States trademark for Buck Rogers expired on June 6, 2011, and
the NFT subsequently attempted to acquire the trademark rights.
-3-
J-A11019-23
to the Bankruptcy Court to purchase all of the DFT assets, including any
trademark and intellectual rights that the DFT might own with regard to Buck
Rogers. Their offer was rejected. On February 20, 2019, the bankruptcy
action was dismissed on the grounds that the DFT was not a business trust
and therefore was not eligible for Chapter 11 relief.
Shortly after the bankruptcy dismissal, the DFT and the NFT resolved
their dispute. On February 28, 2019, Ms. Geer, acting as Trustee of the DFT,
signed a settlement agreement with the NFT. Pursuant to the terms of the
settlement agreement, Ms. Geer entered into an asset purchase agreement,
conveying any and all trademark and intellectual property rights owned by the
DFT to the BRC for $300,000.00. As a result of this transaction, the federal
action between the NFT and the DFT was voluntarily dismissed.
On April 17, 2019, Ms. Geer, acting as Trustee of the DFT, instituted the
underlying action with the filing of a petition in the Court of Common Pleas of
Lawrence County, Pennsylvania, Orphans’ Court Division, seeking
confirmation of her status as the Trustee of the DFT and seeking approval of
her proposed distribution of the Trust assets. Appellants opposed the petition,
claiming that Ms. Geer had never been lawfully appointed as Trustee. The
NFT and the BRC (collectively “Intervenors”) filed a petition seeking to
intervene in the orphans’ court action, which the court granted on February
24, 2020, for the limited purpose of participating in the hearings to determine
whether Ms. Geer is the legally authorized Trustee of the DFT. A bifurcated
trial on the issue of Ms. Geer’s status as Trustee, originally scheduled to be
-4-
J-A11019-23
held in April 2020, was continued multiple times due to COVID-19 concerns
and discovery issues, and was eventually held on April 22 and 23, 2021.2
Following the trial, the orphans’ court ultimately entered an amended order
on January 10, 2022, finding that Ms. Geer was lawfully appointed under
Illinois law as the Trustee of the DFT on June 6, 2011, and that the
Beneficiaries’ August 26, 2018 writing purporting to remove Ms. Geer from
her position as Trustee was ineffective.3
While the trial regarding Ms. Geer’s status as Trustee was still pending,
she filed a motion seeking to have Appellants held in contempt of court for
their purported violation of certain court orders. Following an evidentiary
hearing on the motion for contempt, the orphans’ court found Appellants in
contempt and issued an order containing the following additional findings of
fact and conclusions of law:
Findings of Fact
1. On January 7, 2021[,] Louise Geer filed a motion to hold the
Beneficiaries in contempt of this court’s orders of December
6, 2019, October 1, 2020, and October 8, 2020.
2. On December 6, 2019, the Beneficiaries filed a motion for an
injunction against all parties prohibiting the transfer,
disbursement, distribution[,] or encumbrance of any asset of
the [DFT]. This court signed an order on December 6, 2019,
as proposed by the Beneficiaries, that, “until further order of
____________________________________________
2 The issue regarding approval of Ms. Geer’s proposed distribution of the Trust
assets was scheduled for a separate trial date and is not relevant to this
appeal.
3Appellants filed a separate appeal from this order at docket no. 96 WDA
2022, which is currently pending before this Court.
-5-
J-A11019-23
court, there is to be no disbursement, distribution[,] or
encumbrance of any asset of the [DFT].”
3. On October 1, 2020, this court issued an order setting the
hearing on the status of [Ms.] Geer as Trustee for the [DFT]
for December 7 and December 8, 2020. The order also
ordered that[] the December 6, 2019 order remained in full
force and effect[,] and that any violation of that order would
subject the violator to contempt of court sanctions.
4. On October 8, 2020, this court issued an order stating as
follows:
“This court has determined that it has subject matter
jurisdiction to decide the status of [Ms.] Geer as Trustee
of the [DFT].” And further that, “…this court has
exclusive jurisdiction to decide whether or not [Ms.]
Geer was appointed Trustee of the [DFT] and whether
or not [Ms.] Geer continues to be the lawful Trustee of
the [DFT]. All parties will be bound by this court’s
decision.”
5. The Beneficiaries attempted to obtain summary judgment or
partial summary judgment based on the pleadings, and an
order that [Ms.] Geer was not properly appointed Trustee of
the [DFT] in June of 2011 and in the alternative, if she was
lawfully appointed, that she ceased being Trustee of the [DFT]
as of February 20, 2019. On October 2, 2020, this court
denied motions for summary judgment presented by the
Beneficiaries and by [Ms.] Geer on the question of whether or
not [Ms.] Geer was lawfully appointed as Trustee of the [DFT]
and whether she remained Trustee of the [DFT]. This court
found that it had subject matter jurisdiction and that genuine
issues of material fact exist surrounding the appointment and
alleged removal of [Ms.] Geer as Trustee of the [DFT].
6. While the case was still pending before the Court of Common
Pleas of Lawrence County, the Beneficiaries filed an ex parte
petition in the Superior Court of the State of California for the
County of Los Angeles on April 5, 2019[,] seeking (1)
confirmation that [Ms.] Geer was not properly appointed as
Trustee of the [DFT]; (2) confirming that the Beneficiaries
removed the Trust assets [on] February 20, 2019; (3)
appointing [Beneficiaries] as Co-Trustees of the [DFT]; (4)
and to compel [Ms.] Geer to immediately surrender all Trust
property and records to [Beneficiaries].
-6-
J-A11019-23
7. On July 11, 2019, Judge Clifford Klein, in the Superior Court
of California for the County of Los Angeles, issued an order as
follows:
a. “The … Superior Court of California County of Los
Angeles[] finds it lacks jurisdiction to consider the petition
(of the Beneficiaries). Trustee Louise Geer is not properly
subject to the jurisdiction of a California Court.”
b. “The … Beneficiaries[] … sought out respondent Geer and
both of them asked her to serve as Trustee.”
c. “[S]ince June 2011, Ms. Geer has been acting as Trustee.”
d. That the Superior Court had no jurisdiction over the [DFT],
which had been administered in the Commonwealth of
Pennsylvania since June 2011, or over [Ms.] Geer as
Trustee.
e. The Beneficiaries’ petition was dismissed with prejudice.
8. Pursuant to the petition of the Beneficiaries, on October 23,
2020, this court issued an order directing the law firm of
Kloss, Stenger and LoTempio to deposit $300,000.00 that it
was holding in its escrow account for the [DFT] into the
Lawrence County Court’s Trustee account. The $300,000.00
was deposited with the courts of Lawrence County and
remains in the court’s escrow account.
9. On October 29, 2020, the Beneficiaries petitioned the
Superior Court of California for the County of San Mateo
seeking a court order (1) approving the Trustee’s distribution
of “all Trust assets” to the Beneficiaries, retroactive to
February 20, 2019; (2) approving the termination of the
[DFT]; (3) waiving any accounting for the administration of
the [DFT] and its assets; [and] (4) approving of all of the
activities of the Trustee in administering the Trust.
10. The motion in the County of San Mateo claimed that [Mr.] Fox
was the Trustee for the [DFT] and that there were no other
interested parties other than Beneficiaries and the Trustee,
[Mr.] Fox.
11. The Beneficiaries’ petition in the County of San Mateo made
the following assertions, under penalty of perjury and signed
by both Beneficiaries:
-7-
J-A11019-23
a. That following [Mrs.] Dille’s death[] and the resignation of
[Mr.] Martin, [Mr.] Fox became the sole successor Trustee
in 2011;
b. That all of the Trust assets were distributed to the
Beneficiaries on or around February 20, 2019;
c. That on February 20, 2019, the Beneficiaries received all
of the assets of the Trust;
d. That as of February 20, 2019, the Trust had been
terminated.
12. The petition in the County of San Mateo made no mention of
the Lawrence County action that was pending or the hearing
that was scheduled for December 7 and 8, 2020.
13. The petition in the County of San Mateo made no mention of
the order of Judge Clifford Klein in the County of Los Angeles
that dismissed the Beneficiaries’ earlier petition with
prejudice, because California did not have jurisdiction over
[Ms.] Geer or over the [DFT].
14. The petition in San Mateo County made no mention of the fact
that the Beneficiaries had requested the Court of Common
Pleas of Lawrence County to order the deposit of $300,000.00
from an escrow account where it was being held for the
benefit of the [DFT]. Nor did the petition mention that the
$300,000.00 was being held by the Court of Common Pleas
of Lawrence County in its escrow account.
15. The petition in San Mateo County was presented ex parte and
admittedly without notice [to Ms.] Geer or her counsel, to the
[NFT], or its counsel, or the Court of Common Pleas of
Lawrence County, where the trial on the issue of whether …
[Ms.] Geer is the lawful Trustee of the [DFT] was pending.
16. Lorraine Dille Williams testified that the Beneficiaries filed the
ex parte motion in San Mateo County to obtain an order
confirming the transfer of all Trust assets to [them].
17. Robert Nichols Flint Dille in his deposition of November 18,
2020, stated that he believed the Trust owned certain
intellectual property rights and that the petition in San Mateo
was presented to secure the distribution to he [sic] and his
sister of all of the assets of the Trust and to stop all the
“sneaky” business going on in Pennsylvania.
-8-
J-A11019-23
18. In support of the Beneficiaries’ petition in San Mateo County,
both Robert … and Lorraine … signed a verification under
penalty of perjury that they[] “have the unfettered right to
remove their respective 50% shares of the assets (of the
[DFT]) … at any time…[,]” since they were both thirty-five
(35) years of age. The notarized statement under penalty of
perjury was signed by both Beneficiaries on October 7, 2020.
19. Lorraine … testified that the intellectual rights owned by the
[DFT] were transferred to she [sic] and her brother on
February 20, 2019[,] and that she and her brother
immediately sold those intellectual rights to 26th Century
Ventures, Inc.[,] [(26th Century”)] in exchange for significant
stock in 26th Century…. For the purposes of this contempt
hearing, this court does not find the testimony of Lorraine …
credible for the following reasons:
a. Evidence presented showed that 26th Century … did not
come into existence until May 2, 2019.
b. Lorraine … testified that there was a written document
transferring the intellectual rights owned by the Trust.
However, she did not produce any such document in the
extensive discovery that had taken place in this case and
could not produce any such document at the time of the
hearing (although she claimed she did have a copy
somewhere).
c. Lorraine … and Robert … had notice of the December 6,
2019, October 1, 2020, and October 8, 2020 orders of
court.
Conclusions of Law
20. The Beneficiaries’ filing of the motion in the Superior Court of
California, County of San Mateo on October 29, 2020[,] was
done intentionally and with the intent of effecting the transfer
of assets of the [DFT] to the Beneficiaries. And that those
assets had value, in as much as the Beneficiaries were able
to sell those assets to 26th Century … in exchange for stock in
26th Century….
21. That the petition that was presented in the County of San
Mateo was done surreptitiously, without notice to persons or
entities that were interested parties.
-9-
J-A11019-23
22. That the petition omitted materially relevant facts including
the fact that an action to determine the legal status of the
Trustee of the [DFT] and for an accounting of the
administration of the Trust and assets was pending in
Lawrence County, Pennsylvania[,] and that $300,000.00 was
being held (at the request of the Beneficiaries) in an escrow
account as claimed assets of the [DFT].
23. That the filing of the petition in the County of San Mateo
intentionally omitted the fact that a previous filing by the
Beneficiaries in the County of Los Angeles had resulted in a
finding by Judge Klein that the State of California had no
jurisdiction to determine matters concerning either [Ms.]
Geer’s status as Trustee of the [DFT] or over the [DFT].
24. That the aforementioned omissions [and] lack of notice to
interested parties[] were done intentionally to effect a
transfer and the encumbrance of assets of the [DFT] to the
Beneficiaries in direct violation of the December 6, 2019,
October 1, 2020[,] and October 8, 2020 orders of this court.
25. That the aforesaid actions of [the Beneficiaries] encumbered
and diminished the value of the assets of the [DFT] (the
assets being the claim to ownership to certain intellectual
property rights related to []Buck Rogers.[]).
26. For the reasons stated above, this court finds that [the
Beneficiaries] intentionally and volitionally violated the
aforesaid court orders and are hereby held in contempt of
court.
Orphans’ Court Opinion & Order (OCOO), 3/12/21, at 1-7 (unnecessary
capitalization and emphasis omitted). Based on the foregoing, the orphans’
court issued the following order:
1. [The Beneficiaries] are ordered to pay all costs and
attorney[s’] fees incurred by [Ms.] Geer, or any entity
insuring or representing [Ms.] Geer as a result of the
Beneficiaries’ filing of the aforesaid action in the Superior
Court of California for the County of San Mateo, including but
not limited to the costs and attorney[s’] fees incurred in
preparing, presenting[,] and litigating the contempt petition
and contesting the aforementioned court order in San Mateo
- 10 -
J-A11019-23
County. The costs and fees will be determined in a separate
hearing.
2. [The Beneficiaries] are ordered to pay all costs and
attorney[s’] fees incurred by the [DFT], or any entity insuring
or representing the [DFT,] as a result of the Beneficiaries’
filing of the aforesaid action in the Superior Court of California
for the County of San Mateo, including but not limited to the
costs and attorney[s’] fees incurred in preparing,
presenting[,] and litigating the contempt petition and
contesting the aforementioned court order in San Mateo
County. The costs and fees will be determined in a separate
hearing.
3. [The Beneficiaries] are ordered to pay all costs and
attorney[s’] fees incurred by the [NFT], or any entity
representing the [NFT,] as a result of the Beneficiaries’ filing
of the aforesaid action in the Superior Court of California for
the County of San Mateo, including but not limited to the costs
and attorney[s’] fees incurred in preparing, presenting[,] and
litigating the contempt petition and contesting the
aforementioned court order in San Mateo County. The costs
and fees will be determined in a separate hearing.
4. [The Beneficiaries] are ordered to give Attorney Henry Sneath
and Attorney Frank Verterano[4] at least twenty (20) days
prior written notice of any proposed, planned[,] or
contemplated action or filing on behalf of [the Beneficiaries,]
Dennis Fox[,] or any person or entity representing any of
them with regard to any filing or action dealing in any way
with Louise Geer, the [DFT], or any asset (including any
intellectual property) now or formerly held as property of the
[NFT] (this specifically includes, but is not limited to, any
intellectual property right to the name “Buck Rogers”).
5. [The Beneficiaries] are enjoined from transferring, assigning,
or in any way encumbering[] any intellectual property rights
now or formerly owned by the [DFT] or related to the name
“Buck Rogers,” without further order of this court. If either
[of the Beneficiaries] becomes aware that any person or
entity plans, proposes to, or is contemplating any
____________________________________________
4 Henry Sneath, Esquire, an attorney with the law firm, Houston Harbaugh,
P.C., represents the DFT and Ms. Geer, as Trustee, in this matter. Frank
Verterano, Esquire, is counsel for the NFT.
- 11 -
J-A11019-23
assignment, transfer[,] or use of any intellectual property
rights now or formerly owned by the [DFT] or related to the
name “Buck Rogers,” they must notify Attorney Sneath and
Attorney Verterano in writing within twenty-four (24) hours
of learning of the information.
6. [The Beneficiaries] are to within seven (7) days of the date of
this order, provide a copy of this order to 26th Century … and
to [any] entity or person to whom any intellectual property
now or formerly held by the [DFT] or any intellectual property
right to the name “Buck Rogers” has been transferred at any
time after February 19, 2019; and to serve Attorney Frank
Verterano and Attorney Henry Sneath with a copy of any such
notice (including a full list of each name and address and a
copy of each cover letter) within three (3) days of the serving
of the notice upon the person or entity.
7. A hearing to determine the amount of costs and attorney[s’]
fees is scheduled for the 29[th] day of March, 2021….
Attorney Sneath and Attorney Verterano are to furnish a
detailed listing of all fees and costs that have been incurred
and which are due and payable under this order to Attorney
Robleto[5] at least ten (10) days prior to the hearing….
Id. at 7-9 (unnecessary capitalization omitted).
Following the reception of testimony and evidence concerning the award
of attorneys’ fees pursuant to its March 12, 2021 order, the orphans’ court
issued an additional order, which stated the following:
1. The reasonable attorney[s’] fees incurred by the [NFT], an
intervenor in the above[-]captioned matter, as a result of the
Beneficiaries[’] filing of the aforementioned action in the
Superior Court of California for the County of San Mateo, in
preparing, presenting[,] and litigating the contempt petition
and contesting the aforementioned court order in San Mateo
County is the sum of $31,858.50.
2. [The Beneficiaries] are ordered to pay within thirty (30) days
the sum of $31,858.50 to the law firm of Verterano and
Manolis. The law firm of Verterano and Manolis is to credit
____________________________________________
5 Aurelius Robleto, Esquire, is counsel of record for Appellants.
- 12 -
J-A11019-23
or refund the [NFT] for the costs and attorney[s’] fees
awarded.
3. The reasonable attorney[s’] fees incurred by Houston
Harbaugh, P.C., in the above[-]captioned matter, as a result
of the Beneficiaries[’] filing of the aforementioned action in
the Superior Court of California for the County of San Mateo,
in preparing, presenting[,] and litigating the contempt
petition and contesting the aforementioned court order in
San Mateo County is the sum of $43,904.50.
4. [The Beneficiaries] are ordered to pay within thirty (30) days
the sum of $43,904 to the law firm of Houston Harbaugh,
P.C. Houston Harbaugh, P.C. is to credit or reimburse CNA
Insurance Company and Louise Geer in proportion to their
payments of costs and attorney[s’] fees.
5. The reasonable attorney[s’] fees incurred by Klinedinst,
P.C.[6] in the above[-]captioned matter, as a result of the
Beneficiaries[’] filing of the aforementioned action in the
Superior Court of California for the County of San Mateo, in
preparing, presenting[,] and litigating the contempt petition
and contesting the aforementioned court order in San Mateo
County is the sum of $10,120.00.
[6.] [The Beneficiaries] are ordered to pay within thirty (30) days
the sum of $10,120.00 to the Klinedinst, P.C. is [sic] to credit
or reimburse CNA Insurance Company for their payments of
costs and attorney[s’] fees….
Orphans’ Court Order (OCO), 7/8/21, at 1-2 (unnecessary capitalization
omitted).
Appellants filed a timely notice of appeal on July 26, 2021, followed by
a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On September 29, 2021, the orphans’ court issued
an order in compliance with Rule 1925(a), stating that the reasons for its
____________________________________________
6 The law firm of Klinedinst, P.C. represented Ms. Geer and the NFT in the San
Mateo, California action.
- 13 -
J-A11019-23
decision already appear of record and are contained in its March 12, 2021 and
July 8, 2021 orders.
On appeal, Appellants present the following issues for our review:
1. Whether the [orphans’] court erred or abused its discretion
by failing to apply the appropriate standard for civil contempt.
2. Whether the [orphans’] court erred or abused its discretion
by failing to strictly construe the orders forming the basis of
the allegations of civil contempt in favor of the Beneficiaries
and failing to resolve any ambiguities or omissions in the
order or orders in favor of the Beneficiaries.
3. Whether the [orphans’] court erred or abused its discretion
since the order or orders forming the basis of the allegations
of civil contempt were too vague and/or could not be
enforced.
4. Whether the [orphans’] court erred or abused its discretion
by failing to conduct any inquiry into the Beneficiaries’ ability
to pay attorneys’ fees.
5. Whether the [orphans’] court erred or abused its discretion
by failing to provide any opportunity for the Beneficiaries to
purge themselves of their alleged civil contempt before
entering sanctions against them.
6. Whether the [orphans’] court erred or abused its discretion
by entering sanctions that were punitive in nature, rather
than coercive.
7. Whether the [orphans’] court erred or abused its discretion
by awarding attorneys’ fees for legal services that had not yet
been performed.
8. Whether the [orphans’] court erred or abused its discretion
by awarding attorneys’ fees for legal services performed, or
to be performed, in certain legal proceedings then pending in
California.
9. Whether the [orphans’] court erred or abused its discretion
by granting attorneys’ fees to Intervenors, the [NFT] and/or
the [BRC], neither of which joined the contempt motion nor
filed a motion for contempt.
- 14 -
J-A11019-23
10. Whether the [orphans’] court erred or abused its discretion
by granting attorneys’ fees to the [DFT], which entity did not
join the contempt motion nor file any motion for contempt,
and which exists for the benefit of the Beneficiaries.
11. Whether the [orphans’] court erred or abused its discretion
by requiring the Beneficiaries to provide at least 20 days’ prior
notice of any proposed, planned, or contemplated action or
filing on behalf of the Beneficiaries “or [Mr.] Fox or any person
or entity representing them with regard to any filing or action
dealing in any way with [Ms.] Geer, the [DFT], or any asset
(including intellectual property) now or formerly held as
property of the [NFT] (specifically including, but not limited
to, any intellectual property right to the name ‘Buck
Rogers’).”
12. Whether the [orphans’] court erred or abused its discretion
by requiring the Beneficiaries to notify the attorneys for [Ms.]
Geer and the Intervenors, in writing, within 24 hours of the
Beneficiaries becoming aware that any person or entity plans,
proposes to, or is contemplating any assignment, transfer, or
use of any intellectual property rights now or formerly owned
by the [DFT] or related to the name “Buck Rogers.”
13. Whether the [orphans’] court erred or abused its discretion
by determining that Lorraine[’s] … testimony had not been
credible.
14. Whether the [orphans’] court erred or abused its discretion
by finding that the Beneficiaries had “intentionally and
volitionally violated” the order or orders forming the basis of
the allegations of civil contempt.
15. Whether the [orphans’] court erred or abused its discretion
by finding that the Beneficiaries had violated order(s) of the
[orphans’] court by encumbering and/or diminishing the
value of DFT’s intellectual property assets, when none of the
parties had contended that the DFT held a claim to the
intellectual property assets by April 17, 2019, when [Ms.]
Geer commenced the action in the [orphans’] court.
16. Whether the [orphans’] court erred or abused its discretion
by finding that the Beneficiaries had violated order(s) of the
[orphans’] court by (i) encumbering or diminishing the value
of DFT intellectual property assets; or (ii) intentionally
attempting to effect a transfer and encumbrance of DFT
- 15 -
J-A11019-23
intellectual property assets, considering that no party had
contended that the DFT held a claim to the intellectual
property assets by April 17, 2019, when [Ms.] Geer
commenced the action in the [orphans’] court.
17. Whether the [orphans’] court erred or abused its discretion
by finding that the Beneficiaries had violated order(s) of the
trial court by filing a petition in California, seeking
confirmation of a transfer of the DFT’s assets to its
Beneficiaries on February 20, 2019 (i.e., a date prior to [Ms.]
Geer’s commencement of the action in the [orphans’] court).
18. Whether the [orphans’] court erred or abused its discretion
by finding that the Beneficiaries had violated its order(s)
when the [orphans’] court had expressly determined that it
did not have authority to enjoin the Beneficiaries from filing
matters in other courts.
19. Whether the [orphans’] court erred or abused its discretion
by finding an action then pending in California impinged upon
the [orphans’] court’s “exclusive jurisdiction to decide
whether or not [Ms.] Geer was appointed Trustee of the [DFT]
and whether or not [Ms.] Geer continues to be the lawful
[T]rustee of [the DFT],” considering that the [T]rust
instrument contemplates the simultaneous service of more
than one trustee and the California petition was silent on
[Ms.] Geer’s disputed claim of trusteeship.
20. Whether the [orphans’] court erred or abused its discretion
by imposing sanctions based exclusively on the Beneficiaries’
conduct in a California court, when that California court had
already addressed the subject matter of the contempt
motion.
21. Whether the [orphans’] court erred or abused its discretion
by finding that the Beneficiaries had intentionally violated the
[orphans’] court’s orders dated December 6, 2019, October
1, 2020, and/or October 8, 2020.
22. Whether the [orphans’] court erred or abused its discretion,
considering that [Ms.] Geer (i.e., the movant) owed a
fiduciary duty to the Beneficiaries.
Appellants’ Brief at 3-9 (unnecessary capitalization omitted; emphasis in
original).
- 16 -
J-A11019-23
Preliminarily, we must determine whether this appeal is properly before
us. “[T]he question of appealability implicates the jurisdiction of this Court[,]”
and we may raise this issue sua sponte. McGrogan v. First Commonwealth
Bank, 74 A.3d 1063, 1074 (Pa. Super. 2013) (citation omitted). Generally,
this Court has jurisdiction only over appeals taken from final orders. See
Pa.R.A.P. 341(a); Angelichio v. Myers, 110 A.3d 1046, 1048 (Pa. Super.
2015). We have long recognized that “[a]n order finding a party in contempt
for failure to comply with a prior order of court is final and appealable, if
sanctions are imposed.” Foulk v. Foulk, 789 A.2d 254, 257 (Pa. Super.
2001) (en banc) (citations omitted; emphasis added). See also Glynn v.
Glynn, 789 A.2d 242, 248 (Pa. Super. 2001) (“[F]or a contempt order to be
properly appealable, it is only necessary that the order impose sanctions on
the contemnor and that no further court order be required before the sanctions
take effect.”). Conversely, “[u]ntil sanctions are actually imposed by the trial
court, an order declaring a party in contempt is interlocutory and not
appealable.” Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. 2001).
In the case sub judice, the March 12, 2021 order declared Appellants in
contempt of court and ordered them to pay the attorneys’ fees and costs
incurred by Appellees in connection with litigating the contempt petition and
contesting Appellants’ California filing; however, a separate hearing was
scheduled to determine the precise amount of fees and costs. Thus, the
contempt order did not become final and appealable until the entry of the July
8, 2021 order, which declared the amount of attorneys’ fees and costs to be
- 17 -
J-A11019-23
paid by Appellants. Foulk, supra; Glynn, supra; Lachat, supra. We
therefore conclude that while Appellants’ claims appear to relate to the original
March 12, 2021 contempt order, the appeal properly lies from the July 8, 2021
order, which finalized the contempt order and indicated the amount of
sanctions to be imposed. See Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa.
Super. 2008) (“[I]nterlocutory orders that are not subject to immediate
appeal as of right … become reviewable on appeal upon the trial court’s entry
of a final order.”) (citations and brackets omitted).
Prior to undertaking any analysis of the merits of the numerous issues
raised by Appellants, we must next determine whether Appellants have
properly preserved their issues for appellate review. It is well-settled that
appellate briefs must conform in all material respects with the briefing
requirements set forth in our Rules of Appellate Procedure. Pa.R.A.P. 2101.
“This Court may quash or dismiss an appeal if the appellant fails to conform
to the requirements set forth in the Pennsylvania Rules of Appellate
Procedure.” In re Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010). See
also Pa.R.A.P. 2114-2119 (addressing the specific requirements for each
subsection of an appellate brief).
Relevant to our discussion in the instant matter, Rule 2116 provides
that:
[The] Statement of Questions Involved … must state concisely
the issues to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail. The
statement will be deemed to include every subsidiary question
fairly comprised therein. No question will be considered unless it
- 18 -
J-A11019-23
is stated in the statement of questions involved or is fairly
suggested thereby….
Pa.R.A.P. 2116(a) (emphasis added).7
Moreover, as to the argument section of an appellate brief, Rule 2119(a)
provides:
The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part –
in distinctive type or in type distinctively displayed – the particular
point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a).
Importantly, where an appellant fails to raise or properly develop issues
on appeal, or where his or her brief is wholly inadequate to present specific
issues for review, we will not consider the merits of the claims raised on
appeal. See Butler v. Illes, 747 A.2d 943, 944-45 (Pa. Super. 2000)
(determining that the appellant waived her claim where she failed to set forth
an adequate argument concerning her claims on appeal; the appellant’s
argument lacked meaningful substance and consisted of mere conclusory
statements; the appellant failed to cogently explain or even tenuously assert
____________________________________________
7 Similarly, where the trial court directs the appellant to file a concise
statement of errors complained of on appeal, Rule 1925(b) provides that the
statement shall “set forth only those errors that the appellant intends to assert
… [and] … concisely identify each error that the appellant intends to assert
with sufficient detail to identify the issue to be raised for the judge.” Pa.R.A.P.
1925(b)(4)(i), (ii) (emphasis added). “Each error identified in the Statement
will be deemed to include every subsidiary issue that was raised in the trial
court[,]” and “[i]ssues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(v), (vii).
- 19 -
J-A11019-23
why the trial court abused its discretion or made an error of law). See also
Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (explaining that
the appellant’s arguments must adhere to the Rules of Appellate Procedure
and that arguments which are not appropriately developed are waived on
appeal; arguments that are not appropriately developed include those where
the party has failed to cite relevant authority in support of his or her
contention); Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super.
2002) (stating that the Rules of Appellate Procedure make clear that an
appellant must support each question raised by discussion and analysis of
pertinent authority; absent a reasoned discussion of the laws in an appellate
brief, this Court’s ability to provide appellate review is hampered,
necessitating waiver of the issue on appeal).
Instantly, we begin by noting with displeasure Appellants’ failure to
concisely state the issues which they wish to have resolved on appeal, in
violation of Rule 2116(a). While the history of this case is rather involved,
this appeal stems from a straightforward civil contempt order imposing
sanctions on Appellants in the form of attorneys’ fees and costs incurred by
the other parties. We deem the 22 issues listed in Appellants’ Statement of
Questions Involved and spanning 6 pages in their brief to be excessive under
such circumstances. See Jones v. Jones, 878 A.2d 86, 89-90 (Pa. Super.
2005) (finding waiver where the appellant raised twenty-nine issues in her
seven-page Rule 1925(b) statement); Kanter v. Epstein, 866 A.2d 394, 401
(Pa. Super. 2004) (concluding that the defendants in a relatively
- 20 -
J-A11019-23
straightforward breach of contract action had violated the Rules of Appellate
Procedure by raising an outrageous number of issues in their 1925(b)
statements). But cf. Mahonski v. Engel, 145 A.3d 175, 180-81 (Pa. Super.
2016) (noting that our Supreme Court has distinguished from Kanter the
underlying facts of a case in which the appellants had a reasonable basis to
include a large number of issues in their 1925(b) statement as they had filed
a complicated lawsuit with numerous counts and multiple defendants that
resulted in a large number of trial court rulings) (citing Eiser v. Brown
Williamson Tobacco Corp., 938 A.2d 417, 427-28 (Pa. 2007)). Additionally,
we admonish Appellants for their failure to comply with Rule 2119(a).
Although they set forth 22 issues for our review in their Statement of
Questions Involved, the argument portion of their brief contains only two
sections – the first being further divided into four subsections. Appellants’
failure to adhere to our briefing requirements frustrates our appellate review;
however, we decline to quash the appeal on these grounds. See In re
Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010) (“This Court may quash or
dismiss an appeal if the appellant fails to conform to the requirements set
forth in the Pennsylvania Rules of Appellate Procedure.”).
Nevertheless, we deem numerous claims waived based on the following
additional transgressions. For instance, Appellants appear to have abandoned
issues 19 (regarding whether the orphans’ court erred in determining that an
action pending in California impeded upon its exclusive jurisdiction to
determine whether Ms. Geer is the lawful Trustee of the DFT), 20 (concerning
- 21 -
J-A11019-23
whether the orphans’ court erred by imposing sanctions based on the
Beneficiaries’ conduct in a California Court), and 22 (as to whether the
orphans’ court erred considering that Ms. Geer owed a fiduciary duty to the
Beneficiaries). There is no mention whatsoever of these claims in the
Argument section of their brief. Hence, we are constrained to deem these
issues waived. See Estate of Haiko, supra.Issues 11 and 12 (regarding whether the orphans’ court erred in
imposing notice requirements on the Beneficiaries) are only briefly mentioned
in Appellants’ Summary of Argument in the form of a conclusory statement.
See Appellants’ Brief at 17 (“[T]he [orphans’ c]ourt improperly imposed a
requirement that the Beneficiaries provide advance notice of any planned legal
actions involving the parties in any jurisdiction – potentially impacting the
Beneficiaries’ right to due process of law. Also, and without explanation, the
[orphans’ c]ourt required the Beneficiaries to report any knowledge of any
contemplated use of intellectual property previously in the DFT.”) (internal
citation to record omitted). Appellants provide no legal support or analysis
for these contentions whatsoever, and we therefore deem their issues waived.
See In re S.T.S., Jr., 76 A.3d 24, 42 (Pa. Super. 2013) (“When an appellant
fails to develop his issue in an argument and fails to cite any legal authority,
the issue is waived. [M]ere issue spotting without analysis or legal citation to
support an assertion precludes our appellate review of a matter.”) (citations
omitted).
- 22 -
J-A11019-23
Our review of Appellants’ argument further reveals that many of their
claims – namely, issues 4 through 10, relating to the attorneys’ fees awarded
by the orphans’ court – are woefully underdeveloped and are unsupported by
any citation to the record or relevant legal authority, in violation of Rule
2119(a), and/or were not mentioned by Appellants in their Statement of
Questions Involved, as mandated by Rule 2116(a). See Appellants’ Brief at
24-26; Pa.R.A.P. 2119(a) (stating that the argument shall include “such
discussion and citation of authorities as are deemed pertinent”). In the
corresponding section of their argument, Appellants first contend that the
court’s determination of a fee award was wholly improper and “contradicts
controlling precedent.” Appellants’ Brief at 24 (unnecessary capitalization
omitted). We need not consider the merits of this contention, however, as
Appellants failed to include this claim in their Statement of Questions Involved.
See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.”); Wirth
v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014) (“[Rule 2116(a)] is to be
considered in the highest degree mandatory, admitting of no exception;
ordinarily no point will be considered which is not set forth in the statement
of questions involved or suggested thereby.”) (citation omitted).
Alternatively, Appellants argue that even if the award of attorneys’ fees
was appropriate here, the particular fee amounts awarded are improper.
Appellants’ Brief at 24. Nonetheless, their argument consists merely of
general statements unsupported by any discussion and analysis of relevant
- 23 -
J-A11019-23
legal authority. For instance, underpinning their claim, Appellants baldly
assert that the orphans’ court made no inquiry into their ability to pay the
legal fees, nor did it afford them any opportunity to purge themselves of their
alleged contemptuous conduct. Id. at 26. Appellants fail to explain how this
constitutes an abuse of discretion. Moreover, they conclusively state that
lower courts do not have the authority to award future attorneys’ fees,
attorneys’ fees to non-movants, and/or attorneys’ fees related to litigation
pending before other courts. Id. at 25. Their argument is void, however, of
any meaningful discussion of, or citation to, relevant legal authority. The only
case cited by Appellants in this section of their argument is Sutch v.
Roxborough Mem’l Hosp., 142 A.3d 38, 69 (Pa. Super. 2016), for the
proposition that an award of counsel fees in connection with a civil contempt
finding can be coercive and compensatory, but not punitive. Yet, Appellants
fail to explain how this applies to the instant matter. It is not our job to
develop this argument on behalf of Appellants. See Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). Hence, we conclude that issues
4 through 10 are waived due to Appellants’ failure to develop their argument.
See Lackner, supra; Estate of Haiko, supra; Butler, supra.8
____________________________________________
8 To the extent that Appellants argue that the fees awarded to Ms. Geer were
improper, as her attorneys’ fees had been primarily paid by her malpractice
insurer, and that the fees awarded to the DFT were “functionally impossible[,]”
see Appellants’ Brief at 26-27, we deem these issues waived due to
Appellants’ failure to include them in their Statement of Questions involved.
See Pa.R.A.P. 2116(a); Wirth, supra.
- 24 -
J-A11019-23
We review Appellants’ remaining claims mindful of the following:
[O]ur scope of review when considering an appeal from an order
holding a party in contempt of court is narrow. Hyle v. Hyle, 868
A.2d 601[, 604] … (Pa. Super. 2005). We will reverse only upon
a showing of an abuse of discretion. Lachat, 769 A.2d at 487.
This [C]ourt must place great reliance on the sound discretion of
the trial judge when reviewing an order of contempt. Id.Rhoades v. Pryce, 874 A.2d 148, 153 (Pa. Super. 2005).
We begin our analysis by addressing issues 1 through 3, 14 through 18,
and 21, jointly, as each of these claims are included in Section A of Appellants’
Argument and relate to the orphans’ court’s finding Appellants in contempt for
the intentional violation of its prior orders. See Appellants’ Brief at 18-28.
Essentially, Appellants aver that the orphans’ court abused its discretion by
failing to apply the appropriate standard for civil contempt. Id. at 18.
It is well-established that:
To find one in civil contempt, a complainant must prove by a
preponderance of the evidence that the respondent is in
noncompliance with a court order. The order must be clear,
definite, and specific. To sustain a finding of civil contempt, the
complainant must prove that: (1) the contemnor had notice of the
specific order or decree which he is alleged to have violated; (2)
the act constituting the contemnor’s violation was volitional, and
(3) the contemnor acted with wrongful intent.
Thomas v. Thomas, 194 A.3d 220, 226 (Pa. Super. 2018). “Because the
order forming the basis for civil contempt must be strictly construed, any
ambiguities or omissions in the order must be construed in favor of the
defendant.” Sutch, 142 A.3d at 67. “A person may not be held in contempt
- 25 -
J-A11019-23
of court for failing to obey an order that is too vague or that cannot be
enforced.” Id. at 68.
By way of review, the orphans’ court’s December 6, 2019, October 1,
2020, and October 8, 2020 orders form the basis of the contempt finding in
the instant matter. The December 6, 2019 order provided in pertinent part:
“Until further [o]rder of [c]ourt, there is to be no disbursement, distribution,
or encumbrance of any asset of the [DFT].” Order, 12/6/19, at ¶ 1(a). The
October 1, 2020 order scheduled a hearing on the issue of Ms. Geer’s status
as Trustee of the DFT and stated: “This court’s orders in this case, including
the December 6, 2019 order enjoining all parties [from] disbursing,
distributing[,] or encumbering any asset of the [DFT], remain in full force and
effect. Any violation of the December 6, 2019 order will subject the violator
to contempt of court sanctions.” Order, 10/1/20, at ¶ 4 (unnecessary
capitalization omitted). On October 8, 2020, the orphans’ court issued an
order declaring, inter alia:
This court has determined that it has subject matter jurisdiction
to decide the status of Louise Geer as Trustee of the [DFT].
Nonetheless, this court does not have authority to enjoin any
party from filing matters, no matter how frivolous, in other
jurisdictions throughout this country. But all parties to this matter
are before this court and this court has exclusive jurisdiction to
decide whether or not [Ms.] Geer was appointed as Trustee of the
[DFT] and whether or not [Ms.] Geer continues to be the lawful
Trustee of the [DFT]. All parties will be bound by this court’s
decision.
Order, 10/8/20, at ¶ 6 (unnecessary capitalization omitted).
- 26 -
J-A11019-23
Instantly, there is no question that Appellants had notice of the orders
which they are alleged to have violated. See Order, 3/2/21 (single page)
(declaring that “the element of notice has … been established as a matter of
law[,]” as Appellants and their counsel have each “judicially admitted” that
they had notice of the court’s orders that they allegedly violated as set forth
in Ms. Geer’s motion for contempt). See also N.T., 3/3/21, at 31-34
(Lorraine’s testifying that she had notice of each of the orders and that she
understood what each order meant). Thus, the first element of establishing
civil contempt has been met. See Thomas, supra.Appellants’ claims regarding the orphans’ court’s finding them in
contempt are directed toward the second and third elements set forth in
Thomas, i.e., whether the act constituting their violation was volitional, and
whether they acted with wrongful intent. First, Appellants contend that the
court erred in determining their October 29, 2020 filing in San Mateo,
California “was done intentionally and with the intent of effecting the transfer
of assets of the [DFT]” to Appellants, in direct violation of the court’s prior
orders. Appellants’ Brief at 21-22 (citing OCOO at ¶¶ 20, 24). Their argument
is primarily based on the faulty premise that the orphans’ court “glossed over
the undisputed fact that the DFT did not hold any intellectual property rights”
at the time this action was commenced. See id. at 20 (asserting that
Appellants removed the intellectual property rights from the DFT on February
20, 2019, immediately following the bankruptcy dismissal, and then sold them
to 26th Century; alternatively, Ms. Geer and the Intervenors contend that the
- 27 -
J-A11019-23
NFT acquired the intellectual property rights from the DFT as part of a
settlement agreement reached on February 28, 2019). Based on their
allegation regarding the nonexistence of Trust assets at the time, they
conclude that it would have been “impossible” for them to violate any of the
court’s orders prohibiting the transfer, disbursement, or encumbrance of Trust
assets. Id. at 22. We are unconvinced.
It is hardly an “undisputed fact[,]” as Appellants suggest, that when Ms.
Geer commenced this action, the DFT no longer possessed any intellectual
property rights. To the contrary, the status and value of the Trust assets were
very much still in dispute at the time Appellants were held in contempt of
court. A bifurcated trial was still pending, with a hearing on Ms. Geer’s
proposed distribution of the DFT assets to be held separately from the hearing
regarding whether Ms. Geer was lawfully appointed as the Trustee.
Additionally, we note that the orphans’ court did not find Lorraine’s testimony
regarding the alleged February 20, 2019 transfer of Trust assets to be
credible. See OCOO at ¶ 19. Not to mention the fact that the court’s ultimate
determination regarding Ms. Geer’s status as Trustee could potentially affect
the ownership of Trust assets, e.g., the purported settlement agreement
between the DFT and NFT may be found invalid. See Order, 2/24/20, at ¶ 3
(granting the Intervenor’s petition to intervene and acknowledging that if the
court determines “[Ms.] Geer was not the lawful and authorized Trustee of the
[DFT] when she entered the … Settlement Agreement [with the NFT] or
Trademark Assignment [with the BRC], that ruling will have a direct effect on
- 28 -
J-A11019-23
any claim by the Intervenors to the rights in the name and trademark of Buck
Rogers).
Moreover, we believe Appellants’ insistence that they could not be in
contempt of the orphans’ court’s orders because the DFT no longer held any
intellectual property rights is disingenuous, considering that the December 6,
2019 order forbidding the disbursement, distribution, or encumbrance of any
DFT asset was entered in response to Appellants’ own motion seeking an
injunction against all parties prohibiting the transfer, disbursement,
distribution, or encumbrance of any asset of the DFT. See Emergency Petition
for Preliminary Injunction, 12/4/19, at ¶ 20 (“The Beneficiaries request a
preliminary injunction preventing [Ms.] Geer from taking any action in her
purported capacity as trustee of the DFT and to prevent the use, sale, transfer
or other disposition of any asset of the DFT.”); id. at ¶ 22 (claiming “the
Beneficiaries have discovered that [Ms.] Geer has attempted to transfer
certain of the DFT’s trademarks and other intellectual property rights in the
United States and abroad”). See also OCOO at ¶ 17 (noting that Robert
testified in his deposition on November 18, 2020 that “he believed the [DFT]
owned certain intellectual property rights and that the petition in San Mateo
County was presented to secure the distribution to [him] and his sister”).
Thus, no relief is due on this basis.
As for Appellants’ alleged violation of the October 8, 2020 order, they
argue:
- 29 -
J-A11019-23
If the [orphans’ c]ourt lacked the “authority to enjoin any party
from filing matters, no matter how frivolous, in other jurisdictions
throughout this country,” it reasonably appeared to [Appellants]
that their California filing could not have violated any [o]rder of
the [orphans’ c]ourt. Therefore, even if any of the [o]rders could
reasonably have been read to forbid [Appellants’] California filing
(but they couldn’t have been), [Appellants] still would not have
been in civil contempt since “a person may not be held in contempt
of court for failing to obey an order that is too vague or that cannot
be enforced.” Sutch, 142 A.3d at 67-68.
Id. at 23-24. This claim has no merit. The orphans’ court’s lack of authority
to enjoin Appellants from filing actions in other jurisdictions is not dispositive
as to whether their actions constituted an intentional and volitional violation
of the court’s order. The October 8, 2020 order clearly stated that the
orphans’ court had “exclusive jurisdiction to decide whether or not [Ms.] Geer
was appointed as Trustee of the [DFT] and whether or not [Ms.] Geer
continues to be the lawful Trustee of the [DFT]. All parties will be bound by
this [c]ourt’s decision.” Order, 10/8/20, at ¶ 6. Nonetheless, Appellants
subsequently filed their petition in San Mateo, California, asserting that Mr.
Fox was the acting Trustee of the DFT, and seeking to approve his distribution
of “all Trust assets” to Appellants. See OCOO at ¶¶ 9-11. See also id. at ¶¶
10, 13 (noting that Appellants’ filing in San Mateo claimed there were no other
interested parties – other than Appellants and Mr. Fox – and made no mention
of Judge Klein’s order dismissing Appellants’ earlier petition with prejudice
based on his finding that California did not have jurisdiction over Ms. Geer or
the DFT).
- 30 -
J-A11019-23
Lastly, Appellants conclude there is “no credible argument that the three
[o]rders … which [they] are alleged to have violated[] are ‘definite, clear,
and specific – leaving no doubt or uncertainty in the mind of the contemnor
of the prohibited conduct[,]’ as would have been required to support a finding
of civil contempt.” Appellants’ Brief at 24 (quoting Sutch, 142 A.3d at 67;
emphasis added by Appellants). We deem this argument waived, as
Appellants fail to explain how the order(s) are vague and/or in what way they
raise any doubt as to the type of conduct prohibited by the court. See In re
S.T.S., Jr., supra. We decline to develop an argument on Appellants’ behalf.
See Hardy, supra. Nevertheless, we would conclude that the orphans’
court’s December 6, 2019, October 1, 2020, and October 8, 2020 orders are
clear and unambiguous.
In sum, we believe that the orphans’ court’s findings which led to its
determination that Appellants volitionally acted with wrongful intent in
violation of its prior orders are supported by the record, and we discern no
abuse of discretion. Thus, we conclude all three prongs have been established
to sustain the court’s finding of civil contempt. See Thomas, supra.Finally, we consider the merits of issue 13, regarding the orphans’
court’s credibility determination as to Lorraine, which Appellants address in
Section B of their Argument. See Appellants’ Brief at 28-32. As stated in the
orphans’ court’s March 12, 2021 Findings of Fact, “Lorraine … testified that
the intellectual rights owned by the [DFT] were transferred to she [sic] and
her brother on February 20, 2019[,] and that she and her brother immediately
- 31 -
J-A11019-23
sold those intellectual rights to 26th Century … in exchange for significant stock
in 26th Century….” OCOO at 5 ¶ 19. For the purposes of the contempt hearing,
the orphans’ court did not find this testimony credible, stating the following
reasons:
a. Evidence presented showed that 26th Century … did not come
into existence until May 2, 2019.[9]
b. Lorraine … testified that there was a written document
transferring the intellectual rights owned by the Trust.
However, she did not produce any such document in the
extensive discovery that had taken place in this case and could
not produce any such document at the time of the hearing
(although she claimed she did have a copy somewhere).
c. [Appellants] had notice of the December 6, 2019, October 1,
2020, and October 8, 2020 [o]rders of [c]ourt.
Id.Appellants accuse Ms. Geer and her counsel of “deceiv[ing]” the
orphans’ court into believing that 26th Century did not exist in February 2019
by “falsely present[ing] an Information Statement … to support a finding of
an inaccurate formation date.” Appellants’ Brief at 29. They contend that
they were unable to produce evidence at the contempt hearing to establish
the 26th Century’s purported “actual filing date” of February 25, 2019, only
because the court “did not direct the parties to exchange exhibits prior to the
[c]ontempt [h]earing,” and they “could not have predicted” that Ms. Geer
would introduce such “misleading evidence.” Id. at 28. Two days after the
____________________________________________
9 See N.T., 3/12/21, at 113-14 (Ms. Geer’s counsel’s entering into evidence
the Secretary of State of California’s corporate filing docket, indicating that
26th Century was not formed until May 2, 2019).
- 32 -
J-A11019-23
close of the hearing, Appellants sought to supplement their exhibits “to allow
the [c]ourt a clear view of the facts,” but the court granted a motion to strike
filed by Ms. Geer.10 Instantly, Appellants claim that the orphans’ court’s
acceptance of Ms. Geer’s “misleading evidence, without allowing [them] an
opportunity to rebut that evidence [was] legal error.” Id. at 31. Additionally,
they suggest that the court “erred once more” by granting Ms. Geer’s motion
to strike their supplemental exhibits. Id. at 30. We deem Appellants’
arguments to be wholly without merit.
To the extent that Appellants are asking this Court to reassess the
orphans’ court’s credibility determinations, we simply cannot do that. See
Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d
1188, 1191-92 (Pa. Super. 2018) (“The trial court, as the finder of fact, is free
to believe all, part[,] or none of the evidence presented. Issues of credibility
and conflicts in evidence are for the trial court to resolve; this Court is not
permitted to reexamine the weight and credibility determination or substitute
our judgment for that of the fact finder.”) (internal citations and quotation
marks omitted).
On the other hand, to the extent that Appellants claim the orphans’ court
erred in not allowing them the opportunity to rebut Ms. Geer’s evidence
regarding 26th Century’s registration date and in denying them reconsideration
____________________________________________
10Appellants filed a motion for reconsideration of, inter alia, the orphans’
court’s granting of Ms. Geer’s Motion to Strike Beneficiaries’ Praecipe to
Supplement Exhibits; however, following a hearing on the matter, Appellants’
motion was denied. See Order, 3/24/21, at 1-2.
- 33 -
J-A11019-23
of its decision to strike their petition to supplement their exhibits, we conclude
that Appellants have waived these issues, as they are not included in their
Statement of Questions Involved. See Pa.R.A.P. 2116(a); Wirth, supra. The
issue of whether the court erred in finding Lorraine’s testimony not credible is
a different claim than whether the court erred in denying Appellants’ request
to supplement the record post-hearing, and we do not believe that the latter
constitutes a “subsidiary question[] fairly comprised” within the former.
Pa.R.A.P. 2116(a).
Nevertheless, even if Appellants had preserved their evidentiary issues,
we would conclude that no relief is due. In their effort to attack the orphans’
court’s finding that 26th Century was not formed until May 2019, Appellants
improperly reference documents that are not a part of the certified record and,
therefore, cannot be considered by this Court. See Appellants’ Brief at 29-30
(citations omitted). See also Commonwealth v. Preston, 904 A.2d 1, 6
(Pa. Super. 2006) (“[A]n appellate court is limited to considering only the
materials in the certified record when resolving an issue…. [U]nder the
Pennsylvania Rules of Appellate Procedure, any document which is not part of
the officially certified record is deemed non-existent – a deficiency which
cannot be remedied merely by including copies of the missing documents in a
brief or in the reproduced record.”) (citations omitted).
Moreover, it is generally within the discretion of the trial court to reopen
the record at the request of a party, prior to final judgment, for the purpose
of presenting additional evidence. See Commonwealth v. Safka, 141 A.3d
- 34 -
J-A11019-23
1239, 1249 (Pa. 2016) (“[I]t is well-established that the trial court has
discretion to permit either side to reopen the case to present additional
evidence prior to the verdict, the exercise of which is directed at preventing a
failure or a miscarriage of justice.”). A trial court’s ruling denying a request
for the introduction of additional evidence will only be disturbed where the
court has abused its discretion. In re J.E.F., 409 A.2d 1165, 1166 (Pa. 1979).
Instantly, Appellants’ single-sentence praecipe merely asked the court to
“[k]indly [s]upplement the within Exhibits” for the March 3, 2021 contempt
hearing, providing no explanation whatsoever as to why the court should allow
the supplementation of evidence or how the denial of such request would lead
to a miscarriage of justice. As the orphans’ court explained at the hearing on
the motion for reconsideration:
Inasmuch as [Appellants are] requesting the [c]ourt to look at
evidence that was not introduced, not offered, not accepted into
evidence, not admitted into evidence, the [c]ourt cannot do that
and will not do it. I haven’t looked at the exhibits that are
attached[,] … and I’m not going to look at those exhibits.
N.T., 3/23/21, at 2. We would not discern an abuse of discretion in the
orphans’ court’s decision to deny reconsideration of its striking Appellants’
praecipe to supplement exhibits where Appellants had the opportunity to
produce such evidence at the contempt hearing but failed to do so, and did
not provide the orphans’ court with any reason to permit supplementation.
Finally, we would not be persuaded by Appellants’ argument that they
could not have known they would need to produce evidence at the contempt
hearing to establish the formation of 26th Century. Appellants knew that Ms.
- 35 -
J-A11019-23
Geer was seeking to have them found in contempt for, inter alia, violating the
December 6, 2019 order, which prohibited the transfer, disbursement, or
encumbrance of DFT assets. Given Appellants’ position that they could not
have violated the order because they had already transferred all of the DFT
assets to themselves on February 20, 2019, and then immediately sold them
to 26th Century in exchange for stock, we would determine that they should
have been prepared to introduce evidence to support their defense, e.g.,
documentation regarding the transfer of assets from the DFT to Appellants;
the sale of assets from Appellants to 26th Century; Appellants’ acquisition of
26th Century stock. Moreover, we would note that the orphans’ court did not
find Lorraine’s testimony incredible solely based on her inability to produce
evidence that 26th Century was in existence as of February 20, 2019. Rather,
the court also opined that Lorraine failed to “produce any document in the
extensive discovery that had taken place in this case and could not produce
any such document at the time of the hearing” to prove that Appellants
transferred the intellectual rights owned by the DFT to themselves on February
20, 2019. OCOO at ¶ 19(b). See also id. at ¶ 19(c) (further noting that
Appellants had notice of the December 6, 2019, October 1, 2020, and October
8, 2020 orders).
Accordingly, we affirm the orphans’ court’s July 8, 2021 order imposing
sanctions in the amount of $85,883.00, after its finding Appellants in contempt
of court.
Order affirmed.
- 36 -
J-A11019-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2023
- 37 -