In Re: Calderon, E. Appeal of: Calderon, W.

J-A33024-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ERSKINE BREWSTER : IN THE SUPERIOR COURT OF
KINGSBURY CALDERON, INTERVIVOS : PENNSYLVANIA
TRUST :
:
APPEAL OF: WAYNE J. CALDERON :
AND ERSKINE B. CALDERON : No. 1249 EDA 2014
Appeal from the Order Entered March 26, 2014,
in the Court of Common Pleas of Philadelphia County,
Orphan’s Court at No(s): 1134 IV of 2013
BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 23, 2015
Wayne J. Calderon and Erskine B. Calderon (Appellants) appeal pro se
from an order which sustained the preliminary objections filed by William R.
Strecker and Jayne B. Poole (Appellees). This order also dismissed with
prejudice Appellants’ petition, which is succinctly entitled, “Petition for
citation to compel William R. Strecker and Jayne B. Poole to re-register
1,520 shares of Kingsbury, Inc. capital stock from Erskine B.K. Calderon
Credit Shelter and Marital Deduction Trusts in equal parts to Erskine B.
Calderon, Wayne J. Calderon, and Matthew M. Calderon, the lineal
descendants of Erskine B.K. Calderon or show cause why they should not be
compelled to re-register said stock” (the petition). In addition, Appellees
have filed in this Court a motion to dismiss the appeal and a motion for the
imposition of sanctions against Appellants pursuant to Pa.R.A.P. 2744. We
deny Appellees’ motions and affirm the order of the orphans’ court.
* Retired Senior Judge assigned to the Superior Court.
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The orphans’ court summarized the background underlying this matter
as follows.
Introduction
The petition filed by two children of decedent Erskine
Brewster Kingsbury Calderon (“Erskine, Sr.”) raises the issue of
whether the President/CEO and the Corporate Secretary of
Kingsbury, Inc. should be compelled to re-register to
[Appellants] 1,520 shares of Kingsbury, Inc. capital stock that
had been transferred to the trustees of two trusts: the Erskine
B.K. Calderon Marital Trust and Erskine B.K. Calderon Credit
Shelter Trust. [Appellants] claim that this stock should be re-
registered to them as the lineal descendants of their deceased
father based on a November 1, 1965 Option to Purchase
Agreement/Restrictive Covenant with Kingsbury Machine Works,
Inc. (hereinafter “November 1, 1965 Agreement”). [Appellees
filed preliminary objections to the petition, arguing that the
petition should be dismissed because Appellants failed to join
indispensable parties to the action and because the petition fails
to state a viable cause of action.]
Factual Background
At the time of his death, [Appellants] allege that their
father, Erskine, Sr. owned 1,520 shares of capital stock in
Kingsbury, Inc. Erskine, Sr. died on August 16, 2008 in Clyde
County, North Carolina. He had been married to Diana Calderon
for 32 years and he resided at 626 Dundee Lane, Holmes Beach,
Florida. The founder of the Kingsbury Company was the
decedent’s grandfather, Dr. Kingsbury, who had five children.
On April 26, 1965, Erskine, Sr. received 100 shares of Kingsbury
stock from the trustee of his mother Elisabeth’s trust. On
October 5, 1976, Erskine, Sr. directed Kingsbury to register his
100 shares in the name of “Erskine B. Calderon Trustee U/D/T of
Erskine B. Calderon dated 9/30/76.” On January 23, 1992,
Kingsbury reissued the 100 shares in the name of “Erskine B.
Calderon” at his request. Nearly three years later, on June 16,
1995, these 100 shares of stock split 4-1, so that Erskine, Sr.
owned 400 shares. Erskine[, Sr.] shortly thereafter directed
Kingsbury to register these 400 shares in in name of “Erskine
B.K. Calderon, as Trustee of the Erskine B.K. Calderon Living
Trust U/A dated 5/31/95.” On December 31, 2001, these 400
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shares split again 4-1, so that Erskine, Sr. then owned 1600
shares. On December 6, 2005, Erskine[, Sr.] gave 10 of these
1600 shares to Matthew Calderon and Wayne Calderon. Erskine,
Sr. retained 1,590 shares in the name of Erskine B. Calderon, as
trustee of the Erskine B.K. Calderon Living Trust U/A 5/31/95.[]
In March 2008, Erskine, Sr. gave another 70 shares of stock to
his sons Matthew Calderon and Wayne Calderon, leaving 1,520
shares in his name as trustee of the Erskine B. Calderon Living
Trust.
Following Erskine Sr.’s death, [Appellees] note, at the
direction of Mrs. Calderon’s attorney, decedent’s 1,520 shares
were divided and transferred on May 29, 2009 to two trusts
identified in decedent’s living trust: 581 shares were registered
to Diana L. Calderon as trustee of the Erskine B.K. Calderon
Marital Trust (hereinafter “Marital Trust”); 939 shares were
registered to Diana L. Calderon and Matthew Calderon as to Co-
Trustees of the Erskine B.K. Calderon Credit Shelter Trust
(hereinafter “Credit Shelter Trust”). On January 3, 2011,
Kingsbury re-registered the stock at the request of Mrs.
Calderon’s attorney with 874 shares to be held by the trustees of
the Credit Shelter Trust and 646 shares to be held by the trustee
of the Marital Trust.
[Appellants] failed to attach any of these trust documents
to their petition, although the caption of their pleading is
“Erskine Brewster Calderon, Intervivos Trust” and they
acknowledge these facts in their answer without objection to the
preliminary objections. Instead of these trust documents,
Appellants premise their claim to the shares of Kingsbury stock
exclusively on [the] November 1, 1965 Agreement between
Erskine R. Calderon as well as other holders of capital stock of
Kingsbury Machine Works and Kingsbury Machine Works.…
Orphans’ Court Opinion, 3/27/2014, at 1-2 (footnotes omitted).
As we mentioned above, Appellees filed preliminary objections to the
petition. In pertinent part, pursuant to Pa.R.C.P. 1028(a)(5), Appellees
contended that the orphans’ court lacked subject matter jurisdiction and
could not grant relief to Appellants because Appellants failed to join
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necessary and indispensable parties to this action. Specifically, Appellees
asserted that necessary parties to the action include the Marital Trust, the
Credit Shelter Trust, Diana Calderon, and Matthew Calderon. In addition,
pursuant to Pa.R.C.P. 1028(a)(4), Appellees argued that the orphans’ court
should dismiss the petition because it failed to state a cognizable claim
against Kingsbury, Inc. In this regard, Appellees maintained that the
November 1, 1965 Agreement did not create an ownership right for
Appellants in the disputed stock.
After Appellants responded to the preliminary objections, the orphans’
court sustained the objections that we discussed above and dismissed the
petition with prejudice. The court provided an opinion in support of its
decision. Appellants timely filed a notice of appeal. 1 Appellees later filed in
this Court a motion to dismiss the appeal and a motion for the imposition of
sanctions against Appellants pursuant to Pa.R.A.P. 2744.
In their brief to this Court, Appellants ask us to consider the following
questions:
1. Did the [orphans’ c]ourt err or otherwise abuse its discretion
in its interpretation of the 1965 Agreement that the Option to
Purchase was conditional to a Stockholder’s “wish to sell” stock?
2. Did the [orphans’ c]ourt err in holding that the option to
purchase was personal to the signatories of the November 1,
1965 Agreement and did not render the Erskine B.K. Calderon’s
lineal descendants the successors in interest to the Capital Stock
owned by him?
1
Pa.R.A.P. 1925(b) is not implicated in this case.
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Appellants’ Brief at 5 (suggested answers and unnecessary capitalization
omitted).
The orphans’ court’s opinion makes clear that it sustained the
preliminary objections and dismissed Appellants’ petition on two grounds:
The petition failed to state a viable cause of action, and Appellants failed to
join indispensable parties. As Appellees point out in their motion to dismiss
and in their appellate brief, Appellants’ brief to this Court fails to address the
orphans’ court’s decision to sustain the preliminary objection regarding
Appellants’ failure to join indispensable parties.
Appellants carry the burden to persuade us that the orphans’ court
erred and that the error entitles them to relief. See Commonwealth v.
Claffey, 80 A.3d 780, 787 (Pa. Super. 2013) (“It is, of course, an
appellant’s burden to persuade us the trial court erred and relief is due.”).
By failing to address one of the independent grounds pursuant to which the
orphans’ court dismissed this action, Appellants have failed to meet this
burden.2 For this reason, we affirm the orphans’ court’s order.3
2
In their reply brief and their response to Appellees’ motion to dismiss,
Appellants seem to contend that, because they are the rightful owners of the
disputed stock, they are implicitly challenging the conclusion of the orphans’
that they failed to join indispensable parties. In other words, Appellants
believe that, because they own the stock, Appellees are irrelevant to this
action. Appellants’ peculiar argument puts the cart before the horse.
Appellants claim ownership to stock that currently is held by others under a
claim of right; therefore, they must bring an action against the present
holders of the stock and others with an interest in the litigation. Appellants’
brief fails to address the decision of the orphans’ court to dismiss the
petition because Appellants failed to join such parties to the action.
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Order affirmed. Motion to dismiss denied. Motion for sanctions
denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2015
3
Furthermore, we agree with the interpretation of the orphans’ court of the
November 1, 1965 Agreement. Orphans’ Court Opinion, 3/27/2014, at 3-6.
A proper interpretation of that document, particularly the paragraph entitled
“Option of Stockholders or of Corporation to Purchase Stock,” reveals that it
did not vest Appellants with an ownership interest in the disputed stock.
We also note that, while Appellants’ appeal ultimately fails, we do not
believe that the appeal requires any sanction pursuant to Pa.R.A.P. 2744.
Accordingly, we deny Appellees’ motion for sanctions.
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