J-A24032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LORI JUNE BEAVER, RICHARD AND : IN THE SUPERIOR COURT OF
PEARL CHERRY, KAREN FEDUS, AND : PENNSYLVANIA
DANIEL CHERRY, :
:
Appellants :
:
v. :
:
RICHARD A. CHERRY, JR. : No. 1407 WDA 2016
Appeal from the Order August 19, 2016
in the Court of Common Pleas of Elk County,
Orphans' Court, No(s): 11 of 2012
BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 16, 2017
Lori June Beaver, Richard and Pearl Cherry, Karen Fedus and Daniel
Cherry (“Plaintiffs”) appeal from the Order overruling their Exceptions to the
Confirmation of Account filed by Richard A. Cherry, Jr. (“Cherry”). We
affirm.
In its Opinion, the Orphans’ Court summarized the history underlying
the instant appeal as follows:
This matter commenced on March 21, 2012, by Plaintiffs’
filing a [P]etition to remove [Cherry] as a trustee under an
irrevocable trust[,] which had been created by Richard Cherry
and Pearl Cherry (both now deceased) on May 1, 2009. [Cherry]
responded with an Answer, New Matter and Counterclaim. While
said action was pending, on June 6, 2013, Plaintiffs filed the
Complaint[,] that is yet unresolved[,] alleging that [Cherry]
breached [his] fiduciary duties as a power of attorney. An
accounting was demanded. An [A]ccounting was filed on
September 9, 2013. Plaintiffs filed [O]bjections[,] and on June
18, 2014, the [O]bjections were dismissed with prejudice ….
Plaintiffs filed an appeal of said Order[,] and the appeal was
J-A24032-17
quashed by the Superior Court by a Memorandum Opinion of
February 18[, 2015,] due to the appeal being interlocutory.
[See Beaver v. Cherry, 141 A.3d 598 (Pa. Super. 2016)
(unpublished memorandum)]. The Court[,] in its Memorandum
Opinion[,] ruled that [Pa.R.A.P.] 342(a)(1) permitted an appeal
of right from an order confirming an account, but no appeal is
permitted from an order dismissing objections. In a footnote[,]
the Court noted that other matters asserted in [Plaintiffs’]
Complaint remained to be resolved.
The deaths of the trust beneficiaries rendered moot the
trust matters that had been asserted in the Complaint.
Therefore, upon return of the file to the [Orphans’ Court], the
[Orphans’ Court] held a status conference to determine what
matters remained to be resolved. [The Orphans’ Court’s] Order
of July 20, 2016[,1] resulting from said conference[,] states:
“This [c]ourt finds that the issues remaining to be resolved are
those set forth in the Complaint filed on June 6, 2013, in
Paragraphs 68, 69, and 70 of the Demand for Return of Assets,
and in Paragraphs B, C, D and E of the prayer for relief.” Said
paragraphs dealt only with the return of assets including
“monies” and any amounts due Plaintiffs as a result of the
Accounting, costs of suit and the typical “any other relief” clause.
It specifically excluded any requirement of [Cherry] to account
for his actions as Power of Attorney. There was no response to
said [O]rder by Plaintiffs.
On July 2[1], 2016, the [Orphans’ Court] also filed an
Order confirming the Power of Attorney’s Account that had been
filed on September 9, 2013. The Plaintiffs’ [O]bjections to said
Account have been dismissed with prejudice in the above
referred to Order of June 18, 2014 of [the Orphans’ Court].
There was no need for a hearing in July of 2015 on the
Confirmation[,] because the earlier ruling of [the Orphans’
Court] dismissing [O]bjections left t[he] [c]ourt with no dispute
to be resolved by a hearing. With no outstanding objections or
exceptions pending, the Account could only be confirmed.
Following the [Orphans’ Court’s] filing of the Order
confirming the Account, Plaintiffs filed a pleading for which there
is no provision in the Orphans’ Court Rules, entitling it
1
The Order denying Exceptions was dated July 20, 2016, but filed on July
21, 2016.
-2-
J-A24032-17
“Exceptions To Confirmation of Account.” [The Orphans’ Court]
then filed its Order … [on] August 19, 2016, overruling said
“Exceptions.” It is important to note that the [E]xceptions filed
were not to the Account, itself, but to an improvised pleading
excepting to the confirmation. No appeal to the Superior Court
was filed from [the Orphans’ Court’s] Order [confirming the
Account].
[Following the dismissal of their Exceptions,] Plaintiffs then
filed the instant appeal to the Superior Court[,] and in their
Notice of Appeal, they state that the appeal is of [the Orphans’
Court’s] Order of August 19, 2016….
Orphans’ Court Opinion, 1/26/17, at 1-3 (footnote added). Plaintiffs
thereafter filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
Plaintiffs now presents the following claims for our review:
I. WHETHER THE [ORPHANS’] COURT ABUSED ITS
DISCRETION OR ERRED AS A MATTER OF LAW IN
DISMISSING [PLAINTIFFS’] OBJECTIONS TO [CHERRY’S]
ACCOUNTING WITHOUT FIRST SCHEDULING AN
EVIDENTIARY HEARING OR OTHERWISE ALLOWING
[PLAINTIFFS] THE OPPORTUNITY TO BE HEARD[?]
II. WHETHER THE [ORPHANS’] COURT ABUSED ITS
DISCRETION BY SEVERELY SANCTIONING [PLAINTIFFS]
FOR “REPEATED DISCOVERY VIOLATIONS” WHEN[,] IN
FACT[,] IT WAS [CHERRY], AND NOT [PLAINTIFFS], WHO
HAD REPEATEDLY COMMITTED DISCOVERY
VIOLATIONS[?]
III. WHETHER THE [ORPHANS’] COURT ABUSED TIS
DISCRETION BY SEVERELY SANCTIONING [PLAINTIFFS]
FOR ALLEGED DISCOVERY VIOLATIONS WITHOUT
WEIGHING THE SEVERITY OF THE SANCTION AGAINST
THE LACK OF PREJUDICE TO [CHERRY], THE LACK OF
WILLFULNESS AND BAD FAITH ON THE PART OF
[PLAINTIFFS] AND THE EASE WITH WHICH THE ALLEGED
VIOLATIONS COULD BE CURED[?]
-3-
J-A24032-17
Brief for Appellants at 6-7.
As this Court has explained,
[w]hen reviewing a decree entered by the Orphan[s’] Court, we
must determine whether the record is free from legal error and
the court’s factual findings are supported by the evidence. It
must be remembered, however, the Orphan[s’] Court is the fact-
finder and thus determines the credibility of all witnesses who
may testify. We, who only receive the records of the
proceedings, do not reverse the credibility determinations of the
Orphan[s’] Court absent an abuse of discretion.
In re Dentler Family Trust, 873 A.2d 738, 744 (Pa. Super. 2005)
(emphasis, internal quotation marks and citations omitted).
Plaintiffs first two claims challenge the Orphans’ Court’s dismissal of
their Objections to the Account filed by Cherry. In their first claim, Plaintiffs
argue that the Orphans’ Court improperly granted Cherry’s Motion to dismiss
their Objections as a discovery sanction, without first scheduling an
evidentiary hearing or allowing them the opportunity to be heard. Brief for
Appellants at 20. Plaintiffs point out that the Orphans’ Court dismissed the
Objections as a discovery sanction, only two days after Cherry had filed his
Motion. Id. According to Plaintiffs, Pa.R.C.P. 208.3(a) does not allow for
the grant of relief to the moving party, “unless the motion is presented as
uncontested or the other parties to the proceeding are given an opportunity
for argument.” Id. at 20-21 (quoting Pa.R.C.P. 208.3(a)). Plaintiffs direct
our attention to this Court’s decision in Cove Centre, Inc. v. Westhover
Const. Inc., 965 A.2d 259 (Pa. Super. 2009), in support. Brief for
Appellants at 21.
-4-
J-A24032-17
In their second claim, Plaintiffs again challenge the dismissal of their
Objections to Cherry’s Account as a discovery sanction. Brief for Appellants
at 22. Plaintiffs argue that they were not repeatedly directed to comply with
discovery requests. Id. at 23. Rather, Plaintiffs argue, it was Cherry who
repeatedly committed discovery violations. Id. at 24.
Initially, we must address whether Plaintiffs have preserved their first
two claims for appellate review. Pennsylvania Rule of Appellate Procedure
342(a)(1) provides that an appeal may be taken as of right from “[a]n order
confirming an account[.]” Pa.R.A.P. 342(a)(1) (emphasis added). Rule
342 cautions that the failure to appeal an order that is immediately
appealable under subsection (a)(1) “shall constitute a waiver of all
objections to such order and such objections may not be raised in any
subsequent appeal.” Pa.R.A.P. 342(c) (emphasis added).
Our review of the record discloses that Cherry filed his Account in the
Orphans’ Court on September 9, 2013. Plaintiffs filed Objections to Cherry’s
Account. On June 18, 2014, the Orphans’ Court dismissed Plaintiffs’
Objections, but its Order did not confirm Cherry’s Account. Plaintiffs
appealed the Order dismissing their Objections. This Court quashed
Plaintiffs’ appeal, explaining that “[a]n order that merely dismisses
objections, but does not confirm an account, is not a final appealable
order.” Beaver, 141 A.3d 598 (unpublished memorandum at 4) (emphasis
added, citation omitted).
-5-
J-A24032-17
On remand, as Plaintiffs’ Objections had been dismissed in 2014, the
Orphans’ Court entered an Order confirming the Account. Orphans’ Court
Order, 7/21/16. Plaintiffs did not file an appeal of the July 21, 2016 Order
confirming the Account. Instead, they filed self-styled “Exceptions to
Confirmation of Account.” The Orphans’ Court denied the Exceptions on
August 19, 2016. On September 19, 2016, Plaintiffs filed a Notice of Appeal
of the August 19, 2016, Order denying their Exceptions.
Pennsylvania Rule of Appellate Procedure 342 clearly states that an
appeal lies from the order confirming an account, and that the failure to file
an appeal of that order waives all future claims related to the account.
Pa.R.A.P. 342(a)(1). Plaintiffs failed to appeal the July 21, 2016, Order
confirming Cherry’s Account. Consequently, Plaintiffs’ claims challenging the
denial of their Objections and Exceptions to the Account are waived.2 See
Pa.R.A.P. 342(c); see also Pa.O.R.C. 8.1 (providing that, except as provided
in Pa.O.R.C. 8.2, “no exceptions or post-trial motions may be filed to any
order or decree of the court.”).3
2
Even if Plaintiffs had filed a timely appeal of the Order confirming the
Account, we would conclude that Plaintiffs’ claims lack merit for the reasons
set forth in the Orphans’ Court’s Opinion. See Orphans’ Court Opinion,
1/26/17, at 3-5.
3
We note that a party “may request the court to reconsider any order that is
final under Pa.R.A.P. … 342, … so long as the order granting reconsideration
is consistent with Pa.R.A.P. 1701(b)(3).” Pa.O.R.C. 8.2. Plaintiffs did not
request reconsideration of the Order confirming the Account.
-6-
J-A24032-17
In their third claim of error, Plaintiffs argue that the Orphans’ Court
abused its discretion dismissing their Objections to the Account “as the
alleged violations of discovery rules were not willful[,] and did not result in
prejudice to [Cherry].” Brief for Appellants at 31-32. Plaintiffs contend the
Orphans’ Court was required to consider, inter alia, the nature and severity
of the discovery violation, and the prejudice to the opposing party, before
imposing a discovery sanction. Id. at 32-33. According to Plaintiffs, it was
Cherry who repeatedly violated the rules of discovery. Id. at 34. Plaintiffs
argue that Cherry’s justifications for seeking discovery sanctions lack merit.
Id. at 33-40.
Our review discloses that Plaintiffs did not raise this claim in their
Concise Statement of matters complained of on appeal. Accordingly, this
claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”). Plaintiffs additionally
waived this claim by not filing an appeal of the Order confirming the Account
filed by Cherry. See Pa.R.A.P. 342(a)(1). As such, we cannot grant
Plaintiffs relief on this claim.
Order affirmed.
-7-
J-A24032-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
-8-