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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRUST OF GERALD GUSHNER DATED : IN THE SUPERIOR COURT OF
SEPTEMBER 20, 2013, AS AMENDED : PENNSYLVANIA
AND RESTATED IN ITS ENTIRETY ON :
AUGUST 16, 2016 :
:
:
APPEAL OF: CYNTHIA YAFFE :
:
: No. 1993 EDA 2019
Appeal from the Order Entered June 11, 2019
In the Court of Common Pleas of Philadelphia County Orphans' Court at
No(s): 1482 IV of 2018
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 11, 2020
Appellant, Cynthia Yaffe (“Cynthia”), appeals from the June 11, 2019,
order entered in the Court of Common Pleas of Philadelphia County, Orphans’
Court division, sustaining the preliminary objections of Kent A. Gushner
(“Kent”), individually, as Executor of the Estate of Gerald Gushner (“the
decedent”), and as Trustee of the decedent’s Revocable Deed of Trust (“the
Trust”). The order dismissed Cynthia’s petition for declaratory relief as to the
interpretation and applicability of in terrorem clauses contained in the
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* Former Justice specially assigned to the Superior Court.
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decedent’s Last Will and Testament (“the Will”) and the Trust.1 After a careful
review, we affirm.
The relevant facts and procedural history are as follows: The decedent2
died testate on December 17, 2016, and he was survived by his three children:
Kent, Cynthia, and Lisa Glass (“Lisa”). The Will, which was executed on
August 16, 2016, was probated by the Register of Wills of Philadelphia County
and Letters Testamentary were granted to Kent as Executor on December 28,
2016. Beneficiaries of the Will consist primarily of the decedent’s three
children.
The Trust was established by decedent on September 20, 2013, and
amended on August 16, 2016. Kent was appointed Trustee of the Trust.
Beneficiaries thereof consist of the decedent’s three children and their
descendants, as well as the Gerald and Nadine Gushner Foundation.
Upon the [d]ecedent’s death, the residue of the principal [of
the Trust] is to be divided into individual trusts for [the
decedent’s] three children. The Trust also dictates that [the
decedent’s] shares of “Boyds Interests” are to be divided in equal
shares to his three children following his death with such shares
to be held in separate trust as further set forth in [the Trust].
“Boyds Interests, as defined in…the Trust, refers to [the
decedent’s] interests in Boyds Realty Partnership, L.P., and
Gushner Brothers, L.P., and his tenants in common interest in
1823-25 Chestnut Street.
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1 The Orphans’ Court entered separate, identical orders in the Estate docket
(1992 EDA 2019) and the Trust docket (1993 EDA 2019). Thereafter, Cynthia
filed two separate notices of appeal for which we shall file separate decisions.
2 The decedent was the principal owner of a clothing business, “Boyds,” which
is located in Philadelphia. See Orphans’ Court Opinion, filed 8/23/19, at 2.
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[I]n terrorem clauses contained in…the Trust and…the Will
revoke the interests of any beneficiary who contests or challenges
[the decedent’s] estate plan. The “estate plan” is defined as: 1)
his Trust; 2) his Will; 3) any other trusts [the decedent] created;
4) any other designation of beneficiary [the decedent] may have
executed with respect to any pension plan, retirement account,
and life insurance policy; and 5) any and all documents and
actions relating to his Boyds Interests for a period of three years
after his death.
Orphans’ Court Opinion, filed 8/23/19, at 3-4 (footnotes omitted).
Thereafter, in December of 2017, Cynthia’s husband, Ralph Yaffe
(“Ralph”), who was a long-time employee of Boyds, filed a civil action against
Kent and Boyds L.P.3 for wrongful cessation of severance pay after he retired
in August of 2017. On February 12, 2018, Cynthia filed a petition for
declaratory judgment seeking a ruling that her filing of a civil complaint
concerning breach of contract and attempted purchase of her partnership
interest in KJR General Partner, Inc. (“KJR”)4 would not violate the in terrorem
clauses. Eventually, on August 1, 2018, Kent, Cynthia, and Lisa signed
stipulations asserting they would not invoke the in terrorem clauses against
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3 “Boyds L.P., which owns and operates the Boyds Business, is owned by Kent,
Jeff, Ralph, and Boyds General Partnership, Inc.” Orphans’ Court Opinion,
filed 8/23/19, at 5 n.15. “Jeff” refers to Jeffrey Glass, who is Lisa’s husband.
4 KJR is a limited partnership which was formed between Kent, Jeff, Lisa,
Ralph, and Cynthia. The KJR assets include 50% of the Boyds store, 50% of
a parking lot, and 49.5% of another parking lot.
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Cynthia if she filed a complaint in the civil court.5 See Orphans’ Court Opinion,
filed 8/23/19, at 6.
Meanwhile, Lisa’s husband, Jeff, who was also a long-time employee of
Boyds, filed a civil complaint against Kent and Boyds L.P. for, inter alia,
wrongful cessation of Jeff’s severance pay after he retired from Boyds in
August of 2017. On September 28, 2018, Lisa and Jeff named Cynthia and
Ralph as indispensable party defendants in their civil suit.6 On November 19,
2018, Kent, individually, as Executor, and as Trustee, filed petitions for
declaratory relief seeking a ruling that Lisa and Jeff’s complaint violated the
in terrorem clauses in the Will and the Trust.7 See id. at 7.
On February 22, 2019, Cynthia filed a second petition for declaratory
judgment.8 Therein, in Count I of the petition, Cynthia sought a ruling that,
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5Cynthia filed said civil complaint, and it was consolidated with her husband,
Ralph’s, civil complaint; the litigation is pending. Id. at 6.
6 Lisa and Jeff also presented in their complaint a claim pertaining to a “non-
binding term sheet.” The Orphans’ Court noted that Lisa and Jeff did not
allege any damages or seek any relief from Cynthia and Ralph in their
complaint; but rather, Cynthia and Ralph were named as indispensable parties
solely because they are parties to the “non-binding term sheet.” Id. at 6-7.
This litigation is pending.
7 This litigation is pending.
8 The petition was filed under the Declaratory Judgment Act, which grants
courts the power to “declare rights, status, and other legal relations.” 42
Pa.C.S.A. § 7532. The purpose of the Act is to “settle and to afford relief from
uncertainty…with respect to rights, status, and other legal relations.” 42
Pa.C.S.A. § 7541.
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if she initiates and proceeds with a proposed cross-claim under Pa.R.C.P.
1031.1 for indemnification/contribution against Kent and the Boyds entities in
the action initiated by Lisa and Jeff (and in which Cynthia was joined as an
indispensable party), the in terrorem clauses of the Will and the Trust will not
be enforceable against her. In Count II of the petition, Cynthia requested an
accounting of Kent’s administration of the Estate and the Trust.
On May 3, 2019, Kent filed a petition for preliminary objections to
Cynthia’s second petition for declaratory judgment. Therein, he averred
Cynthia did not state a claim for which relief could be granted as to Count I
related to Cynthia’s proposed cross-claim/violation of the in terrorem clauses.
Thus, he sought preliminary objections in the nature of a demurrer. He
presented no averment with regard to Count II related to Cynthia’s request
for an accounting.
On May 29, 2019, Cynthia filed an answer to Kent’s petition for
preliminary objections. Therein, she denied Kent’s averments as to Count I.
Additionally, she noted Kent’s petition for preliminary objections advanced no
argument or issue as to Count II related to Cynthia’s request for an
accounting.
On June 11, 2019, the Orphans’ Court filed an order which provided the
following in its entirety: “Upon consideration of the Preliminary Objections of
Kent A. Gushner to the Petition for Declaratory Judgment, et al. of Petitioner
Cynthia Yaffe, it is hereby ORDERED and DECREED that the Preliminary
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Objections are SUSTAINED and the PETITION is dismissed.” Orphans’ Court
Order, filed 6/11/19 (bold omitted). On July 11, 2019, Cynthia filed a notice
of appeal to this Court.9
The Orphans’ Court did not direct Cynthia to file a Pa.R.A.P. 1925(b)
statement, and consequently, no such statement was filed. However, on
August 23, 2019, the Orphans’ Court filed an opinion pursuant to Pa.R.A.P.
1925(a). Therein, the Orphans’ Court discussed the reasons it sustained
Kent’s petition for preliminary objections as to Count I of Cynthia’s petition in
which she sought a ruling as to whether the filing of a cross-claim in the
Lisa/Jeff action would violate the in terrorem clauses in the Will and the
Trust.10 The Orphans’ Court specifically noted that it was not addressing
Cynthia’s request for an accounting since it remained “a separate issue not
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9On July 1, 2019, Cynthia filed a motion for reconsideration; however, on July
23, 2019, the Orphans’ Court filed an order indicating it was not going to rule
on Cynthia’s motion. See 42 Pa.C.S.A. § 5505 (“Except as otherwise provided
or prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior termination
of any term of court, if no appeal from such order has been taken or
allowed.”).
10 Specifically, in ruling on whether Cynthia’s proposed cross-claim would
trigger or violate the in terrorem clauses, the Orphans’ Court concluded
Cynthia did not state a claim upon which relief could be granted. In this
regard, the Orphans’ Court noted that no liability or damages were alleged
against Cynthia (or her husband, Ralph) in Lisa/Jeff’s civil action, and
accordingly, Cynthia had no basis to bring a cross-claim for indemnification or
contribution. The Orphans’ Court suggested that Cynthia’s petition for
declaratory judgment as to Count I was a “tactic” designed to waste “precious
judicial resources[.]” Orphans’ Court Opinion, filed 8/23/19, at 15.
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within the purview of th[e] appeal.” Orphans’ Court Opinion, filed 8/23/19, at
8 n.24.
On appeal, Cynthia sets forth the following issues in her “Statement of
the Questions Presented”:
1. Did the Orphans’ Court err in sua sponte dismissing [Cynthia’s]
Petition seeking an account under 20 Pa.C.S.A. § 3501.1?
2. Did the Orphans’ Court err in dismissing [Cynthia’s] Petition
seeking an account under 20 Pa.C.S.A. § 3501.1 [since she set
forth a prima facie claim for an account]?
Cynthia’s Brief at 4 (proposed answers omitted).
Initially, we note that, in response to Cynthia’s issues, Kent claims in
his appellee brief that Cynthia has filed an appeal from an interlocutory, non-
appealable order. Consequently, he urges this Court to quash Cynthia’s
appeal on this basis. We agree that we must preliminarily determine whether
the Orphans’ Court’s June 11, 2019, order is appealable. “‘[T]he question of
appealability implicates the jurisdiction of our court.’” Jacksonian v. Temple
University Health System Foundation, 862 A.2d 1275, 1279 (Pa.Super.
2004) (quoting In re Estate of Israel, 645 A.2d 1333, 1336 (Pa.Super.
1994)). As a result, “this Court has the power to inquire at any time, sua
sponte, whether an order is appealable.”11 Id.
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11In any event, as indicated, Kent raised an issue regarding the appealable
nature of the June 11, 2019, order.
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“An appeal may be taken from: (1) a final order or an order certified as
a final order; (2) an interlocutory order as of right; (3) an interlocutory order
by permission; or (4) a collateral order.” In re Estate of Cella, 12 A.3d 374,
377 (Pa.Super. 2010) (citations and quotation omitted).
In the case sub judice, we agree with Kent that Cynthia’s appeal was
not taken from a final order. A final order is one that disposes of all claims
and of all parties or is entered as a final order pursuant to Pa.R.A.P. 341(c).12
See Pa.R.A.P. 341. In the case sub judice, Cynthia presented two counts in
her petition for declaratory judgment: Count I requested that the Orphans’
Court interpret and apply the in terrorem clauses in the Will and the Trust,
while Count II requested that the Orphans’ Court direct an accounting of
Kent’s administration of the Estate and the Trust.
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12 Pa.R.A.P. 341(c) provides the following:
(c) Determination of finality.-When more than one claim for
relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim or when multiple parties are
involved, the trial court or other government unit may enter a final
order as to one or more but fewer than all of the claims and parties
only upon an express determination that an immediate appeal
would facilitate resolution of the entire case. Such an order
becomes appealable when entered. In the absence of such a
determination and entry of a final order, any order or other form
of decision that adjudicates fewer than all the claims and parties
shall not constitute a final order.
Pa.R.A.P. 341(c) (emphasis in original). Cynthia did not seek a determination
of finality under Pa.R.A.P. 341(c).
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As the Orphans’ Court indicated in its Rule 1925(a) opinion, inasmuch
as Kent did not raise any claim with regard to Count II in his petition for
preliminary objections, the June 11, 2019, order did not pertain to Count II of
the petition for declaratory judgment. Accordingly, the June 11, 2019, order
did not dispose of all claims raised in the petition for declaratory judgment. 13
See Pa.R.A.P. 341.
However, this does not end our inquiry as Pa.R.A.P. 342, pertaining to
appealable Orphans’ Court orders, relevantly provides the following:
Rule 342. Appealable Orphans’ Court Orders
(a) General rule. An appeal may be taken as of right from the
following orders of the Orphans’ Court Division:
(1) An order confirming an account, or authorizing
or directing a distribution from an estate or
trust;
(2) An order determining the validity of a will or
trust;
(3) An order interpreting a will or a document that
forms the basis of a claim against an estate or
trust;
(4) An order interpreting, modifying, reforming or
terminating a trust;
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13 Moreover, we note the June 11, 2019, order does not indicate that the
petition for declaratory judgment was dismissed with prejudice. “For finality
to occur, the trial court must dismiss with prejudice the complaint in full.”
Mier v. Stewart, 683 A.2d 930, 933 (Pa.Super. 1996). See also Waddell v.
Trostel, 485 A.2d 1208, 1209 (Pa.Super. 1984) (holding that order dismissing
generally serves as an implicit grant of leave for the appellant to amend).
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(5) An order determining the status of fiduciaries,
beneficiaries, or creditors in an estate, trust, or
guardianship;
(6) An order determining an interest in real or
personal property;
(7) An order issued after an inheritance tax appeal
has been taken to the Orphans’ Court[.]
(8) An Order otherwise appealable as provided by
Chapter 3 of these rules.
***
(c) Waiver of Objections. Failure to appeal an order that is
immediately appealable under paragraphs (a)(1)-(7) of this
rule 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(a), (c) (emphasis in original).
In the case sub judice, as indicated supra, the Orphans’ Court’s June
11, 2019, order sustained Kent’s preliminary objections as to Count I:
Cynthia’s request that the Orphans’ Court interpret and determine the
applicability of the in terrorem clauses contained in the Will and the Trust.
Accordingly, we conclude the June 11, 2019, order was appealable as of right
pursuant to Pa.R.A.P. 342(a)(3) and (4).
However, as Cynthia admits in her appellate brief, Cynthia does not
challenge the Orphans’ Court’s sustaining of Kent’s preliminary objections as
to Count I of her petition related to the applicability of the in terrorem clauses.
Rather, Cynthia suggests the Orphans’ Court’s June 11, 2019, order explicitly
or implicitly denied Count II of her petition in which she sought an accounting
of Kent’s administration of the Estate and the Trust.
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As the Orphans’ Court explicitly stated in its Rule 1925(a) opinion, the
court has made no ruling as to Cynthia’s request for an accounting, and
therefore, the issue is not “within the purview of th[is] appeal.” Orphans’ Court
Opinion, filed 8/23/19, at 8 n. 24. Thus, Cynthia’s appellate issues in which
she contends the Orphans’ Court erred in denying her request for an
accounting have no basis in fact. Moreover, we conclude it would be
premature for this Court to determine whether the Orphans’ Court should
direct such an accounting of the Estate and/or the Trust.14
For all of the foregoing reasons, we affirm the Orphans’ Court’s June 11,
2019, order.
Application for Relief to Supplement Reproduced Record Granted; Order
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/20
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14 On December 23, 2019, Cynthia filed an application to supplement the
reproduced record to include a response to preliminary objections. We grant
the request.
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