J-A01004-20
2020 PA Super 97
IN RE: THE PASSARELLI FAMILY : IN THE SUPERIOR COURT OF
TRUST AN IRREVOCABLE TRUST : PENNSYLVANIA
INSTRUMENT :
:
:
APPEAL OF: MARGARET PASSARELLI :
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:
: No. 2121 EDA 2019
Appeal from the Order Entered June 24, 2019
In the Court of Common Pleas of Chester County Orphans' Court at
No(s): No. 1516-0101
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
OPINION BY NICHOLS, J.: Filed: April 16, 2020
Appellant Margaret Passarelli appeals from the order denying her
petition for injunctive relief and removal of trustee and successor trustees.
For the reasons stated below, we quash.
The parties are familiar with the factual and procedural history. Briefly,
on September 16, 2016, the Orphans’ Court entered a decree terminating the
trust in question. Appellee Joseph A. Passarelli appealed, and ultimately, this
en banc Court reversed the Orphans’ Court on March 28, 2019. On April 18,
2019, Appellant filed a petition for allowance of appeal with our Supreme
Court. See In re: Passarelli Family Tr., 206 A.3d 1188 (Pa. Super. filed
Mar. 28, 2019) (en banc), appeal granted, 217 A.3d 809 (Pa. filed Sept. 11,
2019).
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* Retired Senior Judge assigned to the Superior Court.
J-A01004-20
Also on April 18, 2019, Appellant filed an omnibus petition pursuant to
Pennsylvania Orphans’ Court Rule 3.15 for injunctive relief and removal of
trustee and successor trustees with the trial court. In that petition, Appellant
requested that the trial court enjoin almost all parties “from managing,
spending, or dissipating the assets” of the trust in question. Omnibus Pet.
Pursuant to Pa. Orphans’ Ct. R. 3.15 for Inj. Relief & Removal of Trustee &
Successor Trustees, 4/18/19, at 1.1 Appellant reasoned that she was entitled
to an injunction pending appeal in order “to preserve the status quo . . . .”
Id. at 26-27 (discussing Pa.R.A.P. 1701-02). The trial court denied the
petition without a hearing on June 24, 2019.2
On July 23, 2019, Appellant timely appealed from the trial court’s order
denying her omnibus petition for injunctive relief. Appellant timely filed a
court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues:
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1 The petition requested that one party not be enjoined for reasons not
relevant here. We add that Orphans’ Court Rule 3.15 permits a party to state
more than one cause of action in a pleading.
2 Meanwhile, on May 16, 2019, Appellant filed an emergency petition for
injunctive relief requesting that Joseph Passarelli be “prohibited from
withdrawing funds or dissipating assets” from the trust. Emergency Pet. for
Inj. Relief, 5/16/19, at 1. Appellant contended that injunctive relief was
necessary given that the trial court had not yet resolved her prior omnibus
petition. In support, Appellant cited Orphans’ Court Rule 7.4 and Rule of Civil
Procedure 1531. The trial court denied Appellant’s petition on May 22, 2019.
Appellant did not appeal from this order. On June 13, 2019, Appellant filed a
motion for reconsideration, which the trial court denied on June 24, 2019.
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1. Whether the orphans’ court abused its discretion in failing to
grant Appellant’s request for injunctive relief even though
Appellant established a prima facie showing for injunctive relief.
2. Whether the orphans’ court abused its discretion in failing to
grant Appellant’s request for a hearing and Appellee’s removal as
trustee in spite of overwhelming evidence, taken in the light most
favorable to Appellant, which called for Appellee’s removal.
3. Whether the orphans’ court abused its discretion when it denied
Appellant a stay and/or injunction pending appeal where the
Pennsylvania Rules of Appellate Procedure expressly allow lower
courts to take certain actions to preserve the status quo during
the pendency of an appeal, and Appellant sought to enjoin
Appellee from managing, spending, or dissipating the assets of
the very trust subject to Supreme Court review.
Appellant’s Brief at 3.
We initially address whether we have jurisdiction to entertain Appellant’s
appeal. All-Pak, Inc. v. Johnston, 694 A.2d 347, 352 (Pa. Super. 1997).
“[A]fter an appeal is taken . . . the trial court or other government unit may
no longer proceed further in the matter.” Pa.R.A.P. 1701(a). Generally, under
Pennsylvania Rule of Appellate Procedure 1701(a), the filing of a petition for
allowance of appeal would divest the lower courts of jurisdiction to proceed.
Pa.R.A.P. 102, 1701; see 20A West’s Pa. Practice § 1701:5.
Rule 1701(b), however, sets forth six exceptions to Rule 1701(a). In
relevant part, Rule 1701(b) provides that a trial court may “[t]ake such action
as may be necessary to preserve the status quo . . . .” Pa.R.A.P. 1701(b)(1).
“Examples include the issuance of a stay or supersedeas, or an injunction
pending appeal, or similar relief.” 20A West’s Pa. Practice § 1701:15
(footnotes omitted); see Pa.R.A.P. 1701 note.
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Rule 1732 addresses an application for an injunction pending appeal:
(a) Application to trial court.— Application for a stay of an
order of a trial court pending appeal, or for approval of or
modification of the terms of any supersedeas, or for an order
suspending, modifying, restoring, or granting an injunction during
the pendency of an appeal, or for relief in the nature of
peremptory mandamus, must ordinarily be made in the first
instance to the trial court, except where a prior order under this
chapter has been entered in the matter by the appellate court or
a judge thereof.
(b) Contents of application for stay.— An application for stay
of an order of a trial court pending appeal, or for approval of or
modification of the terms of any supersedeas, or for an order
suspending, modifying, restoring, or granting an injunction during
the pendency of an appeal, or for relief in the nature of
peremptory mandamus, may be made to the appellate court or to
a judge thereof, but the application shall show that application to
the trial court for the relief sought is not practicable, or that the
trial court has denied an application, or has failed to afford the
relief which the applicant requested, with the reasons given by the
trial court for its action.
Pa.R.A.P. 1732(a)-(b).
If “the application for Rule 1732(a) relief is denied by the trial court, the
appellant may not appeal the denial for the obvious reason that the denial
order is interlocutory. Rather, the appellant must renew the application, that
is, file a new application, with the appellate court.” 20A West’s Pa. Practice §
1732:4 (footnote omitted); see also Pa.R.A.P. 1732(b) (discussing contents
of application for injunction to appellate court, which must include showing
that trial court denied prior application for injunction). One treatise has noted
that in “the context of a petition for allowance of appeal to the Supreme Court,
the application for Rule 1732(a) relief should be made to the intermediate
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appellate court, not to the trial court.” 20A West’s Pa. Practice § 1732:3
(footnote omitted) (citing cases involving only the Commonwealth Court).
Rule 3315 contemplates repeated applications from any order entered
under Chapter 17, instead of appeals from orders resolving Chapter 17
applications:
Where the Superior Court or the Commonwealth Court in the
exercise of its appellate jurisdiction has entered an order under
Chapter 17 (effect of appeals; supersedeas and stays), such order
may be further reviewed by any justice of the Supreme Court in
the manner prescribed by Chapter 17 with respect to appellate
review of supersedeas and stay determinations of lower courts.
Note: After a party has applied for a stay, etc., in the trial court,
and a further application has been acted on by the Superior Court
or the Commonwealth Court, or by a judge thereof, a further
application may be made under this rule to the Supreme Court or
to a justice thereof.
Pa.R.A.P. 3315 & note.
In Pa. State Educ. Ass’n ex rel. Wilson v. Commonwealth, 56 A.3d
692 (Pa. 2010) (per curiam), the plaintiffs filed original suit in the
Commonwealth Court. Wilson, 56 A.3d at 692. A single judge of the
Commonwealth Court granted the plaintiffs’ application for a preliminary
injunction. Id. The defendants filed preliminary objections, which the en banc
Commonwealth Court sustained and which had the impact of vacating the
single judge’s prior grant of a preliminary injunction. Id. The plaintiffs
appealed to our Supreme Court, and while that appeal was pending, the
plaintiffs filed an application with our Supreme Court seeking to restore the
preliminary injunction. Id. Our Supreme Court construed the application as
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a request for a stay of the en banc Commonwealth Court’s decision pending
appeal and granted the stay. Id. at 692-93. We note that the plaintiffs filed
their application with our Supreme Court, as their appeal was pending before
it.
In Young J. Lee, Inc. v. Commonwealth, 474 A.2d 266 (Pa. 1983),
the Department of Revenue (Department) revoked Young J. Lee, Inc.’s (Lee)
lottery license. Young J. Lee, 474 A.2d at 268. Lee “filed a petition for
review and a motion to stay the Department’s revocation in Commonwealth
Court.” Id. The Commonwealth Court granted the motion to stay, and the
Department appealed. Id.
In resolving the appeal, our Supreme Court noted that the
Commonwealth Court improperly held that it exercised original jurisdiction
over Lee’s application to stay pending review. Id. Our Supreme Court
reasoned that the Rules of Appellate Procedure govern an application for stay
pending review. Id. Therefore, our Supreme Court held, the Commonwealth
Court exercises appellate jurisdiction and not original jurisdiction over an
application for stay pending review. Id.
A stay, like a supersedeas, is an auxiliary process designed to
supersede or hold in abeyance the enforcement of the judgment
of an inferior tribunal. . . . [A]n application for a stay pending
review pursuant to the Rules of Appellate Procedure is within the
appellate, not the original, jurisdiction of Commonwealth Court.
Since the application for a stay is within the appellate rather than
the original jurisdiction of Commonwealth Court, the Department
does not have an appeal as of right to this Court.
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Id. at 268-69 (footnote omitted).3, 4
Here, as noted above, Appellant prevailed in the trial court but this en
banc Court reversed. On the same day that Appellant filed a petition for
allowance of appeal with our Supreme Court, she filed an omnibus petition
specifically requesting an injunction pending appeal in order to preserve the
status quo. Omnibus Pet. Pursuant to Pa. Orphans’ Ct. R. 3.15 for Inj. Relief
& Removal of Trustee & Successor Trustees at 26-27.5 Appellant’s petition is
governed by Rule 1732, which provides that such an application must
ordinarily be made to the trial court initially. See Pa.R.A.P. 1732(a) (stating,
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3 Our Supreme Court noted that it would still entertain the appeal because the
Commonwealth Court certified that its “interlocutory order granting a stay
involved a controlling question of law as to which there is a substantial ground
for difference of opinion.” Young J. Lee, 474 A.2d at 269.
4The Young J. Lee Court further concluded that the Department’s appeal
was not properly before the Court under Pa.R.A.P. 311(a)(4), noting:
The Department asserts that this Court has jurisdiction of its
appeal under Pa.R.A.P. 311(a)(4). Rule 311(a)(4) provides for an
interlocutory appeal as of right from “an order granting
continuing, modifying, refusing or dissolving injunctions, or
refusing to modify or dissolve injunctions.” As a practical matter,
this Court cannot interpret Rule 311(a)(4) to also permit
interlocutory appeals of right from the grant or denial of a stay or
supersedeas by Commonwealth Court.
Young J. Lee, 474 A.2d at 268-69.
5Appellant’s petition, however, did not cite to Rule 1732, but cited Rules 1701
and 1702. On appeal, Appellant’s brief, unlike her petition, cited Rule 1732 in
passing. Appellant’s Brief at 26.
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“[a]pplication for . . . injunction during the pendency of an appeal . . . must
ordinarily be made in the first instance to the trial court . . . .”). Because
Appellant filed a petition for allowance of appeal with our Supreme Court,
however, the better practice would have been for Appellant to file an
application with this Court.6 See Wilson, 56 A.3d at 692; see also 20A
West’s Pa. Practice § 1732:3 (citing Commonwealth Court cases).
In any event, given the plain language of Rule 1732, it was reasonable
for Appellant to have filed her application with the trial court. See Pa.R.A.P.
1732(a). But when the trial court denied Appellant’s application on June 24,
2019, Appellant should have filed an application with this Court instead of
filing a notice of appeal. See Pa.R.A.P. 1732(b) (stating application for
injunction may be made to appellate court upon showing that trial court has
denied application); Wilson, 56 A.3d at 692 (noting plaintiffs filed application
with Supreme Court seeking to restore status quo while appeal was pending
before our Supreme Court); see also Pa.R.A.P. 3315 (recognizing that after
Rule 1732 application denied by trial court, and further application denied by
this Court, a third application may be filed with our Supreme Court); see
generally 20A West’s Pa. Practice § 1732:4 (stating that an appellant must
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6Our Supreme Court had not yet granted Appellant’s petition for allowance of
appeal, which occurred on September 11, 2019.
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file a new Rule 1732 application with the appellate court because the trial
court’s order denying Rule 1732 relief is interlocutory).
For these reasons, we quash this appeal. Appellant should have filed a
Chapter 17 application with this Court while her petition for allowance of
appeal with our Supreme Court was outstanding. See Pa.R.A.P. 1702(a),
1732, 3315; Wilson, 56 A.3d at 692-93.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/20
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