J-A04036-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: GARY W. THOMSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: JAMES W. THOMSON- :
CALIENDO : No. 1075 EDA 2019
Appeal from the Order Entered March 19, 2019
in the Court of Common Pleas of Pike County
Civil Division at No(s): 31-2018 OC
BEFORE: PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED JUNE 23, 2020
I join the Majority’s analysis as to Parts II, III, and IV. I respectfully
dissent, however, as to Part I.
In Part I, the Majority considers James’s claim that the orphans’ court
erred when it entered an order disregarding the trust requirements that
Gary satisfy James, as trustee, of Gary’s sobriety, employment, and ability
to make reasonable financial decisions. James’s Brief at 5.
This Court’s standard of review from orphans’ court orders is
deferential.
When reviewing a decree entered by the orphans’
court, this Court must determine whether the record
is free from legal error and the court’s factual
findings are supported by the evidence. Because the
orphans’ court sits as the fact-finder, it determines
the credibility of the witnesses and, on review, we
will not reverse its credibility determinations absent
an abuse of that discretion.
*Retired Senior Judge assigned to the Superior Court.
J-A04036-20
However, we are not constrained to give the same
deference to any resulting legal conclusions.
The orphans’ court decision will not be reversed unless there has
been an abuse of discretion or a fundamental error in applying
the correct principles of law.
In re Estate of Leipold, 208 A.3d 507, 510 (Pa. Super. 2019) (citations
and quotation marks omitted; capitalization altered).
Here, the orphans’ court found that “James had seriously breached his
duties as trustee, had not acted in good faith, and that the purpose of the
trust was not being fulfilled.” Majority at 5 (citing Orphans’ Court Opinion,
3/19/2019, at 6). However, because there was no other person willing to
act as trustee, the orphans’ court denied Gary’s request to replace James as
trustee. Instead, given James’s demonstrated inability to assess Gary’s
compliance with the trust requirements in good faith, the orphans’ court
attempted to aid James in his future assessment of Gary’s compliance with
those conditions. Specifically, as summarized by the Majority,
the orphans’ court found that testing was the only reasonable
manner by which Gary could substantiate that he was not using
drugs or alcohol, but James had not distributed any funds to
allow Gary to pay for the tests or to arrange transportation to
get to a testing site. The court further found that the obligation
that Gary be capable of employment could no longer be seen as
a trust requirement because Gary had been determined to be
disabled by the Social Security Administration. With regard to
the requirement that Gary be “capable of making responsible
financial decisions,” the court concluded that this requirement is
so vague as to be unenforceable and that, apart from the fact
that Gary had accrued over $17,000 in debt to the IRS, James
had not submitted any other evidence to substantiate that Gary
could not manage his finances.
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Majority at 6 (citations omitted).
I do not find this to be an abuse of discretion. Here, there was nobody
else to step into the role of trustee, and the orphans’ court did not see fit to
dissolve the trust. As a result, the orphans’ court was in the unenviable
position of attempting to bridge the divide between James, who was
predisposed to find Gary in non-compliance regardless of what Gary did, and
Gary, who was predisposed to assume that James would not consider his
requests in good faith, in the administration of this trust. I do not find the
orphans’ court attempt to create concrete steps that Gary and James must
follow in order to ensure Gary’s compliance and James’s carrying out of his
fiduciary duties to be an abuse of discretion.
Accordingly, I would affirm James’s first issue.
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