Beaver, L. v. Cherry, R.

• Court: Superior Court of Pennsylvania
• Decided: February 18, 2016
• Docket: 1171 WDA 2014
• Status: Unpublished

Opinion

J-A35007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.,

Appellee No. 1171 WDA 2014

Appeal from the Order Entered June 18, 2014 In the Court of Common Pleas of Elk County Orphans' Court at No(s): 11 of 2012

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 18, 2016

Lori June Beaver, Richard and Pearl Cherry, Karen Fedus, and Daniel

Cherry appeal from the order entered June 18, 2014, dismissing with

prejudice their objections to the account of Richard A. Cherry, Jr. We quash.

In May 2009, Richard and Pearl Cherry (parents) formed an

irrevocable trust, with assets in excess of $1.2 million, to produce income for

their benefit and to protect the corpus of the trust for the benefit of their

remainder beneficiaries.1 The remainder beneficiaries are their four

children: Richard A. Cherry, Jr., Daniel Cherry, Lori J. Beaver, and Karen ____________________________________________

1 In light of our disposition, we derive our brief statement of the background of this case from the pleadings and trial court docket. J-A35007-15

Fedus. Richard A. Cherry, Jr. and Lori J. Beaver were designated co-

trustees. The parents each granted Richard A. Cherry, Jr. a durable power

of attorney. Thereafter, according to Appellants, Richard A. Cherry, Jr.

(hereafter, Appellee) systematically diverted control of his parents’ personal

finances to himself, including, for example, the alleged theft of the contents

of a safety deposit box. In February 2012, his parents purportedly revoked

Appellee’s powers of attorney.

Appellants commenced this action in March 2012, filing a petition to

remove Appellee as a trustee. In June 2012, Appellee filed an answer to the

petition, including new matter and a counterclaim seeking declaratory

judgment. In August 2012, Appellee amended his answer and counterclaim,

clarifying that he sought declaratory judgment that the purported power of

attorney revocations were void ab initio.

In November 2012, the trial court removed this matter from the trial

list, based upon its understanding that Appellants planned to file a

companion suit. Eventually, in June 2013, Appellants filed a complaint

alleging that Appellee had breached his duties as power of attorney,

demanding an accounting of his actions, and demanding a return of his

parents’ assets.2 Appellants (including Daniel Cherry) also filed a motion

demanding an accounting of Appellee’s actions. It is not clear whether the ____________________________________________

2 Appellant Daniel Cherry is not listed as a plaintiff in the complaint.

-2- J-A35007-15

trial court disposed of this motion. Nevertheless, in September 2013,

Appellee filed an account, along with a petition to confirm said account.

Appellants timely filed objections thereto.

The trial court scheduled a hearing on Appellants’ objections for

December 2013, March 2014, and finally June 2014. No hearing was

completed, as the parties were not prepared to proceed. A partial hearing

was held in March 2014. See Notes of Testimony (N.T.), 03/05/2014. One

witness testified; however, several Appellants were not present, and the

matter was continued. See N.T. at 59-61 (indicating the court’s frustration

with the parties; directing the parties to complete discovery and be prepared

to proceed in June); see also Trial Court Order, 03/05/2014 (indicating that

the court would entertain an order dismissing Appellants’ objections with

prejudice if they were not prepared to proceed).

In June 2014, the trial court granted Appellee’s motion to dismiss

Appellants’ objections with prejudice. See Trial Court Order, 06/18/2014.

Appellants timely filed a motion for reconsideration, which was denied by the

trial court. Appellants timely appealed and filed a court-ordered Pa.R.A.P.

1925(b) statement.

On appeal, Appellants purport to challenge the trial court’s decision to

dismiss with prejudice their objections to Appellee’s accounting. See

Appellant’s Brief at 5-6. However, preliminarily, we must examine our

jurisdiction to entertain this appeal. In re Estate of Borkowski, 794 A.2d

-3- J-A35007-15

388, 389 (Pa. Super. 2002) (“We may raise the issue of appealability sua

sponte because it affects our jurisdiction over the case.”).

Under Pennsylvania Rule of Appellate Procedure 342, an appeal may

be taken as of right from an order confirming an account. Pa.R.A.P.

342(a)(1). An order that merely dismisses objections, but does not confirm

an account, is not a final, appealable order. In re Estate of Meininger,

532 A.2d 475, 477 (Pa. Super. 1987). Here, the trial court dismissed with

prejudice Appellants’ objections but did not confirm Appellee’s account,

despite a petition for confirmation pending before it. See Petition for

Confirmation, 09/04/2013. Accordingly, the order of June 18, 2014, is not a

final, appealable order.3 Meininger, 532 A.2d at 477.

Appeal quashed.

____________________________________________

3 In addition, there are other matters still pending before the trial court, including: (1) Appellants’ petition to remove Appellee as a trustee, filed March 21, 2012; (2) Appellee’s counterclaim for declaratory relief that his parents’ purported power of attorney revocations were void ab initio, filed August 31, 2012; and (3) those claims raised in Appellants’ complaint, filed June 6, 2013. These matters, too, must be resolved. See Pa.R.A.P. 341(b)(1) (“A final order is any order that … disposes of all claims and of all parties[.]”); see also Pa.R.A.P. 342(a).

-4- J-A35007-15

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/18/2016

-5-