In Re: Est. of Dixon, L. Appeal of: Dixon, G. & R.

Opinion

J-A03019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF LOTTIE IVY DIXON IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: GEORGE F. DIXON, III AND RICHARD E. DIXON

No. 591 MDA 2014

Appeal from the Order Entered March 10, 2014 In the Court of Common Pleas of Cumberland County Orphans' Court at No: 21-07-0686

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 28, 2015

Appellants, George F. Dixon, III, and Richard Dixon, appeal the

Orphans’ Court’s March 10, 2014 order sustaining in part and overruling in

part their objections to a first partial account of the Trust Under Revocable

Agreement with Lottie Ivy Dixon (the “Trust”). We quash.

The Settlor, Lottie Ivy Dixon (the “Settlor”), executed the Lottie Ivy

Dixon Revocable Trust (the “Trust”) on August 19, 1985. The Trust

beneficiaries were the Settlor’s four children, including Appellants. Settlor

died on June 28, 2007. On June 26, 2013, Appellee/Trustee M&T Bank

(“Trustee”) filed a First and Partial Account of the Trust (the “Account”). The ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A03019-15

Account revealed $1,882,174.01 in principal and $929,323.73 in income was

distributed to Settlor during her lifetime. The Trust’s only remaining asset

was $11,486.72 in income. On July 26, 2013, Appellants filed seventeen

objections to the Account. On September 13, 2013, Trustee filed a motion

to strike the objections, arguing Appellants had no standing to challenge

distributions made during the Settlor’s lifetime because Trustee owed no

duty to Appellants until after her death. The orphans’ court heard oral

argument on October 25, 2013 and issued the order on appeal on March 10,

2014. The orphans’ court overruled fifteen of Appellants’ seventeen

objections. It referred the matter to Trustee to provide an explanation for

minor corrections concerning the distributions identified in the remaining two

objections, after which the account could be confirmed. Appellants filed a

timely notice of appeal on April 1, 2014.

Trustee filed a motion to quash the appeal on May 8, 2014, arguing

the March 10, 2014 is not a final, appealable order. Our first task,

therefore, is to determine whether we have jurisdiction over this appeal.

Rule 342 of the Pennsylvania Rules of Appellate Procedure provides that an

order confirming an account is appealable as of right. Pa.R.A.P. 342(a). The

order on appeal did not precisely confirm the account. The orphans’ court

explained:

Orphans’ Court Rule 6.1(a) provides, in relevant part, that an account must specify ‘[t]he dates of all receipts, disbursements and distributions, the sources of the receipts, and the persons to whom disbursements and distributions are made

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and the purpose thereof shall be stated …’ (emphasis added). Here, there are two substantial distributions listed as ‘Lottie I. Dixon – Distribution’ in the amounts of $1,504,230.00 and $167,700.00 with no explanation of the purpose of the distributions. In accordance with the Rules, the court will sustain [Appellants’] objections to these two entries in the accounting and refer the matter back to M&T to provide an explanation for the purpose of those two distributions. Following this minor correction, the accounting may be confirmed without the appointment of an auditor.

Orphans’ Court Opinion, 3/7/14, at 4 (bolded emphasis ours, underscoring

added by the orphans’ court).1 As the orphans’ court’s opinion makes clear,

the change was purely ministerial. Nonetheless, the orphans’ court did not

confirm the Account. Rather, it anticipated confirmation of a slightly revised

account to be filed by the Trustee. Thus, the order on appeal is not final

within the meaning of Rule 342(a)(1), nor does it fit under any other

subsection of Rule 342(a). We therefore lack jurisdiction to entertain this

appeal.2

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1 Appellants represent that the Trustee made the correction and filed the revised account on May 15, 2014 (Appellants’ Brief at 14). The revised account is not part of the certified record, nor do we have any indication whether the orphans’ court found the revisions acceptable. 2 We are cognizant that the issues briefed and argued in this appeal will arise again as soon as the orphans’ court enters a final order confirming the revised account. The expense of judicial resources and duplicative effort on the part of counsel is regrettable, but we lack discretion to overlook the jurisdictional flaw in Appellants’ appeal. The record does not explain why Appellants failed to await an appealable final order.

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Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/28/2015

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