J-S37032-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE LEAH GAIN SPECIAL : IN THE SUPERIOR COURT OF NEEDS TRUST : PENNSYLVANIA : : APPEAL OF: WILMINGTON TRUST, : N.A. : : : : No. 1461 EDA 2021
Appeal from the Order Entered June 15, 2021 In the Court of Common Pleas of Chester County Civil Division at No(s): 1512-1598
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 14, 2022
Appellant, Wilmington Trust, N.A., (“Wilmington”) appeals from the
order entered by the Court of Common Pleas of Chester County which denied
Wilmington’s initial Motion for Legal Fees and Costs as moot in light of the
lower court’s companion order granting a separate and subsequent Motion for
Sanctions that sought to hold opposing counsel personally liable to pay a
portion of the legal fees and costs attributable to his dilatory conduct.
Specifically, Wilmington asks whether the lower court committed reversible
error in deeming the overarching Motion for Legal Fees and Costs moot. We
reverse and remand.
As the instant non-precedential memorandum decision affects only the
parties and lower court, who are familiar with all aspects of the present
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S37032-21
matter, a summary recitation of the pertinent facts and procedural history is
apt.1
From September 26, 2012, to the end of 2016, Wilmington acted as the
initial, court-approved trustee and administrator of the Leigh Gain Special
Needs Trust (“Gain Trust”), which holds the net proceeds from a medical
malpractice settlement reached in favor of then five-year-old Leah Gain, who
sustained significant neurologic injury during her hospital birth.
On January 1, 2017, pursuant to a purchase/sale agreement between
Wilmington and New York Private Trust Company (“NYPT”), NYPT assumed
trustee duties, as Wilmington’s agent, over the Gain Trust. On April 21, 2017,
the lower court approved the change of trusteeship without objection.
On May 5, 2017, the Gains removed NYPT as trustee in favor of another
entity. NYPT, therefore, filed its August 29, 2017, account of its administration
of the Gain Trust. By Decree of August 2, 2018, the lower court confirmed
the accounting and awarded counsel for NYPT attorney’s fees of $59,978.66.
During this time, the lower court also entered a decree ordering
Wilmington to file an account of its four-year, three-month administration of
the Gain Trust. On January 6, 2020, Wilmington filed and served both its
Account requesting $59,756.51 in trustee fees and its “Petition for
Adjudication” thereof, which requested a $15,545 reserve comprising $5,545 ____________________________________________
1 We discern no dispute between Wilmington, the lower court, and Luann and Matthew Gain, parents of Leah Gain, regarding the facts and procedural history as recounted below. Moreover, the Gains have not filed a brief in this appeal.
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in attorney’s fees and costs already incurred and up to $10,000 for additional
fees and costs associated with defending its account against any objections
filed on behalf of the trust. The accompanying notice letter advised that
written objections to the account must be filed with the lower court by
February 5, 2020.
The Gains delivered written objections to Wilmington on February 3,
2020, but we note with displeasure it was not until March 4, 2021, however,
fourteen months after Wilmington’s Account and notice letter were filed and
served, that counsel for the Gains finally filed its objections with the lower
court.
This intervening time involved multiple adjournments and continuances
caused by counsel for the Gains, including: a requested one-month
adjournment to March, 2020; a June 2020 telephonic conference at which the
lower court instructed counsel that matters could not proceed until he filed
the Gains’ objections; counsel’s requested continuance on September 23,
2020, two days before a scheduled hearing, for a personal matter; a scheduled
hearing on January 11, 2021 at which the Gains and their counsel “forgot” to
appear; a January 15, 2021 hearing at which the lower court again instructed
that matters could not proceed until counsel filed objections; and a February
11, 2021 hearing at which the lower court advised once more that counsel’s
failure to file objections necessitated another continuance despite the
attendance and readiness of all parties and witnesses.
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During this sequence of delays, Wilmington filed and served its
September 18, 2020, Motion for Payment of Legal Fees and Costs seeking an
order that all such fees and costs of Wilmington be paid from the Gain Trust.
On February 12, 2021, Wilmington filed a Motion to Adjudicate Account or
Dismiss Objections, in which it advanced alternative positions that the Gains’
objections to this point were either never filed or untimely filed. No timely
response was filed to either motion.
Nearly five months after the applicable deadline, the Gains filed their
March 5, 2021, counseled Response in Opposition to the Wilmington’s Motion
for Payment of Legal Fees and Costs. The court addressed the Motion and
Response over two days of hearings only to learn counsel for the Gains wished
to amend the Response because sections of it were inaccurate. By Order of
March 10, 2021, the lower court ordered both parties to file proposed findings
of fact and conclusions of law. Wilmington filed proposed findings on May 25,
2021, whereas the Gains supplied the court with no such filing.
On April 30, 2021, Wilmington filed a second motion pertaining to
payment of its legal fees. Specifically, in its Motion for Sanctions, Wilmington
now asked the lower court to hold opposing counsel personally liable for the
portion of Wilmington’s legal fees and costs sought in its September 18, 2020,
Motion for Payment of Legal Fees and Costs attributable to counsel’s dilatory
actions and inactions throughout the relevant period.
On June 15, 2021, the lower court issued a decree granting Wilmington’s
Motion for Sanctions and directing opposing counsel to personally pay
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$14,791.05 of the total amount of Wilmington’s legal fees and costs. On the
same day, the lower court overruled the Gains’ objections to Wilmington’s
Account.
What is presently at issue, however, is the lower court’s additional order
of June 15, 2021, denying as moot Wilmington’s Motion for Payment of Legal
Fees and Costs. According to Wilmington, after the lower court’s Decree for
Sanctions against opposing counsel in the amount of $14,791.05, there
remained $84,843.54 of the total legal fees and costs owed Wilmington, and
the lower court should have entered a decree granting the Motion for Payment
of Legal Fees and Costs and directing the Gain Trust to pay this remainder.
Wilmington presented this argument in its July 2, 2021, motion for
reconsideration before filing the present appeal on July 15, 2021.
For its part, the lower court opines that only upon having overruled the
Gain Trust’s objections to Wilmington’s Account with its June 15, 2021, decree
was it then able to undertake a final adjudication of the Account and award to
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J-S37032-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE LEAH GAIN SPECIAL : IN THE SUPERIOR COURT OF NEEDS TRUST : PENNSYLVANIA : : APPEAL OF: WILMINGTON TRUST, : N.A. : : : : No. 1461 EDA 2021
Appeal from the Order Entered June 15, 2021 In the Court of Common Pleas of Chester County Civil Division at No(s): 1512-1598
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 14, 2022
Appellant, Wilmington Trust, N.A., (“Wilmington”) appeals from the
order entered by the Court of Common Pleas of Chester County which denied
Wilmington’s initial Motion for Legal Fees and Costs as moot in light of the
lower court’s companion order granting a separate and subsequent Motion for
Sanctions that sought to hold opposing counsel personally liable to pay a
portion of the legal fees and costs attributable to his dilatory conduct.
Specifically, Wilmington asks whether the lower court committed reversible
error in deeming the overarching Motion for Legal Fees and Costs moot. We
reverse and remand.
As the instant non-precedential memorandum decision affects only the
parties and lower court, who are familiar with all aspects of the present
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S37032-21
matter, a summary recitation of the pertinent facts and procedural history is
apt.1
From September 26, 2012, to the end of 2016, Wilmington acted as the
initial, court-approved trustee and administrator of the Leigh Gain Special
Needs Trust (“Gain Trust”), which holds the net proceeds from a medical
malpractice settlement reached in favor of then five-year-old Leah Gain, who
sustained significant neurologic injury during her hospital birth.
On January 1, 2017, pursuant to a purchase/sale agreement between
Wilmington and New York Private Trust Company (“NYPT”), NYPT assumed
trustee duties, as Wilmington’s agent, over the Gain Trust. On April 21, 2017,
the lower court approved the change of trusteeship without objection.
On May 5, 2017, the Gains removed NYPT as trustee in favor of another
entity. NYPT, therefore, filed its August 29, 2017, account of its administration
of the Gain Trust. By Decree of August 2, 2018, the lower court confirmed
the accounting and awarded counsel for NYPT attorney’s fees of $59,978.66.
During this time, the lower court also entered a decree ordering
Wilmington to file an account of its four-year, three-month administration of
the Gain Trust. On January 6, 2020, Wilmington filed and served both its
Account requesting $59,756.51 in trustee fees and its “Petition for
Adjudication” thereof, which requested a $15,545 reserve comprising $5,545 ____________________________________________
1 We discern no dispute between Wilmington, the lower court, and Luann and Matthew Gain, parents of Leah Gain, regarding the facts and procedural history as recounted below. Moreover, the Gains have not filed a brief in this appeal.
-2- J-S37032-21
in attorney’s fees and costs already incurred and up to $10,000 for additional
fees and costs associated with defending its account against any objections
filed on behalf of the trust. The accompanying notice letter advised that
written objections to the account must be filed with the lower court by
February 5, 2020.
The Gains delivered written objections to Wilmington on February 3,
2020, but we note with displeasure it was not until March 4, 2021, however,
fourteen months after Wilmington’s Account and notice letter were filed and
served, that counsel for the Gains finally filed its objections with the lower
court.
This intervening time involved multiple adjournments and continuances
caused by counsel for the Gains, including: a requested one-month
adjournment to March, 2020; a June 2020 telephonic conference at which the
lower court instructed counsel that matters could not proceed until he filed
the Gains’ objections; counsel’s requested continuance on September 23,
2020, two days before a scheduled hearing, for a personal matter; a scheduled
hearing on January 11, 2021 at which the Gains and their counsel “forgot” to
appear; a January 15, 2021 hearing at which the lower court again instructed
that matters could not proceed until counsel filed objections; and a February
11, 2021 hearing at which the lower court advised once more that counsel’s
failure to file objections necessitated another continuance despite the
attendance and readiness of all parties and witnesses.
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During this sequence of delays, Wilmington filed and served its
September 18, 2020, Motion for Payment of Legal Fees and Costs seeking an
order that all such fees and costs of Wilmington be paid from the Gain Trust.
On February 12, 2021, Wilmington filed a Motion to Adjudicate Account or
Dismiss Objections, in which it advanced alternative positions that the Gains’
objections to this point were either never filed or untimely filed. No timely
response was filed to either motion.
Nearly five months after the applicable deadline, the Gains filed their
March 5, 2021, counseled Response in Opposition to the Wilmington’s Motion
for Payment of Legal Fees and Costs. The court addressed the Motion and
Response over two days of hearings only to learn counsel for the Gains wished
to amend the Response because sections of it were inaccurate. By Order of
March 10, 2021, the lower court ordered both parties to file proposed findings
of fact and conclusions of law. Wilmington filed proposed findings on May 25,
2021, whereas the Gains supplied the court with no such filing.
On April 30, 2021, Wilmington filed a second motion pertaining to
payment of its legal fees. Specifically, in its Motion for Sanctions, Wilmington
now asked the lower court to hold opposing counsel personally liable for the
portion of Wilmington’s legal fees and costs sought in its September 18, 2020,
Motion for Payment of Legal Fees and Costs attributable to counsel’s dilatory
actions and inactions throughout the relevant period.
On June 15, 2021, the lower court issued a decree granting Wilmington’s
Motion for Sanctions and directing opposing counsel to personally pay
-4- J-S37032-21
$14,791.05 of the total amount of Wilmington’s legal fees and costs. On the
same day, the lower court overruled the Gains’ objections to Wilmington’s
Account.
What is presently at issue, however, is the lower court’s additional order
of June 15, 2021, denying as moot Wilmington’s Motion for Payment of Legal
Fees and Costs. According to Wilmington, after the lower court’s Decree for
Sanctions against opposing counsel in the amount of $14,791.05, there
remained $84,843.54 of the total legal fees and costs owed Wilmington, and
the lower court should have entered a decree granting the Motion for Payment
of Legal Fees and Costs and directing the Gain Trust to pay this remainder.
Wilmington presented this argument in its July 2, 2021, motion for
reconsideration before filing the present appeal on July 15, 2021.
For its part, the lower court opines that only upon having overruled the
Gain Trust’s objections to Wilmington’s Account with its June 15, 2021, decree
was it then able to undertake a final adjudication of the Account and award to
Wilmington the balance of its legal fees and costs, to be paid by the Gain
Trust. The lower court concluded that the filing of the present notice of appeal
removed this matter from its jurisdiction.
Our standard of appellate review of an orphan's court decree employs a
deferential standard. In re Estate of Strahsmeier, 54 A.3d 359, 362 (Pa.
Super. 2012). However, we must ensure that the court's decision is free from
legal error. In re Estate of Rosengarten, 871 A.2d 1249, 1253 (Pa. Super.
2005). Our Supreme Court has reiterated the principle that reviewing courts
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are “bound by the trial judge's finding of facts unless the findings are not
based on competent evidence. Conclusions of law, however, are not binding
on an appellate court whose duty it is to determine whether there was a proper
application of law to fact by the lower court.” In re Peery, 727 A.2d 539,
540 (Pa. 1999) (citation omitted).
Therefore, an “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 omitted and some formatting altered). An abuse of discretion
is not merely an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by
the evidence of record, discretion is abused. In re Estate of Warden, 2 A.3d
565, 571 (Pa.Super. 2010)(citation omitted).
“[A]n actual case or controversy must exist at all stages of the judicial
process, or a case will be dismissed as moot.” Interest of J.L., 216 A.3d
233, 237 (Pa. Super. 2019). “The concept of mootness focuses on a change
that has occurred during the length of the legal proceedings.” Id. (quoting
In re Cain, 590 A.2d 291, 292 (Pa. 1991)). “If an event occurs that renders
impossible the grant of the requested relief, the issue is moot . . . .” Id.
(quoting Delaware Ricer Preservation Co., Inc. v. Miskin, 923 A.2d 1177,
1183 n.3 (Pa. Super. 2007)).
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Apparent to this Court is that Wilmington and the lower court are correct
in their agreement that Wilmington is entitled to receive from the Gain Trust
the remainder of unpaid legal fees and costs. Yet, the lower court entered a
June 15, 2021, order denying Wilmington’s Motion for Legal Fees and Costs
as moot given its disposal of the Motion for Sanctions, even though legal fees
and costs remained in issue under Wilmington’s Motion for Legal Fees and
Costs, and the lower court’s jurisdiction to enter an order adjudicating the
appropriate amount and payor of such fees and costs was still intact. Under
such circumstances, the lower court’s order granting Wilmington’s Motion for
Sanctions did not render moot the overarching Motion for Legal Fees and
Costs.
Therefore, we reverse the order denying Wilmington’s Motion for Legal
Fees and Costs and remand for further proceedings to allow the lower court
to complete its final Adjudication of the Account and enter an order on
Wilmington’s Motion for Legal Fees and Costs consistent with this decision.
Order reversed. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/14/2022
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