Kammerer, W. v. Kammerer, W.

CourtSuperior Court of Pennsylvania
DecidedMay 1, 2019
Docket433 WDA 2018
StatusUnpublished

This text of Kammerer, W. v. Kammerer, W. (Kammerer, W. v. Kammerer, W.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kammerer, W. v. Kammerer, W., (Pa. Ct. App. 2019).

Opinion

J-A30009-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: WILLIAM G. KAMMERER : IN THE SUPERIOR COURT OF T/U/W FBO JEANNE KAMMERER : PENNSYLVANIA STEFL CONSOLIDATED WITH SUSAN : J. KAMMERER, MELINDA J. : MCGUIGAN, AND HARRY S. : KAMMERER, EACH INDIVIDUALLY : AND AS A SHAREHOLDER OF : CHARTIERS LAND COMPANY AND ON : BEHALF OF CHARTIERS LAND : No. 433 WDA 2018 COMPANY : : : v. : : : WILLIAM J. KAMMERER, JR., : INDIVIDUALLY AND IN HIS OFFICIAL : CAPACITY AS AN OFFICER AND : DIRECTOR OF CHARTIERS LAND : COMPANY; AND CHARTIERS LAND : COMPANY, A PENNSYLVANIA : CORPORATION, AND ROBIN : KAMMERER; WILLIAM G. KAMMERER, : III; ADRIAN J. KAMMERER; LINDSAY : J. MOORE; SAM COSTANZO; DENNIS : E. KAUFMAN, PERSONAL : REPRESENTATIVE OF THE ESTATE OF : ARLENE R. KAUFMAN; PNC BANK, : N.A., AS TRUSTEE OF THE MCKINLEY : TRUST PURSUANT TO PARAGRAPH : SECOND OF THE LAST WILL AND : TESTAMENT OF ROBERT B. : MCKINLEY; DAVID R. BAYSEK; MARY : ANN HEID; EDWARD L. BAYSEK, JR; : MELLON BANK, N.A., TRUSTEE FOR : THE FUND B DAVID R. BAYSEK : TRUST CREATED UNDER PARAGRAPH : FOURTH OF THE LAST WILL AND : TESTAMENT OF EDWARD L. BAYSEK; : MELLON BANK, N.A. TRUSTEE FOR : THE FUND B MARY ANN HEID TRUST : CREATED UNDER PARAGRAPH : J-A30009-18

FOURTH OF THE LAST WILL AND : TESTAMENT OF EDWARD L. BAYSEK; : MELLON BANK, N.A. TRUSTEE FOR : THE FUND B EDWARD L. BAYSEK JR., : TRUST CREATED UNDER PARAGRAPH : FOURTH OF THE LAST WILL AND : TESTAMENT OF EDWARD L. BAYSEK; : RICCI A. MINELLA, EXECUTOR OF : THE ESTATE OF VICTORIA T. : MINELLA; MARY KAY SCHMIDT; : GEORGE LAUER, AS SUCCESSOR IN : INTEREST, AND ANY OTHER : SUCCESSOR IN INTEREST TO THE : ESTATE OF C.A. LAUER, AND : CARROLL STEVENS ADAMS, AS : SUCCESSOR IN INTEREST TO : GEORGE STEVENS : : : APPEAL OF: SUSAN J. KAMMERER, : MELINDA J. MCGUIGAN, AND HARRY : S. KAMMERER, EACH INDIVIDUALLY : AND AS A SHAREHOLDER OF : CHARTIERS LAND COMPANY AND ON : BEHALF OF CHARTIERS LAND : COMPANY :

Appeal from the Order March 19, 2018 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): 02-80-3777

IN RE: WILLIAM G. KAMMERER : IN THE SUPERIOR COURT OF T/U/W FBO JEANNE KAMMERER : PENNSYLVANIA STEFL CONSOLIDATED WITH SUSAN : J. KAMMERER, MELINDA J. : MCGUIGAN, AND HARRY S. : KAMMERER, EACH INDIVIDUALLY : AND AS A SHAREHOLDER OF : CHARTIERS LAND COMPANY AND ON : BEHALF OF CHARTIERS LAND : No. 462 WDA 2018 COMPANY : : :

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v. : : WILLIAM G. KAMMERER, JR., : INDIVIDUALLY AND IN HIS OFFICIAL : CAPACITY AS AN OFFICER AND : DIRECTOR OF CHARTIERS LAND : COMPANY; AND CHARTIERS LAND : COMPANY, A PENNSYLVANIA : CORPORATION. : : : v. : : : ROBIN KAMMERER; WILLIAM : G.KAMMERER, III; ADRIAN J. : KAMMERER; LINDSAY J. MOORE; : SAM COSTANZO, ARLENE R. : KAUFMAN; THE ESTATE OF ROBERT : B. MCKINLEY, VICTORIA MINELLA, : MARY KAY SCHMIDT, THE ESTATE : OF C.A. LAUER, THE ESTATE OF : GEORGE STEVENS, AND THE ESTATE : OF EDWARD L. BAYSEK : : : APPEAL OF: ROBIN KAMMERER, : WILLIAM G. KAMMERER, III, ADRIAN : J. KAMMERER AND LINDSAY J. : MOORE :

Appeal from the Order Entered March 19, 2018 In the Court of Common Pleas of Allegheny County Civil Division at No(s): No. 02-80-3777

BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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MEMORANDUM BY SHOGAN, J.: FILED MAY 01, 2019

In these consolidated actions, siblings Harry Kammerer,

Melinda McGuigan, Susan Kammerer (collectively “Shareholders”), and

William Kammerer (“William”), individually and as an officer and director of

the privately held corporation known as Chartiers Land Company (“CLC”),

cross-appeal the judgment entered by the Court of Common Pleas of

Allegheny County Orphans’ Court on March 19, 2018. Upon review, we

reverse in part and affirm in part.

This appeal stems from Shareholders filing two actions, one in the

Allegheny County Court of Common Pleas Civil Division on January 16, 2016,

at docket number 15-23266 (“declaratory judgment action”), and one in the

Allegheny County Court of Common Pleas Orphans’ Court Division on June 16,

2016, at docket number 02-80-3777. The civil complaint set forth a count for

declaratory judgment and a count for breach of fiduciary duty, naming CLC

and William, individually and as an officer and director of CLC. In their

orphans’ court complaint, Shareholders challenged the first and final account

(“the Account”) submitted on behalf of a trust (“Trust B”) established by

William G. Kammerer, Sr., the sibling parties’ father, for the benefit of his

wife, Jeanne Kammerer Stefl, the mother of Shareholders and William

(“Mother”). William was a co-trustee of Trust B. By agreement, the cases

were consolidated on the orphans’ court docket. The orphans’ court allowed

additional discovery to identify and join parties deemed to be indispensable to

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the declaratory judgment action. The indispensable parties included William’s

wife and his three adult children.

The orphans’ court held an evidentiary hearing on August 29 and 30,

2017, and thereafter accepted proposed findings of fact and conclusions of

law. On October 6, 2018, the orphans’ court entered a decree, finding, inter

alia,1 that William had breached his fiduciary duty and that an award of “costs

of record and reasonable counsel fees” was appropriate. Following a fee-

petition procedure,2 the orphans’ court awarded Susan and Melinda

reasonable counsel fees, expenses, and costs (collectively “counsel fees”)

based on amounts set forth in the parties’ fee stipulation;3 however, it denied

CLC counsel fees for the defense of William, his wife, and his adult children.

Order, 3/19/18, at ¶¶ 2, 3. Additionally, the orphans’ court entered judgment

against William for the counsel fees. Id. at ¶ 4. Shareholders appealed on

1 On the individual claims, the orphans’ court found in favor of Susan and Melinda, but it ruled that Harry’s claims were time-barred. Orphans’ Court Opinion, 1/11/18, at 10, 14.

2 Susan and Melinda filed a fee petition regarding their counsel fees, costs, and expenses on October 25, 2017, and by leave of court, they filed a supplemental fee petition regarding CLC’s counsel fees, costs, and expenses. Order, 1/19/18.

3 Shareholders incurred $205,993.57 in legal fees, $16,456.02 in expenses, and $165.83 in costs of record. Fee Petition Stipulation, 2/5/18, at 3–5. CLC incurred $200,183.50 in legal fees, $4,204.32 in expenses, and $235.50 in costs. Id. at 6–8.

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CLC’s behalf. William cross-appealed. All parties and the orphans’ court

complied with Pa.R.A.P. 1925.

On appeal, Shareholders and William challenge the award of counsel

fees. Initially, we address Shareholders’ argument that William waived any

claim that the orphans’ court lacked legal authority to award counsel fees.

Shareholders’ Second Brief at 5. According to Shareholders, although William

filed a timely appeal from the October 6, 2017 decision in the declaratory

judgment action, William did not “raise the issue of the [orphans’ court’s] legal

authority to award counsel fees in either of the [b]riefs that he filed in that

separate appeal. As such, William has waived the issue.” Id.

In response, William argues that the October 6, 2017 order did not

award counsel fees; rather, it “explicitly provided that the [orphans’] court

intended to award fees . . . at some time in the future.” William’s Second

Brief at 5 (emphasis in original). Thus, William argues, the October 6, 2017

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Bluebook (online)
Kammerer, W. v. Kammerer, W., Counsel Stack Legal Research, https://law.counselstack.com/opinion/kammerer-w-v-kammerer-w-pasuperct-2019.