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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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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J-A04036-20


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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