J-S74032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ESTATE OF GERALD GUSHNER,                  :   IN THE SUPERIOR COURT OF
    DECEASED                                   :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: CYNTHIA YAFFE                   :
                                               :
                                               :
                                               :
                                               :   No. 1992 EDA 2019

                  Appeal from the Order Entered June 11, 2019
     In the Court of Common Pleas of Philadelphia County Orphans' Court at
                             No(s): 162 DE of 2018


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 11, 2020

        Appellant, Cynthia Yaffe (“Cynthia”), appeals from the June 11, 2019,

order entered in the Court of Common Pleas of Philadelphia County, Orphans’

Court division, sustaining the preliminary objections of Kent A. Gushner

(“Kent”), individually, as Executor of the Estate of Gerald Gushner (“the

decedent”), and as Trustee of the decedent’s Revocable Deed of Trust (“the

Trust”). The order dismissed Cynthia’s petition for declaratory relief as to the

interpretation and applicability of in terrorem clauses contained in the




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*   Former Justice specially assigned to the Superior Court.
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decedent’s Last Will and Testament (“the Will”) and the Trust.1 After a careful

review, we affirm.

       The relevant facts and procedural history are as follows: The decedent2

died testate on December 17, 2016, and he was survived by his three children:

Kent, Cynthia, and Lisa Glass (“Lisa”).          The Will, which was executed on

August 16, 2016, was probated by the Register of Wills of Philadelphia County

and Letters Testamentary were granted to Kent as Executor on December 28,

2016. Beneficiaries of the Will consist primarily of the decedent’s three

children.

       The Trust was established by decedent on September 20, 2013, and

amended on August 16, 2016.             Kent was appointed Trustee of the Trust.

Beneficiaries thereof consist of the decedent’s three children and their

descendants, as well as the Gerald and Nadine Gushner Foundation.

             Upon the [d]ecedent’s death, the residue of the principal [of
       the Trust] is to be divided into individual trusts for [the
       decedent’s] three children. The Trust also dictates that [the
       decedent’s] shares of “Boyds Interests” are to be divided in equal
       shares to his three children following his death with such shares
       to be held in separate trust as further set forth in [the Trust].
       “Boyds Interests, as defined in…the Trust, refers to [the
       decedent’s] interests in Boyds Realty Partnership, L.P., and
       Gushner Brothers, L.P., and his tenants in common interest in
       1823-25 Chestnut Street.
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1  The Orphans’ Court entered separate, identical orders in the Estate docket
(1992 EDA 2019) and the Trust docket (1993 EDA 2019). Thereafter, Cynthia
filed two separate notices of appeal for which we shall file separate decisions.

2 The decedent was the principal owner of a clothing business, “Boyds,” which
is located in Philadelphia. See Orphans’ Court Opinion, filed 8/23/19, at 2.

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             [I]n terrorem clauses contained in…the Trust and…the Will
       revoke the interests of any beneficiary who contests or challenges
       [the decedent’s] estate plan. The “estate plan” is defined as: 1)
       his Trust; 2) his Will; 3) any other trusts [the decedent] created;
       4) any other designation of beneficiary [the decedent] may have
       executed with respect to any pension plan, retirement account,
       and life insurance policy; and 5) any and all documents and
       actions relating to his Boyds Interests for a period of three years
       after his death.

Orphans’ Court Opinion, filed 8/23/19, at 3-4 (footnotes omitted).

       Thereafter, in December of 2017, Cynthia’s husband, Ralph Yaffe

(“Ralph”), who was a long-time employee of Boyds, filed a civil action against

Kent and Boyds L.P.3 for wrongful cessation of severance pay after he retired

in August of 2017. On February 12, 2018, Cynthia filed a petition for

declaratory judgment seeking a ruling that her filing of a civil complaint

concerning breach of contract and attempted purchase of her partnership

interest in KJR General Partner, Inc. (“KJR”)4 would not violate the in terrorem

clauses.    Eventually, on August 1, 2018, Kent, Cynthia, and Lisa signed

stipulations asserting they would not invoke the in terrorem clauses against




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3 “Boyds L.P., which owns and operates the Boyds Business, is owned by Kent,
Jeff, Ralph, and Boyds General Partnership, Inc.” Orphans’ Court Opinion,
filed 8/23/19, at 5 n.15. “Jeff” refers to Jeffrey Glass, who is Lisa’s husband.

4 KJR is a limited partnership which was formed between Kent, Jeff, Lisa,
Ralph, and Cynthia. The KJR assets include 50% of the Boyds store, 50% of
a parking lot, and 49.5% of another parking lot.




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Cynthia if she filed a complaint in the civil court.5 See Orphans’ Court Opinion,

filed 8/23/19, at 6.

        Meanwhile, Lisa’s husband, Jeff, who was also a long-time employee of

Boyds, filed a civil complaint against Kent and Boyds L.P. for, inter alia,

wrongful cessation of Jeff’s severance pay after he retired from Boyds in

August of 2017. On September 28, 2018, Lisa and Jeff named Cynthia and

Ralph as indispensable party defendants in their civil suit.6 On November 19,

2018, Kent, individually, as Executor, and as Trustee, filed petitions for

declaratory relief seeking a ruling that Lisa and Jeff’s complaint violated the

in terrorem clauses in the Will and the Trust.7 See id. at 7.

        On February 22, 2019, Cynthia filed a second petition for declaratory

judgment.8 Therein, in Count I of the petition, Cynthia sought a ruling that,


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5Cynthia filed said civil complaint, and it was consolidated with her husband,
Ralph’s, civil complaint; the litigation is pending. Id. at 6.

6 Lisa and Jeff also presented in their complaint a claim pertaining to a “non-
binding term sheet.” The Orphans’ Court noted that Lisa and Jeff did not
allege any damages or seek any relief from Cynthia and Ralph in their
complaint; but rather, Cynthia and Ralph were named as indispensable parties
solely because they are parties to the “non-binding term sheet.” Id. at 6-7.
This litigation is pending.

7   This litigation is pending.

8 The petition was filed under the Declaratory Judgment Act, which grants
courts the power to “declare rights, status, and other legal relations.” 42
Pa.C.S.A. § 7532. The purpose of the Act is to “settle and to afford relief from
uncertainty…with respect to rights, status, and other legal relations.” 42
Pa.C.S.A. § 7541.


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if she initiates and proceeds with a proposed cross-claim under Pa.R.C.P.

1031.1 for indemnification/contribution against Kent and the Boyds entities in

the action initiated by Lisa and Jeff (and in which Cynthia was joined as an

indispensable party), the in terrorem clauses of the Will and the Trust will not

be enforceable against her. In Count II of the petition, Cynthia requested an

accounting of Kent’s administration of the Estate and the Trust.

      On May 3, 2019, Kent filed a petition for preliminary objections to

Cynthia’s second petition for declaratory judgment.       Therein, he averred

Cynthia did not state a claim for which relief could be granted as to Count I

related to Cynthia’s proposed cross-claim/violation of the in terrorem clauses.

Thus, he sought preliminary objections in the nature of a demurrer. He

presented no averment with regard to Count II related to Cynthia’s request

for an accounting.

      On May 29, 2019, Cynthia filed an answer to Kent’s petition for

preliminary objections. Therein, she denied Kent’s averments as to Count I.

Additionally, she noted Kent’s petition for preliminary objections advanced no

argument or issue as to Count II related to Cynthia’s request for an

accounting.

      On June 11, 2019, the Orphans’ Court filed an order which provided the

following in its entirety: “Upon consideration of the Preliminary Objections of

Kent A. Gushner to the Petition for Declaratory Judgment, et al. of Petitioner

Cynthia Yaffe, it is hereby ORDERED and DECREED that the Preliminary


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Objections are SUSTAINED and the PETITION is dismissed.” Orphans’ Court

Order, filed 6/11/19 (bold omitted). On July 11, 2019, Cynthia filed a notice

of appeal to this Court.9

       The Orphans’ Court did not direct Cynthia to file a Pa.R.A.P. 1925(b)

statement, and consequently, no such statement was filed.          However, on

August 23, 2019, the Orphans’ Court filed an opinion pursuant to Pa.R.A.P.

1925(a).     Therein, the Orphans’ Court discussed the reasons it sustained

Kent’s petition for preliminary objections as to Count I of Cynthia’s petition in

which she sought a ruling as to whether the filing of a cross-claim in the

Lisa/Jeff action would violate the in terrorem clauses in the Will and the

Trust.10   The Orphans’ Court specifically noted that it was not addressing

Cynthia’s request for an accounting since it remained “a separate issue not



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9On July 1, 2019, Cynthia filed a motion for reconsideration; however, on July
23, 2019, the Orphans’ Court filed an order indicating it was not going to rule
on Cynthia’s motion. See 42 Pa.C.S.A. § 5505 (“Except as otherwise provided
or prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior termination
of any term of court, if no appeal from such order has been taken or
allowed.”).

10  Specifically, in ruling on whether Cynthia’s proposed cross-claim would
trigger or violate the in terrorem clauses, the Orphans’ Court concluded
Cynthia did not state a claim upon which relief could be granted. In this
regard, the Orphans’ Court noted that no liability or damages were alleged
against Cynthia (or her husband, Ralph) in Lisa/Jeff’s civil action, and
accordingly, Cynthia had no basis to bring a cross-claim for indemnification or
contribution. The Orphans’ Court suggested that Cynthia’s petition for
declaratory judgment as to Count I was a “tactic” designed to waste “precious
judicial resources[.]” Orphans’ Court Opinion, filed 8/23/19, at 15.

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within the purview of th[e] appeal.” Orphans’ Court Opinion, filed 8/23/19, at

8 n.24.

       On appeal, Cynthia sets forth the following issues in her “Statement of

the Questions Presented”:

       1. Did the Orphans’ Court err in sua sponte dismissing [Cynthia’s]
          Petition seeking an account under 20 Pa.C.S.A. § 3501.1?
       2. Did the Orphans’ Court err in dismissing [Cynthia’s] Petition
          seeking an account under 20 Pa.C.S.A. § 3501.1 [since she set
          forth a prima facie claim for an account]?

Cynthia’s Brief at 4 (proposed answers omitted).

       Initially, we note that, in response to Cynthia’s issues, Kent claims in

his appellee brief that Cynthia has filed an appeal from an interlocutory, non-

appealable order.       Consequently, he urges this Court to quash Cynthia’s

appeal on this basis. We agree that we must preliminarily determine whether

the Orphans’ Court’s June 11, 2019, order is appealable. “‘[T]he question of

appealability implicates the jurisdiction of our court.’” Jacksonian v. Temple

University Health System Foundation, 862 A.2d 1275, 1279 (Pa.Super.

2004) (quoting In re Estate of Israel, 645 A.2d 1333, 1336 (Pa.Super.

1994)). As a result, “this Court has the power to inquire at any time, sua

sponte, whether an order is appealable.”11 Id.




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11In any event, as indicated, Kent raised an issue regarding the appealable
nature of the June 11, 2019, order.


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       “An appeal may be taken from: (1) a final order or an order certified as

a final order; (2) an interlocutory order as of right; (3) an interlocutory order

by permission; or (4) a collateral order.” In re Estate of Cella, 12 A.3d 374,

377 (Pa.Super. 2010) (citations and quotation omitted).

       In the case sub judice, we agree with Kent that Cynthia’s appeal was

not taken from a final order. A final order is one that disposes of all claims

and of all parties or is entered as a final order pursuant to Pa.R.A.P. 341(c).12

See Pa.R.A.P. 341. In the case sub judice, Cynthia presented two counts in

her petition for declaratory judgment: Count I requested that the Orphans’

Court interpret and apply the in terrorem clauses in the Will and the Trust,

while Count II requested that the Orphans’ Court direct an accounting of

Kent’s administration of the Estate and the Trust.




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12 Pa.R.A.P. 341(c) provides the following:
       (c) Determination of finality.-When more than one claim for
       relief is presented in an action, whether as a claim, counterclaim,
       cross-claim, or third-party claim or when multiple parties are
       involved, the trial court or other government unit may enter a final
       order as to one or more but fewer than all of the claims and parties
       only upon an express determination that an immediate appeal
       would facilitate resolution of the entire case. Such an order
       becomes appealable when entered. In the absence of such a
       determination and entry of a final order, any order or other form
       of decision that adjudicates fewer than all the claims and parties
       shall not constitute a final order.
Pa.R.A.P. 341(c) (emphasis in original). Cynthia did not seek a determination
of finality under Pa.R.A.P. 341(c).



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       As the Orphans’ Court indicated in its Rule 1925(a) opinion, inasmuch

as Kent did not raise any claim with regard to Count II in his petition for

preliminary objections, the June 11, 2019, order did not pertain to Count II of

the petition for declaratory judgment. Accordingly, the June 11, 2019, order

did not dispose of all claims raised in the petition for declaratory judgment.13

See Pa.R.A.P. 341.

       However, this does not end our inquiry as Pa.R.A.P. 342, pertaining to

appealable Orphans’ Court orders, relevantly provides the following:

       Rule 342. Appealable Orphans’ Court Orders
       (a)    General rule. An appeal may be taken as of right from the
              following orders of the Orphans’ Court Division:
              (1)    An order confirming an account, or authorizing
                     or directing a distribution from an estate or
                     trust;
              (2)    An order determining the validity of a will or
                     trust;
              (3)    An order interpreting a will or a document that
                     forms the basis of a claim against an estate or
                     trust;
              (4)    An order interpreting, modifying, reforming or
                     terminating a trust;




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13 Moreover, we note the June 11, 2019, order does not indicate that the
petition for declaratory judgment was dismissed with prejudice. “For finality
to occur, the trial court must dismiss with prejudice the complaint in full.”
Mier v. Stewart, 683 A.2d 930, 933 (Pa.Super. 1996). See also Waddell v.
Trostel, 485 A.2d 1208, 1209 (Pa.Super. 1984) (holding that order dismissing
generally serves as an implicit grant of leave for the appellant to amend).



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            (5)    An order determining the status of fiduciaries,
                   beneficiaries, or creditors in an estate, trust, or
                   guardianship;
            (6)    An order determining an interest in real or
                   personal property;
            (7)    An order issued after an inheritance tax appeal
                   has been taken to the Orphans’ Court[.]
            (8)    An Order otherwise appealable as provided by
                   Chapter 3 of these rules.
                                 ***
      (c)   Waiver of Objections. Failure to appeal an order that is
            immediately appealable under paragraphs (a)(1)-(7) of this
            rule shall constitute a waiver of all objections to such order
            and such objections may not be raised in any subsequent
            appeal.

Pa.R.A.P. 342(a), (c) (emphasis in original).

      In the case sub judice, as indicated supra, the Orphans’ Court’s June

11, 2019, order sustained Kent’s preliminary objections as to Count I:

Cynthia’s request that the Orphans’ Court interpret and determine the

applicability of the in terrorem clauses contained in the Will and the Trust.

Accordingly, we conclude the June 11, 2019, order was appealable as of right

pursuant to Pa.R.A.P. 342(a)(3) and (4).

      However, as Cynthia admits in her appellate brief, Cynthia does not

challenge the Orphans’ Court’s sustaining of Kent’s preliminary objections as

to Count I of her petition related to the applicability of the in terrorem clauses.

Rather, Cynthia suggests the Orphans’ Court’s June 11, 2019, order explicitly

or implicitly denied Count II of her petition in which she sought an accounting

of Kent’s administration of the Estate and the Trust.


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       As the Orphans’ Court explicitly stated in its Rule 1925(a) opinion, the

court has made no ruling as to Cynthia’s request for an accounting, and

therefore, the issue is not “within the purview of th[is] appeal.” Orphans’ Court

Opinion, filed 8/23/19, at 8 n. 24. Thus, Cynthia’s appellate issues in which

she contends the Orphans’ Court erred in denying her request for an

accounting have no basis in fact.              Moreover, we conclude it would be

premature for this Court to determine whether the Orphans’ Court should

direct such an accounting of the Estate and/or the Trust.14

       For all of the foregoing reasons, we affirm the Orphans’ Court’s June 11,

2019, order.

       Application for Relief to Supplement Reproduced Record Granted; Order

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/20




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14 On December 23, 2019, Cynthia filed an application to supplement the
reproduced record to include a response to preliminary objections. We grant
the request.

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