J. A24040/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF                         :     IN THE SUPERIOR COURT OF
ANN NANCY LUCIANI                        :           PENNSYLVANIA
                                         :
APPEAL OF: JOHN J. LUCIANI, JR.          :          No. 451 MDA 2018
AND CHRISTOPHER LUCIANI                  :


              Appeal from the Order Entered February 8, 2018,
            in the Court of Common Pleas of Lackawanna County
                Orphans’ Court Division at No. 35-2012-01377


BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED: MAY 1, 2019

      John J. Luciani, Jr. and Christopher Luciani appeal the February 8, 2018

order of the Court of Common Pleas of Lackawanna County Orphans’ Court

Division that sustained the preliminary objections of appellee, Nancy Nealon

(“Nealon”), trustee of the Ann Nancy Luciani Trust, and dismissed the

declaratory judgment action filed by appellants.      After careful review, we

affirm.

      The relevant facts and procedural history, as recounted by the trial

court, are as follows:

            On May 23, 2017, Petitioners Christopher Luciani
            (“Christopher”) and John J. Luciani, Jr. (“John, Jr.”)
            filed a Petition for Citation to Show Cause Why
            Declaratory Relief Should Not Be Entered.           Said
            Petition seeks the issuance of a Citation to [Nealon].
            Count One of the Petition seeks declaratory judgment
            pertaining to the distribution of shares of closely held
            family    business    Concrete     Step   Units,    Inc.
            (“Concrete Step”) from the Trust of John J.
J. A24040/18


          Luciani, Sr. (“John, Sr.”), while Count Two seeks
          declaratory judgment pertaining to shares of stock of
          another closely held family business, Wayne Crushed
          Stone, Inc. (“Wayne Crushed”).             The Court
          understands [appellants’] position to be that our
          Superior Court, in its Memorandum Opinion in the
          matter of In re: Estate of John J. Luciani, Sr.,
          Deceased, No. 293 MDA 2016, 2016 Pa. Super.
          Unpub. LEXIS 4242, at *10 (Nov. 21, 2016),
          purportedly gave [appellants] a cause of action
          against [Nealon] and required [Nealon] to take certain
          actions with respect to the distribution of stock in
          Concrete Step and Wayne Crushed. More specifically,
          [appellants] insist that the Superior Court’s ruling
          means that certain shares of Concrete Step formerly
          held by the John J. Luciani, Sr. Revocable Trust
          (“John, Sr. Trust”) must be distributed by [Nealon] to
          the Luciani children so that they receive legacies of
          equal value.      In addition, [appellants] seek a
          declaratory judgment that the provisions of a
          Shareholder Agreement by and between Ann and the
          Luciani children govern the distribution of the
          Wayne Crushed stock. They seek this relief because
          they believe that [Nealon] seeks to enrich herself at
          the expense of her siblings and the expense of the
          other Trust beneficiaries.     [Nealon], [appellants]
          state, has thus far ignored the Superior Court’s
          findings, and she also has failed to follow the
          provisions of the Trust instrument and the
          Shareholder Agreement as it pertains to the
          Wayne Crushed stock held by the Trust.

          The parents of [appellants] and [Nealon] are
          John, Sr., who passed away testate in April of 2002,
          and Ann Nancy Luciani, who died in April of 2012.
          After the 2002 death of John, Sr.[,] his Will was filed
          for probate, and his wife and four children were the
          named legatees under the Will, and they also were
          named Beneficiaries under the terms of John, Sr.’s
          1993 Revocable Trust. John, Jr. and [Nealon] were
          named Co-Executors under John, Sr.’s Will, and the
          other two children, Christopher and Jill, were
          appointed Trustees under the 1993 Trust.             At
          John, Sr.’s   death,     his   estate     bequeathed


                                   -2-
J. A24040/18


          $1,156,084.00 to that Trust, and the Trust also
          retained $942,000.00 worth of stock in Concrete Step
          and Wayne Crushed. Pursuant to distributions in 2003
          and 2006, Christopher and Jill, as Trustees,
          transferred the entirety of the Trust’s principal to their
          mother, Ann. In litigation regarding the Estate of
          John, Sr., John, Jr. filed a Petition requesting that
          [Nealon], as de facto Trustee, along with Christopher
          and Jill, as named Trustees, file a First and Final
          Account of the administration of the Estate of
          John, Sr. Jill Mooty (Jill) complied, filing an Account
          showing that the Trust’s principal, including all of the
          stock in Concrete Step and Wayne Crushed, was
          distributed to Ann.

          Objections to the Account were filed by [appellants],
          and a hearing was conducted before the undersigned.
          Along with dismissing [Nealon] as a de facto Trustee,
          this Court denied all Objections. On appeal to the
          Superior Court, Chris[topher] maintained that the
          distributions of stock were inappropriate, under the
          terms of the Trust, and the Superior Court disagreed,
          stating:

                Based on the certified record before us,
                we cannot say that the children were
                ultimately treated disparately. In fact, we
                cannot even ascertain how the principal of
                [John, Sr.’s]   Trust    was     ultimately
                distributed. Mother’s trust agreement is
                not in the record. Nor is any accounting
                of her estate or trust.

                Why [sic] it is possible that the
                distribution to Mother of the entirety of
                the principal of [John, Sr.’s] Trust, for the
                undisputed purpose of estate planning,
                was not entirely authorized by the trust,
                that conclusion cannot be reached without
                a finding that Mother’s estate plan was not
                in accordance with the stated intent of
                [John, Sr.’s] trust. Furthermore, there is
                no allegation, and no proof, that Mother



                                    -3-
J. A24040/18


                dissipated these assets in a manner that
                defeated [John, Sr.’s] Trust’s purposes.

                ....

                The certified record contains no evidence
                that Mother’s inter vivos gifts, estate,
                and trust distributions did not treat the
                children equally. Therefore, Christopher
                did not establish his right to relief, and is
                due no relief on this issue on appeal.

          In regard to Ann, her death occurred on April 5, 2012.
          She left a Will executed in October of 2011, which was
          admitted to probate in the Circuit Court, Fifth Judicial
          Circuit, in or in the vicinity of Lake County, Florida.
          Christopher presented in that Florida Circuit Court a
          Petition seeking that his mother’s Will be revoked
          from probate.        During litigation regarding Ann’s
          Estate, the parties stipulated, and the Court
          correspondingly Ordered, that if the Court found Ann’s
          2011 Will to be valid, then the 2011 Trust would be
          valid as well; along those same lines, the parties
          stipulated that if the Will was determined to be invalid,
          then the Trust would be as well.

          A trial was held in Florida regarding Christopher’s
          Petition for Revocation. [Nealon] moved midway
          through the trial for an involuntary dismissal, based
          upon what she maintained was that [Christopher] had
          shown no right to relief. The Lake County Florida
          Court agreed, and granted [Nealon’s] Motion and the
          case was involuntarily dismissed on February 25,
          2014. By final decision, dated March 10, 2014, the
          Lake     County      Florida    Court   [o]rdered   that
          Mrs. Luciani’s 2001 Will remained admitted to
          probate. Because of the stipulation regarding the
          validity or invalidity of the trust was connected to the
          Will, the Court further determined that Ann’s 2011
          Trust Agreement was valid.

          In June of 2016, [Nealon] filed a First and Final
          Account of Personal Representative in the Estate of
          her late mother. The document was filed in Florida,


                                    -4-
J. A24040/18


          and it included as assets seven thousand five hundred
          shares of Concrete Step stock, and seventy-nine
          shares of Wayne Crushed. [Nealon] also filed a
          Petition for Discharge in the Ann Luciani Estate, and
          in the Petition, asked that distribution be made to the
          Trust of Ann Luciani included the seven thousand five
          hundred shares, and the seventy[-]nine shares. The
          Petition for Discharge was properly served, and no
          Objections were timely filed to that Petition. [On]
          October 20, 2016, as no Objections were filed to the
          Account and Petition for Discharge, the Lake County
          Florida Court entered an Order of Discharge in the
          Ann Luciani Estate, ruling that the Estate was fully
          administered and properly distributed.

          [Appellants] maintain that the Luciani Children have
          not been treated equally by the Ann Luciani Trust with
          respect to the Concrete Step shares that she received
          from John, Sr.’s Trust during her lifetime.      They
          further maintain that the Trust of Ann, which now
          holds the Wayne Crushed and Concrete Step shares,
          should not be distributed in accordance with the
          provisions of Ann’s Trust, but in accordance with the
          Superior     Court’s   Memorandum        Opinion    of
          November 21, 2016, a ruling which in fact affirmed
          our Court’s earlier rulings with respect to this
          litigation. The purpose of the instant declaratory
          judgment matter is, according to [appellants], not to
          invalidate the stock shares distributed to either Ann
          or Ann’s Trust, and [appellants] are not challenging
          any determination of the Florida Court with respect to
          Ann’s Estate or Trust. The purpose of this proceeding,
          according to [appellants], is to obtain declaratory
          judgment that the Concrete Step shares distributed
          from John, Sr. Trust to either the Estate of Ann
          Luciani, or the Trust of Ann Luciani, must now be
          distributed to the Luciani Children, ensuring equal
          treatment. . . .

          ....

          The First Preliminary Objection presented by [Nealon]
          is that, based on Pa. O.C. Rule 3.9(b)(1), the Petition
          should be dismissed due to lack of jurisdiction, since


                                   -5-
J. A24040/18


                the Ann Luciani Trust Agreement designates that the
                situs of the Trust is in Florida, and the Trust
                Agreement is also governed by the laws of Florida.

Trial court opinion, 2/6/18 at 1-4.

      In an order dated February 6, 2018, and filed on February 8, 2018, the

trial court sustained the preliminary objection regarding lack of jurisdiction

and dismissed the declaratory judgment action. The trial court filed an opinion

that same day. On March 9, 2018, appellants filed a notice of appeal. The

trial court did not order appellants to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellants raise the following issues for this court’s review:

                1.    Did the [trial] Court err as a matter of law in
                      sustaining appellee’s preliminary objections by
                      finding that it lacks jurisdiction to adjudicate
                      appellants’ claim?

                2.    Was the statement by a panel of this Court in a
                      related case that the “. . . Trust gave the
                      trustees significant discretion in how to
                      distribute the principal of the Trust, so long as
                      the distribution was done in a manner that
                      ultimately treated [the children] equally” dicta
                      or decisional?

Appellant’s brief at 4.

      Initially, appellants contend that the trial court erred as a matter of law

when it sustained appellee’s preliminary objection finding that it lacked

jurisdiction.

                Our analysis begins with a recitation of the applicable
                legal standards:



                                         -6-
J. A24040/18


                Our standard of review of an order of the
                trial court overruling [or granting]
                preliminary objections is to determine
                whether the trial court committed an error
                of   law.       When     considering   the
                appropriateness of a ruling on preliminary
                objections, the appellate court must apply
                the same standard as the trial court.

          De Lage Landen Fin. Servs., Inc. v. Urban P’ship,
          LLC, 903 A.2d 586, 589 (Pa.Super. 2006). “On an
          appeal from an [o]rder sustaining preliminary
          objections, we accept as true all well-pleaded material
          facts set forth in the appellant’s complaint and all
          reasonable inferences which may be drawn from those
          facts.”    Filipovich v. J.T. Imports, Inc., 431
          Pa.Super. 552, 637 A.2d 314, 316 (1994). “Where,
          as here, upholding sustained preliminary objections
          would result in the dismissal of an action, we may do
          so only in cases that are clear and free from doubt.”
          Ellenbogen v. PNC Bank, N.A., 731 A.2d 175, 181
          (Pa.Super. 1999). “Any doubt should be resolved by
          a refusal to sustain the objections.” Id.

          “[I]t is well-settled that the question of subject matter
          jurisdiction may be raised at any time, by any party,
          or by the court sua sponte.” B.J.D. v. D.L.C., 19
          A.3d 1081, 1082 (Pa.Super. 2011) (quoting Grom v.
          Burgoon, 448 Pa.Super. 616, 672 A.2d 823, 824-25
          (1996)). Our standard of review is de novo, and our
          scope of review is plenary. Id. “Generally, subject
          matter jurisdiction has been defined as the court’s
          power to hear cases of the class to which the case at
          issue belongs.” Verholek v. Verholek, 741 A.2d
          792, 798 (Pa.Super. 1999).

                Jurisdiction is the capacity to pronounce a
                judgment of the law on an issue brought
                before the court through due process of
                law.     It is the right to adjudicate
                concerning the subject matter in a given
                case. . . . Without such jurisdiction, there
                is no authority to give judgment and one
                so entered is without force or effect. The


                                    -7-
J. A24040/18


                   trial court has jurisdiction if it is
                   competent      to    hear    or determine
                   controversies of the general nature of the
                   matter involved sub judice. Jurisdiction
                   lies if the court had power to enter upon
                   the inquiry, not whether it might
                   ultimately decide that it could not give
                   relief in the particular case.

             Aronson v. Sprint Spectrum, L.P., 767 A.2d 564,
             568 (Pa.Super. 2001) (quoting Bernhard v.
             Bernhard, 447 Pa.Super. 118, 668 A.2d 546, 548
             (1995)).

Estate of Gentry v. Diamond Rock Hill Realty, LLC, 111 A.3d 194, 198

(Pa.Super. 2015).

        Appellee brought her preliminary objection on the basis that the trial

court lacked jurisdiction to hear appellants’ petition. (Trustee Nancy Nealon’s

preliminary objections to the petition for citation to show cause why

declaratory relief with regard to the Revocable Agreement of Trust of

Ann Nancy Luciani dated October 4, 2011 should not be entered, 7/3/17 at

7-8.)

        Appellants argue that this case does not involve the validity of the

Revocable Agreement of Trust of Ann Nancy Luciani dated October 4, 2011

(“Ann Trust”) or the interpretation of the provisions of the Ann Trust.

Appellants argue that what is at issue is the distribution of the Concrete Step

shares. (Appellants’ brief at 13.) Further, appellants assert that the trial court

has subject matter jurisdiction over an inter vivos trust. (Id. at 14.)




                                      -8-
J. A24040/18

      This court does not agree with these assertions. While the Orphans’

Court has subject matter jurisdiction over an inter vivos trust, see

Section 711 of the Probate, Estates, and Fiduciaries Code (“Code”),

20 Pa.C.S.A. § 711, it does not have a claim of jurisdiction over any trust

entered in any state across the country. Appellants argue that Pennsylvania,

rather than Florida, has jurisdiction over Nealon because she is a Pennsylvania

resident. (Appellants’ brief at 15.)

      Section 714 of the Code, 20 Pa.C.S.A. §714, provides that nothing in

the chapter of the Code regarding orphans’ courts shall be construed to

interfere with rules of law applicable to the determination of whether a

Pennsylvania court has jurisdiction over the subject matter enumerated in the

chapter.

      Although not binding on this court as it is the decision of the Court of

Common Pleas of Philadelphia County, In re Holdeen’s Trust, 58 Pa. D. &

C.2d 602 (Philadelphia Cty. 1972), assists this court in its analysis.       In

Holdeen, the Court of Common Pleas of Philadelphia County determined that

it had jurisdiction to decide questions relating to petitions for declaratory

judgment and petitions for the reformation of trust instruments. The common

pleas court reached this decision even though Jonathan Holdeen, the settlor

of the trust at issue, lived in New York for most of his life, was a resident of

that state when he created the trust, and was a resident of New York when he

died. For the Holdeen court, the key factors were that the settlor expressed



                                       -9-
J. A24040/18

his intention in the trust documents that the assets of the trusts be held in

Pennsylvania and that the trusts be administered in either Pennsylvania or

Massachusetts.    The trustees chose Pennsylvania.        In addition, the chief

remainderman of the trust was the Commonwealth of Pennsylvania and

substantial assets were held in Pennsylvania. The common pleas court also

held that the questions of the validity of a trust provision was a question of

Pennsylvania law which Pennsylvania courts were best equipped to resolve.

Holdeen, 58 D. & C.2d at 614, 616. The common pleas court determined

that a trust settlor has the right to choose the jurisdiction in which his or her

trust is to be administered and that choice is not limited to the state where

the assets of the trust are located. Id. at 616-617.

      Similarly, though not binding on this court, the trial court relied on

Saffan v. Saffan, 588 So.2d 684 (Fla. Dist. Ct. App. 1991). In Saffan, the

District Court of Appeal of Florida for the Third District held that where the

grantor of a trust was a Florida resident; the trust was executed in Florida;

the trustee of the trust was a resident of Florida; the trust contained a

provision that it would be administered in accordance with Florida law; the

trust corpus contained property purchased and owned by the grantor while a

Florida resident; and the trust was administered in Florida, the situs of the

trust rested in Florida. The Saffan court also held that the situs is not affected

by an out-of-state residence by the trustee to the extent appellants argue that

Nealon is not a Florida resident.



                                     - 10 -
J. A24040/18

      Here, Ann Luciani, the grantor of the trust, was a resident of Florida.

Her estate was opened and the will was probated in Florida. Further, the trust

was settled in Florida and assets were conveyed pursuant to the trust terms

in Florida. Appellants concede in the petition that Ann Luciani died with her

domicile in Florida and that the trust instrument designates Florida as the situs

of the trust and that all questions regarding the validity, construction, and

administration of the trust come under Florida law. All of these factors support

a conclusion that Florida, not Pennsylvania, had jurisdiction over the trust.

      Furthermore, the trial court also addressed the fact that the will of

Ann Luciani was contested in Florida courts; and in the course of the litigation,

there was a stipulation that if the will was determined to be valid, then the

Ann Trust would be determined to be valid. The trial court concluded that

appellants1 had no authority to admit to the validity of the trust in one state

and then to challenge its validity in another:

            Further, matters regarding the Estate of Ann Luciani
            were litigated in the state of Florida, as [Nealon]
            reminds this Court, and the Trust was in fact held to
            be valid by the Lake County Florida Court. The Trust
            Agreement identified Ann Luciani as a resident of Lady
            Lake, Florida. Citing 20 Pa. C.S.A. § 7708(a) and
            Saffan v. Saffan, 588 So.2d 684 (Fla. Dist. Ct. App.
            1991), a case which held that where Grantor, a Florida
            resident who intended for jurisdiction over Grantor’s
            Trust to be in Florida, [Nealon] asks that the Petition
            pending before our Court be dismissed for want of
            jurisdiction.    Again, the Estate and Trust of
            Ann Luciani were litigated to conclusion in Florida,

1 Actually, Christopher Luciani was the only appellant to contest the validity
of the will in Florida.


                                     - 11 -
J. A24040/18


            several years ago. The Will and Trust of Ann were
            deemed valid. Administration was completed, and
            distribution followed. A Court Order closed the
            matter.

            While the Court understands [appellants’] assertions
            that the ultimate distribution of the Estates and Trusts
            of each of their parents proved to be more favorable
            to [Nealon] than to them, we have come across no
            statute or decisional authority which allows heirs or
            beneficiaries    who     are   dissatisfied   with   the
            administration and finalization of any estate in one
            state, including the litigation before and adjudication
            of legal questions by a court of that one state, to file
            an action concerning the same Decedent’s Estate in a
            Court of another state. Although various courts may
            sometimes have concurrent jurisdiction with respect
            to certain matters, a court’s jurisdiction should
            ordinarily not be exercised so as to conflict with the
            jurisdiction of another court, and a court should not
            interfere in a matter within the exclusive jurisdiction
            of another court.       Com. Ex rel. Rosequist v.
            Rosequist, 268 A.2d 140 (Pa. Super. 1970); Trout
            v. Lukey, 166 A.2d 654 ([Pa.] 1961). The instant
            declaratory judgment seeking review of Ann Luciani’s
            Estate and Trust, which were litigated previously in
            Florida and found to be valid, as asking the Court of
            Common Pleas to essentially overturn Orders of the
            Lake County Florida Court. [Appellants’] requests in
            fact raise the issues of res judicata and collateral
            estoppel, but the Court need not explore those
            principles in the context of this Estate, because we
            simply lack jurisdiction. The Trust Agreement at issue
            is a Florida Trust that has been ruled valid in Florida
            by a Florida Court.       The Petition for declaratory
            judgment is invalid, and we will, in the attached
            Order, grant [Nealon’s] preliminary objection
            concerning jurisdiction and dismiss this action.

Trial court opinion, 2/6/18, at 5.

      Based on the record before this court, the applicable statutes and case

law, and the parties’ briefs, this court determines that the trial court did not


                                     - 12 -
J. A24040/18

commit an error of law when it sustained Nealon’s preliminary objection for

lack of jurisdiction and dismissed appellants’ petition.2

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/1/2019




2 As we affirm the trial court’s determination that it lacked jurisdiction to
adjudicate appellants’ petition, we need not address appellants’ remaining
issue.


                                     - 13 -
