J-A29010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: JOHN E. JACKSON AND SUE             :   IN THE SUPERIOR COURT OF
    M. JACKSON, CHARITABLE TRUST               :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: POLLY J. TOWNSEND               :
    AND WILLIAM R. JACKSON, JR.                :
                                               :
                                               :
                                               :   No. 70 WDA 2019

               Appeal from the Order Entered December 11, 2018
      In the Court of Common Pleas of Allegheny County Orphans' Court at
                             No(s): 3999 of 1988


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED APRIL 17, 2020

        Polly J. Townsend and William R. Jackson, Jr. (“Individual Trustees”),

appeal from the December 11, 2018 order, approving a mediation settlement

agreement they entered into with co-trustee, PNC Bank, N.A. (“PNC”), to

resolve a dispute regarding the John E. Jackson and Sue M. Jackson Charitable

Trust (“Trust”). After careful review, we affirm.

        John E. Jackson and Sue M. Jackson (“Grantors”) established the Trust

on February 6, 1950.1 It was created “solely for charitable purposes, and the

income and principal of the [T]rust estate is to be used for the sole benefit of

public charities….” Trust at ¶ 4.        The Trust originally named two trustees—

W.R. Jackson (John E. Jackson’s younger brother) and Commonwealth Trust
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 John E. Jackson lived until April of 1971, and Sue M. Jackson lived until
January of 1994.
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Company of Pittsburgh. In 1989, W.R. Jackson resigned and his daughter,

Polly J. Townsend, was appointed to replace him as a co-trustee. The Trust

was reformed in 1998 to provide that there shall always be two trustees—

National City Bank of Pennsylvania and its successors,2 and an individual

trustee who is a member of the Jackson family. In May of 2005, the orphans’

court entered an order reforming the Trust’s appointment provision again, and

stated, in part:

        There shall always be three trustees acting hereunder, National
        City Bank of Pennsylvania and its successors, which shall possess
        at all times one-half of the voting power of the trustees, and two
        individual trustees who are members of the Jackson family, each
        of whom shall possess at all times one-fourth of the voting power
        of the trustees.

Order, 5/24/05.       The court also approved the appointment of William R.

Jackson, Jr. (Polly’s brother) as the second individual co-trustee. PNC became

the successor corporate co-trustee in 2009, after it acquired National City

Bank.

        Section 6 of the Trust provides the following regarding distributions:

        The [t]rustees shall distribute the income of the [T]rust fund
        among such public charities created for religious, educational or
        other charitable purposes as they in their sole discretion may
        deem proper. The Grantors may from time to time suggest to the
        [t]rustees specific charitable institutions or charitable causes to
        which they would like contributions made by the [t]rustees but
        the [t]rustees are in no manner obligated to follow the requests
        of the Grantors but, on the contrary, may distribute the income
        and principal of the [T]rust fund for such charitable purposes as
        they in their sole discretion may determine.
____________________________________________


2 National City Bank of Pennsylvania was a successor in interest to
Commonwealth Trust Company of Pittsburgh.

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Trust ¶ 6.

      In 2016, PNC filed a petition to resolve a deadlock, which had formed

between PNC and Individual Trustees regarding the amounts and recipients of

the donations for 2016.     According to PNC, it sought judicial intervention

because, in order to avoid a tax penalty under Section 4942 of the Internal

Revenue Code, the Trust needed to distribute at least 5% of its net assets

before the end of the year. PNC’s Petition, 11/28/16, at 6 ¶ 20 (citing 26

U.S.C. § 4942). PNC further indicated that “in keeping with the traditional

giving pattern of the … Trust during the lifetime of the [Grantors],” it has

strongly favored distributing the Trust’s funds “to civic organizations,

educational/arts organizations, health care facilities and children & youth

organizations, with at least one-half of such distributions being to charitable

organizations primarily situated in Western Pennsylvania.” Id. at 6 ¶ 21. PNC

contrasted its list of “worthwhile charities” with the organizations favored by

Individual Trustees, which PNC characterized as “political advocacy groups[,]”

and which it believed to be inconsistent with the past giving practices of the

Grantors. Id. at 8 ¶ 27. PNC provided the court with a list of 26 organizations

that it selected to receive one-half of the required distribution for 2016, along

with a list of 18 organizations it selected from the list submitted by Individual

Trustees to receive the other one-half of the distribution. See id. at 8-9 ¶¶

29-30. It asked the court to “resolve the current deadlock by casting a ‘third

vote[,’] either in favor of the list submitted by [PNC] … or the list submitted

by … [I]ndividual [T]rustees….” Id. at 9 ¶ 32.

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      On December 1, 2016, Individual Trustees filed an answer and new

matter, in which they alleged that PNC “unilaterally imposed an artificial 5%

limit on the Trust’s annual charitable giving, forced the Trust to donate to local

causes supported by PNC, and refused to allow charitable contributions to

legitimate charities recommended by [Individual Trustees] (and supported by

the Trust for decades).” Answer and New Matter, 12/1/16, at 1. They also

averred that the Grantors intended for Individual Trustees to make donation

decisions, and that PNC’s “proper role” is to work with them to facilitate

donations to charities selected by Individual Trustees and to manage the

Trust’s assets. Id. at 3, 6.

      After hearing oral argument on the petition on December 2, 2016, the

orphans’ court stated that it would cap donations at 5% of the Trust’s assets

to avoid a tax penalty and took the designation of charitable recipients under

advisement.    On December 7, 2016, the orphans’ court entered an order

selecting the charities on PNC’s list for distributions in 2016.       Individual

Trustees filed a motion for reconsideration, which was denied by the court on

December 19, 2016.

      On January 5, 2017, Individual Trustees filed a timely appeal at 61 WDA

2017, in which they argued, inter alia, that the orphans’ court erred in limiting

the Trust’s 2016 distributions to 5% of the Trust’s assets and by selecting

PNC’s list of proposed donees without attempting to discern the Grantors’

intent.   In response, the orphans’ court issued an opinion pursuant to

Pa.R.A.P. 1925(a), in which it explained that its decision was based on the

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time constraints placed upon the court and the lack of time needed to fully vet

all options. Orphans’ Court Opinion (“OCO I”), 5/2/17, at 2.

      This Court concluded that the orphans’ court acted prudently in limiting

the amount of the 2016 distribution to avoid the imposition of a tax penalty

on the Trust. In re Jackson, 174 A.3d 14, 33 (Pa. Super. 2017). Going

forward, however, we deemed it necessary to develop a factual record for the

purpose of exploring the Grantors’ intent. Id. In regards to the orphans’

court decision to select PNC’s list of proposed donees, we concluded:

      [T]he court abused its discretion by making a decision that was
      not based on any evidence. We also conclude[d] that the court
      abused its discretion by accepting PNC’s invitation to choose either
      its list or that proffered by Individual Trustees; the court was
      required to exercise judgment to determine appropriate recipients
      of the Trust’s gifts, and it should not have allowed its selection to
      be constrained by the parties’ submission of exclusive slates.

            The Grantors’ intent with regard to beneficiaries cannot be
      ascertained based on the Trust Agreement alone….            [T]he
      [o]rphans’ [c]ourt was required to consider extrinsic evidence of
      the Grantors’ intent to determine whether additional criteria
      should be applied to the donee selection process. The court
      abused its discretion in failing to do so.

Id. at 34.

      Accordingly, we affirmed that part of the orphans’ court’s order that

required distribution of 5% of the Trust’s assets in 2016 and vacated the part

of the order that adopted PNC’s list of donees. We remanded the matter for

further proceedings to determine the Grantors’ intent with regard to

distribution of the Trust’s funds and directed the orphans’ court to permit

expedited discovery. Id. at 37. Moreover, we stated:


                                      -5-
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      We also leave it to the [o]rphans’ [c]ourt in the first instance to
      determine as a matter of equity what, if anything, should be done
      regarding the 2016 distributions that were made by the Trust
      pursuant to that court’s December 7, 2016 order, which selected
      charitable recipients from PNC’s preferred list. Recipients of those
      distributions are likely to have relied on those funds, and it may
      be unrealistic and inequitable to consider any repayment
      obligation if the [o]rphans’ [c]ourt ultimately decides that gifts
      should have been awarded to different recipients. It also may no
      longer be practical to make additional 2016 contributions to
      additional charities from Individual Trustees’ preferred list. The
      [o]rphans’ [c]ourt should work with the parties to craft any
      additional remedy.

Id.

      In order to avoid the possibility of another deadlock between PNC and

Individual Trustees regarding the charitable distributions for 2017, the

orphans’ court ordered that “all outstanding issues among the parties relating

to the on-going administration of the … Trust” be submitted to mediation with

retired Judge Frank J. Lucchino. Order, 9/5/17. After a 10-hour mediation

session on October 11, 2017, the parties reached a settlement agreement

(“Mediation Agreement”), the terms of which were read on the record by Judge

Lucchino and were fully memorialized by a court reporter. See N.T. Mediation,

10/11/17, at 2-32. The orphans’ court summarized these terms as follows:

      The result of the mediation was for the five-year period of 2017-
      2021 inclusive. The rate of distribution for the five-year period is
      6.5% per year. At the end of this five-year period, the parties will
      meet and[,] if in agreement[,] may maintain [the rate] at 6.5%
      per year. If no agreement is reached[,] 6%[] per year will be the
      floor.

             For the calendar year [of] 2018 and going forward, it was
      agreed that the CyberGrant platform that PNC is currently using
      to receive applications for grants would be used and access given
      to [] [I]ndividual Trustees regarding the Trust. The deadline for


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      receiving applications for 2018 and going forward will be June 15.
      That by June 30, and going forward, [] [I]ndividual Trustees, as
      well as PNC, as trustee, will select up to 25% of the grantees in
      terms of dollars. PNC will do an analysis of the grants that they
      receive, that are not part of the 25% that each trustee designates
      in the list that they exchanged, by June 30. PNC will provide the
      analysis of that 50% to [] [I]ndividual [T]rustees. [] [I]ndividual
      [T]rustees will have 30 days to analyze these analyses. That on
      or before August 31[] of each year, and if it happens to fall on a
      holiday, it will be carried over to the next business day following
      the holiday, [] [I]ndividual [T]rustees and PNC, as trustee[,] will
      meet for their first meeting. At this meeting, the co-trustees can
      decide what they agree on, up to the limit that is provided for total
      distribution. If the co-trustees cannot reach a decision at the first
      meeting, they will have until November 1[] of that year to meet
      again. If the co-trustees are deadlocked, the remaining parts of
      the 50% will have their grant increased to cover the required
      minimum distribution required by the IRS.

             For 2017, it had been agreed that 6.5% times the market
      value of the [T]rust as issued by PNC as of December 31, 2016,
      will be the amount that will be distributed for 2017.

Orphans’   Court    Opinion   (“OCO   II”),   12/11/18,   at   1-2   (unnecessary

capitalization omitted).

      At the end of the mediation, counsel for Individual Trustees discussed

the possibility of his clients’ withdrawal of the appeal at 61 WDA 2017. The

withdrawal never occurred, however, and this Court issued its decision in that

matter on November 7, 2017. See Jackson, supra (“Jackson Opinion”).

On February 2, 2018, Individual Trustees filed a motion to commence the

proceedings dictated by the Jackson Opinion and to abrogate, amend or, in

the alternative, suspend implementation of the Mediation Agreement (“Motion

to Abrogate”).     A hearing was held on February 12, 2018, and the court

subsequently issued an order setting a discovery schedule.



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      On June 19, 2018, PNC filed a petition for a rule to show cause why the

Mediation Agreement should not be enforced.       Individual Trustees filed an

answer and new matter on July 9, 2018. On December 11, 2018, the orphans’

court entered an order stating that “the terms of the agreed upon [M]ediation

[Agreement] between the [p]arties are binding for 2017 going forward as

outlined in the accompanying [o]pinion.”       Order, 12/11/18.     Individual

Trustees filed a timely notice of appeal on January 10, 2019, and herein

present the following issues for our review:

      I.     Whether the [orphans’] court erred by enforcing and binding
             the trustees to a purported settlement agreement
             (“Mediation [Agreement]”) in perpetuity without holding an
             evidentiary hearing to decide controverted issues regarding
             the existence, terms, and binding effect of any purported
             settlement?

      II.    Whether the [orphans’] court erred by enforcing and binding
             the trustees to the Mediation [Agreement] in perpetuity
             even though the purported terms of the Mediation
             [Agreement] are contrary to the law, as set forth in the
             subsequently issued Superior Court’s November 7, 2017
             [o]pinion, and [] Grantors’ intent?

      III.   Whether the [orphans’] court erred by enforcing and binding
             the trustees to the Mediation [Agreement] in perpetuity
             even though it is an unenforceable agreement to agree?

      IV.    Whether the [orphans’] court erred by enforcing and binding
             the trustees to the Mediation [Agreement] in perpetuity
             even though the purported agreement lacks consideration,
             fails for indefiniteness, and is otherwise unenforceable
             under traditional principles of contract law?

Individual Trustees’ Brief at 4.

      Preliminarily, we address PNC’s motion to dismiss claims I, III, and IV,

for failure to preserve these issues at the trial court level.   See Renewed

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Motion to Dismiss, 10/28/19.3          PNC argues that Individual Trustees never

disputed the existence of the Mediation Agreement before the lower court,

failed to assert that the Mediation Agreement was a mere “agreement to

agree[,]” and failed to aver            that the   Mediation Agreement “lacked

consideration” or “fails for indefiniteness[.]” Id. at 1 ¶ 3. See also id. at 3

¶ 10. Rather than preserve these issues, PNC asserts that Individual Trustees

conceded that a settlement agreement was reached at the conclusion of the

mediation. Id. at 2 ¶ 4.

       Indeed:

       Issue preservation is foundational to proper appellate review. Our
       rules of appellate procedure mandate that “[i]ssues not raised in
       the lower court are waived and cannot be raised for the first time
       on appeal.” Pa.R.A.P. 302(a). By requiring that an issue be
       considered waived if raised for the first time on appeal, our courts
       ensure that the trial court that initially hears a dispute has had an
       opportunity to consider the issue. This jurisprudential mandate is
       also grounded upon the principle that a trial court … must be given
       the opportunity to correct its errors as early as possible.

In re F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010) (internal citations omitted).

       In their first claim, Individual Trustees aver that the orphans’ court erred

in failing to hold an evidentiary hearing before enforcing the Mediation

Agreement, as the terms and existence of the Mediation Agreement were in

dispute. Individual Trustees’ Brief at 21. They claim that they preserved their
____________________________________________


3 On July 29, 2019, PNC filed a “Motion to Dismiss Certain Appellate Issues for
Failure to Preserve.” This Court entered a per curiam order on August 1, 2019,
denying PNC’s motion without prejudice to its right to renew its motion on
appeal after the assignment of this matter to a merits panel. PNC filed its
renewed motion to dismiss on October 28, 2019, which was deferred by per
curiam order of this Court to the time of disposition. Order, 11/7/19.

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argument in their February 2, 2018 Motion to Abrogate, and in their answer

and new matter to PNC’s petition to enforce the Mediation Agreement. Id. at

22. The record clearly belies their claim.

      In their motion, Individual Trustees expressly stated:

      [T]his Petition seeks to abrogate, amend, or, in the alternative,
      suspend the implementation of [the] Mediation [Agreement]
      established during mediation between the parties pertaining to the
      procedure for making future donations and reimbursement of
      legal fees for the Trustees from the Trust. That [agreement] is
      now moot and, as further explained herein, implementation of the
      Mediation [Agreement] would be contrary to the [Jackson]
      Opinion—and, therefore, illegal—because, among other reasons,
      the Mediation [Agreement] does not allow for consideration of the
      factors the Superior Court has held are necessary for ascertaining
      and effectuating Grantor[s’] intent, including historical deference
      to the Jackson family regarding donation decisions. At minimum,
      however, implementation of the Mediation [Agreement] now,
      before the proceedings ordered by the Superior Court, would be
      premature and contrary to the directives of the Superior Court.
      Thus, in the alternative, the [M]ediation [Agreement] should be
      suspended pending the discovery and evidentiary hearings
      ordered by the Superior Court.

Motion to Abrogate at 3 (emphasis in original). Not only does it not dispute

the existence of the Mediation Agreement, Individual Trustees’ argument

presumes that a settlement agreement was, in fact, reached. The premise of

their motion is that the Mediation Agreement is contrary to the Jackson

Opinion and, thus, cannot be implemented as a matter of law. Id. at 3, 11-

17. Moreover, counsel for Individual Trustees acknowledged the existence of

the Mediation Agreement at the February 12, 2018 hearing on the motion.

See N.T. Hearing, 2/12/18, at 52-53 (“I am not up here saying we didn’t reach

[an] agreement. I am saying the agreement that was reached was wrong, it


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was based upon a misunderstanding of the law….”).          Likewise, Individual

Trustees continued to aver in their answer and new matter that the Mediation

Agreement cannot be enforced because it is in “material violation of” the

Jackson Opinion. See Answer and New Matter, 7/9/18. Thus, we deem this

issue waived.4

       In issues III and IV, Individual Trustees assert that the Mediation

Agreement is an unenforceable “agreement to agree,” that it fails for lack of

consideration, and that the agreement has terminated due to an indefinite

duration. They have failed to demonstrate, however, that these claims were

properly raised before the orphans’ court. Prior to the filing of their appellate

brief, the crux of their argument had been that the Mediation Agreement was

inconsistent with the Jackson Opinion. Whether the parties had reached a

settlement agreement had not been a question. After careful review of the

____________________________________________


4 Even if we determined that Individual Trustees had properly preserved this
issue, we would deem their claim that the orphans’ court erred in not holding
an evidentiary hearing to be meritless. While it is true that an evidentiary
hearing must be held where a trial court is placed on notice of a dispute
regarding whether a settlement agreement exists, no such dispute existed
here. Thus, Individual Trustees’ reliance on Viola v. Krouse, 2013 WL
11276788, at *2 (Pa. Super. Feb. 21, 2013) (remanding for a hearing to
determine if the parties reached a settlement where the Violas strongly
contested the terms of the agreement as described in the motion to enforce)
and Brannam v. Reedy, 906 A.2d 635, 641-42 (Pa. Cmwlth. 2006) (finding
that the trial court erred in ruling on the appellants’ motion to strike a
settlement agreement without holding an evidentiary hearing where the
appellants’ counsel notified the court that the appellants had rejected the
settlement), is misplaced. Moreover, we note that Individual Trustee’s citation
to Viola, an unpublished Superior Court memorandum, violates Superior
Court Internal Operating Procedure 65.37, which prohibits citation to
unpublished memorandum decisions filed prior to May 1, 2019.

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record, we agree with PNC that Individual Trustees have also failed to preserve

issues III, and IV. Accordingly, we grant PNC’s motion to dismiss issues I, III,

and IV. See Pa.R.A.P.302(a) (stating “[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal”).

      Before addressing the merits of Individual Trustees’ remaining claim

(Issue II), we set forth our scope and standard of review:

         The enforceability of settlement agreements is determined
         according to principles of contract law. Because contract
         interpretation is a question of law, this Court is not bound
         by the trial court’s interpretation. Our standard of review
         over questions of law is de novo and to the extent
         necessary, the scope of our review is plenary as [the
         appellate] court may review the entire record in making its
         decision.

      Ragnar Benson, Inc. v. Hempfield Township Mun. Auth., 916
      A.2d 1183, 1188 (Pa. Super. 2007) (citations and quotation marks
      omitted). With respect to factual conclusions, we may reverse the
      trial court only if its findings of fact are predicated on an error of
      law or are unsupported by competent evidence in the record.
      Skurnowicz v. Lucci, 798 A.2d 788, 793 (Pa. Super. 2002)
      (citation omitted).

Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 517-18 (Pa. Super.

2009).

      It has been well-established that:

            Where a settlement agreement contains all of the requisites
      for a valid contract, a court must enforce the terms of the
      agreement. McDonnell v. Ford Motor Co., … 643 A.2d 1102,
      1105 ([Pa. Super.] 1994)…. This is true even if the terms of the
      agreement are not yet formalized in writing. Mazzella v. Koken,
      … 739 A.2d 531, 536 ([Pa.] 1999); see Commerce
      Bank/Pennsylvania v. First Union Nat. Bank, 911 A.2d 133,
      147 (Pa. Super. 2006) (stating “an agreement is binding if the
      parties come to a meeting of the minds on all essential terms,


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      even if they expect the agreement to be reduced to writing but
      that formality does not take place”). Pursuant to well-settled
      Pennsylvania law, oral agreements to settle are enforceable
      without a writing. Pulcinello [v. Consolidated Rail Corp., 784
      A.2d 122, 124 (Pa. Super. 2001)] (citing Kazanjian v. New
      England Petroleum Corp., … 480 A.2d 1153, 1157 ([Pa. Super.]
      1984)).

Id. at 518. See also Step Plans Services, Inc. v. Koresko, 12 A.3d 401,

409 (Pa. Super. 2010).

      Moreover, we note:

      The law of this Commonwealth establishes that an agreement to
      settle legal disputes between parties is favored. There is a strong
      judicial policy in favor of voluntarily settling lawsuits because it
      reduces the burden on the court and expedites the transfer of
      money into the hands of a complainant. If courts were called on
      to reevaluate settlement agreements, the judicial policies favoring
      settlements would be deemed useless.

Step Plans Services, Inc., 12 A.3d at 408-09.

      Here, the record supports the orphans’ court’s finding that an agreement

was reached at the October 11, 2017 mediation pertaining to the five-year

period of 2017-2021 and thereafter, and that the terms of the Mediation

Agreement are binding.     See Order, 12/11/18; OCO II at 3 (“Given the

immense detail in the mediation settlement as set forth by retired Judge …

Lucchino, it is obvious that an agreement for 2017 moving forward had been

effectuated.”). All parties and their counsel expressly agreed to the Mediation

Agreement on the record. See N.T. Mediation at 20-21, 32.

      Having determined that the Mediation Agreement is a valid, binding

agreement between the parties, we address Individual Trustees’ claim that

the Mediation Agreement is “materially inconsistent” with the subsequently


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issued Jackson Opinion and the purpose of the Trust and, thus, it cannot be

enforced. Individual Trustees’ Brief at 27. First, we note that, in support of

their argument, Individual Trustees falsely claim that the Mediation

Agreement imposes “hard upper limits on annual donations in perpetuity[.]”

Id. at 27-28. Pursuant to the terms of the Mediation Agreement, distributions

for the five-year time period of 2017-2021 are limited to 6.5% of the market

value of the Trust. Thereafter, if no agreement can be reached, 6% will be

the floor. No ceiling has been set for distributions for 2022 and going forward.

See OCO II at 1; N.T. Mediation at 9-10.

      Individual Trustees further purport that the Mediation Agreement

violates the Jackson Opinion and the terms of the Trust, because it does not

require the trustees to act jointly. Individual Trustees’ Brief at 29. As we

previously established, Paragraph 6 of the Trust “requires the trustees to

exercise their discretion in selecting gift recipients anew each year, and does

not bind the trustees to contribute to the same organizations year after year.”

Jackson, 174 A.3d at 36-37.      Additionally, we stated that “[the] selection of

gift recipients must be done jointly by the Trust’s three trustees in a good faith

exercise of their discretion under the Trust[,]” and we emphasized that “the

Trust … requires the Trust’s three trustees to work together to perform that

task.” Id. at 37.

      Contrary to Individual Trustees’ position, we deem the Mediation

Agreement to represent a “good faith exercise” of the parties’ discretion under

the Trust and to be consistent with this Court’s directive that the trustees work

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together. The Mediation Agreement represents an agreed upon compromise

of the trustees on how to make annual distributions and to honor the Grantors’

intent. Moreover, it allows for renewed discretion each year as to the charities

selected to receive the Trust’s distributions.     Accordingly, we deem this

argument meritless.

       We reject the Individual Trustees’ claim that the Mediation Agreement

was nullified by the subsequent issuance of the Jackson Opinion. Based on

our careful review, we discern no conflict in the terms of the Mediation

Agreement and the determinations set forth in the Jackson Opinion. It is

clear that the issues before this Court on appeal at 61 WDA 2017 concerned

the amount and recipients of charitable distributions for 2016 only,5 whereas

the Mediation Agreement clearly applies to 2017 and thereafter. Nothing in

the Jackson Opinion conflicts with the terms of the Mediation Agreement or

prevents its terms from being carried out. 6


____________________________________________


5 In its Rule 1925(a) opinion, the orphans’ court explained its December 7,
2016 order, in which it selected PNC’s proposed list of charities for
distributions in 2016 and limited the donations to 5% of the Trust’s assets, as
well as its denial of Individual Trustees’ motion for reconsideration. It
expressly stated that “nothing in the court’s determinations for this calendar
year[] should be interpreted or extrapolated to any future years.” OCO I at
2.

6 PNC’s renewed motion to strike Individual Trustees’ Appendix, filed on
October 28, 2019, and deferred to the time of disposition by per curiam order
of this Court dated November 7, 2019, is granted, without prejudice to
Individual Trustees’ right to present its petition to remove PNC as the
corporate co-trustee before the orphans’ court. See Renewed Motion to
Strike, 10/28/19.

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     Accordingly, we affirm the orphans’ court’s December 11, 2018 order

approving the Mediation Agreement.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2020




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