J-A24032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LORI JUNE BEAVER, RICHARD AND             :      IN THE SUPERIOR COURT OF
PEARL CHERRY, KAREN FEDUS, AND            :            PENNSYLVANIA
DANIEL CHERRY,                            :
                                          :
                  Appellants              :
                                          :
            v.                            :
                                          :
RICHARD A. CHERRY, JR.                    :          No. 1407 WDA 2016

                    Appeal from the Order August 19, 2016
                 in the Court of Common Pleas of Elk County,
                      Orphans' Court, No(s): 11 of 2012

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED NOVEMBER 16, 2017

      Lori June Beaver, Richard and Pearl Cherry, Karen Fedus and Daniel

Cherry (“Plaintiffs”) appeal from the Order overruling their Exceptions to the

Confirmation of Account filed by Richard A. Cherry, Jr. (“Cherry”).       We

affirm.

      In its Opinion, the Orphans’ Court summarized the history underlying

the instant appeal as follows:

             This matter commenced on March 21, 2012, by Plaintiffs’
      filing a [P]etition to remove [Cherry] as a trustee under an
      irrevocable trust[,] which had been created by Richard Cherry
      and Pearl Cherry (both now deceased) on May 1, 2009. [Cherry]
      responded with an Answer, New Matter and Counterclaim. While
      said action was pending, on June 6, 2013, Plaintiffs filed the
      Complaint[,] that is yet unresolved[,] alleging that [Cherry]
      breached [his] fiduciary duties as a power of attorney. An
      accounting was demanded.         An [A]ccounting was filed on
      September 9, 2013. Plaintiffs filed [O]bjections[,] and on June
      18, 2014, the [O]bjections were dismissed with prejudice ….
      Plaintiffs filed an appeal of said Order[,] and the appeal was
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     quashed by the Superior Court by a Memorandum Opinion of
     February 18[, 2015,] due to the appeal being interlocutory.
     [See Beaver v. Cherry, 141 A.3d 598 (Pa. Super. 2016)
     (unpublished memorandum)]. The Court[,] in its Memorandum
     Opinion[,] ruled that [Pa.R.A.P.] 342(a)(1) permitted an appeal
     of right from an order confirming an account, but no appeal is
     permitted from an order dismissing objections. In a footnote[,]
     the Court noted that other matters asserted in [Plaintiffs’]
     Complaint remained to be resolved.

            The deaths of the trust beneficiaries rendered moot the
     trust matters that had been asserted in the Complaint.
     Therefore, upon return of the file to the [Orphans’ Court], the
     [Orphans’ Court] held a status conference to determine what
     matters remained to be resolved. [The Orphans’ Court’s] Order
     of July 20, 2016[,1] resulting from said conference[,] states:
     “This [c]ourt finds that the issues remaining to be resolved are
     those set forth in the Complaint filed on June 6, 2013, in
     Paragraphs 68, 69, and 70 of the Demand for Return of Assets,
     and in Paragraphs B, C, D and E of the prayer for relief.” Said
     paragraphs dealt only with the return of assets including
     “monies” and any amounts due Plaintiffs as a result of the
     Accounting, costs of suit and the typical “any other relief” clause.
     It specifically excluded any requirement of [Cherry] to account
     for his actions as Power of Attorney. There was no response to
     said [O]rder by Plaintiffs.

            On July 2[1], 2016, the [Orphans’ Court] also filed an
     Order confirming the Power of Attorney’s Account that had been
     filed on September 9, 2013. The Plaintiffs’ [O]bjections to said
     Account have been dismissed with prejudice in the above
     referred to Order of June 18, 2014 of [the Orphans’ Court].
     There was no need for a hearing in July of 2015 on the
     Confirmation[,] because the earlier ruling of [the Orphans’
     Court] dismissing [O]bjections left t[he] [c]ourt with no dispute
     to be resolved by a hearing. With no outstanding objections or
     exceptions pending, the Account could only be confirmed.

           Following the [Orphans’ Court’s] filing of the Order
     confirming the Account, Plaintiffs filed a pleading for which there
     is no provision in the Orphans’ Court Rules, entitling it

1
 The Order denying Exceptions was dated July 20, 2016, but filed on July
21, 2016.


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     “Exceptions To Confirmation of Account.” [The Orphans’ Court]
     then filed its Order … [on] August 19, 2016, overruling said
     “Exceptions.” It is important to note that the [E]xceptions filed
     were not to the Account, itself, but to an improvised pleading
     excepting to the confirmation. No appeal to the Superior Court
     was filed from [the Orphans’ Court’s] Order [confirming the
     Account].

            [Following the dismissal of their Exceptions,] Plaintiffs then
     filed the instant appeal to the Superior Court[,] and in their
     Notice of Appeal, they state that the appeal is of [the Orphans’
     Court’s] Order of August 19, 2016….

Orphans’ Court Opinion, 1/26/17, at 1-3 (footnote added).              Plaintiffs

thereafter filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

     Plaintiffs now presents the following claims for our review:

     I.     WHETHER THE [ORPHANS’] COURT ABUSED ITS
            DISCRETION OR ERRED AS A MATTER OF LAW IN
            DISMISSING [PLAINTIFFS’] OBJECTIONS TO [CHERRY’S]
            ACCOUNTING     WITHOUT    FIRST   SCHEDULING  AN
            EVIDENTIARY HEARING OR OTHERWISE ALLOWING
            [PLAINTIFFS] THE OPPORTUNITY TO BE HEARD[?]

     II.    WHETHER THE [ORPHANS’] COURT ABUSED ITS
            DISCRETION BY SEVERELY SANCTIONING [PLAINTIFFS]
            FOR “REPEATED DISCOVERY VIOLATIONS” WHEN[,] IN
            FACT[,] IT WAS [CHERRY], AND NOT [PLAINTIFFS], WHO
            HAD       REPEATEDLY     COMMITTED      DISCOVERY
            VIOLATIONS[?]

     III.   WHETHER THE [ORPHANS’] COURT ABUSED TIS
            DISCRETION BY SEVERELY SANCTIONING [PLAINTIFFS]
            FOR   ALLEGED   DISCOVERY   VIOLATIONS  WITHOUT
            WEIGHING THE SEVERITY OF THE SANCTION AGAINST
            THE LACK OF PREJUDICE TO [CHERRY], THE LACK OF
            WILLFULNESS AND BAD FAITH ON THE PART OF
            [PLAINTIFFS] AND THE EASE WITH WHICH THE ALLEGED
            VIOLATIONS COULD BE CURED[?]



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Brief for Appellants at 6-7.

      As this Court has explained,

      [w]hen reviewing a decree entered by the Orphan[s’] Court, we
      must determine whether the record is free from legal error and
      the court’s factual findings are supported by the evidence. It
      must be remembered, however, the Orphan[s’] Court is the fact-
      finder and thus determines the credibility of all witnesses who
      may testify.     We, who only receive the records of the
      proceedings, do not reverse the credibility determinations of the
      Orphan[s’] Court absent an abuse of discretion.

In re Dentler Family Trust, 873 A.2d 738, 744 (Pa. Super. 2005)

(emphasis, internal quotation marks and citations omitted).

      Plaintiffs first two claims challenge the Orphans’ Court’s dismissal of

their Objections to the Account filed by Cherry. In their first claim, Plaintiffs

argue that the Orphans’ Court improperly granted Cherry’s Motion to dismiss

their Objections as a discovery sanction, without first scheduling an

evidentiary hearing or allowing them the opportunity to be heard. Brief for

Appellants at 20. Plaintiffs point out that the Orphans’ Court dismissed the

Objections as a discovery sanction, only two days after Cherry had filed his

Motion.   Id.   According to Plaintiffs, Pa.R.C.P. 208.3(a) does not allow for

the grant of relief to the moving party, “unless the motion is presented as

uncontested or the other parties to the proceeding are given an opportunity

for argument.” Id. at 20-21 (quoting Pa.R.C.P. 208.3(a)). Plaintiffs direct

our attention to this Court’s decision in Cove Centre, Inc. v. Westhover

Const. Inc., 965 A.2d 259 (Pa. Super. 2009), in support.               Brief for

Appellants at 21.


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J-A24032-17


       In their second claim, Plaintiffs again challenge the dismissal of their

Objections to Cherry’s Account as a discovery sanction. Brief for Appellants

at 22. Plaintiffs argue that they were not repeatedly directed to comply with

discovery requests. Id. at 23. Rather, Plaintiffs argue, it was Cherry who

repeatedly committed discovery violations. Id. at 24.

       Initially, we must address whether Plaintiffs have preserved their first

two claims for appellate review.       Pennsylvania Rule of Appellate Procedure

342(a)(1) provides that an appeal may be taken as of right from “[a]n order

confirming an account[.]”        Pa.R.A.P. 342(a)(1) (emphasis added).           Rule

342 cautions that the failure to appeal an order that is immediately

appealable under subsection (a)(1) “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(c) (emphasis added).

       Our review of the record discloses that Cherry filed his Account in the

Orphans’ Court on September 9, 2013. Plaintiffs filed Objections to Cherry’s

Account.      On June 18, 2014, the Orphans’ Court dismissed Plaintiffs’

Objections, but its Order did not confirm Cherry’s Account.                  Plaintiffs

appealed the Order dismissing their Objections.                This Court quashed

Plaintiffs’   appeal,   explaining   that   “[a]n   order   that   merely   dismisses

objections, but does not confirm an account, is not a final appealable

order.” Beaver, 141 A.3d 598 (unpublished memorandum at 4) (emphasis

added, citation omitted).



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J-A24032-17


      On remand, as Plaintiffs’ Objections had been dismissed in 2014, the

Orphans’ Court entered an Order confirming the Account.       Orphans’ Court

Order, 7/21/16. Plaintiffs did not file an appeal of the July 21, 2016 Order

confirming the Account.      Instead, they filed self-styled “Exceptions to

Confirmation of Account.”     The Orphans’ Court denied the Exceptions on

August 19, 2016. On September 19, 2016, Plaintiffs filed a Notice of Appeal

of the August 19, 2016, Order denying their Exceptions.

      Pennsylvania Rule of Appellate Procedure 342 clearly states that an

appeal lies from the order confirming an account, and that the failure to file

an appeal of that order waives all future claims related to the account.

Pa.R.A.P. 342(a)(1).    Plaintiffs failed to appeal the July 21, 2016, Order

confirming Cherry’s Account. Consequently, Plaintiffs’ claims challenging the

denial of their Objections and Exceptions to the Account are waived.2 See

Pa.R.A.P. 342(c); see also Pa.O.R.C. 8.1 (providing that, except as provided

in Pa.O.R.C. 8.2, “no exceptions or post-trial motions may be filed to any

order or decree of the court.”).3




2
  Even if Plaintiffs had filed a timely appeal of the Order confirming the
Account, we would conclude that Plaintiffs’ claims lack merit for the reasons
set forth in the Orphans’ Court’s Opinion. See Orphans’ Court Opinion,
1/26/17, at 3-5.
3
  We note that a party “may request the court to reconsider any order that is
final under Pa.R.A.P. … 342, … so long as the order granting reconsideration
is consistent with Pa.R.A.P. 1701(b)(3).” Pa.O.R.C. 8.2. Plaintiffs did not
request reconsideration of the Order confirming the Account.


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      In their third claim of error, Plaintiffs argue that the Orphans’ Court

abused its discretion dismissing their Objections to the Account “as the

alleged violations of discovery rules were not willful[,] and did not result in

prejudice to [Cherry].” Brief for Appellants at 31-32. Plaintiffs contend the

Orphans’ Court was required to consider, inter alia, the nature and severity

of the discovery violation, and the prejudice to the opposing party, before

imposing a discovery sanction. Id. at 32-33. According to Plaintiffs, it was

Cherry who repeatedly violated the rules of discovery. Id. at 34. Plaintiffs

argue that Cherry’s justifications for seeking discovery sanctions lack merit.

Id. at 33-40.

      Our review discloses that Plaintiffs did not raise this claim in their

Concise Statement of matters complained of on appeal.        Accordingly, this

claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not

included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.”).       Plaintiffs additionally

waived this claim by not filing an appeal of the Order confirming the Account

filed by Cherry.      See Pa.R.A.P. 342(a)(1).    As such, we cannot grant

Plaintiffs relief on this claim.

      Order affirmed.




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J-A24032-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/16/2017




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