J-A16033-15


                                  2015 PA Super 199

TRUST UNDER AGREEMENT OF EDWARD                   IN THE SUPERIOR COURT OF
WINSLOW TAYLOR                                          PENNSYLVANIA




APPEAL OF: ELISE W. CARR, EDWARD
W. CARR, IAN N. CARR, RICHARD R.
CARR, CAROLINE T. CARR, W. SEWELL
WALLACE, SUZANNE T. WALLACE,
JENNIFER A. WALLACE-COLLINS, EVAN
S. WALLACE, CHRISTOPHER G.
WALLACE, SAMUEL H. WALLACE , HOPE
T. WALLACE & ANTHONY T. WALLACE

                                                      No. 2701 EDA 2014


                     Appeal from the Order August 18, 2014
              in the Court of Common Pleas of Philadelphia County
                      Orphans' Court at No.: 3563 of 1939


BEFORE:       LAZARUS, J., FITZGERALD, J.*, and PLATT, J.**

DISSENTING OPINION BY PLATT, J.:                 FILED SEPTEMBER 18, 2015

         I respectfully dissent. Because I would find that the special provision

codified in section 7766(b)(4) of the PEF code prevails over the general

provision found at section 7740.1, I would affirm the decision of the trial

court.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
**
     Retired Senior Judge assigned to the Superior Court.
J-A16033-15


      Here, Appellants in effect seek permission to use the general

modification statute of section 7740.1(d) of the PEF code to gain the future

power to remove a corporate trustee upon agreement of the beneficiaries.

Section    7766(b)(4),   which   governs   removal   of   a   corporate   trustee,

specifically addresses this objective.     It is a settled rule of statutory

interpretation that when there is a conflict between a general statutory

provision and a more specific provision, the specific provision controls.

             Whenever a general provision in a statute shall be in
      conflict with a special provision in the same or another statute,
      the two shall be construed, if possible so that effect may be
      given to both. If the conflict between the two provisions is
      irreconcilable, the special provision shall prevail and shall be
      construed as an exception to the general provision, unless the
      general provision shall be enacted later and it shall be the
      manifest intention of the General Assembly that such general
      provision prevail.

1 Pa.C.S.A. § 1933.

      It is evident that there is a conflict between sections 7740.1 and

7766(b).    They require different modes of analysis and could very likely

result in different outcomes depending on which section controls.           Thus,

because of this potential conflict, I would conclude that the specific

provisions of section 7766(b) must prevail.

      Further, I see no manifest intent on the part of the Pennsylvania

Legislature that would require a different result.    The Legislature had the

opportunity to expand the grounds for removal of a corporate trustee, to

allow for removal upon consent of some or all of the beneficiaries, when it


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adopted several of the provisions of the Uniform Trust Act and declined to do

so. As the trial court stated:

            Section 7766 of the PEF Code as adopted by the
      Pennsylvania legislature clearly does not allow for removal of a
      trustee based on the consent of some—or all—of the trust
      beneficiaries. The comparatively recent trust provisions of the
      Pennsylvania PEF code are modeled on the UTC.              Section
      7766(b)(4) is substantially similar to the UTC except that the
      UTC permitted removal of a trustee when all the beneficiaries
      agreed.     The Pennsylvania legislature did not adopt that
      provision, in contrast to the legislatures of other states such as
      Vermont, Maine and Arkansas which allow removal of a trustee
      based on the agreement of all beneficiaries.

(Trial Court Opinion, 8/18/14, at 9) (quotation marks and footnotes

omitted).

      The learned Majority largely rests its conclusion that the trial court

erred in applying section 7766 on the fact that Appellant “did not seek

currently to remove [Appellee] as trustee.” (Majority, at 12). The Majority

faults the trial court for “imputing motives to the Appellants based on

assumptions not supported by the record. . . .” (Id.). The Majority ignores

the obvious implications of its decision.     There is no rule of statutory

interpretation requiring us to do that. Under the Majority’s reasoning, any

beneficiary seeking to avoid the more onerous provisions of section 7766

could simply petition the court to modify the trust under section 7740.1,

arguing to the court that it was not seeking to remove a trustee but merely

to modify the trust agreement. Under the Majority’s approach, section 7766

would be largely eviscerated and the Legislature’s decision not to adopt the


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portion of the UTC that permitted removal of a trustee when all the

beneficiaries agreed would be meaningless. I cannot support such judicial

activism in light of the Legislature’s clear decision to require that individuals

seeking to remove a trustee comply with section 7766. “When the words of

a statute are clear and free from all ambiguity, the letter of it may not be

disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

      I would affirm the decision of the trial court.

      Accordingly, I respectfully dissent.




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