J-A01004-20

                                   2020 PA Super 97


    IN RE: THE PASSARELLI FAMILY               :   IN THE SUPERIOR COURT OF
    TRUST AN IRREVOCABLE TRUST                 :        PENNSYLVANIA
    INSTRUMENT                                 :
                                               :
                                               :
    APPEAL OF: MARGARET PASSARELLI             :
                                               :
                                               :
                                               :   No. 2121 EDA 2019

                 Appeal from the Order Entered June 24, 2019
       In the Court of Common Pleas of Chester County Orphans' Court at
                            No(s): No. 1516-0101

BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*

OPINION BY NICHOLS, J.:                                     Filed: April 16, 2020

        Appellant Margaret Passarelli appeals from the order denying her

petition for injunctive relief and removal of trustee and successor trustees.

For the reasons stated below, we quash.

        The parties are familiar with the factual and procedural history. Briefly,

on September 16, 2016, the Orphans’ Court entered a decree terminating the

trust in question. Appellee Joseph A. Passarelli appealed, and ultimately, this

en banc Court reversed the Orphans’ Court on March 28, 2019. On April 18,

2019, Appellant filed a petition for allowance of appeal with our Supreme

Court. See In re: Passarelli Family Tr., 206 A.3d 1188 (Pa. Super. filed

Mar. 28, 2019) (en banc), appeal granted, 217 A.3d 809 (Pa. filed Sept. 11,

2019).

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*   Retired Senior Judge assigned to the Superior Court.
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       Also on April 18, 2019, Appellant filed an omnibus petition pursuant to

Pennsylvania Orphans’ Court Rule 3.15 for injunctive relief and removal of

trustee and successor trustees with the trial court. In that petition, Appellant

requested that the trial court enjoin almost all parties “from managing,

spending, or dissipating the assets” of the trust in question. Omnibus Pet.

Pursuant to Pa. Orphans’ Ct. R. 3.15 for Inj. Relief & Removal of Trustee &

Successor Trustees, 4/18/19, at 1.1 Appellant reasoned that she was entitled

to an injunction pending appeal in order “to preserve the status quo . . . .”

Id. at 26-27 (discussing Pa.R.A.P. 1701-02).       The trial court denied the

petition without a hearing on June 24, 2019.2

       On July 23, 2019, Appellant timely appealed from the trial court’s order

denying her omnibus petition for injunctive relief.    Appellant timely filed a

court-ordered Pa.R.A.P. 1925(b) statement.

       Appellant raises the following issues:


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1 The petition requested that one party not be enjoined for reasons not
relevant here. We add that Orphans’ Court Rule 3.15 permits a party to state
more than one cause of action in a pleading.
2 Meanwhile, on May 16, 2019, Appellant filed an emergency petition for
injunctive relief requesting that Joseph Passarelli be “prohibited from
withdrawing funds or dissipating assets” from the trust. Emergency Pet. for
Inj. Relief, 5/16/19, at 1. Appellant contended that injunctive relief was
necessary given that the trial court had not yet resolved her prior omnibus
petition. In support, Appellant cited Orphans’ Court Rule 7.4 and Rule of Civil
Procedure 1531. The trial court denied Appellant’s petition on May 22, 2019.
Appellant did not appeal from this order. On June 13, 2019, Appellant filed a
motion for reconsideration, which the trial court denied on June 24, 2019.


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      1. Whether the orphans’ court abused its discretion in failing to
      grant Appellant’s request for injunctive relief even though
      Appellant established a prima facie showing for injunctive relief.

      2. Whether the orphans’ court abused its discretion in failing to
      grant Appellant’s request for a hearing and Appellee’s removal as
      trustee in spite of overwhelming evidence, taken in the light most
      favorable to Appellant, which called for Appellee’s removal.

      3. Whether the orphans’ court abused its discretion when it denied
      Appellant a stay and/or injunction pending appeal where the
      Pennsylvania Rules of Appellate Procedure expressly allow lower
      courts to take certain actions to preserve the status quo during
      the pendency of an appeal, and Appellant sought to enjoin
      Appellee from managing, spending, or dissipating the assets of
      the very trust subject to Supreme Court review.

Appellant’s Brief at 3.

      We initially address whether we have jurisdiction to entertain Appellant’s

appeal. All-Pak, Inc. v. Johnston, 694 A.2d 347, 352 (Pa. Super. 1997).

“[A]fter an appeal is taken . . . the trial court or other government unit may

no longer proceed further in the matter.” Pa.R.A.P. 1701(a). Generally, under

Pennsylvania Rule of Appellate Procedure 1701(a), the filing of a petition for

allowance of appeal would divest the lower courts of jurisdiction to proceed.

Pa.R.A.P. 102, 1701; see 20A West’s Pa. Practice § 1701:5.

      Rule 1701(b), however, sets forth six exceptions to Rule 1701(a). In

relevant part, Rule 1701(b) provides that a trial court may “[t]ake such action

as may be necessary to preserve the status quo . . . .” Pa.R.A.P. 1701(b)(1).

“Examples include the issuance of a stay or supersedeas, or an injunction

pending appeal, or similar relief.”     20A West’s Pa. Practice § 1701:15

(footnotes omitted); see Pa.R.A.P. 1701 note.

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      Rule 1732 addresses an application for an injunction pending appeal:

      (a) Application to trial court.— Application for a stay of an
      order of a trial court pending appeal, or for approval of or
      modification of the terms of any supersedeas, or for an order
      suspending, modifying, restoring, or granting an injunction during
      the pendency of an appeal, or for relief in the nature of
      peremptory mandamus, must ordinarily be made in the first
      instance to the trial court, except where a prior order under this
      chapter has been entered in the matter by the appellate court or
      a judge thereof.

      (b) Contents of application for stay.— An application for stay
      of an order of a trial court pending appeal, or for approval of or
      modification of the terms of any supersedeas, or for an order
      suspending, modifying, restoring, or granting an injunction during
      the pendency of an appeal, or for relief in the nature of
      peremptory mandamus, may be made to the appellate court or to
      a judge thereof, but the application shall show that application to
      the trial court for the relief sought is not practicable, or that the
      trial court has denied an application, or has failed to afford the
      relief which the applicant requested, with the reasons given by the
      trial court for its action.

Pa.R.A.P. 1732(a)-(b).

      If “the application for Rule 1732(a) relief is denied by the trial court, the

appellant may not appeal the denial for the obvious reason that the denial

order is interlocutory. Rather, the appellant must renew the application, that

is, file a new application, with the appellate court.” 20A West’s Pa. Practice §

1732:4 (footnote omitted); see also Pa.R.A.P. 1732(b) (discussing contents

of application for injunction to appellate court, which must include showing

that trial court denied prior application for injunction). One treatise has noted

that in “the context of a petition for allowance of appeal to the Supreme Court,

the application for Rule 1732(a) relief should be made to the intermediate


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appellate court, not to the trial court.”   20A West’s Pa. Practice § 1732:3

(footnote omitted) (citing cases involving only the Commonwealth Court).

      Rule 3315 contemplates repeated applications from any order entered

under Chapter 17, instead of appeals from orders resolving Chapter 17

applications:

      Where the Superior Court or the Commonwealth Court in the
      exercise of its appellate jurisdiction has entered an order under
      Chapter 17 (effect of appeals; supersedeas and stays), such order
      may be further reviewed by any justice of the Supreme Court in
      the manner prescribed by Chapter 17 with respect to appellate
      review of supersedeas and stay determinations of lower courts.

      Note: After a party has applied for a stay, etc., in the trial court,
      and a further application has been acted on by the Superior Court
      or the Commonwealth Court, or by a judge thereof, a further
      application may be made under this rule to the Supreme Court or
      to a justice thereof.

Pa.R.A.P. 3315 & note.

      In Pa. State Educ. Ass’n ex rel. Wilson v. Commonwealth, 56 A.3d

692 (Pa. 2010) (per curiam), the plaintiffs filed original suit in the

Commonwealth Court.       Wilson, 56 A.3d at 692.        A single judge of the

Commonwealth Court granted the plaintiffs’ application for a preliminary

injunction. Id. The defendants filed preliminary objections, which the en banc

Commonwealth Court sustained and which had the impact of vacating the

single judge’s prior grant of a preliminary injunction.      Id.   The plaintiffs

appealed to our Supreme Court, and while that appeal was pending, the

plaintiffs filed an application with our Supreme Court seeking to restore the

preliminary injunction. Id. Our Supreme Court construed the application as

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J-A01004-20


a request for a stay of the en banc Commonwealth Court’s decision pending

appeal and granted the stay. Id. at 692-93. We note that the plaintiffs filed

their application with our Supreme Court, as their appeal was pending before

it.

      In Young J. Lee, Inc. v. Commonwealth, 474 A.2d 266 (Pa. 1983),

the Department of Revenue (Department) revoked Young J. Lee, Inc.’s (Lee)

lottery license.   Young J. Lee, 474 A.2d at 268.       Lee “filed a petition for

review and a motion to stay the Department’s revocation in Commonwealth

Court.” Id. The Commonwealth Court granted the motion to stay, and the

Department appealed. Id.

      In   resolving   the   appeal,   our   Supreme    Court   noted   that   the

Commonwealth Court improperly held that it exercised original jurisdiction

over Lee’s application to stay pending review.         Id.   Our Supreme Court

reasoned that the Rules of Appellate Procedure govern an application for stay

pending review. Id. Therefore, our Supreme Court held, the Commonwealth

Court exercises appellate jurisdiction and not original jurisdiction over an

application for stay pending review. Id.

      A stay, like a supersedeas, is an auxiliary process designed to
      supersede or hold in abeyance the enforcement of the judgment
      of an inferior tribunal. . . . [A]n application for a stay pending
      review pursuant to the Rules of Appellate Procedure is within the
      appellate, not the original, jurisdiction of Commonwealth Court.

      Since the application for a stay is within the appellate rather than
      the original jurisdiction of Commonwealth Court, the Department
      does not have an appeal as of right to this Court.


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Id. at 268-69 (footnote omitted).3,       4



       Here, as noted above, Appellant prevailed in the trial court but this en

banc Court reversed.        On the same day that Appellant filed a petition for

allowance of appeal with our Supreme Court, she filed an omnibus petition

specifically requesting an injunction pending appeal in order to preserve the

status quo. Omnibus Pet. Pursuant to Pa. Orphans’ Ct. R. 3.15 for Inj. Relief

& Removal of Trustee & Successor Trustees at 26-27.5 Appellant’s petition is

governed by Rule 1732, which provides that such an application must

ordinarily be made to the trial court initially. See Pa.R.A.P. 1732(a) (stating,


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3 Our Supreme Court noted that it would still entertain the appeal because the
Commonwealth Court certified that its “interlocutory order granting a stay
involved a controlling question of law as to which there is a substantial ground
for difference of opinion.” Young J. Lee, 474 A.2d at 269.
4The Young J. Lee Court further concluded that the Department’s appeal
was not properly before the Court under Pa.R.A.P. 311(a)(4), noting:

       The Department asserts that this Court has jurisdiction of its
       appeal under Pa.R.A.P. 311(a)(4). Rule 311(a)(4) provides for an
       interlocutory appeal as of right from “an order granting
       continuing, modifying, refusing or dissolving injunctions, or
       refusing to modify or dissolve injunctions.” As a practical matter,
       this Court cannot interpret Rule 311(a)(4) to also permit
       interlocutory appeals of right from the grant or denial of a stay or
       supersedeas by Commonwealth Court.

Young J. Lee, 474 A.2d at 268-69.
5Appellant’s petition, however, did not cite to Rule 1732, but cited Rules 1701
and 1702. On appeal, Appellant’s brief, unlike her petition, cited Rule 1732 in
passing. Appellant’s Brief at 26.




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“[a]pplication for . . . injunction during the pendency of an appeal . . . must

ordinarily be made in the first instance to the trial court . . . .”). Because

Appellant filed a petition for allowance of appeal with our Supreme Court,

however, the better practice would have been for Appellant to file an

application with this Court.6       See Wilson, 56 A.3d at 692; see also 20A

West’s Pa. Practice § 1732:3 (citing Commonwealth Court cases).

       In any event, given the plain language of Rule 1732, it was reasonable

for Appellant to have filed her application with the trial court. See Pa.R.A.P.

1732(a). But when the trial court denied Appellant’s application on June 24,

2019, Appellant should have filed an application with this Court instead of

filing a notice of appeal.        See Pa.R.A.P. 1732(b) (stating application for

injunction may be made to appellate court upon showing that trial court has

denied application); Wilson, 56 A.3d at 692 (noting plaintiffs filed application

with Supreme Court seeking to restore status quo while appeal was pending

before our Supreme Court); see also Pa.R.A.P. 3315 (recognizing that after

Rule 1732 application denied by trial court, and further application denied by

this Court, a third application may be filed with our Supreme Court); see

generally 20A West’s Pa. Practice § 1732:4 (stating that an appellant must




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6Our Supreme Court had not yet granted Appellant’s petition for allowance of
appeal, which occurred on September 11, 2019.


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file a new Rule 1732 application with the appellate court because the trial

court’s order denying Rule 1732 relief is interlocutory).

      For these reasons, we quash this appeal. Appellant should have filed a

Chapter 17 application with this Court while her petition for allowance of

appeal with our Supreme Court was outstanding.         See Pa.R.A.P. 1702(a),

1732, 3315; Wilson, 56 A.3d at 692-93.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/20




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