J-S70017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE MATTER OF GENEVIEVE                 :   IN THE SUPERIOR COURT OF
    BUSH AN INCAPACITATED PERSON               :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: MICHAEL AND JOSEPH              :
    BUSH                                       :
                                               :
                                               :
                                               :   No. 1686 EDA 2018

                 Appeal from the Order Entered May 1, 2018
      In the Court of Common Pleas of Chester County Orphans' Court at
                           No(s): No. 1509-1720


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                             Filed March 19, 2019

       Joseph Bush and Michael Bush appeal from the order denying without

prejudice their Petition for Declaratory Judgment.1 We agree with the trial

court that an actual controversy is not imminent and that a Declaratory

Judgment is not needed to prevent injury to interested parties. We affirm.

       In 2004, Genevieve Bush executed a Will, in which she named her four

living children—Joseph, Michael, Justin (together “the Bush Brothers”), and

Mary Bush—as beneficiaries.2 In 2006, Genevieve executed a Last Will and
____________________________________________


1 Although the order denied the relief “without prejudice,” we conclude the
order was a final order because it did not provide Michael and Joseph an
opportunity to receive declaratory relief or amend the petition. Instead, the
order states that the brothers can seek the relief during will contest
proceedings.

2In 2004, Genevieve also signed a Durable Power of Attorney for Financial
Management, in which she named Joseph Bush as her attorney-in-fact.
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Testament, in which she named her daughter Mary as the sole beneficiary,

and, if Mary pre-deceased Genevieve, named Genevieve’s brother Leo

Yourgevidge as the sole beneficiary. Also in 2006, Genevieve signed a Durable

Power of Attorney and a Durable Power of Attorney for Healthcare, naming

Mary as her agent in each document, and an Advance Directive for

Healthcare.3 In 2007, Genevieve executed a Pour-Over Will and Revocable

Living Trust Agreement, naming Mary as Trustee,4 and providing for the same

beneficiaries upon her death as named in the 2006 Will and Testament. Also

in 2007, Genevieve signed a Durable Health Care Power of Attorney and

Health Care Treatment Instruction (Living Will), appointing Mary as her health

care agent and, if Mary was unavailable, Eleanor DeMarco.

       Following prior litigation, the trial court found that Genevieve suffered

from an incapacity at least as early as 2006. Trial Court Opinion, filed June

24, 2011, at 1, 11, 37. At that time, the court found that Genevieve’s

daughter, Mary, exercised undue influence over Genevieve, and found the

2006 power of attorney executed by Genevieve to be void. Id. at 37. Although

initialing noting “[t]he Bush Brothers would also seek invalidation of the wills

executed by [Genevieve] in 2006 and 2007,” it later found that “the efficacy

of the Will and Trust instruments [were] not before” the court and therefore
____________________________________________


3The Advanced Directive named Eleanor DeMarco as surrogate if Mary was
unavailable.

4The Pour-Over Will also named Mary as executor, and if Mary pre-deceased
Geneiveve, named Yourgevidge, as executor, and if Yourgevidege also pre-
deceased Genevieve, named Eleanor DeMarco as executor.

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did not invalidate the Will and Trust. Id. at 4, 38. It did, however, find that

any transfer made by Genevieve to the 2007 Pour-Over Will and 2007

Revocable Trust were invalid. Id. at 38. The trial court named Joseph as

guardian of the estate and Mary and Michael as co-guardians of the person.

Id. at 30. We affirmed. In the Matter of Genevieve Bush, unpublished

memoranda, Nos. 2726 EDA 2011 and 2746 EDA 2011 (Pa.Super. filed June

11, 2012).

       In subsequent litigation, the trial court removed both Mary and Michael

as guardians of the person and named a third party as guardian of the person.

We again affirmed these findings. In the Matter of Genevieve Bush,

unpublished memorandum, Nos. 1684 EDA 2013, 1861 EDA 2013, 1863 EDA

2013 (Pa.Super. filed June 24, 2014) (affirming removal of Mary as co-

guardian); In the Matter of Genevieve Bush, unpublished memorandum,

3207 EDA 2015 (Pa.Super. filed Feb. 21, 2017) (affirming removal of Michael

a co-guardian). In addition, on September 20, 2017, in the same order in

which it appointed a third-party guardian of the person, the court also revoked

“any Health Care Power of Attorney executed by Genevieve Bush.” Order, filed

9/20/2017.

       On June 24, 2018, Joseph and Michael filed a Petition for Declaratory

Relief.5 In the Petition, the Bush Brothers sought a declaration that the 2006

Will and Advance Directive and the 2007 Pour-Over Will, Trust, and Living Will
____________________________________________


5Although Justin did not join in the initial petition, his counsel did appear at a
hearing on the Petition and did not oppose the relief sought.

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were void ab initio. The brothers claimed declaratory relief was needed

because Mary used the documents “to cause significant confusion regarding

the care of [Genevieve]” and her actions “financially impact[ Genevieve’s]

estate.” Petition for Declaratory Judgment at ¶ 47. They claimed that:

         Since Mary’s removal as Co-Gaurdian, Mary has interfered
         with the rights, duties and responsibilities of the lawfully
         appointed Guardians to conduct the affairs of [Genevieve].
         Mary’s impositions have been premised upon the wrongfully
         procured 2006 and 2007 Estate Documents, which on their
         face give Mary the appearance of authority and status
         relative to the personal and financial issues that affect
         [Genevieve]. These impositions have resulted in grave
         confusion to third parties, repetitive obstacles for the
         lawfully charged guardians, and extra costs to the Estate.
         Further, they provide a platform for Mary’s derisive public
         media campaign against virtually anyone who opposes
         Mary’s quest to control [Genevieve’s] life and assets.

Id. at ¶ 48. It further stated:

         Adjudicating the status of the wrongfully procured 2006 and
         2007 Estate Documents prior to probate[] will prevent a
         potentially dangerous and chaotic environment where Mary
         is likely to want to assert immediate control over
         presumptive testamentary assets. The present adjudication
         of the Estate Documents will allow for a more orderly, calm
         and less costly probate process.

Id. at ¶ 5.

      The trial court held argument on the issue of whether the declaratory

judgment action was ripe. On May 1, 2018, the trial court denied the Petition

without prejudice, finding that the Bush Brothers failed to demonstrate that

an actual controversy existed and that declaratory relief was necessary to

prevent injury to those interested in Genevieve’s estate. Order, filed 5/1/18,



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at 1 n.1. It found that Genevieve was “still very much alive,” and although

she was elderly, there was “no indication her demise is imminent.” Id. The

court noted that upon Genevieve’s death, Mary will not control the funds

unless commissioned as personal representative by the Register of Wills, and

no personal representative will be appointed without notice to the Bush

Brothers and opportunity for them to be heard. Id. It further noted that the

guardian of the estate could lodge the will with the Register of Wills “to prevent

the type of situation feared by” the brothers. It found that “[t]hose interested

in the estate will not be injured by waiting until the ordinary course of judicial

proceedings that will occur upon the death of [Genevieve].” Id.

      Joseph and Michael Bush filed a timely Notice of Appeal. They raise the

following issues on appeal:

         A. Did the Honorable Court err as a matter of law in denying
         the Petition for Declaratory Judgment?

         B. Did the Honorable Court err as a matter of law and/or
         abuse its discretion in denying the Petition for Declaratory
         Judgment because an actual controversy exists regarding
         Mary Bush's status as a representative of Mrs. Bush
         pursuant to the Estate Planning Documents?

         C. Did the Honorable Court err as a matter of law and/or
         abuse its discretion in finding no actual controversy existed
         because an alternative remedy to the declaratory judgment
         existed?

         D. Did the Honorable Court err as a matter of law and/or
         abuse its discretion in finding no actual controversy existed
         because a guardian of the estate has been appointed?

Appellants’ Br. at 4 (suggested answers omitted). We will address these issues

together.


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      Joseph and Michael argue that the declaratory judgment action is ripe

and timely because an actual controversy exists and all interested parties are

before the trial court. They argue litigation is imminent and inevitable because

the trial court previously found Mary exercised undue influence over

Genevieve at least as early as 2006; Mary receives the benefits of the estate

planning documents, to the exclusion of the Bush Brothers; Joseph and

Michael stated their desire to invalidate the estate planning documents in the

2011 litigation; and the Bush Brothers will challenge the validity of the estate

planning documents if submitted to probate. Appellants’ Br. at 10. They also

argue that all interested parties are before the court. Id.

      Joseph and Michael also argue that litigation is “[n]ot only imminent but

it is ongoing,” claiming Mary interferes with the Guardianship duties by

communicating to the health care providers and uses her title as “Trustee” to

demand information regarding Genevieve’s care and finances. Id. at 11-12.

They claim that when Mary contacts a third party on Genevieve’s behalf, the

guardians must spend time undoing the sequence of events triggered by the

contact, and the guardian of the person bills the estate. Id. at 12. They claim

that “[e]liminating the platform from which Mary asserts authority on behalf

of [Genevieve] is urgent in light of the Estate’s dwindling financial resources.”

Id.

      “Our standard of review in a declaratory judgment action is limited to

determining whether the trial court clearly abused its discretion or committed

an error of law.” Erie Ins. Gr. v. Catania, 95 A.3d 320, 322 (Pa.Super. 2014)

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(quoting Pocono Summit Realty, LLC v. Ahmad Amer, LLC, 52 A.3d 261,

265 (Pa.Super. 2012)). Further, whether a trial court should exercise

jurisdiction over a declaratory judgment action is a matter of judicial

discretion. Osram Sylvania Prods., Inc. v. Comsup Commodities, Inc.,

845 A.2d 846, 848 (Pa.Super. 2004); 42 Pa.C.S.A. § 7537.

      The Declaratory Judgments Act provides: “Any person interested under

a . . . will, . . . or other writings constituting a contract, . . . may have

determined any question of construction or validity arising under the

instrument . . . , and obtain a declaration of rights, status, or other legal

relations thereunder.” 42 Pa.C.S.A. § 7533. It further provides that:

         Any person interested, as or through an executor,
         administrator, trustee, guardian, or other fiduciary, creditor,
         devisee, legatee, heir, next of kin, or cestui que trust, in the
         administration of a trust, or of the estate of a decedent, an
         infant, lunatic, or insolvent, may have a declaration of rights
         or legal relations in respect thereto:

         (1) To ascertain any class of creditors, devisees, legatees,
         heirs, next of kin, or others.

         (2) To direct the executors, administrators, or trustees to
         do or abstain from doing any particular act in their fiduciary
         capacity.

         (3) To determine any question arising in the administration
         of the estate or trust, including questions of construction of
         wills and other writings.

42 Pa.C.S.A. § 7535.

      In addition, the Act states that “[t]he court may refuse to render or

enter a declaratory judgment or decree where such judgment or decree, if

rendered or entered, would not terminate the uncertainty or controversy


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giving rise to the proceeding, but as provided in section 7541(b) (relating to

effect of alternative remedy), the existence of an alternative remedy shall not

be a ground for the refusal to proceed under this subchapter.” 42 Pa.C.S.A. §

7537. Further, we have found that a court may construe a trust or will under

the Declaratory Judgments Act only if an actual controversy indicating

imminent and inevitable litigation exists, there is a “clear manifestation that

the declaration will render practical help in ending the dispute,” and all parties

that may be affected are before the court. In re Mampe, 932 A.2d 954, 958

(Pa.Super. 2007).

      We conclude the trial court did not abuse its discretion in denying the

petition for declaratory judgment. An actual controversy is not imminent, as

Genevieve is alive, and the trial court has appointed a guardian of the person

and a guardian of the estate. The brothers claim Mary uses her title as

“Trustee” to interfere with Genevieve’s care, which causes the guardian of the

person to charge the estate. The court, however, appointed a guardian of the

person, who is to make decisions for Genevieve and act in her best interest.

See 20 Pa.C.S.A. § 5521(a). Further, as the trial court found, “[t]hose

interested in the estate will not be injured by waiting until the ordinary course

of judicial proceedings that will occur upon the death of [Genevieve].” Order,

filed May 15, 2018, at 1 n.1. Accordingly, the trial court did not abuse its

discretion in concluding that the declaratory judgment action was not ripe.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:3/19/2019




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