J-A29026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: IRREVOCABLE INTER VIVOS                 IN THE SUPERIOR COURT OF
TRUST OF PHILOMENE HRUTKAY, DATED                    PENNSYLVANIA
FEBRUARY 24, 2001




APPEAL OF: MICHAEL S. HRUTKAY,
TRUSTEE

                                                    No. 405 WDA 2016


                    Appeal from the Order February 22, 2016
              In the Court of Common Pleas of Washington County
                      Orphans' Court at No(s): 63-12-0799


BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                      FILED FEBRUARY 2, 2017

       Michael S. Hrutkay appeals from the February 22, 2016 order entered

in the Washington County Court of Common Pleas terminating the

Irrevocable Inter Vivos Trust of Philomene Hrutkay, dated February 24, 2001

(“Trust”).   Because the trial court, by its admission, entered an incorrect

order, we vacate and remand.

       Philomene Hrutkay executed the Trust on February 24, 2001,

appointing her son Michael Hrutkay as Trustee. The Trust made Michael a

remainder beneficiary, along with Philomene’s daughters Michelene Sheehy1

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       1
        The record reflects a number of different spellings of this name,
including “Michalene” and “Michaleen.” For clarity, we will refer to Ms.
(Footnote Continued Next Page)
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and Gloria Hrutkay. Under the Trust, the Trustee was to pay, as he saw fit,

so much of a specific portion of the Trust income to Philomene for “items or

services not covered or provided by public governmental benefits.”           Upon

Philomene’s passing and after the Trust paid for her burial expenses, the

Trust directed the Trustee to “transfer[] and deliver[] free of trust to the

remaindermen beneficiaries . . . all the principal and undistributed income of

the Trust Estate exclusive of [a portion of the burial trust] and the portion of

the remainder of the Trust Estate for the benefit of Gloria Hrutkay then in

possession of the Trustee.” Trust, 2/24/01, at 8. The Trustee was to divide

“[t]he remainder of the Trust Estate . . . into three (3) as nearly equal

shares as possible . . . . [And] distribute one share to Michael, one share to

. . . Michelene . . . , and one share to my Trustee Michael Hrutkay to be held

in trust for . . . Gloria Hrutkay, in accord with the provisions of Paragraph

3.09.6 of this Trust Agreement.” Id. at 8-9. Paragraph 3.09.6 provides:

          3.09.6 During the lifetime of Gloria Hrutkay and for so
          long as she is domiciled at [Philomene’s home], or any
          replacement place of domicile, including a personal care
          facility, but excluding a skilled nursing care facility,
          hospital, extended care facility, or other similar facility, the
          Trustee may pay so much of the income and principal of
          the portion of the residue of the Trust Estate passing to
          [Michael] for the benefit of Gloria Hrutkay, as [Michael], in
          his sole and absolute discretion shall determine to be
          advisable for the support, comfort and happiness of Gloria
          Hrutkay.
                       _______________________
(Footnote Continued)

Sheehy as “Michelene.” Similarly, because several of the litigants share the
same last name, we will refer to the parties by their first names.



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Id. at 10. Paragraph 3.11 states that, upon Gloria’s death, the remaining

portion of the Trust Estate held in trust for the benefit of Gloria . . . shall go

and be by the Trustee, transferred and delivered free of trust to the

reaminderman beneficiaries of this Trust.” Id. at 12. The trust also grants

the Trustee the power “to continue to hold any and all property (including

[Philomene’s home]) received by [him] . . . if and as long as [he], in

exercising reasonable prudence, discretion, and intelligence, considers that

retention is in the best interests of the Trust.” Id.

       Philomene died on July 8, 2001. Upon Philomene’s death, Michael did

not pay himself or Michelene their respective shares of the remainder. On

July 12, 2012, Michael, on behalf of himself as trustee (not on behalf of

himself as a beneficiary) and Gloria,2 filed a complaint for declaratory

judgment, alleging that he and Gloria still resided in Philomene’s home and

that Michelene had demanded her share of the Trust remainder, including

her portion of Philomene’s home. In his prayer for relief, Michael asked the

trial court to interpret the Trust and determine whether Philomene’s home

was still “impressed with the terms of the trust” and whether Philomene

intended to allow Michael and Gloria to live in her home until Gloria is no




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       2
       Gloria Hrutkay is disabled; she and Michael currently reside in
Philomene’s home.



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longer capable of living there.3               Complaint for Declaratory Judgment,

7/12/12, at 4-5. Michelene answered the complaint with new matter on July

25, 2012. In her new matter, Michelene asserted that she was entitled to a

one-third share of the Trust remainder upon Philomene’s death in 2001 and

the Trust did not expressly state or imply that Philomene, after her death,

intended to allow Michael and Gloria to continue living in her home.           On

August 2, 2012, the trial court entered a consent decree directing Michael to

file an account of the Trust on or before October 12, 2012.

       During the next three years, the parties filed numerous documents,

including partial accounts and addenda, a motion for summary judgment

and responses thereto, and motions for continuances.             At one point, the

parties attempted unsuccessfully to negotiate a settlement, resulting in a

motion to enforce settlement that the trial court denied. The result of these

filings was a submission to the trial court, without hearing, on the issues

raised by both Michael and Michelene.

       On February 22, 2016, the trial court issued a memorandum and

order, decreeing that, upon Philomene’s death, the trust terminated and

Michelene was entitled to a one-third share of the remainder.                 See

Memorandum & Order, 2/22/16, at 5 (“Mem.”). Michael filed a timely notice


____________________________________________


       3
       On July 12, 2012, the trial court issued a decree ordering Michael to
serve a copy of the complaint and decree on Michelene and allowing
Michelene 30 days from the date of service to respond.



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of appeal.      After ordering and receiving a concise statement of errors

complained of on appeal, on June 24, 2016, the trial court issued an opinion

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) (“Rule

1925(a)”).4      See Trial Opinion Pursuant to Pa.R.A.P. 1925(b), 6/24/16

(“1925(a) Op.”).

       Before considering the issues raised on appeal, we must address a

threshold issue regarding the trial court’s order. In its Rule 1925(a) opinion,

the trial court admitted that it did not intend to terminate the entire trust.

Rather, the trial court stated that it intended to terminate the trust only with

respect to Michelene’s one-third share:

            As the Court recognizes that Gloria’s share continues in
            trust for her, to the extent this Court’s Order of February
            22, 2016 terminates the entire trust, this is an error. The
            Trust, the Court contends, continues only for Gloria’s one-
____________________________________________



       4
           Michael raises three issues on appeal:

       A. WHETHER THE LOWER COURT ABUSED ITS DISCRETION
          IN DEVIATING FROM STATUTORY LAW AND FAILING TO
          PROVIDE ADEQUATE RESPONSES UNDER THE UNIFORM
          DECLARATORY JUDGMENT ACT?

       B. WHETHER THE LOWER COURT ABUSED ITS DISCRETION
          IN TERMINATING THE TRUST IN DEVIATION OF THE
          DECEDENT’S INTENT?

       C. WHETHER THE LOWER COURT COMMITTED AN ERROR OF
          LAW IN INTERPRETING THE TRUST CONTRARY TO
          APPLICABLE LAW?

Michael’s Br. at 5 (suggested answers omitted).




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           third share (and for her funeral expenses of $8,000 as set
           forth in Schedule A of the Trust).

                                       *       *   *

           The Order stated:

              “AND NOW, this 22nd day of February 2016, it is
           DECREED that upon the date of death of Philomene
           Hrutkay the Philomene Hrutkay Irrevocable Trust
           terminated and Michelene Sheehy was entitled to a one-
           third share. Unless the parties can amicably resolve the
           accounting of the Trust the Court will schedule a hearing
           upon the request of either party.”

           The Order should have stated:

               “AND NOW, this 22nd day of February 2016, it is
           DECREED that upon the date of death of Philomene
           Hrutkay the Philomene Hrutkay Irrevocable Trust was
           terminated as to the share of Michelene Sheehy and
           she was entitled to a one-third share. Unless the parties
           can amicably resolve the accounting of the Trust the Court
           will schedule a hearing upon the request of either party.”

1925(a) Op. at 4, 6 (emphasis in original).5

       We must vacate the order and remand for entry of an appropriate

order or decree. While a trial court “upon notice to the parties may modify

or rescind any order within 30 days after its entry,” 42 Pa.C.S. § 5505, a

trial court generally may not modify an order once an appeal is taken. See

Pa.R.A.P. 1701(a) (“Except as otherwise prescribed by these rules, after an

appeal is taken or review of a quasijudicial order is sought, the trial court . .
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       5
        Despite admitting its error, the trial court asks us to affirm the
rationale of its decision as written in its memorandum of February 22, 2016,
presumably because its memorandum was written with the intent to
terminate the trust only with respect to Michelene’s share. See 1925(a) Op.
at 10.



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. may no longer proceed further in the matter.”).            Pennsylvania Rule of

Appellate    Procedure      1701(b)     contains   some    exceptions   that   allow

modification of an order in limited circumstances, including “correct[ion of]

formal errors in papers relating to the matter.” Id at (b)(1). Further, Rule

1925(a) allows a trial court “to write an opinion on the legal merits of the

issues and to suggest what relief it would have granted had it been able to

take such action in a timely fashion.” K-B Bldg. Co. v. Hermara Assocs.,

Inc., 709 A.2d 918, 919 (Pa.Super. 1998).

       Here, the trial court erroneously terminated the trust rather than

terminating only Michelene’s share. Such a change does not fall within any

Rule 1701 exception.           See Manack v. Sandlin, 812 A.2d 676, 682

(Pa.Super. 2002) (concluding that “[a] major substantive change, such as

the total withdrawal of an order relative to a motion of record[,] does not

constitute a corrective order within the inherent powers of the trial court or

the court’s statutory authority”).        Further, the trial court could not change

the order once Michael filed his notice of appeal; the trial court was limited

to explaining its error in its Rule 1925(a) opinion.          Considering the trial

court’s admission of its error and its inability to change the order, we vacate

the February 22, 2016 order and remand to the trial court for entry of an

appropriate order or decree.6

____________________________________________


       6
        In light of our ruling, we decline to address Michael’s issues on
appeal, as entry of a new order or decree may address or render moot a
(Footnote Continued Next Page)


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      Decree vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2017

                       _______________________
(Footnote Continued)

number of Michael’s issues and, in the current procedural posture, we would
be rendering an advisory opinion on an order or decree not yet entered. See
Stuckley v. Zoning Hearing Bd., 79 A.3d 510, 519 (Pa. 2013) (“Where the
issues in a case are moot, any opinion issued would be merely advisory and,
therefore, inappropriate.”).

       Further, in its Rule 1925(a) opinion, the trial court stated that it will
address the issues related to the home once the trust account is complete
and the parties have developed a record on both Michelene’s exceptions to
the account and Michael’s argument that laches and estoppel prevent
Michelene from asserting an interest in the home. 1925(a) Op. at 9.
According to the trial court, delaying these proceedings is appropriate
because the laches and estoppel arguments would “affect the amount to be
distributed to [Michelene],” not whether a distribution should be made. Id.
Michael argues that “given their salient impact on the outcome of the case,”
the trial court should have considered laches and estoppel when it rendered
the February 22, 2016 decision. Michael’s Br. at 28-30. Considering the
current procedural posture, we decline to address these issues. A final
account and developed record will allow the trial court to explore in depth
the issues regarding the home and make a final adjudication. See In re
Edwards’ Estate, 62 A.2d 763, 766 (Pa.Super. 1948) (“The adjudication of
a partial account simply awards distribution on the fund then in court, and is
not a final determination of the rights of the parties.”) (quoting In re
Reed’s Estate, 85 A. 138, 140 (Pa. 1912)).




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