Opinion
1358 WDA 2023 J-A13037-24
08-27-2024
IN RE: MILLER TRUST AGREEMENT APPEAL OF: WILLIAM R. MILLER AND MICHAEL R. MILLER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered October 31, 2023 In the Court of Common Pleas of Butler County Orphans' Court at No(s): 2016-00172
BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.
MEMORANDUM
BENDER, P.J.E.
William R. Miller and Michael R. Miller ("Appellants") appeal from the October 31, 2023 order requiring them, pending final resolution of this case, to restore monies taken from proceeds they received from the sale of certain real estate located at 6589 Mars Road, Cranberry Township, Butler County, Pennsylvania 16066, which proceeds are purportedly being held in trust by Appellants. After careful review, we vacate the order and remand for further proceedings.
The orphans' court provided the following factual background and procedural history of this matter in its Pa.R.A.P. 1925(a) opinion:
On or about September 1, 2016, Petitioner/Appellee in this matter, Mary Susan DeFrancesco (hereinafter, "Appellee"), filed a Petition for Citation to Compel the Recording of Trust Agreement and Filing of an Account (hereinafter, "Petition"). Therein, Appellee alleges she is the beneficiary of a trust relative to proceeds from the sale of real estate located at 6589 Mars Road, Cranberry Township, Butler County, Pennsylvania 16066
(hereinafter, … the "property" or "subject property"). She alleges Respondents/Appellants … are the settlors of the trust, as well as beneficiaries thereof. In support of her Petition, Appellee states the parties' father, John F. Miller, Jr., owned the subject property, but that on or about February 13, 2004, Michael R. Miller, as agent for John F. Miller, Jr., pursuant to a durable general power of attorney under date of May 25, 2003, signed a deed as agent for John F. Miller, Jr., transferring the subject property to John F. Miller, Jr., Michael R. Miller, and William R. Miller, as joint tenants with the right of survivorship, for consideration in the amount of … $1.00[.] Said deed was recorded in the Office of the Recorder of Deeds of Butler County, Pennsylvania, at Instrument No. 200402130004702.
Appellee alleges John F. Miller, Jr., died on or about August 22, 2004, thereby vesting full title to the subject property in Appellants pursuant to the February 13, 2004[] deed. On or about September 24, 2004, the last will and testament of John F. Miller, Jr., was admitted to probate, and letters testamentary were granted to Appellant, Michael R. Miller. On or about April 14, 2005, Appellants signed a document titled[, "]Trust Agreement[,"] pursuant to which Appellee alleges the subject property and proceeds from the sale thereof were/are being held in trust by Appellants for the benefit of the eleven (11) children of John F. Miller, Jr., including Appellee and Appellants herein. Said Trust Agreement is attached to the Petition as Exhibit D, and states in full as follows:
We, Michael R. Miller and William Rodgers Miller, do hereby acknowledge and agree that we are holding title to real estate located in Cranberry Township, Butler County, Pennsylvania[,] transferred to us by our father, John F. Miller, Jr.[,] by deed recorded in Butler County at Instrument Number 20040213004702 in trust under the terms hereinafter set forth. A copy of the deed transferring title to us is attached hereto and marked Exhibit "A[."]
We acknowledge and agree that we are holding this property in trust pursuant to the verbal directions given to us by our father. Pursuant to our father's directions, we shall hold title to the property until such time as we feel that it is appropriate to sell it. We shall keep an accounting of all of the expenses that we incur in maintaining the property. When the property is sold, after all costs of sale are deducted, and after we are reimbursed for all income
tax consequences incurred by us as a result of the sale and all expenses incurred by us in maintaining the property, we shall distribute the net proceeds, in equal shares, to all eleven (11) children of John F. Miller, Jr., or to their issue, per stirpes.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 14[th] day of April, 2005.
[signatures of Appellants].
(Petition, Exhibit D, Trust Agreement) (emphasis in original).
Thereafter, on or about April 15, 2005, James P. Coulter, Esquire, counsel for Michael R. Miller, as executor of the estate of John F. Miller, Jr., addressed written correspondence to at least one of the beneficiaries of John F. Miller, Jr.'s estate and the trust, Mary P. Lococo (however, the salutation is addressed to "Ms. Hohn"), enclosing therewith [a] family settlement agreementand accounting with a proposed schedule of distribution, and the Trust Agreement. (Petitioner's Answer to Respondents' New Matter …, Exhibit 1). In the correspondence, Attorney Coulter explains the subject property was transferred by John F. Miller, Jr., to John F. Miller, Jr., Michael R. Miller, and William Rodgers Miller during his lifetime, and that title thereto has vested by operation of law in Appellants. He further assures her[:]
Your brothers acknowledge that they hold the property in trust for the benefit of all of the heirs of John F. Miller, Jr. The enclosed Trust Agreement confirms that[] when the house is sold, after payment of all taxes, costs of sale, and expenses incurred in maintaining the property, the net proceeds shall be distributed to all the children of John F. Miller, Jr., in equal share. Because the house was transferred during your father's lifetime, it is not included in the enclosed accounting.
(Id.). Following Appellants' execution of the Trust Agreement, each of the eleven (11) children of the decedent, John F. Miller, Jr., executed [the] Family Agreement…. Appellants signed the Family Agreement … on or about April 14, 2005. (Id.).
Thereafter, on or about May 30, 2016, following [the] sale of the property, Appellant, William R. Miller, issued written correspondence to Appellee, stating in part[:]
As part of the sale of the property located at 6589 Mars Road, Cranberry Township, Pennsylvania, you will be receiving a distribution of the sale proceeds. A portion of the proceeds will be used to pay the taxes and fees associated with this sale. All remaining proceeds will be distributed equally among the siblings. A condition of receipt for these proceeds is your execution of the attached Release and, pursuant to the Internal Revenue Code, your completion of the attached Form W-9.
The execution of the Release and completion of the Form W-9 are required. Distributions will not be made until these documents are returned.
(Petition, Ex[hibit] F). By written correspondence under date of June 10, 2016, Appellee advised Appellants she would not sign the Release, but was requesting a "full and detailed accounting of the sale of the property at 6589 Mars Road, Cranberry Township, PA, that being associated with the estate of our deceased parents and, specifically, most recently in the name of John F. Miller, Jr." (Petition, Ex[hibit] G). She also requested that … ["]$70,000.00[,] … being the dollar figure stated in the letter as the portion of the proceeds of the sale of the property at 6589 Mars Road due each sibling, be deposited in an interest[-]bearing escrow account of my naming." (Id.).
On or about June 25, 2016, Peter J. Horne, Esquire, counsel for Appellants, sent a responsive letter to Appellee, stating a full and detailed accounting of the sale of the property was not possible due to the confidentiality clause in the Purchase and Sale
Agreement. He further stated, "absent the return of executed copies of both documents from all recipients of the May 30, 2016 letter - which makes the execution of those documents express conditions precedent - no distributions may be made to any individual or escrow account." (Id.). Finally, by letter under date of July 27, 2016, to Peter J. Horne, Esquire, Charles J. Avalli, Esquire, then counsel for Appellee, clarified that Appellee was not seeking a copy of the Purchase and Sale Agreement, but a report of all receipts and disbursements attributed to the property since the creation of the trust. As same was not provided, the Petition was filed thereafter, on or about September 1, 2016.
On or about December 19, 2016, Appellants filed their Answer and New Matter to Petition for Citation to Compel Recording of Trust Agreement and Filing of an Account. Therein, Appellants deny the Trust Agreement establishes a trust or that any trust exists in this case. Appellants aver they never intended to form a trust, were never instructed to create or execute any other deed, assignment, or conveyance involving the property between February 13, 2004[] and June 17, 2016, and never delivered any property to the trust.
On or about March 1, 2023, Appellee orally requested that the [orphans' court] freeze the remaining balance in the R&C Realty, LLC, First Commonwealth Bank account, which motion the court granted. (See Status Conference Order of March 1, 2023, docketed March 3, 2023).
On or about October 27, 2023, Appellee filed an amended motion directing [Appellants] to restore monies taken from [the] proceeds of the sale of [the subject property ("Amended Motion")]. Therein, Appellee asserts the HUD-1 settlement sheet detailing the sale of the subject property lists a sales price of … $1,100,000.00[,] and according to the HUD sheet attached to the Amended Motion, the Appellants received … $1,088,416.78[] from the sale of the subject property. Appellee further asserts that on or about June 24, 2016, Appellants opened a bank account at First Commonwealth Bank in the name of R&C Realty, LLC, into which they deposited … $809,664.06[] from the sale of the real estate. Appellee states that as of June 30, 2019, the balance remaining in the account was … $571,740.17[.] Appellee avers some of the funds expended by Appellants from the account were utilized for federal and state taxes, but also for Appellants' legal bills relative to the instant litigation. Appellee asserts that on June 24, 2020, a cashier's check in the amount of … $274,200.00[] was
withdrawn from the account, and given to BHCN, LLC, a Pennsylvania limited liability company formed by Appellant, Michael R. Miller, and Cyntia K. Miller, wife of Appellant, William R. Miller. Thereafter, these funds were utilized by BHCN, LLC, to purchase construction/excavation machines from Appalachian Drillers, LLC. Through discovery, Appellee avers she learned that BHCN, LLC, no longer owns or is in possession of the construction/excavation machines, as they were sold to a third party. Although Appellee requested details regarding the sale of the equipment, Appellants "refused to provide details and have refused to state where the proceeds of this subsequent sale are deposited." Appellee asserts none of the purported trust beneficiaries have received any money from the trust/sale of the subject property.
On or about October 31, 2023, Appellants filed their Respondents' Opposition to [the Amended] Motion…. Appellants admit they deposited … $809,664.06[] from the sale of the property into the bank account at First Commonwealth Bank in the name of R&C Realty, LLC. They admit that on June 24, 2020, a cashier's check in the amount of … $274,200.00[] was withdrawn from the account and given to BHCN, LLC. They admit they have utilized the proceeds for their legal bills; however, they aver those proceeds are their personal assets. Appellants deny they received $278,752.72 of the $1,088,416.78 from the sale of the property, as they admit the sale was a short-/net-funded transaction, and this money was to be placed in escrow by Cranberry Inn, L.P., and used to purchase ownership units for Appellants. Appellants also admit BHCN, LLC is affiliated with one of the appellants, but assert it is a third party that requires a subpoena for any discovery requests. Finally, Appellants admit they have not distributed any of the monies from the sale of the subject property to any of the other nine siblings.
Following her receipt of the discovery responses relative to the … $274,200.00[] given to BHCN, LLC, Appellee filed the instant Amended Motion…, and based upon the averments therein and the documents attached to her Amended Motion, requested the court order Appellants to restore to the First Commonwealth Bank account the amount of … $274,200.00[,] as withdrawn from the account on or about June 24, 2020, and given to BHCN, LLC; the amount of … $278,752.72[] that was "net funded" by Appellants to the purchaser, Cranberry Inn, L.P., in exchange for Appellants['] acquiring subscription rights in Cranberry Inn, L.P.; and the amount of … $130,231.44[ that] Appellants withdrew for
payment of their legal expenses related to this lawsuit. Following oral argument thereon, the court entered the October 31, 2023[] order of court from which Appellants have appealed.Orphans' Court Opinion ("OCO"), 1/11/24, at 1-8 (cleaned up).
The family settlement agreement referred to in Attorney Coulter's correspondence is titled, "Family Agreement - Waiving Filing of Account[,]" and is hereinafter referred to as the "Family Agreement." See Petition, 9/1/16, at Exhibit C.
Attorney Coulter further explains that the Family Agreement "is intended to conclude [John F. Miller, Jr.'s] estate as promptly as possible and inexpensively as possible. If any heir declines to sign the Family … Agreement, we will be required to file an accounting with the [c]ourt." Petitioner's Answer to Respondents' New Matter, 1/5/17, at Exhibit 1.
On November 13, 2023, Appellants filed a timely notice of appeal, followed by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The orphans' court filed its Rule 1925(a) opinion on January 11, 2024. Herein, Appellants present the following issues for our review:
1. Did the [orphans' c]ourt err by granting mandatory injunctive relief after failing to hold an evidentiary hearing, failing to provide notice that a hearing would be held, failing to supply a written memorandum supporting the order for mandatory injunctive relief, failing to make findings of law or fact, and failing to require Appellee to file a bond?
2. Did the [orphans' c]ourt err by effectively holding that a trust exists, and that real property was held by such trust, despite the absence of evidence or testimony as to formation, delivery, or identification of the proper trustees or beneficiaries, without affording Appellants notice or an opportunity to present evidence or submit dispositive briefing and in light of existing Pennsylvania law?
3. Did the [orphans' c]ourt err by ordering Appellants to "restore" $274,000.00 that was part of a third-party transaction, $278,752.72 that was not and has never been in the possession of Appellants, and $130,231.44 in attorney's fees?Appellants' Brief at xii-xiii.
Preliminarily, we consider whether this matter is properly before us, as "the question of appealability implicates the jurisdiction of our [C]ourt." Jacksonian v. Temple University Health System Foundation, 862 A.2d 1275, 1279 (Pa. Super. 2004) (citation omitted). Generally, an appeal lies only from a final order, unless otherwise permitted by rule or by statute. Id. (citation omitted). See also Pa.R.A.P. 341(b)(1) (defining a final order as one that disposes of all claims and all parties). Pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(4), an appeal may be taken as of right from "[a]n order that grants or denies … an injunction…." Pa.R.A.P. 311(a)(4).
"A preliminary injunction … has been defined as a temporary or provisional remedy granted until that time when the parties' dispute can be completely or finally resolved." 15 Standard Pennsylvania Practice 2d § 83:4 (citations omitted). "The basic purpose of a preliminary injunction is to preserve the status quo as it exists or previously existed pending final resolution of the underlying controversy between the parties." Id. at § 83:5 (citations omitted). While a preliminary injunction is typically restrictive or prohibitory in nature, id. at § 83:4, a mandatory preliminary injunction "is an injunctive order mandating significant affirmative conduct by the defendant." Id. at § 83:9 (citations omitted). See also Greenmoor, Inc. v. Burchick Const. Co., Inc., 908 A.2d 310, 312 (Pa. Super. 2006) (stating that mandatory preliminary injunctions command positive acts on the part of one party to maintain the status quo between the parties).
Instantly, the order from which Appellants appeal constitutes a mandatory preliminary injunction, as it requires Appellants to restore monies taken from the proceeds of the sale of the subject property, pending the final resolution of the underlying matter - Appellee's Petition seeking the recording of the Trust Agreement with the Register of Wills of Butler County, Pennsylvania, and the filing of an account of the activities of the trust from January 13, 2004, through the present. See Greenmoor, Inc., 908 A.2d at 312; Order, 10/31/23, at 1-2 (ordering Appellants to restore all monies taken from the account holding the proceeds from the sale of the real estate located at 6589 Mars Road within 10 days and declaring that all funds from the sale of the subject property shall remain frozen pending further order of court); Appellee's Petition at 6-7. See also 15 Standard Pennsylvania Practice 2d § 83:4 (noting that "[w]hether or not an order is entitled 'preliminary injunction' does not determine what it is in fact"; rather, we consider whether the effect of the order is injunctive in nature). Hence, we conclude that we have jurisdiction to consider the merits of this appeal by virtue of Pa.R.A.P. 311(a)(4).
This Court has summarized the nature of our standard of review from the grant of a mandatory preliminary injunction as follows:
Generally, appellate inquiry is limited to a determination of whether an examination of the record reveals that "any apparently reasonable grounds" supports the trial court's disposition of a preliminary injunction request. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mt., Inc., … 828 A.2d 995, 1001 ([Pa.] 2003). The standard of review differs, however, where, as here, the trial court has granted a mandatory preliminary injunction. See id.[ at 1001 n.]7. Such a remedy is extraordinary and should be utilized only in the rarest of cases. See id.[ at 1005 n.]13. Our Supreme Court has deviated from the general standard applicable to review of preliminary injunctions, only when reviewing the grant of a mandatory preliminary injunction. See Mazzie[ v. Commonwealth,] … 432 A.2d [985,] 988 [(Pa. 1981)]. The Mazzie Court explained:
Generally, preliminary injunctions are preventive in nature and designed to maintain the status quo until the rights of
the parties are finally determined. There is, however, a distinction between mandatory injunctions, which command the performance of some positive act to preserve the status quo, and prohibitory injunctions, which enjoin the doing of an act that will change the status quo. This Court has engaged in greater scrutiny of mandatory injunctions and has often stated that they should be issued more sparingly than injunctions that are merely prohibitory. Thus, in reviewing the grant of a mandatory injunction, we have insisted that a clear right to relief in the plaintiff be established.
Id. (citations omitted…)[.]
As the above elucidates, in reviewing the grant of a mandatory preliminary injunction[,] we must examine the merits of the controversy and ensure that "a clear right to relief in the plaintiff [is] established." See id.Greenmoor, Inc., 908 A.2d at 313 (quoting Kessler v. Broder, 851 A.2d 944, 946-47 (Pa. Super. 2004)) (internal brackets and emphasis omitted).
Therefore, we have determined that the law of this Commonwealth requires a petitioner seeking a preliminary injunction to establish every one of the following prerequisites:
First, a party seeking a preliminary injunction must show that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages. Second, the party must show that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings. Third, the party must show that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct. Fourth, the party seeking an injunction must show that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits. Fifth, the party must show that the injunction it seeks is reasonably suited to abate the offending activity. Sixth, and finally, the party seeking an
injunction must show that a preliminary injunction will not adversely affect the public interest.Overland Enterprise, Inc. v. Gladstone Partners, LP, 950 A.2d 1015, 1020 (Pa. Super. 2008) (quoting Summit Towne Center, 828 A.2d at 1001). "If a petitioner fails to establish any one of the aforementioned prerequisites, a reviewing court need not address the others." Id. (citation omitted).
In the case sub judice, the orphans' court opined that Appellee met each of the preliminary injunction prerequisites, elaborating:
The money withdrawn by Appellants has been transferred to third parties, including payments issued to lawyers to defend Appellants' personal interests and a transfer to BHCN, LLC, such that the trust property is being dissipated. Being as Appellants have removed exorbitant amounts of money, and being as there is no indication Appellants can repay such money, in that regard, greater harm would result from denying the injunction rather than granting it. Restoring the money would restore the parties to the status quo, and as discussed [further herein], Appellee is likely to prevail on the merits. The restoration of the money is reasonably suited to abate the offending activity, i.e., the dissipation of trust assets, and the public interest will not be harmed by the granting of the injunction.OCO at 19-20.
It determined that Appellee has a clear right to relief based on its finding that the Trust Agreement created "an express inter vivos trust" under 20 Pa.C.S. § 7731, see OCO at 12, and that Appellants' "admitted use of trust assets for personal expenses and uses clearly established a breach of trust." Id. at 17-18. Based on the foregoing, the orphans' court explained that it acted pursuant to Section 7781 of the PEF Code "to restore and protect trust property prior to [the] final conclusion of this case." Id. at 18 (citing 20 Pa.C.S. § 7781).
An inter vivos trust is defined as "an express trust other than a trust created by a will, taking effect during the lifetime or after the death of the settlor[, including] … a trust created under a deed, agreement, or declaration except as hereinafter excluded…." 20 Pa.C.S. § 711(3)(ii).
Section 7731 of the Probate, Estates and Fiduciaries ("PEF") Code, 20 Pa.C.S. §§ 101-8815, provides that a trust may be created by, inter alia, "written declaration, signed by or on behalf and at the direction of the owner of property as required by [S]ection 7732 (relating to requirements for creation - UTC 402), that the owner holds identifiable property as trustee…." 20 Pa.C.S. § 7731(2). Pursuant to Section 7732,
[a] trust is created only if: (1) the settlor has capacity to create a trust; (2) the settlor signs a writing that indicates an intention to create the trust and contains provisions of the trust; (3) the trust has a definite beneficiary…; (4) the trustee has duties to perform; and (5) the same person is not the sole trustee and sole beneficiary of the trust.20 Pa.C.S. § 7732(a) (paragraph breaks omitted). Moreover, the statute of frauds requires declarations of trusts to be in writing. See OCO at 10 (citing 33 P.S. § 2 ("All declarations or creations of trusts or confidences of any lands, tenements or hereditaments, and all grants and assignments thereof, shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or else to be void.")). See also id. at 12-15 (concluding that the Trust Agreement meets the requirements of Sections 7731 and 7732 of the PEF Code and satisfies the statute of frauds).
The orphans' court noted:
It is undisputed Appellants deny they held the subject property or are holding any monies from the sale of property in trust. It is undisputed [Appellants] have acted detrimentally to the other beneficiaries of the trust for the benefit of themselves through a short-/net-funded transaction granting them certain rights not available to the other beneficiaries. It is further undisputed they have utilized … $130,231.44[] of trust funds for legal fees denying the existence of the trust, i.e., are dissipating trust funds defending their personal interests, not their actions as trustees. It is also undisputed that … $274,200.00[] was withdrawn from the account by Appellants and given to a third party, BHCN, LLC, a company in which one of the [A]ppellants and the wife of the other [A]ppellant own the entire membership interest, and that Appellants are unable or unwilling to account for the whereabouts of this money.OCO at 17. Additionally, it acknowledged the following two duties of a trustee:
"Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its provisions and purposes and the interests of the beneficiaries and in accordance with applicable law." 20 Pa.C.S.[] § 7771. Additionally, "[a] trustee shall administer the trust solely in the interests of the beneficiaries." 20 Pa.C.S.[] § 7772(a).Id. at 18.
Section 7781(b) provides the court with the following remedies for a breach of trust:
(b) Remedies.-To remedy a breach of trust that has occurred or may occur, the court may order any appropriate relief, including the following:
(1) Compelling the trustee to perform the trustee's duties.
(2) Enjoining the trustee from committing a breach of trust.
(3) Compelling the trustee to redress a breach of trust by paying money, restoring property or other means.
(4) Ordering a trustee to file an account.
(5) Taking any action authorized by Chapter 43 (relating to temporary fiduciaries).
(6) (Reserved).
(7) Removing the trustee as provided in [S]ection 7766 (relating to removal of trustee - UTC 706).
(8) Reducing or denying compensation to the trustee.
(9) Subject to [S]ection 7790.2 (relating to protection of person dealing with trustee - UTC 1012):
(i) voiding an act of the trustee;
(ii) imposing a lien or a constructive trust on trust property; or
(iii) tracing trust property wrongfully disposed of and recovering the property or its proceeds.
(10) (Reserved).20 Pa.C.S. § 7781(b) (some emphasis added). Given the statutory authority of Section 7781(b)(3), the orphans' court concluded it was authorized to restore to the trust the full value of the trust property. OCO at 19 (citing 20 Pa.C.S. § 7781(b)(3)).
The PEF Code defines a breach of trust as "[a] violation by a trustee of a duty the trustee owes to a beneficiary[.]" 20 Pa.C.S. § 7781(a).
Appellants argue that the orphans' court erred in granting injunctive relief without first holding an evidentiary hearing and providing notice of such hearing. Appellants' Brief at 6. See also id. at 7 (stating that the October 31, 2023 order constitutes a mandatory injunction, "which cannot be implemented absent proper evidentiary proceedings") (citation omitted); id. ("Pursuant to Pa.R.C[iv].P. 1531, a court shall issue an injunction only after written notice and hearing."); id. at 8 ("In this matter, … [n]o proper notice was given to Appellants. No evidentiary hearing or similar proceeding was held."). Additionally, they contend that the orphans' court erred in finding that a trust exists. Id. at 13 ("Appellants posit that Appellee cannot, under Pennsylvania law, prevail on the ultimate issues of whether a purported trust exists or whether the [p]roperty was held in trust."). See also id. at 20 (suggesting that absent "a deed with language indicating the [p]roperty was to be held 'in trust[,]' … any purported gift of the [p]roperty by Appellants to any trust must fail" and that it is "inconsequential that the Trust Agreement uses the words 'in trust'").
Regardless of whether the orphans' court properly determined that the Trust Agreement constitutes a trust, thereby entitling it to utilize the remedies provided under Section 7781 of the PEF Code to remedy a breach of said trust, it is clear - as discussed supra - that the orphans' court's October 31, 2023 order constitutes a mandatory preliminary injunction. As we explained in In re Trust Under Deed of Trust of Neil G. Jack, Settlor Dated May 29, 1981 (Nell G. Jack Trust), 284 A.3d 451 (Pa. Super. 2022):
The procedure for obtaining an injunction in the [o]rphans' [c]ourt is derived from the Pennsylvania Rules of Civil Procedure. See Pa.R.O.C.P. 7.4 ("Upon petition, the court may issue a preliminary, special, or permanent injunction in accordance with the rules and procedures provided in Pa.R.C[iv].P. [] 1531."). Pursuant to [Rule] 1531, A court shall issue a preliminary or special injunction only after written notice and hearing, unless it appears to the satisfaction of the court that immediate and irreparable injury will be sustained before notice can be given or a hearing held, in which case the court may issue a preliminary or special injunction without a hearing or without notice. In determining whether a preliminary or special injunction should be granted and whether notice or a hearing should be required, the court may act on the basis of the averments of the pleadings or petition and may
consider affidavits of parties or third persons or any other proof which the court may require.
Pa.R.C[iv].P. 1531(a). Accordingly, a court will ordinarily issue a preliminary injunction only after written notice and hearing. WPNT Inc. v. Secret Commc'n Inc., … 661 A.2d 409, 410-11 (Pa. Super. 1995). "A preliminary injunction may be granted without notice and a hearing only when there exists a need for unusual haste so that a clear right may be protected from immediate and irreparable injury." Id. at 411 (citation omitted). In that event, the court must make a finding that relief is necessary and must be awarded before the defendant can be notified. Id. If the court then fails to conduct a hearing within five days, the injunction is deemed dissolved. See Pa.R.C[iv].P. 1531(d).Id. at 456-57 (emphasis added).
Here, the orphans' court granted Appellee's request for injunctive relief without first holding a hearing or making a finding that "immediate and irreparable injury w[ould] be sustained" if it failed to grant relief prior to convening a hearing. See Pa.R.Civ.P. 1531(a) (providing that a court shall issue a preliminary injunction only after written notice and a hearing unless it appears that immediate and irreparable injury will be sustained before notice can be given or a hearing held). Consequently, we are constrained to vacate the court's order granting injunctive relief and remand for a hearing. See Trust under Deed of Trust of Neil G. Jack, 284 A.3d at 457 (concluding that the orphans' court erred by granting injunctive relief pursuant to 20 Pa.C.S. § 7781(b), without a hearing or a finding of irreparable harm; therefore, vacating the court's order granting injunctive relief and remanding for a hearing).
The orphans' court indicated that a hearing was unnecessary based on the fact that the Honorable S. Michael Yeager has been presiding over this matter since its inception in 2016, and he is "exceedingly well-informed of the issues in this matter, the positions of the parties, and the documents obtained through discovery that have been filed with the court." OCO at 9. It noted that, "[m]ore importantly, the basis for this court's decision … lies in the interpretation of written documents, in particular, the Trust Agreement and written correspondence." Id. It further opined that "[t]he pertinent written documents are not ambiguous. Thus, parol evidence relative to the meaning of the written instruments was not necessary or appropriate. Any remaining collateral facts necessary for this court's ruling were judicially admitted by Appellants in their pleadings and other filings." Id. at 9-10. Such factors do not excuse the court from complying with the dictates of Pa.R.Civ.P. 1531(a).
Accordingly, we vacate the orphans' court's October 31, 2023 order and remand for further proceedings consistent with this memorandum.,
Due to our disposition, we need not address the remainder of Appellants' claims.
Appellee's "Application to Declare Issues Waived in Appellants' Original Brief Pursuant to 2116(a) and Suppressed in Reply Brief and Application to Declare Issues Waived and Suppressed in Appellants' Reply Brief as Re-Argument from Initial Brief[,]" filed with this Court on April 15, 2024, is deemed moot and is hereby denied.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.