In re: Atwater Kent Museum ~ Appeal of: The Historical Society of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Atwater Kent Museum a/k/a :

Philadelphia History Museum :

at The Atwater Kent : No. 1042 C.D. 2022

:

Appeal of: The Historical Society of : Argued: November 9, 2023

Pennsylvania :

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER Judge

HONORABLE LORI A. DUMAS, Judge

OPINION BY

JUDGE DUMAS FILED: December 19, 2024

The Historical Society of Pennsylvania (Society) appeals from the

order entered in the Court of Common Pleas of Philadelphia County, Orphans’ Court

Division (orphans’ court) denying the Society’s second petition to intervene with

prejudice. The City of Philadelphia (City) and Pennsylvania Office of Attorney

General (AG) (collectively, Appellees) oppose intervention. On appeal, the Society

contends it is entitled to intervene. We deny the City’s application to quash and

affirm.

I. BACKGROUND1

In the early 20th century, a charitable organization acquired property

and offered to convey it to the City. In exchange, “the City would agree to establish

and maintain a museum in the building.” Orphans’ Ct. Op., 8/1/22, at 1. The City

agreed, passed an ordinance accepting the organization’s offer, and executed the

1

We state the facts as presented by the orphans’ court opinion to the extent they “are

supported by competent and adequate evidence.” In re Est. of Plance, 175 A.3d 249, 259 (Pa.

2017). We use the Pa.R.Civ.P. 236 dates, may refer to a decree as an order, and may interchangeably

use the term “instrument” with “terms of a trust.” See Act of July 15, 2024, P.L. 64 (amending the

Uniform Trust Act (Act), 20 Pa.C.S. §§ 7701-7799.3).

indenture of trust. Id. at Exs. A, B (instrument).2 The museum was to be named the

Atwater Kent Museum, also known as the Philadelphia History Museum at the

Atwater Kent (Museum). The Museum would display the organization’s artifact

collection (Collection).

The instrument provides that the City would finance the “supervision,

maintenance, upkeep and extension” of the Museum and building. Id. at Ex. A. The

instrument also established a board of trustees (Trustees) to manage the “custody,

care and management of the” Museum. Id. At that time, the instrument provided

that the Society, among others, could each appoint one trustee. In 1994, however,

the instrument was amended to omit the Society. Id. at Ex. C.

The instrument also states that “voluntary contributions, gifts,

donations, legacies, devices or bequests may be received” by the Museum. Id. at

Ex. A. Further, the Museum would comply with any conditions attached to any gift

or donation. The instrument does not identify any beneficiaries. See id.

Separately, the Society accumulated a collection of artifacts. In 2009,

the Society executed a contract conveying title to its collection to the Museum’s

Collection. The Society “irrevocably and unconditionally” transferred to the

Museum “all of the Society’s right, title, and interest . . . in and to the” Society’s

collection subject to three conditions.3 Id. at Ex. F.; see also Pet. to Deviate, 8/27/21,

¶ 25 (no reversionary title to the collection). First, before the Museum sold any of

the Society’s former artifacts, the Museum must timely notify the Society and seek

its advice. Second, the parties would split the proceeds if the Museum sold any of

2

The parties generally agree that the trust indenture, i.e., deed of trust, was the instrument.

Soc’y’s Br. at 2; City’s Br. at 17; AG’s Br. at 6 n.2.

3

In 1999, the Society and the Museum had executed a contract in which the Society lent

nearly its entire collection to the Museum for 10 years. In 2009, the Society and Museum amended

the 1999 contract to transfer title of the loaned artifacts to the Museum.

2

the Collection. Third, the Museum would acknowledge the Society’s former

ownership.

A few years later, the Museum’s finances compelled the Trustees to

explore a partnership with Drexel University (Drexel), which was receptive to

replacing the Trustees. Accordingly, the City, through the Trustees, filed a petition

to deviate4 to facilitate Drexel’s substitution. The City requested, inter alia, a decree

that the City could execute a contract with Drexel transferring title to the Collection

from the Museum to Drexel. Pet. to Deviate (order).

The Society petitioned to intervene, asserting it was a trust beneficiary

and had a “substantial, direct, and immediate” interest in the City’s petition to

deviate. Pet. to Intervene, 1/19/22, ¶¶ 39, 41-42. The Society alternatively reasoned

that because it has a “special interest” in the trust, it could seek to enforce the trust.

Id. ¶ 44 (cleaned up). Following a February 2022 hearing, the court denied relief,

and the Society did not appeal. Order, 3/3/22; Orphans’ Ct. Op. at 5-6.

The Society filed a second petition to intervene, which referenced

testimony presented at the February 2022 hearing and the proposed Drexel contract,

but otherwise generally mirrored its initial petition. See Second Pet. to Intervene,

4/7/22. The court held a hearing, at which the City successfully objected to the

Society’s attempt to call two witnesses. Orphans’ Ct. Op. at 7-8; Notes of Testimony

(N.T.), 4/27/22, at 11-12. The court denied the Society’s petition with prejudice and

later granted the City’s petition to deviate. Order, 5/2/22; Order, 5/4/22. The Society

timely appealed from the order denying its second petition and filed a Pa.R.A.P.

1925(b) statement.

4

Generally, a petition to deviate requests a court to “modify an administrative provision of

a charitable trust to the extent necessary to preserve the trust.” 20 Pa.C.S. § 7740.3(c); see

generally In re Tr. B Under Agreement of Richard H. Wells Dated Sept. 28, 1956, 311 A.3d 1057,

1073 (Pa. 2024) (Wells).

3

The orphans’ court filed a responsive decision, reasoning that its order

denying the Society’s first petition to intervene was without prejudice. Orphans’ Ct.

Op. at 6. As for the merits of the Society’s second petition to intervene, the court

stated that the Society had “failed to sufficiently plead or present evidence” that the

petition to deviate posed “an immediate harm” to the Society’s “remaining interest.”

Id. at 11. In the court’s view, the Society’s alleged harm was “simply anticipatory.”

Id. Relatedly, the court noted that under the 2009 contract, the Society granted title

outright to the Museum subject to “three ongoing contractual requirements.” Id. at

12, 14. However, nothing of record established that Drexel would not comply with

those terms. The court further opined that the Society failed to establish it had any

interest, let alone a “substantial, direct, or immediate interest,” that would be affected

by the transfer of the Collection to Drexel. Id. at 12-14, 16 (discussing Tr. Under Will

of Augustus T. Ashton, 260 A.3d 81 (Pa. 2021) (Ashton), and Valley Forge Hist. Soc’y

v. Wash. Mem’l Chapel, 426 A.2d 1123 (Pa. 1981) (Valley Forge)).

II. APPLICATION TO QUASH5

The orphans’ court orally denied the Society’s first petition to intervene:

the court “has listened very carefully to the evidence that was presented. . . . And at

this time, the [c]ourt is denying the petition to intervene without prejudice. . . . I

will, however, allow the [Society] to offer testimony or have a voice at this hearing.”

5

Typically, an order denying a petition to intervene may be appealable as a collateral order

or by permission. In re Barnes Found., 871 A.2d 792, 794 (Pa. 2005) (Barnes); Markham v. Wolf,

136 A.3d 134, 138 n.4, 146 (Pa. 2016); accord Shirley v. Pa. Legis. Reference Bureau, 318 A.3d 832,

852 (Pa. 2024); see also Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 432 (Pa. 2006). Shirley

resolved whether the intervenors could intervene in a public trust, in which the people were the

named beneficiaries. See Shirley, 318 A.3d at 844; Pa. Env’t Def. Found. v. Pa., 161 A.3d 911, 931-

32 (Pa. 2017). We read all decisions against their facts, may conditionally cite to Superior Court

decisions, and may affirm on other grounds. Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478,

485-86 (Pa. 2009); Rickell v. Dep’t of Transp., Bureau of Driver Licensing, 289 A.3d 1155, 1160

n.10 (Pa. Cmwlth. 2023); Mazer v. William Bros. Co., 337 A.2d 559, 562 n.6 (Pa. 1975).

4

N.T., 2/28/22, at 39-40 (emphasis added). The court’s written order stated that the

“petition to intervene is denied,” i.e., with no qualifier. Order, 3/3/22.

A. Arguments

The City argues that the Society failed to timely appeal from the order

denying the Society’s first petition to intervene. Appl. to Quash, 7/21/22, at 2, 5-6

(discussing Barnes, and K.C. v. L.A., 128 A.3d 774 (Pa. 2015)). As for the second

petition to intervene, the City contends that it was substantively identical to the

Society’s first petition. Id. at 4, 7. The second petition, per the City, did not “reset

the clock” for appealing from the order denying the first petition. Id. at 7-8. Finally,

the City emphasizes that the court’s written order lacks any “without prejudice”

language. The City thus reasons that a “written order controls over a verbal

pronouncement” of “without prejudice.” Id. at 8 (citing Commonwealth v. Borrin,

80 A.3d 1219, 1226 (Pa. 2013) (plurality)). Regardless, the City concludes, the court’s

statement of “without prejudice” was directed to the Society’s ability to “offer

testimony or have a voice.” Id.

The Society counters that Barnes and K.C. “did not consider the impact

of a second petition to intervene based on a developed factual record.” Answer to

Appl. to Dismiss, 8/4/22, at 7. The Society claims an appeal can be timely filed from

the denial of the second intervention petition notwithstanding that more than 30 days

had elapsed from the denial of the first intervention petition. Id. at 6 (citing Gleason

v. Alfred I. DuPont Hosp. for Child., 260 A.3d 256 (Pa. Super. 2021)). The Society

emphasizes that the court’s denial was “without prejudice.” Id. at 3, 8-9 (citing

Robinson v. Trenton Dressed Poultry Co., 496 A.2d 1240, 1243 (Pa. Super. 1985)

(Trenton)). The Society stresses that its second petition contained “additional facts

and bases” for intervention based on the February 2022 hearing and subsequent

5

events. Id. at 9. For example, the Society cites testimony that the Collection would

be moved from warehouse storage to a more suitable location. Id. at 12.

B. Discussion

An order is appealable if the appellant is “out of court” or barred from

“presenting the merits.” Pugar v. Greco, 394 A.2d 542, 545 (Pa. 1978); see generally

Pa.R.A.P. 313, 341. A non-dispositive order contemplating further proceedings

typically should not be construed as a dispositive ruling on the merits. See Pugar,

394 A.2d at 545.6 In sum, an order with the qualifying phrase “without prejudice”

ordinarily would not put an appellant “out of court” or bar merits litigation.

In Barnes, the orphans’ court denied a non-party’s petition to intervene.

Barnes, 871 A.2d at 793. It was unclear if the order was with or without prejudice.

See id. The non-party did not appeal until after the court entered its final order

resolving the underlying merits. Id. The Superior Court denied a motion to dismiss

the non-party’s appeal as untimely and for lack of standing. Id. at 793-94. Our

Supreme Court accepted appellate review and quashed the appeal, essentially

reversing the Superior Court. Id. at 794-95 (reasoning that an order “denying

intervention . . . must be appealed within thirty days of its entry . . . , or not at all,

precisely because the failure to attain intervenor status forecloses a later appeal”

(citations omitted)).7

6

See also In re Bell, 25 A.2d 344, 350 (Pa. 1942) (stating the “phrase ‘without prejudice’

ordinarily imports the contemplation of further proceedings and when it appears in an order or

decree it shows that the judicial act done is not intended to be res judicata of the merits . . . .”).

7

In support, the Barnes Court cited, inter alia, B.H. by Pierce v. Murphy, 984 F.2d 196

(7th Cir. 1993). In Murphy, the district court had denied the petitioner’s first motion to intervene

on the merits. Murphy, 984 F.2d at 198. The petitioner did not immediately appeal and “again

moved to intervene . . . on essentially the same grounds offered in his first motion,” which the

district court denied. Id. The petitioner eventually appealed the denial of both motions. Id. at

199. The Murphy Court held that because the petitioner had appealed more than 30 days after the

district court’s denial of each motion to intervene, the appeal was untimely. Id. The remaining

cases cited in Barnes did not involve a second petition to intervene.

6

In K.C., the Superior Court quashed the appellants’ appeal from an

order denying their petition to intervene. K.C., 128 A.3d at 776; Order (C.C.P. Phila.,

No. 2013-FC-0708, filed Jan. 2, 2015) (reflecting no “with” or “without” qualifiers).

Our Supreme Court reversed, reasoning that the order was an appealable, collateral

order. K.C., 128 A.3d at 779-80 (framing Barnes as “unequivocally” requiring “any

party who was denied intervention and who satisfies the requirements of Rule 313 to

appeal from the order denying intervention within 30 days . . . or lose the right to

appeal the order entirely” (cleaned up)). In sum, the K.C. appellants had timely

appealed from the order denying their petition to intervene. Id. at 781. Neither

Barnes nor K.C., however, addressed the appealability of an order resolving a second

intervention petition. Accord Shirley, 318 A.3d at 847 (resolving appeal from an

order that did not qualify its denial of intervention as “with” or “without” prejudice).

The Gleason Court resolved an appeal from an order denying an

intervenor’s second petition to intervene. Gleason, 260 A.3d at 260. The trial court

denied the intervenor’s first petition to intervene without qualifying its denial as

“with” or “without prejudice.” Id.8 The intervenor filed an unsuccessful second

petition to intervene and appealed. Id. The Court held that the second denial was

an appealable, collateral order. Id. at 261-62. The Court, however, did not address

the intervenor’s failure to appeal from the first order. See id.

In Loftus v. Decker, 289 A.3d 1093 (Pa. Super. 2023) (en banc), the

8

The Gleason record reflects that the trial court’s order denying the first petition to

intervene did not use the terms “with” or “without prejudice.” See Order, Gleason (C.C.P. Phila.,

Nos. 160502115, 170503992, filed May 14, 2020). Similarly, the order denying intervention in

Shirley also did not use the phrase “without prejudice.” Ex. A to Notice of Appeal (Pa., No. 85

MAP 2002, filed July 20, 2022) (order); see generally Pa.R.E. 201 (defining judicial notice);

United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (taking judicial notice of records in other

cases); accord Mina v. U.S. Dist. Ct. for E. Dist. of Pa., 710 Fed. App’x 515, 517 n.3 (3d Cir. 2017)

(per curiam) (same).

7

plaintiff filed a praecipe for a writ of summons, and a non-party filed a petition to

intervene. Loftus, 289 A.3d at 1095-96. The trial court denied it “without prejudice,”

reasoning that without a complaint, there were no facts or causes of action and the

non-party could not establish a legally enforceable interest necessary to intervene.

Id. at 1096. Thus, the court held that the non-party could not file a second petition

to intervene until after the plaintiff filed a complaint. Id. The en banc Court quashed

the non-party’s appeal, reasoning that the order was not an appealable, collateral

order.9 Id. at 1102; see also Trenton, 496 A.2d at 1242-43.

The Trenton Court examined the term “without prejudice” in a

somewhat analogous procedural posture. Trenton, 496 A.2d at 1242. The trial court

dismissed the plaintiff’s writ of summons without prejudice. Id. The plaintiff filed

a complaint, the defendant demurred, the court dismissed the complaint with

prejudice, and the plaintiff appealed both orders. Id. The Court quashed as untimely

the plaintiff’s appeal from the order dismissing the writ without prejudice. Id. at

1242-43 (explaining that “the phrase ‘without prejudice’ ordinarily imports the

contemplation of further proceedings”). Thus, the trial court’s “without prejudice”

order did not bar the plaintiff from filing a complaint. Id.

To recap, in Gleason, K.C., and possibly Barnes, the orders denying

intervention did not use the terms “with” or “without prejudice.” In each case, the

orders were deemed appealable, collateral orders. On the other hand, Loftus and

Trenton construed the term “without prejudice”, but neither involved a second

petition to intervene. Cf. Loftus, 289 A.3d at 1096, and Trenton, 496 A.2d at 1242,

with Gleason, 260 A.3d at 260.

9

Although the Loftus non-party cited Barnes, see Br. for Intervenor (Pa. Super., No. 611

WDA 2021, filed Oct. 25, 2022), 2022 WL 17370354, at *12, the Loftus Court did not address the

Barnes Court’s statement that an order denying intervention must be appealed within 30 days.

8

Instantly, we are persuaded by caselaw interpreting the qualifying

phrase “without prejudice.” See Loftus, 289 A.3d at 1096; Trenton, 496 A.2d at 1242.

Although those cases did not involve a second petition to intervene, we must

construe Gleason, K.C., and Barnes against their procedural postures. See Maloney,

984 A.2d at 485-86. Mandating an appeal from an order denying a petition to

intervene “without prejudice” conflicts with other caselaw construing the phrase

“without prejudice” as contemplating future rulings on the merits. See, e.g., Trenton,

496 A.2d at 1243; Pugar, 394 A.2d at 545; Bell, 25 A.2d at 350. In sum, the orphans’

court’s bench pronouncement of “without prejudice” in denying the Society’s first

petition contemplated further proceedings, N.T., 2/28/22, at 39, and the Society was

not required to appeal that order. See Trenton, 496 A.2d at 1243; Gleason, 260 A.3d

at 261-62. Cf. Loftus, 289 A.3d at 1096.

We also disagree with the City’s contention that the Society’s petitions

to intervene were identical. The Society’s second petition to intervene, filed in April

2022, addressed testimony presented at the February 2022 hearing and subsequent

events. Compare Pet. to Intervene, 4/7/22, ¶¶ 42-60, with Pet. to Intervene, 1/19/22.

For these reasons, we deny the City’s application to quash.10 See

Barnes, 871 A.2d at 794.

III. ISSUES

The Society raises four issues. First, the Society asserts that it has

standing to intervene as a contracting party with the Museum and as a trust

beneficiary. Soc’y’s Br. at 2. Second, the Society has a “special interest” in the trust

10

We thus reject the City’s suggestion that the orphans’ court invocation of “without

prejudice” referred to the Society’s ability to present testimony. Compare Appl. to Quash at 8,

with N.T., 2/28/22, at 39. The transcript reflects that the court was denying the petition to intervene

without prejudice. Finally, we decline the City’s invitation to apply Borrin as that case involved

penal interests not present here. See Borrin, 80 A.3d at 1226.

9

to prevent damage to its remainder interest. Id. at 3. Third, the Society contends the

AG cannot represent the Society’s interests adequately. Id. Fourth, the Society

maintains the court erred by preventing the Society from presenting witnesses. Id.

IV. DISCUSSION11

A. The Society Lacks a Cognizable Interest

Pennsylvania Rule of Civil Procedure 2327(4) provides that at “any

time during the pendency of an action,” a non-party “shall be permitted to intervene”

if “the determination of such action may affect any legally enforceable interest of

such person . . . .” Pa.R.Civ.P. 2327(4). “Whether a potential party has a legally

enforceable interest permitting intervention under Rule 2327(4) turns on whether

they satisfy our standing requirements.”12 Shirley, 318 A.3d at 852 (cleaned up);

Allegheny, 309 A.3d at 843. Standing refers to a litigant’s ability to start or

participate in an action by demonstrating aggrievement. Markham, 136 A.3d at 140;

Shirley, 318 A.3d at 856; Allegheny, 309 A.3d at 832; Pittsburgh Palisades Park, LLC

v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005) (Palisades).

Aggrievement, in turn, requires a litigant to demonstrate a “substantial,

direct[,] and immediate interest in the outcome of the litigation.” Allegheny, 309

A.3d at 832 (citation omitted); Shirley, 318 A.3d at 852. First, a substantial interest

is one that surpasses the “abstract interest of all citizens in having others comply

11

Generally, although “issues of standing present questions of law,” standing may also

“involve factual questions.” Allegheny Reprod. Health Ctr. v. Dep’t of Hum. Servs., 309 A.3d 808,

831 (Pa. 2024) (plurality) (Allegheny); Citizens Against Gambling Subsidies, Inc. v. Pa. Gaming

Control Bd., 916 A.2d 624, 627 (Pa. 2007) (per curiam). With respect to the former, our standard

of review is de novo. Allegheny, 309 A.3d at 831. Similarly, whether a petitioner may intervene is

also a question of law and, thus, our standard of review is de novo. Id. at 843.

12

Our Supreme Court explained that “the exact boundaries of the legally enforceable

interest limitation (of Pa.R.Civ.P. 2327(4)) are not clear.” In re Pa. Crime Comm’n, 309 A.2d 401,

406 (Pa. 1973) (Commission) (cleaned up). The boundaries are unclear because our courts desired

flexibility “to prevent the curious and meddlesome from interfering with litigation not affecting

their rights.” Id. (cleaned up).

10

with the law.” William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d

269, 282 (Pa. 1975) (plurality) (Penn). Second, a “‘direct’ interest mandates a

showing that the matter complained of caused harm to the party’s interest, i.e., a

causal connection between the harm and the violation of law.” Palisades, 888 A.2d

at 660 (cleaned up). The harm must not be conjectural and should “flow as a direct

consequence” of the proceedings in which the intervenor seeks to participate.

Commission, 309 A.2d at 407. Third, an “interest is ‘immediate’ if the causal

connection is not remote or speculative.” Palisades, 888 A.2d at 660; accord

Shirley, 318 A.3d at 852; Penn, 346 A.2d at 283.

In support of its first issue, the Society raises two overlapping

arguments. First, the Society contends that it has standing to intervene under

contract law because it was a party to the 2009 contract, in which the Society

conveyed title to its artifacts to the Museum. Second, the Society asserts that it is a

trust beneficiary, and, thus, has standing to intervene under trust law as well.

1. The Society’s Standing Under Contract Law

a. Arguments

First, the Society argues that it has de facto standing as a party to the

2009 contract. Soc’y’s Br. at 37-38 (asserting that “contracting parties do not need

to satisfy the” standing test articulated by Penn). According to the Society, its

contractual rights alone were sufficient to establish it was an indispensable party. Id.

at 38-40 (citing, e.g., Borough of Wilkinsburg v. Horner, 490 A.2d 964 (Pa. Cmwlth.

1985), Keener v. Zoning Hr’g Bd. of Millcreek Twp., 714 A.2d 1120 (Pa. Cmwlth.

1998), and Citimortgage, Inc. v. Comini, 184 A.3d 996 (Pa. Super. 2018)). Per the

Society, the court erred by relying only on standing caselaw that did not involve any

contractual interests. Id. at 40-41. The Society also argues that the orphans’ court

11

failed to construe all written instruments together. Id. at 43-46.

The City counters that, per the 2009 contract, the Society “irrevocably

and unconditionally” transferred title to its artifacts. City’s Br. at 33 (emphases in

original). In the City’s view, because the Society relinquished title, it has no standing

as a former owner. Id. The City emphasizes that the Society will retain any

contingent contractual rights even after the City has transferred the Collection to

Drexel. Id. at 33-34. The City reasons, however, that the Society has no standing

based on such rights because the Society cannot establish that Drexel would breach

the 2009 contract. Id. at 34. The AG generally agrees that the harm to Society’s

contingent interests is speculative and remote. AG’s Br. at 21.

b. Discussion

In Horner, a taxpayer successfully enjoined a borough from performing

a contract with another company, which was not a party. Horner, 490 A.2d at 964-

65. The borough appealed, and the company intervened. Id. This Court held that

the company “has a contract right which is directly related to the taxpayer’s claim

against the borough.” Id. at 965. Accordingly, because the company was a

contracting party, it was also an indispensable party to the injunction hearing. Id.

In Keener, a property owner appealed a local agency ruling to the trial

court, at which time one of the owner’s neighbors successfully intervened. Keener,

714 A.2d at 1121. Mid-suit, the neighbor sold the property subject to the neighbor’s

lien, which prompted the owner to successfully dismiss the neighbor as an

intervenor. Id. at 1121-22. The neighbor appealed to this Court, which reversed,

reasoning that because the neighbor held a lien, it had a legally enforceable interest

and, thus, retained intervenor status. Id. at 1123.

In Comini, a mortgagee owned property in which the deed had a clause

12

providing a right of first refusal to a third party. Comini, 184 A.3d at 997. Following

a default, the mortgagor bought the property and recorded a deed containing the

clause. Id. The mortgagor (now owner) filed a petition to remove that clause, the

third party unsuccessfully sought to intervene, the trial court granted the petition,

and the third party appealed. Id. at 997-98. The Court reasoned that the court erred

because the third party’s interest was legally enforceable under Rule 2327(4). Id.

Clearly, these cases demonstrate that a non-party may be permitted to

intervene in litigation based upon a relevant, contractual interest. However, the mere

existence of some contractual interest does not confer de facto standing to intervene.

Rather, before recognizing a non-party’s right to intervene, a reviewing court must

consider whether the interest may be affected by the outcome of the litigation, i.e.,

whether it is substantial, direct, and immediate.13

Instantly, to intervene, the Society was required to demonstrate that it

would be “negatively impacted in some real and direct fashion” by a ruling on the

City’s petition to deviate. See Allegheny, 309 A.3d at 844; Commission, 309 A.2d at

406. For example, the Society needed to prove that the court’s decision on the

petition to deviate would impair the performance of the 2009 contract or result in a

breach. Cf. Horner, 490 A.2d at 964-65. Unlike Horner, the court’s decision on the

City’s petition to deviate did not prevent either party from performing the 2009

contract. Cf. id. Alternatively, the Society needed to prove that the court’s decision

13

We note, for example, that “nearly all the modern American authorities—decisions,

model acts, statutes, and commentaries—deny a donor standing to enforce a restricted gift to public

charity absent express retention of a reversion in the donative instrument.” Iris J. Goodwin, Donor

Standing to Enforce Charitable Gifts: Civil Society vs. Donor Empowerment, 58 Vand. L. Rev.

1093, 1145 (2005). “This resistance to donor standing . . . can be dated” to Trustees of Dartmouth

College v. Woodward, 17 U.S. 518, 566-69 (1819). Id. Here, the 2009 contract has no such right.

Orphans’ Ct. Op., at Ex. F (transferring “irrevocably and unconditionally” “all of the Society’s

right, title, and interest” in the Society’s artifacts); see also 15 Pa.C.S. § 5548.1.

13

would have impacted the Society’s legal title to the Collection. Cf. Keener, 714 A.2d

at 1123; Comini, 184 A.3d at 997-98. Unlike those intervenors, the Society has no

analogous legal title to the Collection. Cf. Keener, 714 A.2d at 1123; Comini, 184

A.3d at 997-98. On this record, the Society cannot rest solely on its status as a

contracting party to the 2009 contract as establishing its substantial, direct, and

immediate interest in the petition to deviate. See Soc’y’s Br. at 37-38; Allegheny,

309 A.3d at 832.

2. The Society’s Standing to Intervene Under the Uniform Trust Act (Act)14

a. Arguments

Second, the Society argues that it is a trust beneficiary for two reasons.

Soc’y’s Br. at 41-42 (discussing Ashton). First, prior to 1994, the Society originally

had the authority to appoint a trustee. Id. at 42. Second, the Society donated to the

Collection to the Museum subject to certain conditions. Id. Thus, the Society opines

that as a trust beneficiary, it does “not need to satisfy a separate ‘standing’ test to

object to changes in the Trust.” Id. at 41 (cleaned up).

The City disagrees for two alternative reasons: (1) the trust is a

charitable trust; and (2) the instrument itself reflects the settlor’s “intent to create the

Trust for the benefit of the public generally,” and not the Society, individually. City’s

Br. at 27-28. As for the first reason, the City emphasizes that because a charitable

trust’s only beneficiary is the public, the Society could never be a beneficiary. Id. at

14

We apply the rules of statutory construction, 1 Pa.C.S. §§ 1901-1999, in interpreting the

Act. Although the text controls, we may rely upon the Act’s comments, nonconflicting

jurisprudence predating the Act, and applicable non-Pennsylvania jurisprudence. See 1 Pa.C.S. §

1939; 20 Pa.C.S. ch. 77 cmt.; 1 Pa.C.S. § 1927; Wells, 311 A.3d at 1068; In re Tr. Under Deed of

Walter R. Garrison, 288 A.3d 866, 873-74 (Pa. 2023); accord 20 Pa.C.S. § 7706 & cmt. If a conflict

exists between the Act and the terms of the trust, then the terms generally prevail. 20 Pa.C.S. §

7705(a)-(b). Finally, during this appeal, the Act was amended but no party requested permission

to address the import of the amendments. See Act of July 15, 2024, P.L. 64.

14

27, 29-30. Thus, per the City, Ashton is inapt because that case resolved standing in

a “private, non-charitable family trust.” Id. at 28 (emphases omitted). Although the

Ashton trust had a “charitable remainder,” the City maintains the Ashton Court

rejected the existence of the remainder as a dispositive factor in resolving standing.

Id. at 29.

As for the second reason, the City argues that even assuming a

charitable trust could have an individual, named beneficiary, the instant instrument

did not identify the Society as such a beneficiary. Id. at 30. The City references a

1994 amendment to the instrument that removed the Society’s authority to appoint a

trustee. Id. at 31. Thus, per the City, the orphans’ court correctly interpreted the

instrument as excluding the Society as an intended beneficiary. Id. at 30-31. The

AG did not directly address the Society’s argument.

b. Discussion

Generally, the Act defines a “beneficiary” as a “person” that “(1) has a

present or future beneficial interest in a trust, vested or contingent; or (2) in a

capacity other than that of trustee or protector, holds a power of appointment over

trust property.” 20 Pa.C.S. § 7703.15 A settlor’s intent, as memorialized in the

language of the trust instrument, controls in identifying any beneficiaries. Id.; see

also 20 Pa.C.S. § 7710(b). For example, any “person with capacity to take and hold

legal title to intended trust property has capacity to be a beneficiary. Except as

15

Accord Restatement (Third) of Trusts § 48 cmt. (Am. L. Inst. 2003) (stating that persons

“who may incidentally benefit in some manner from the performance of the trust are not

beneficiaries of the trust and cannot enforce it. Cf. Restatement Second, Contracts § 302 (on

incidental beneficiaries of contracts).”). Although the Act does not define “beneficial interest,”

the Act defines “interests of the beneficiaries” as the “beneficial interests provided in the terms of

a trust” “including any amendments thereto.” 20 Pa.C.S. § 7703 & cmt. The term “power of

appointment” refers to a “power given to a person by the terms of a trust . . . to grant and define a

beneficial interest in trust property or to grant a power of appointment over the trust property.” Id.

15

limited by public policy, the extent of a beneficiary’s interest is determined solely

by the settlor’s intent.” Id. § 7703 cmt. (citations omitted). Further, “the holder of a

power of appointment” may be classified as a beneficiary. Id.

A settlor may create a “charitable trust,” which is defined as a trust

created for a “charitable purpose.” 20 Pa.C.S. §§ 7703, 7735(a). Typically, however,

a charitable trust does “not have beneficiaries in the usual sense.” Id. § 7703 cmt.16

“Because a charitable trust is not created to benefit ascertainable beneficiaries but to

benefit the community at large, persons receiving distributions from a charitable

trust are not beneficiaries as that term is defined in this” Act. Id. (cleaned up). Thus,

the “fact that a person incidentally benefits from the trust does not mean that the

person is a beneficiary.” Id. Since a charitable trust typically lacks ascertainable

beneficiaries, the Act defines who may enforce such a trust. Id. § 7735(c) (listing

the settlor, AG, and “a charitable organization expressly named in the terms of the

trust to receive distributions from the trust or any other person who has standing to

do so”).

In Ashton, the settlor had created a trust with charitable and

noncharitable beneficiaries, and the trustee wanted to divide the trust by creating two

new trusts: charitable and noncharitable. Ashton, 260 A.3d at 83-84. The parties

disputed whether one of the noncharitable, named income beneficiaries had

automatic standing to challenge the trustee. Id. at 88. The Court held that the named

income beneficiary had an equitable interest “to enforce the trust” because she was

“entitled to have the trust corpus be used to generate the benefit” provided by the

instrument. Id. at 91. The Court reasoned that the beneficiary’s interest was

16

There is one exception: if the charitable trust terms explicitly designate a charitable

organization to “receive distributions,” then such organization is “granted the rights of” a

beneficiary. 20 Pa.C.S. § 7710(b) & cmt.

16

“substantial, direct, and immediate,” because the trustee’s duties “were not owed to

the general public, but to the beneficiaries.” Id. at 93. Beneficiaries that have “an

equitable interest in the trust res,” the Court observed, “have standing to bring a

petition to remedy a breach of trust.” Id. at 91 (citation omitted). Ashton, however,

did not resolve whether an alleged unnamed beneficiary of a charitable trust had

standing to intervene.

Apparently, we have not addressed whether an unnamed beneficiary of

a charitable trust has standing to intervene under the Act.17 However, courts have

addressed the issue in other states that have adopted the Act. See 1 Pa.C.S. § 1927.

For example, in Hicks v. Dowd, 157 P.3d 914 (Wyo. 2007), a charitable trust preserved

the landscape of its property via easement. Id. at 916. Very simply,

appellants/intervenors sought to challenge the termination of the easement although

they were not named as beneficiaries of the trust. Id. at 917. The Court held that

only a settlor, the attorney general, or a qualified beneficiary has standing to enforce

the charitable trust, i.e., the easement. Id. at 921. Because the appellants were neither

a settlor nor the attorney general, the Court examined whether the appellants—

unnamed beneficiaries—fell within the class of “qualified beneficiaries.” Id. at 915,

17

The Superior Court addressed an analogous issue: whether an unnamed or contingent

beneficiary of a noncharitable trust had standing. See, e.g., In re Est. of Fox (Pa. Super., No. 1974

EDA 2019, filed Apr. 3, 2020) (Fox), 2020 WL 1656038, 2020 Pa. Super. Unpub. LEXIS 1149; In

re Rosemary C. Ford Inter Vivos QTIP Tr., 176 A.3d 992, 1000 (Pa. Super. 2017) (Ford); Rock v.

Pyle, 720 A.2d 137 (Pa. Super. 1998). Without recounting each case, the Superior Court held that

an unnamed (or a named, contingent) beneficiary of a noncharitable trust lacked standing to

intervene. See Fox, 2020 WL 1656038, *5, 2020 Pa. Super. Unpub. LEXIS 1149, *13; Ford, 176

A.3d at 1000. The contingent beneficiary could not intervene until the conditions were met. Ford,

176 A.3d at 1000; accord In re Tr. of John S. Middleton, 313 A.3d 1090, 1106 (Pa. Super. 2024). The

unnamed “beneficiary” lacked standing by not being named in the instrument. See Fox, 2020 WL

1656038, *5, 2020 Pa. Super. Unpub. LEXIS 1149, *13; Rock, 720 A.2d at 142-43 (holding that a

contractual obligation to make annual irrevocable gifts to the noncharitable trust was an

insufficient basis for standing).

17

917. In Wyoming, a qualified beneficiary is a beneficiary entitled to the trust’s

income or has a vested remainder interest. Id. at 921; accord 20 Pa.C.S. § 7703.

Because the appellants were neither entitled to the trust’s income nor had a vested

remainder interest, the Court held they lacked standing. Hicks, 157 P.3d at 921.18

Here, the Society argued that it is a beneficiary because it (1) previously

held the power of appointment, and (2) conditionally donated artifacts to the

Museum. See Soc’y’s Br. at 41-42. The Act, however, commands us to review the

instrument to ascertain whether the Society is a named beneficiary. See 20 Pa.C.S.

§ 7703. Upon review, we agree with the orphans’ court that the instrument is silent

and does not expressly designate the Society as a beneficiary, let alone a beneficiary

receiving any distributions. See id. §§ 7703 & cmt., 7710(b) & cmt. The Society,

like the Hicks appellants, were simply not identified as beneficiaries in the

instrument and thus has no standing to intervene. See Hicks, 157 P.3d at 921.

The Society cannot rely on Ashton, as that case resolved whether a

named beneficiary to a noncharitable trust had standing. See Ashton, 260 A.3d at

83; see also Maloney, 984 A.2d at 485-86. Indeed, in two cases—albeit not

involving charitable trusts—the Superior Court held that the putative intervenor had

no standing because they were not identified in the trust instruments as direct

beneficiaries. See Ford, 176 A.3d at 1000 (explaining that a contingent beneficiary

had no standing until such time the conditions were triggered); Fox, 2020 WL

1656038, at *5, 2020 Pa. Super. Unpub. LEXIS 1149, *13 (rejecting putative

intervenor’s standing because she was not a named beneficiary); see also Rock, 720

A.2d at 142-43 (same).

18

We discuss two pre-Act cases below. See In re Milton Hershey School, 867 A.2d 674

(Pa. Cmwlth. 2005) (en banc) (Hershey I), rev’d, 911 A.2d 1258 (Pa. 2006) (Hershey II); In re

Francis Edward McGillick Found., 642 A.2d 467, 470 (Pa. 1994) (McGillick) (holding that an

unnamed incidental beneficiary of a charitable trust had standing to enforce the trust).

18

The Society’s pre-1994 power of appointment and conditional donation

are equally insufficient to grant the Society standing as a trust beneficiary. First, the

Society no longer has any say in the control of the trust. See 20 Pa.C.S. § 7703.

Without a present “power of appointment,” the Society is not a beneficiary. See id.

Cf. Hershey II, 911 A.2d at 1262 (explaining, in a pre-Act case, that an unnamed

incidental beneficiary with no power over the trust has no standing).

Second, the Society’s contractual interests—the three conditions

attached to its donation—do not establish the Society’s present or future beneficial

vested or contingent interest in the trust. See 20 Pa.C.S. § 7703. Again, under the

Act, only the settlor, AG, and an identified charitable organization that receives trust

distributions has the rights of a beneficiary. See id. §§ 7703, 7735(c). Because the

instrument does not identify the Society, the Society is not a beneficiary regardless

of its contractual interests. By extension, we necessarily reject the Society’s

assertion that the orphans’ court should have construed the written instruments

together. See id. § 7703 cmt. (stating that only the instrument controls).19

In sum, the Society’s alleged status as either (1) a contracting party or

(2) an unnamed beneficiary does not negate the requirement that the Society

establish aggrievement. In other words, the Society has not established that merely

because it is a contracting party or an unnamed beneficiary, it necessarily would be

adversely affected, i.e., directly, ascertainably harmed, by a decision on the City’s

petition to deviate. See Palisades, 888 A.2d at 660; Commission, 309 A.2d at 407.

19

Further, the 2009 contract contains no right of title reversion. Orphans’ Ct. Op., at Ex.

F; Goodwin, supra note 13, at 1145 (stating that absent a contractual right of reversion, a donor has

no standing to enforce a restricted gift to a public charity).

19

B. Existence of a Special Interest Under Pa.R.Civ.P. 2327(4)

1. Background

A party shall be permitted to intervene if “the determination of such

action may affect any legally enforceable interest of such person . . . .” Pa.R.Civ.P.

2327(4). In Valley Forge, a pre-Act case, a chapel owned the property, which it

unhappily occupied with a historical society. Valley Forge, 426 A.2d at 1125.

Litigation ensued, the society successfully obtained an injunction preventing the

chapel from evicting the society, and the chapel challenged the society’s standing.

Id. at 1125, 1127. The Court explained that only the AG, “a member of the charitable

organization or someone having a special interest in the trust” had standing to

enforce an unwritten trust. Id. at 1127. Because the AG declined to enforce the trust

and the society was not a member of the charitable organization, the Court held that

the society “must satisfy the standing requirement by demonstrating a special

interest in the trust.” Id. The Court applied a multi-factor test and held that the

society had a special interest. Id. at 1127-28.

2. Arguments

The Society asserts it has “legally cognizable interests in preventing

waste and damage to its right to receive its remainder interest,” which establishes

standing under Rule 2327(4). Soc’y’s Br. at 47. For instance, the Society has an

interest in preventing any “risk of loss or destruction” from the Collection’s storage

and transportation. Id. at 48-50 (analogizing to Valley Forge). The Society also

contends it has an interest because Drexel, as a Trustee, has a fiduciary obligation

“to maximize the value” of the Society’s “beneficial interest.” Id. at 49. The Society

alternatively posits that it has an interest under the Nonprofit Corporation Law of

1988 (Nonprofit Law), 15 Pa.C.S. §§ 5101-6162, which purportedly grants “standing

20

to persons who are or may be affected by any corporate action.” Id. at 49-50 (cleaned

up) (discussing Ciamaichelo v. Indep. Blue Cross, 928 A.2d 407 (Pa. Cmwlth. 2007)

(Blue Cross)). The Society concludes by distinguishing Hershey II because it has a

contractual and special interest unlike the Hershey II intervenor. Id. at 51-52.

The City counters that the courts narrowly construe the “special

interest” doctrine only to cases in which the parties are “directly involved with, or

directly affected by” the instrument. City’s Br. at 32-33. The City emphasizes that

the Society “irrevocably and unconditionally” transferred title to the City. Id. at 33.

The Society’s status as former owner, the City argues, is insufficient to trigger

standing under the “special interest” doctrine. Id.

Relatedly, the City reiterates that to the extent the Society has any

interest based on “risk of loss or destruction” regarding the Collection, such interest

is a contractual right. Id. at 33-34. The City emphasizes that the Society’s

contractual rights remain unchanged notwithstanding any transfer of the Collection

to Drexel. Id. at 34. But even if the Society’s contractual rights have any bearing

on the City’s petition to deviate, the City argues that the Society cannot establish any

concrete harm. Id. at 34-35. The City explains that several contingent events must

occur before the Society has a viable contract claim. Id. For instance, per the City,

Drexel must decide to sell an artifact from the Collection, which may never occur.

Id. at 35. The AG generally disputes that the Society established standing to

intervene under Rule 2327(4). AG’s Br. at 21-22.

3. Discussion

In the Hershey cases, our Supreme Court addressed whether an

unnamed “beneficiary” of a trust could invoke the Valley Forge special interest

factors. The factual posture is complex, but in Hershey, a charitable trust financed

21

a school. Hershey I, 867 A.2d at 679. As a result of legal issues, the trust, school,

and AG negotiated a settlement agreement. Id. at 679-80. The trust instrument did

not identify the school’s alumni association as an intended beneficiary. Hershey II,

911 A.2d at 1260. Nevertheless, the association acted as an advisor and donated

money to the settlement process, although it was not a party to the agreement.

Hershey I, 867 A.2d at 679. Subsequently, the parties to the settlement amended

their agreement. Id. at 680. The association moved to reinstate the original

agreement. Id. The school and trust successfully challenged the association’s

standing, and the association appealed to this Court. Id. at 681.

This en banc Court reasoned that the association could have standing if

it had “a special interest in the enforcement of the charitable trust . . . .” Id. at 687

(cleaned up). This Court applied the Valley Forge multi-factor test and held the

association had standing. Id. at 689. Among those factors was the association’s key

role in negotiating the original settlement, the alumni’s close relationship with the

school, and the low risk of vexatious lawsuits by the association because the

association was not a potential beneficiary. Id. at 689-90.

Our Supreme Court reversed this Court because the association was not

a named beneficiary of the trust. Hershey II, 911 A.2d at 1263. In other words, it did

not matter that the association established a “special interest” standing when the

instrument did not identify the association as a beneficiary. Id. (“To give the

association ‘special interest’ standing where the settlors of the trust specifically

denied beneficiary status to its members, would surely contravene the settlors’ intent

expressed through their written trust.” (cleaned up)). The Court emphasized that the

instrument simply “did not contemplate the association, or anyone else,” to have

“standing to challenge” the trust’s actions. Id. (“Nothing in this litigation would

22

affect the association itself; it loses nothing and gains nothing.” (cleaned up)). In

other words, the absence of the association as a named beneficiary in the instrument

was dispositive, and this Court erred by applying the Valley Forge factors. See id.

Indeed, our Supreme Court distinguished Valley Forge because, unlike

Hershey, there was no written trust instrument. Id. The Court also distinguished

McGillick, in which an unnamed incidental beneficiary had standing to intervene.

Id. at 1262. McGillick was distinguishable because that trust specifically instructed

the unnamed beneficiary to select other beneficiaries. Id.

Instantly, the Society, identical to the Hershey association, also asserts

it had a special interest under Valley Forge. Cf. Soc’y’s Br. at 48-49, with Hershey

I, 867 A.2d at 689. Unlike Valley Forge and like Hershey, a written trust instrument

exists in the case at bar. See Hershey II, 911 A.2d at 1263. Identical to the Hershey

association, the Society is also not a named beneficiary of the instrument. See id.

Because the Society is not a named beneficiary, we need not address the import of

its alleged interests in (1) preventing waste and damage or (2) ensuring Drexel

maximizes a nebulous beneficial interest. See id. at 1262-63. If we did, we would

be repeating our error in Hershey I, which addressed whether the association had a

special interest despite not being named as a beneficiary in the instrument. See id.

We similarly reject the Society’s skeletal assertion that it has standing

under the Nonprofit Law, because the Society “may” be affected by the City’s action.

Initially, we are not persuaded that we should start applying the Nonprofit Law to

the instant trust action, which is governed by the Act. Nevertheless, per the Blue

Cross Court, the only relief permitted under the Nonprofit Law is the “production of

any books, papers and records of the corporation and other relevant evidence which

may relate to the” challenged action, i.e., the petition to deviate. Blue Cross, 928

23

A.2d at 414 (quoting 15 Pa.C.S. § 5793(b)). We decline the Society’s invitation to

establish standing under the Act, via the Nonprofit Law, to resolve the City’s petition

to deviate. See id.20

C. Adequacy of AG’s Representation and Society’s Fact Witnesses

Next, the Society recognizes that even if its intervention is permitted

under Rule 2327, the orphans’ court may refuse intervention if the AG could

represent the Society’s interests adequately. Soc’y’s Br. at 52. Because we hold the

Society has no standing, we need not address this issue.

Last, the Society concisely argues that the orphans’ court erred by

precluding the Society’s fact witnesses at the hearing on its second petition to

intervene. Id. In its view, the Society’s fact witnesses would have established the

Society’s “immediate danger to a concrete interest.” Id. at 59.

The Society has cited no legal authorities supporting its terse contention

that the court was obligated to permit the Society’s fact witnesses. This Court,

however, cannot develop the Society’s arguments. See, e.g., Banfield v. Cortés, 110

A.3d 155, 168 n.11 (Pa. 2015). Because the Society opted not to discuss any legal

authorities, appellate review is precluded. See Boniella v. Commonwealth, 958 A.2d

1069, 1072 n.8 (Pa. Cmwlth. 2008) (per curiam); Mazer, 337 A.2d at 562 n.6.

Regardless, any testimony would not have altered the fact that the instrument does

not identify the Society as a beneficiary. See Hershey II, 911 A.2d at 1263.

V. CONCLUSION

For these reasons, we deny the City’s application to quash the Society’s

appeal. The Society did not have to appeal from an order denying its first petition

to intervene without prejudice. We reject the Society’s arguments that it has standing

20

To the extent that the Society hinted that its 2009 contract establishes a Rule 2327(4)

special interest, we rejected that herein. See also Goodwin, supra note 13, at 1145.

24

under contract law, based solely upon its status as a party to the 2009 contract, and

as an unnamed beneficiary under trust law. We decline to recognize that the Society

has any special interest in the trust. Accordingly, we affirm the order denying the

Society’s second petition to intervene.

LORI A. DUMAS, Judge

25

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Atwater Kent Museum a/k/a :

Philadelphia History Museum :

at The Atwater Kent : No. 1042 C.D. 2022

:

Appeal of: The Historical Society of :

Pennsylvania :

ORDER

AND NOW, this 19th day of December, 2024, we DENY the application

to quash filed by the City of Philadelphia. We AFFIRM the order entered by the

Court of Common Pleas of Philadelphia County, Orphans’ Court Division, on March

3, 2022, denying the petition to intervene filed by The Historical Society of

Pennsylvania.

LORI A. DUMAS, Judge