The opinion
J-S09031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF: BERNICE M. KANE, POWER IN THE SUPERIOR COURT OF
OF ATTORNEY PENNSYLVANIA
APPEAL OF: LAUREN HOPE KANE
No. 2158 EDA 2016
Appeal from the Order Entered July 5, 2016
in the Court of Common Pleas of Montgomery County
Orphans' Court at No.: 15-X2875
BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 24, 2017
Appellant, Lauren Hope Kane, appeals from the order denying her
amended motion to compel Wells Fargo Advisors, LLC and PNC Bank,
Appellees, to honor her various demands under a power of attorney
regarding a trust.1 Chiefly, Appellant seeks to revoke the trust of her
mother, Bernice M. Kane, and assume direct control of the trust assets. She
maintains that she can act unilaterally by virtue of the power of attorney.
By the terms of the trust itself, she cannot. We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See Pa.R.A.P. 342(a)(3) (permitting appeal as of right from Orphans’ court
order interpreting will or document that forms basis of claim against estate
or trust).
J-S09031-17
We derive the facts of the case from the Orphans’ court’s opinion and
our independent review of the certified record.
Bernice Kane . . . executed a Revocable Deed of Trust on
August 10, 2000. Bernice, as Settlor, named herself and her
husband Joseph as co- trustees. She amended this trust on
February 14, 2003 (. . . "the Amended Trust") following her
husband’s death and notes that she is now the sole trustee of
this Amended Trust. On September 10, 2012 Mrs. Kane
executed a Power of Attorney (. . . "POA") appointing her
daughter Lauren Hope Kane as Agent. Lauren Hope Kane
accepted this appointment on May 30, 2013. (See, Exhibit I to
the Amended Petition to Compel, filed 2/12/16). On September
20, 2013, approximately one year after Bernice executed the
POA, Dr. Michael Cooperman, M.D., in a Letter, declared that
Bernice suffers from dementia. Specifically, the letter states:
Mrs. Bernice Kane has been under my medical care
for a significant number of years. In the past year or two,
I have noticed a significant decline in her mental function,
manifested by a diminished memory and intermittent
confusion. A review of her medical condition and
medications does not disclose a treatable cause for her
mental deterioration and I believe that she suffers from
dementia severe enough so that she is incapable of
handling her financial and other affairs. Her situation is
such that she will require an in-home health aide to help
her with activities of daily living and medication
administration.
Thus I believe that Mrs. Bernice Kane requires
financial and living supervision with another party, such as
her daughter, to take care of her financial affairs and
insure her medical stability and future health needs.
(See, Exhibit 2 to the Amended Petition to Compel, filed
2/12/16).
At some time in late 2014, or early 2015, the dispute over
the interpretation of the terms of the POA and Amended Trust
between [Wells Fargo Advisors], the Agent and later PNC, began
and ultimately culminated with the filing of the Petition to
Compel.
-2-
J-S09031-17
(Orphans’ Court Opinion, 9/29/16, at 2-3) (footnote omitted).2
The Orphans’ court denied the motion to compel on July 5, 2016.
Appellant timely appealed.3
Appellant presents six questions on appeal:
1. Does 20 [Pa.C.S.A. § 5608.1(a)] require the
acceptance of Bernice M. Kane’s properly executed Durable
Power of Attorney and were Wells Fargo and PNC improperly
relieved of any liability for refusing to honor that Power of
Attorney as provided in 20 [Pa.C.S.A.] § 5608.1(c) thereby
leaving a 91 year old woman without access to her own funds[?]
2. Does the Power of Attorney, Lauren Kane, [sic]4
possess those rights clearly articulated in the valid Durable
____________________________________________
2
Wells Fargo Advisors was the co-trustee and custodian of the assets under
the revocable trust, but in the event of the incapacitation (or death) of
Bernice Kane, PNC would become co-trustee and the trust assets were to be
transferred to PNC Bank. Aside from Appellant’s direct legal claims, the
respective roles of the two corporate trustees are not in factual dispute, and
have no effect on our disposition.
3
Appellant filed a notice of appeal on July 6, 2016. Appellant also filed an
application for stay pending appeal, requesting a stay of the transfer of
assets from Wells Fargo to PNC Bank, and to compel the two Appellees to
permit her to withdraw funds from the trust. (See Application for Stay
Pending Appeal, 7/07/16). Both Appellees opposed the stay; Appellant
replied. The trial court ordered a Rule 1925(b) statement of errors, on July
7, 2016. Appellant filed a statement on July 11, 2016. However, the Rule
1925(b) statement in Appellant’s brief omits the second and third pages,
which recite the errors alleged. The trial court stayed the transfer of
custodianship from Wells Fargo to PNC Bank, but denied the request for
emergency relief in all other respects, notably, the request to compel
Appellees to honor Appellant’s request for disbursements from the trust.
(See Order, 8/04/16). Appellant filed her brief on August 19, 2016. The
trial court filed an opinion on September 28, 2016. See Pa.R.A.P. 1925.
-3-
J-S09031-17
Power of Attorney document including 1) the right to withdraw
funds from the Bernice M. Kane Revocable Trust; 2) the right to
receive all brokerage statements and participate in investment
decisions as set forth in paragraphs 15 and 16 of the Power of
Attorney; and 3) the right to terminate the Bernice M. Kane
Revocable Trust as set forth in paragraphs 15 and 16 of the
Power of Attorney document[?]
3. Do the provisions of 20 [Pa.C.S.A] §5603(g), and the
authorities of 20 [Pa.C.S.A] §5601.4 and §5602(a)(7), and other
general principals [sic] of Pennsylvania law, when applied to the
corresponding language of the Bernice M. Kane Power of
Attorney, afford Lauren Kane, Agent, the right to withdraw funds
from her mother’s Revocable Trust and to terminate or revoke
that trust[?]
4. Does the Bernice M. Kane Revocable Trust compel the
appointment of PNC Bank as a substitute custodian of funds of
the Bernice M. Kane Revocable Trust without the consent of the
co-successor trustee, Lauren Kane[?]
5. May PNC, either in its capacity as Co-Trustee of the
Bernice M. Kane Revocable Trust or custodian of funds thereof
require notice to contingent remainder beneficiaries of the
Bernice M. Kane Revocable Trust in contravention of 20
Pa.C.S.A. §7780.3[?]
[6.] May PNC, either in its capacity as Co-Trustee of the
Bernice M. Kane Revocable Trust or custodian of the funds
thereof compel the Appellant Lauren Kane to comply with the
many burdensome demands more fully set forth in a letter dated
January 15, 2016 attached hereto as Appendix F[?]
_______________________
(Footnote Continued)
4
Somewhat curiously, Appellant occasionally appears to refer to herself as
the power of attorney, as she does here. (See e.g., Appellant’s Brief, at 22,
24). As Appellant properly notes elsewhere, she is the Agent under the
power of attorney, more traditionally referred to as the attorney-in-fact. We
recognize, as Appellant reminds us, (see id. at 12), that she is also a
licensed attorney at law.
-4-
J-S09031-17
(Appellant’s Brief, at 10-12).5
Our standard of review of the findings of an Orphans’
Court is deferential.
When reviewing a decree entered by the Orphans’
Court, this Court must determine whether the record is
free from legal error and the court’s factual findings are
supported by the evidence. Because the Orphans’ Court
sits as the fact-finder, it determines the credibility of the
witnesses and, on review, we will not reverse its credibility
determinations absent an abuse of that discretion.
However, we are not constrained to give the same
deference to any resulting legal conclusions.
In re Estate of Harrison, 745 A.2d 676, 678–79 (Pa. Super.
2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000)
(internal citations and quotation marks omitted). “The Orphans’
Court decision will not be reversed unless there has been an
abuse of discretion or a fundamental error in applying the
correct principles of law.” In re Estate of Luongo, 823 A.2d
942, 951 (Pa. Super. 2003), appeal denied, 577 Pa. 722, 847
A.2d 1287 (2003).
In re Estate of Whitley, 50 A.3d 203, 206–07 (Pa. Super. 2012), appeal
denied, 69 A.3d 603 (Pa. 2013) (brackets omitted).
This Court’s standard of review of questions of law is de
novo, and the scope of review is plenary, as we may review the
entire record in making our determination. Kripp v. Kripp, 578
Pa. 82, 849 A.2d 1159, 1164 n.5 (2004). When we review
____________________________________________
5
We again note that Appellant filed her brief on August 19, 2016,
approximately a month before the trial court filed its opinion, on September
29, 2016. As a result, Appellant’s brief does not contain a copy of the trial
court opinion. See Pa.R.A.P. 2111(a)(10), (b). A copy of the trial court
opinion is included in the reproduced record at 320a-329a, and in the
certified record.
-5-
J-S09031-17
questions of law, our standard of review is limited to determining
whether the trial court committed an error of law. Kmonk–
Sullivan v. State Farm Mutual Automobile Ins. Co., 746
A.2d 1118, 1120 (Pa. Super. 1999) (en banc ) [affirmed, 788
A.2d 955, 962 (2001)].
In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016), appeal denied, 145
A.3d 166 (Pa. 2016).
We are also mindful of the following applicable legal principles.
The scope of authority under a POA [Power of Attorney] is
determined by the language of the document creating the
agency and the Code. See generally 20 Pa.C.S. §§ 5601–
5611; In re Weidner, 938 A.2d [354] at 357–358 [(Pa. 2007)]
(analyzing language of POA in the context of the Code to
determine propriety of agent’s actions).
Id. at 1021. “[P]owers of attorney are to be strictly construed.” Id.
(citations omitted).
Moreover, a party dealing with an agent, known by the
former to be acting only under an express grant of authority
(such as a power of attorney), has a duty to take notice of
the nature and extent of the authority conferred. Fierst v.
Commonwealth Land Title Ins. Co., 499 Pa. 68, 451 A.2d
674, 677 (1982), citing Moore v. Luzerne County, 262 Pa.
216, 105 A. 94, 95 (1918). See also Restatement (Second) of
Agency, § 167 (1958) (“If a person dealing with an agent has
notice that the agent’s authority is created or described in a
writing which is intended for his inspection, he is affected by
limitations upon the authority contained in the writing, unless
misled by conduct of the principal.”). Parties are bound at
their own peril to notice limitations upon the grant of
authority before them, whether such limitations are prescribed
by the grant’s own terms or by construction of law. Fierst, 451
A.2d at 677. “A person with notice of a limitation of an agent’s
authority cannot subject the principal to liability upon a
transaction with the agent if he should know that the agent is
acting improperly.” Restatement (Second) of Agency § 166
(1958). Finally, the existence of a limitation upon the authority
conferred by a power of attorney must be determined in light of
-6-
J-S09031-17
the rule that such powers are to be strictly construed. See
Nuzum v. Spriggs, 357 Pa. 531, 55 A.2d 402, 403 (1947).
Petersen v. Kindred Healthcare, Inc., ___ A.3d ____, No. 1567 MDA
2014 at *3 (Pa. Super. filed February 1, 2017) (emphases added).
Additionally, “[n]o statute shall be construed to be retroactive unless clearly
and manifestly so intended by the General Assembly.” 1 Pa.C.S.A. § 1926.
In this case, at the outset, we note that Appellant’s brief, and in
particular, her statement of questions involved, fails to comply with our
Rules of Appellate Procedure. See Pa.R.A.P. 2116(a).6 The majority of
Appellant’s questions seek a declaration of legal rights, as if this Court were
____________________________________________
6
In pertinent part, Rule 2116 provides:
(a) General rule. The statement of the questions
involved must state concisely the issues to be resolved,
expressed in the terms and circumstances of the case but
without unnecessary detail. The statement will be deemed to
include every subsidiary question fairly comprised therein. No
question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby. Each question
shall be followed by an answer stating simply whether the court
or government unit agreed, disagreed, did not answer, or did not
address the question. If a qualified answer was given to the
question, appellant shall indicate the nature of the qualification,
or if the question was not answered or addressed and the record
shows the reason for such failure, the reason shall be stated
briefly in each instance without quoting the court or government
unit below.
Pa.R.A.P. 2116(a.)
-7-
J-S09031-17
a court of first instance, and she only sporadically suggests trial court error
in the argument section. (See Appellant’s Brief, at 10-12, 14-33).
Appellant appears to misapprehend the foundation and purpose of our
review. As a court of intermediate appellate review, this Court is an error
correcting court. See Trach v. Fellin, 817 A.2d 1102, 1119 (Pa. Super.
2003), appeal denied, 847 A.2d 1288 (Pa. 2004); Harber Philadelphia Ctr.
City Office Ltd. v. LPCI Ltd. P'ship, 764 A.2d 1100, 1105 (Pa. Super.
2000), appeal denied, 782 A.2d 546 (Pa. 2001). We do not sit as a second
trial court.
Accordingly, we do not decide legal questions in the abstract, or even
declare general legal principles and then apply them to a given set of facts,
without regard to the proceedings in the Orphans’ Court. It is well-settled
that to secure appellate relief it is incumbent on an appellant to assert and
prove either an error of law or an abuse of discretion by the trial court (or
both). See In re Estate of Whitley, supra at 206–07; In re Fiedler,
supra at 1018. Here, Appellant does not do so.7
____________________________________________
7
Furthermore, to preserve an issue for review on appeal, it must first be
raised with the trial court. See Pa.R.A.P. 302(a) (“General rule. Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”). Objections to a trial court ruling must be timely,
contemporaneous, and specific. “Under prevailing Pennsylvania law, a
timely objection is required to preserve an issue for appeal. Pa.R.C.P. No.
227.1(b)(1) [and note]; Pa.R.A.P. 302; Straub v. Cherne Indus., 583 Pa.
608, 880 A.2d 561, 567 (2005); Dilliplaine v. Lehigh Valley Trust Co.,
457 Pa. 255, 322 A.2d 114, 116–17 (1974).” Samuel-Bassett v. Kia
(Footnote Continued Next Page)
-8-
J-S09031-17
An appellant must also set forth in the statement of the case or in the
argument section of the brief where an issue was raised and preserved in
the trial court. See Pa.R.A.P. 2119(e);8 see also Pa.R.A.P. 2117(c).
Similarly, when the finding of a fact is argued, an appellant must refer
to the place in the record where the evidence is to be found. See Pa.R.A.P.
2119(d).9 It is not the role of this Court to scour the record to find evidence
to support Appellant’s arguments. See J.J. DeLuca Co. Inc. v. Toll Naval
Assocs., 56 A.3d 402, 411 (Pa. Super. 2012).
In this case, every issue, in whole or in part, fails to comply with these
requirements, either by failure to reference the place where evidence of the
facts now claimed was presented to the trial court, or the place of timely
_______________________
(Footnote Continued)
Motors Am., Inc., 34 A.3d 1, 45 (Pa. 2011), cert. denied, 133 S. Ct. 51
(2012).
8
Statement of place of raising or preservation of
issues. Where under the applicable law an issue is not
reviewable on appeal unless raised or preserved below, the
argument must set forth, in immediate connection therewith or
in a footnote thereto, either a specific cross-reference to the
page or pages of the statement of the case which set forth the
information relating thereto as required by Pa.R.A.P. 2117(c), or
substantially the same information.
Pa.R.A.P. 2119(e).
9
“Synopsis of evidence. When the finding of, or the refusal to find, a fact
is argued, the argument must contain a synopsis of all the evidence on the
point, with a reference to the place in the record where the evidence may be
found.” Pa.R.A.P. 2119(d).
-9-
J-S09031-17
objection to the rulings of the trial court were raised and preserved in the
record. Accordingly, we conclude that all of Appellant’s issues are waived.10
Moreover, they would not merit relief.
Appellant’s first three questions each involve her proposed
interpretation of the Power of Attorney statute.11 (See Appellant’s Brief, at
16-22). We address her power of attorney claims together. Notably,
Appellant offers no caselaw in support of her interpretation of the power of
attorney law. (See id.).
Instead, Appellant merely argues generally that under recent
amendments to the power of attorney statute, Appellees were required to
accept without question (except for the statutorily permitted inquiries) her
authority to act unilaterally over her mother’s trust. (See id. at 14-16).
She maintains, in effect, that the Orphans’ court erred in not so ruling, and
in not assessing damages against Appellees for their failure to accept
instructions from her. (See id.). We disagree.
____________________________________________
10
“The application of the waiver doctrine raises a question of law. On
questions of law, our standard of review is de novo and our scope of review
is plenary.” Straub, supra at 566 n.7 (citations omitted).
11
Pennsylvania’s power of attorney statute, Chapter 56 of Decedents,
Estates and Fiduciaries, incorporates into Pennsylvania law the Uniform
Durable Power of Attorney Act. See Title 20 Pa.C.S.A., Ch. 56, Refs &
Annotations.
- 10 -
J-S09031-17
First, Appellant argues that the Orphans’ court “improperly ignored” 20
Pa.C.S.A. § 5608.1(a), of the Power of Attorney statute, as amended in
2014.12 (Id. at 16). Citing the 2014 amendments, Appellant contends the
Orphans’ court should have held Appellees liable pursuant to 20 Pa.C.S.A.
§ 5608.1(a) and § 5608.1(e)13 for not accepting the power of attorney
____________________________________________
12
Section 5608.1(a) provides, in pertinent part:
(a) Acceptance required.─Except as provided under
subsections (b) and (d):
(1) A person shall either:
(i) accept a power of attorney; or
(ii) request one of the following:
(A) an affidavit under section 5606 (relating to proof
of continuance of powers of attorney by affidavit); or
(B) a certification, translation or an opinion of
counsel under section 5608(e) (relating to acceptance of
and reliance upon power of attorney);
not later than seven business days after presentation of
the power of attorney for acceptance.
20 Pa.C.S.A. § 5608.1(a)(1).
13
Section 5608(e) provides:
(e) Request for information.─A person who is asked to
accept a power of attorney may request and, without liability,
rely upon without further investigation:
(1) An agent’s certification under penalty of perjury
of any factual matter concerning the principal, agent or
(Footnote Continued Next Page)
- 11 -
J-S09031-17
without question, and honoring her directives. (See id. at 16-18).
Appellant continues, in her second and third issues, that the trial court
improperly denied her the right to exercise various enumerated powers over
the trust, unilaterally, under the power of attorney, most notably the power
to withdraw and receive the income or corpus of the trust, pursuant to 20
Pa.C.S.A. § 5602(a)(7), with an expressed intent to revoke the trust
altogether, even though the trust document itself established a co-
trusteeship and did not permit the co-trustees to act unilaterally. (See id.
at 19-20). We disagree.
At the outset we note that because the power of attorney at issue was
on its face signed, dated, and acknowledged on September 10, 2012, the
2014 amendments that Appellant relies on, which took effect on July 2,
_______________________
(Footnote Continued)
power of attorney or an affidavit under section 5606
(relating to proof of continuance of powers of attorney by
affidavit).
(2) An English translation of the power of attorney, if
the power of attorney contains, in whole or in part,
language other than English.
(3) An opinion of counsel relating to whether the
agent is acting within the scope of the authority granted by
the power of attorney if the person making the request
provides in writing or other record the reason for the
request.
20 Pa.C.S.A. § 5608(e).
- 12 -
J-S09031-17
2014,14 almost two years later, are not relevant to our review. Appellant
gamely asserts that the amendments “impact all powers of attorney created
before or after July 2, 2014[,]” but offers no authority or even argument in
support of the claim of retroactivity. (Id. at 16) (emphasis in original).
To the contrary, Appellant ignores the Act’s explicit stipulation that the
enumerated provisions (including those at issue here) took effect
“immediately”, i.e., on July 2, 2014, not before. (Sec. 10, Act 2014-95,
H.B. 1429). Additionally, Appellant’s claim ignores the statutory
presumption against retroactivity: “No statute shall be construed to be
retroactive unless clearly and manifestly so intended by the General
Assembly.” 1 Pa.C.S.A. § 1926. Appellant’s claims under the 2014
amendments would not merit relief.
____________________________________________
14
Section 10 of the Act amending the statute provides:
This act shall take effect as follows:
(1) The amendment or addition of 20 Pa.C.S. §§ 5601(f),
5608, 5608.1, 5608.2, 5611 and 5612 shall take effect
immediately.
(2) This section shall take effect immediately.
(3) The remainder of this act shall take effect January 1,
2015.
Approved July 2, 2014.
DECEDENTS, ESTATES AND FIDUCIARIES—POWERS OF ATTORNEY, 2014
Pa. Legis. Serv. Act 2014-95 (H.B. 1429).
- 13 -
J-S09031-17
Moreover, on this point, Appellant also ignores the statutory exception
in the current power of attorney statute for a good faith belief that the agent
does not have the authority to perform the act requested. See 20 Pa.C.S.A.
§ 5608.1(b)(6).15
Here, the Orphans’ court found that Appellees had a good faith belief
that the terms of the amended trust did not authorize the unilateral
revocation of the trust by Appellant. (See Orphans’ Ct. Op., at 8-9).
“Because the Orphans’ Court sits as the fact-finder, it determines the
credibility of the witnesses and, on review, we will not reverse its credibility
determinations absent an abuse of that discretion.” In re Estate of
Whitley, supra at 206–07 (citation omitted).
____________________________________________
15
Section 5608.1(b)(6), in pertinent part, provides:
(b) Acceptance not required.─A person may not be
required to accept a power of attorney if any of the following
applies:
* * *
(6) The person in good faith believes that the power
of attorney is not valid or the agent does not have the
authority to perform the act requested, whether or not a
certification, a translation, an affidavit under section 5606
or an opinion of counsel under section 5608(e) has been
requested or provided.
20 Pa.C.S.A. § 5608.1(b)(6).
- 14 -
J-S09031-17
On independent review, we discern no abuse of discretion.
Accordingly, we would decline to disturb the finding of the Orphans’ court.
Appellant’s claims against Appellees for not honoring her power of attorney
(and the Orphans’ Court for not enforcing it) would not merit relief.
Next, on the underlying central legal issue of whether the enabling
provisions of an after-executed power of attorney would supersede the
preclusive provisions of the trust itself, we conclude that they would not.
First, with one exception, Appellant’s entire argument consists of
variations on the theme that under the power of attorney statute, as revised
and amended in 2014, (as already discussed), her demands to Appellees,
the corporate trustees, may not be challenged. (See Appellant’s Brief, at
14-22).16 For the reasons already noted, this argument is unavailing.
Furthermore, even the statute cited by Appellant provides the
exception which precludes her argument. (See id. at 20). Appellant
maintains that she had the legal capacity to terminate or revoke her
mother’s trust pursuant to the POA provision, as permitted under section
5601.4 of the power of attorney law. (See id.). However, section 5601.4 in
pertinent part also provides that:
____________________________________________
16
Essentially, the only exception is an abbreviated and undeveloped one-
paragraph claim, not included in the statement of questions involved, that
Appellees lack standing (which they obviously do not). (See Appellant’s
Brief, at 22).
- 15 -
J-S09031-17
(a) General rule.─An agent under a power of attorney
may do the following on behalf of the principal or with the
principal’s property only if the power of attorney expressly
grants the agent the authority and exercise of the authority is
not otherwise prohibited by another agreement or
instrument to which the authority or property is subject[.]
20 Pa.C.S.A. § 5601.4(a) (emphasis added).
Applying section 5601.4(a) to this appeal, the trust agreement’s
restrictions (and requirement of a co-trusteeship with a corporate trustee)
would defeat Appellant’s claim that she should have unfettered access to the
assets in her mother’s trust in sole reliance on the power of attorney.17
Furthermore, Appellant’s claims to the power to revoke the trust
unilaterally without court approval are precluded by the Pennsylvania
Uniform Trust Act § 7752, Revocation or Amendment of Revocable Trust
(based on the Uniform Trust Code 602):
(e) Agent.─A settlor’s powers with respect to revocation
or amendment of the nondispositive provisions of or withdrawal
____________________________________________
17
Moreover, we note that the Orphans’ Court, and both Appellees, accepted
Dr. Michael Cooperman’s “To Whom It May Concern” letter of September 20,
2013, as confirmation of Bernice M. Kane’s incapacitation. (See Orphans’
Ct. Op., at 2-3; see also Brief of Appellee PNC Bank, N.A., at 5; Brief of
PNC Bank National Association in Response to Amended Petition of Lauren
Hope Kane, at 1; Brief for Appellee [Wells Fargo Advisors, LLC,] at 2).
However, by the express terms of Dr. Cooperman’s letter, Bernice M. Kane
had been exhibiting “a significant decline in her mental function” for “the
past year or two[.]” (Letter of Michael Cooperman, MD, To Whom It May
Concern, 9/20/13). Accordingly, there is a substantial question, apparently
not addressed in the Orphans’ Court, whether Bernice even had the legal
capacity to execute the power of attorney, after she had already been
exhibiting a significant decline in mental function for a year.
- 16 -
J-S09031-17
of property from a trust may be exercised by an agent under a
power of attorney only to the extent expressly authorized by the
trust instrument or the power. The agent under a power of
attorney that expressly authorizes the agent to do so may
amend the dispositive provisions of a revocable trust as the
court may direct.
20 Pa.C.S.A. § 7752 (emphasis added).
Appellant’s first three claims would not merit relief.
In her next three questions, Appellant challenges the legal capacity
and various acts of PNC Bank. (See Appellant’s Brief, at 11-12).
In her fourth issue, Appellant contests the Orphans’ Court’s
appointment of PNC Bank as substitute custodian of the trust assets without
her consent. (See id. at 23-24). However, Appellant fails to develop an
argument in support of her claim. Instead, she merely recites verbatim sub-
section C-8 of the Sixteenth Paragraph of the Amended Trust.18
Appellant follows the block quote with a two-sentence argument which
we reproduce verbatim:
The appointment of a successor custodian and the
payment of Trustee fees are matters contemplated by the
Bernice M. Kane Revocable Trust and require agreement. While
Lauren Kane has the specific authority as Grantor’s daughter
(paragraph SIXTEENTH (C) 6) to replace the corporate trustee
____________________________________________
18
Subsection C-8 describes at length the general decision-making process
for co-trustees, with a provision for submission to the American Arbitration
Association in the event of impasse. We note that the trust document
addresses co-trusteeship on disability or incapacity of the grantor at sub-
section A of the Sixteenth paragraph. (See Orphans’ Ct. Op., 9/28/16, at
4).
- 17 -
J-S09031-17
after her mother’s death, it is arguable that such right
commences upon her mother’s disability.
(Id. at 23-24).
We conclude that Appellant has failed to develop an argument,
supported by pertinent authority, in support of her claim. See Pa.R.A.P.
2119(a), (b). The claim would be waived for this additional reason as well
as those already discussed.
In any event, the claim is moot, because the Orphans’ Court stayed
that portion of its decision and directed that the trust assets remain in the
custody of Wells Fargo Advisors pending appeal. (See Order, 8/04/16; see
also Orphans’ Ct. Op., at 9).
Appellant’s fifth question [involving notice to contingent remainder
beneficiaries] is totally different from the corresponding claim raised in the
statement of errors [Orphans’ Court’s failure to recognize Appellant’s
authority to replace PNC Bank, or any corporate trustee]. Compare
Statement of Errors, 7/11/16, at 3 ¶ 5, with Appellant’s Brief, at 11 ¶ 5).
Appellant’s fifth claim is waived for this reason as well. See Pa.R.A.P.
1925(b).
In Appellant’s sixth and final issue, she assigns error to the Orphans’
Court because it “failed to dismiss the many unlawful, unreasonable, and
burdensome terms demanded by PNC[,]” (Appellant’s Brief, at 26), both for
- 18 -
J-S09031-17
Appellant to serve as co-trustee, and for PNC to accept its co-trusteeship.19
(See id. at 26-30).
Appellant complains at length that the various demands for
information, identification, releases, indemnification, etc. had no legitimate
basis, exceeded statutory requirements, or were simply “illogical.” (Id. at
28). However, despite a few bald statutory references, Appellant fails to
develop a comprehensive legal argument in support of her overall claim that
the demands were unduly burdensome, let alone legally prohibited. Once
again Appellant relies predominantly on her broad but unsupported
interpretation of her power of attorney. (See, e.g., id. at 30). Appellant
has waived her claim for lack of development. See Pa.R.A.P. 2119(a), (b).
However, even assuming that this issue had been properly raised,
preserved, and developed, it would not merit relief.
Parties are bound at their own peril to notice limitations upon the
grant of authority before them, whether such limitations are
prescribed by the grant’s own terms or by construction of law. A
person with notice of a limitation of an agent’s authority cannot
subject the principal to liability upon a transaction with the agent
if he should know that the agent is acting improperly. Finally,
the existence of a limitation upon the authority conferred by a
power of attorney must be determined in light of the rule that
such powers are to be strictly construed.
Petersen, supra at *3 (citations and internal quotation marks omitted).
____________________________________________
19
PNC argues, without citation to pertinent authority, that because both it
and Appellant ultimately accepted the co-trusteeship, the claim is moot.
(See PNC Brief, at 30).
- 19 -
J-S09031-17
Here, Appellant’s announced intention is to revoke the trust and
assume personal control of the trust assets. Her proposed plan carries the
risk of dissipation of trust assets, both for the benefit of Bernice and for her
special needs grandchildren, otherwise provided in the trust at issue and
companion trusts.
We can discern no abuse of discretion or error of law in the Orphans’
Court’s acceptance of the appropriateness of assurances to PNC in line with
standard industry practices as practical precautions to protect the trust
assets from improper diversion or dissipation.
Giving the power of attorney the narrow, strict construction controlling
authority requires, we conclude that, even if not waived, none of Appellant’s
claims would merit relief.
Order affirmed.
Judge Stabile joins the Memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2017
- 20 -