In Re:Dille Family TrustAppeal of:Nolan Fam.Trust

J-A06028-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: DILLE FAMILY TRUST : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: THE NOWLAN FAMILY :

TRUST AND BUCK ROGERS :

COMPANY :

:

:

: No. 1326 WDA 2022

Appeal from the Order Entered October 14, 2022

In the Court of Common Pleas of Lawrence County

Civil Division at No(s): 43 of 2019, O.C.

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: May 16, 2024

The Nowlan Family Trust (“NFT”) and Buck Rogers Company (“BRC”)

(collectively “Appellants”) appeal from the October 14, 2022, order denying

their request to expand the scope of their intervention into the litigation of the

Dille Family Trust (“DFT”). After careful review, we reverse and remand to the

orphans’ court to allow Appellants to expand the scope of their intervention.

A previous panel of this Court set forth the relevant factual and

procedural history as follows:

This matter has a complex history and stems from a dispute

over the situs of the Dille Family Trust (“DFT” or “Trust”) and

whether Ms. Geer is the legitimate Trustee of the DFT. We glean

the following facts and procedural background relevant to this

appeal from the record. The DFT was created by Robert C. Dille

(“Mr. Dille”) and Virginia N. Dille (“Mrs. Dille”) (collectively

“Settlors”) on August 16, 1979, in the state of California, and

amended on January 5, 1982. Settlors were the original Trustees

of the DFT. Their children, Lorraine and Robert [(collectively

“Beneficiaries”)], are the Trust's sole beneficiaries. Upon the death

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of Mr. Dille on March 30, 1983, Arthur Martin became a Co-Trustee

with Mrs. Dille. On February 1, 1989, the Beneficiaries and the Co-

Trustees executed a document transferring the situs of the DFT to

Illinois. Upon Mrs. Dille's death in February of 2009, Mr. Martin

became the sole Trustee.

On March 8, 2011, Mr. Martin resigned from his position as

Trustee and, pursuant to the terms of the DFT, Dennis Fox was to

be appointed as the successor Trustee. Mr. Fox, however, never

acted in his capacity as Trustee of the DFT and submitted his

resignation from the position on May 4, 2011. American

Guarantee & Trust Company (n/k/a RBC Trust Company) was the

last-named successor Trustee listed in the terms of the DFT;

however, it declined to accept the position, leaving the Trust

without any named successor.

[Beneficiaries] then asked Ms. Geer, an attorney, to become

the Trustee, and she accepted the appointment on June 6, 2011.

Immediately following her appointment, Ms. Geer began acting as

the Trustee of the DFT with the permission and consent of [the

Beneficiaries]. She began administering the Trust from the office

of Geer and Herman, P.C., located in Lawrence County,

Pennsylvania. Pennsylvania income tax returns were filed on

behalf of the DFT by Ms. Geer for the years 2011 through 2016, a

Trust bank account was opened in Pennsylvania, and Ms. Geer

conducted all DFT business from her office in Lawrence County,

Pennsylvania.

A dispute arose between the DFT and the NFT over the

ownership of the United States trademark and related rights to

the fictional character, Buck Rogers. Litigation ensued before the

United States Patent and Trademark Office, the Patent and

Trademark Appeals Board, and the federal district court in the

Eastern District of Pennsylvania. Meanwhile, on November 28,

2017, Ms. Geer – purporting to act as Trustee – filed for Chapter

11 bankruptcy on behalf of the DFT. Ms. Geer did not seek the

permission of [the Beneficiaries] prior to the bankruptcy filing, nor

did she notify them after the filing. On August 26, 2018, after

learning of the Chapter 11 filing from the Bankruptcy Court, [the

Beneficiaries] sent written notice to Ms. Geer, informing her that

she was no longer representing the DFT as Trustee. Despite

receiving the August 26, 2018 notice, Ms. Geer continued to act

and hold herself out as Trustee of the DFT.

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During the bankruptcy action, Ms. Geer and her husband,

Daniel Herman, acting as individuals, together with the NFT

submitted a joint offer to the Bankruptcy Court to purchase all of

the DFT assets, including any trademark and intellectual rights

that the DFT might own with regard to Buck Rogers. Their offer

was rejected. On February 20, 2019, the bankruptcy action was

dismissed on the grounds that the DFT was not a business trust

and therefore was not eligible for Chapter 11 relief.

Shortly after the bankruptcy dismissal, the DFT and the NFT

resolved their dispute. On February 28, 2019, Ms. Geer, acting as

Trustee of the DFT, signed a settlement agreement with the NFT.

Pursuant to the terms of the settlement agreement, Ms. Geer

entered into an asset purchase agreement, conveying any and all

trademark and intellectual property rights owned by the DFT to

the BRC for $300,000.00. As a result of this transaction, the

federal action between the NFT and the DFT was voluntarily

dismissed.

On April 17, 2019, Ms. Geer, acting as Trustee of the DFT,

instituted the underlying action with the filing of a petition in the

Court of Common Pleas of Lawrence County, Pennsylvania,

Orphans’ Court Division, seeking confirmation of her status as the

Trustee of the DFT and seeking approval of her proposed

distribution of the Trust assets. [Beneficiaries] opposed the

petition, claiming that Ms. Geer had never been lawfully appointed

as Trustee. The NFT and the BRC (collectively “Intervenors” [or

“Appellants”]) filed a petition seeking to intervene in the orphans’

court action, which the court granted on February 24, 2020, for

the limited purpose of participating in the hearings to determine

whether Ms. Geer is the legally authorized Trustee of the DFT. A

bifurcated trial on the issue of Ms. Geer's status as Trustee,

originally scheduled to be held in April 2020, was continued

multiple times due to COVID-19 concerns and discovery issues,

and was eventually held on April 22 and 23, 2021. Following the

trial, the orphans’ court ultimately entered an amended order on

January 10, 2022, finding that Ms. Geer was lawfully appointed

under Illinois law as the Trustee of the DFT on June 6, 2011, and

that the Beneficiaries’ August 26, 2018 writing purporting to

remove Ms. Geer from her position as Trustee was ineffective.

In re Dille Family Trust, 2023 WL 5843798, unpublished memorandum, at

*1-2 (Pa. Super. filed September 11, 2023) (footnotes omitted). During the

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pendency of this case, the $300,000.00 that Appellants paid for the assets of

the DFT was transferred to the court’s escrow account by order dated October

23, 2020. On September 13, 2022, Appellants filed a motion to expand

intervention. The orphans’ court denied the motion on October 14, 2022.

Appellants appealed and complied with the orphans’ court’s order to file a Rule

1925(b) statement. See Pa.R.A.P. 1925(b).

Appellants raise one claim:

Did the [l]ower [c]ourt’s [o]rder denying [i]ntervenors’ the right

to expand the scope of their participation constitute an abuse of

discretion?

Appellants’ Brief, at 3.

Before reaching the merits of Appellants’ claim, we must decide whether

the October 14, 2022, order is appealable. “Under Pennsylvania law, an appeal

may only be taken from an interlocutory order as of right (Pa.R.A.P. 311),

from a final order (Pa.R.A.P. 341), from a collateral order (Pa.R.A.P. 313), or

from an interlocutory order by permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A.

§ 702(b)).” Nemirovsky v. Nemirovsky, 776 A.2d 988, 991 (Pa. Super.

2001) (citations omitted). Appellants assert they are appealing under Rule

313, a collateral order. See Appellants’ Brief, at 12. “A collateral order is an

order separable from and collateral to the main cause of action where the right

involved is too important to be denied review and the question presented is

such that if review is postponed until final judgment in the case, the claim will

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be irreparably lost.” Pa.R.A.P. 313(b). As such, there are three elements that

Appellants must meet for this appeal to proceed.

Clearly, the order limiting Appellants status as intervenors is separate

from and collateral to the underlying cause, which started with a dispute as to

whether Attorney Geer is lawful trustee of the DFT. The issue here is the right

to property – either the assets the DFT owns of trademark and intellectual

property rights to Buck Rogers, or the $300,000.00 currently held in escrow

that Appellants paid to the DFT for the trademark and intellectual property

rights to Buck Rogers. Our Supreme Court has explained that “the rights

involved must implicate more than just the individual parties in the matter,

and, instead, must be deeply rooted in public policy going beyond the

particular litigation at hand.” K.C. v. L.A., 128 A.3d 774, 779 (Pa. 2015). “It

is beyond peradventure that the right involved – the right to property – is

deeply rooted in public policy.” Nemirovsky, 776 A.2d at 991. The right to

property is a right too important to be denied review; Appellants met the

second element. Finally, any rights Appellants have to the $300,000.00 held

in escrow may be irreparably lost if they are not permitted to intervene to

determine if the assets they believed they purchased belonged to the trust at

the time they executed the purchase agreement for those assets. As such, the

order limiting intervention is appealable as a collateral order, and we turn to

the merits of Appellants’ claim.

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“Intervention is utilized to prevent multifarious actions and is permitted

only where the party seeking it has an interest in or will be affected by the

pending litigation.” Bannard v. New York State Natural Gas Corp., 172

A.2d 306, 312 (Pa. 1961). “Intervention is a matter within the sound

discretion of the trial court and unless there is a manifest abuse of such

discretion, its exercise will not be interfered with on review.” Nemirovsky,

776 A.2d at 991-92 (citation omitted). The court is guided by two Rules, 2327

and 2329, when determining whether to grant or deny intervention. See

Pa.R.C.P. 2327, 2329. Rule 2327 defines who may intervene:

At any time during the pendency of an action, a person not a party

thereto shall be permitted to intervene therein, subject to these

rules if

(1) the entry of a judgment in such action or the

satisfaction of such judgment will impose any

liability upon such person to indemnify in whole

or in part the party against whom judgment

may be entered; or

(2) such person is so situated as to be adversely

affected by a distribution or other disposition of

property in the custody of the court or of an

officer thereof; or

(3) such person could have joined as an original

party in the action or could have been joined

therein; or

(4) the determination of such action may affect any

legally enforceable interest of such person

whether or not such person may be bound by a

judgment in the action.

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Pa.R.C.P. 2327. Rule 2329 limits who may intervene even if they meet one of

the above criteria:

Upon the filing of the petition and after hearing, of which due

notice shall be given to all parties, the court, if the allegations of

the petition have been established and are found to be sufficient,

shall enter an order allowing intervention; but an application for

intervention may be refused, if

(1) the claim or defense of the petitioner is not in

subordination to and in recognition of the propriety of

the action; or

(2) the interest of the petitioner is already

adequately represented; or

(3) the petitioner has unduly delayed in making

application for intervention or the intervention will

unduly delay, embarrass or prejudice the trial or the

adjudication of the rights of the parties.

Pa.R.C.P. 2329.

In this case, Appellants were permitted to intervene for the limited

purpose of participating in the hearings to determine whether Attorney Geer

is the legally authorized Trustee of the DFT. Appellants assert, however, that

they qualify for expanded intervention into the determination of what assets

remain in the DFT after the Beneficiaries attempt to withdrawal all assets from

the DFT on February 20, 2019, and how those assets will be distributed under

Rule 2327(2) and (4). The orphans’ court holds $300,000.00 in escrow, which

represents the money paid by Appellants to DFT to purchase all DFT’s

remaining assets to Buck Rogers. See Orphans’ Court Opinion, 1/9/23, at 5.

The Beneficiaries of the DFT claimed to the orphans’ court that they removed

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all assets from the DFT prior to the purchase agreement between Appellants

and Ms. Geer. See Petition for Citation to Show Cause, 4/17/19, at Exhibit 15;

Preliminary Objections of the Beneficiaries, 6/25/19, at 11. Appellants argue

that if this is true, then Appellants would have paid for nothing, and they would

have a claim to the $300,000.00 held in escrow. Proper distribution of the

remaining assets of the DFT has not been decided by the orphans’ court. See

Orphans’ Court Opinion, 1/9/23, at 11, 13. Therefore, Appellants are “so

situated as to be adversely affected by a distribution or other disposition of

property in the custody of the court” making them eligible to intervene under

Rule 2327(2). See Pa.R.C.P. 2327(2). The same is then true that the final

distribution of the remaining assets of the DFT “may affect [a] legally

enforceable interest of [Appellants.]” See Pa.R.C.P. 2327(4).

Turning to Rule 2329, it cannot be said that Appellants’ claims are not

subordinate to nor in recognition of the propriety of the underlying action. The

orphans’ court has yet to decide what assets are left in the DFT and how those

assets will be distributed, including the $300,000.00 held in escrow.

Appellants have an interest in determining if they purchased the assets held

by the DFT to Buck Rogers, as they intended to do with the purchase

agreement on February 28, 2019.

We are not persuaded by Beneficiaries’ claim that Appellants’ interest is

adequately protected, since Attorney Geer is arguing that Beneficiaries’

attempt to withdraw all assets on February 20, 2019, was invalid. See

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Appellee’s Brief, at 18. While Attorney Geer has taken the position that the

Beneficiaries did not validly remove all assets from the DFT prior to the

purchase agreement, she will not be at a loss for the $300,000.00 if the

orphans’ court finds that the Beneficiaries did in fact remove all assets from

the DFT on February 20, 2019. It would be the Appellants who would be out

this money and would have to start new litigation in an attempt to obtain a

return of their funds. Appellants’ large financial stake in the litigation cannot

be said to be represented by Attorney Geer.

Finally, we do not believe that Appellants have unduly delayed their

request for intervention. This ongoing legal dispute started when the NFT filed

a trademark application with the United States Patent and Trademark Office

in 2009, and the DFT filed a timely Notice of Opposition on June 14, 2011.

See Dille v. Geer, 2020 WL 7624835, unpublished memorandum, at * 4 (E.D.

Pa. filed Dec. 22, 2020) (the Court there also noted that “[t]his is but one

skirmish in a multi-year, multi-lawsuit, multi-party war being fought over the

rights to the fictional world of comic character Buck Rogers, a 25 th century

space explorer. It began with a feud between the Dille and Nowlan families –

who are at the center of this dispute – which dates back to the 1920’s.”). In

light of this protracted history, Appellants’ intervention will not unduly delay

the remaining proceedings and will save all parties from “a second go-round

with all of its attendant expenses and consumption of judicial time.”

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Appellants’ Brief, at 15; see also Bannard, 172 A.2d at 312 (“Intervention

is utilized to prevent multifarious actions[.]”).

The orphans’ court denied expanded intervention because it believed

that “[n]either of the [i]ntervenors has made any claim to the $300,000.00

[held in escrow by the court.]” Orphans’ Court Opinion, 1/9/23, at 5-6.

However, Appellants noted in their motion that they “have never recognized

the removal by the Beneficiaries of the assets and property of DFT” and they

asserted that “[a] finding that Beneficiaries did or did not withdraw all of the

assets from DFT must be made prior to determining how the $300,000 will be

distributed.” Motion to Expand Scope of Intervenors’ Participation, 10/14/22,

at 2. Further, the orphans’ court points to Appellants’ Rule 1925(b) statement,

at averment 8(g), for its belief that Appellants are not making a claim to the

$300,000.00 held in escrow. See Orphans’ Court Opinion, 1/9/23, at 6. While

it is true that averment 8(g) states that the $300,000.00 should belong to the

DFT, averment 8(g) must be read in conjunction with averment 8(h), which

states, in relevant part, “before the lower court can order distribution of the

$300,000 is the necessity to determine the validity of Beneficiaries’ assertion

that they removed all of the assets from DFT prior to execution of the

[p]urchase [a]greement[.]” Statement of Reasons Complained of on Appeal,

12/9/22, at 4-5. Appellees also believe that Appellants have asserted a right

to the $300,000.00 held in escrow. See Appellees’ Brief, at 13-14 (“if the

[t]rial [c]ourt were to determine that the Beneficiaries removed all of the

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assets from the [DFT] prior to the [i]ntervenors’ purported transaction, the

[i]ntervenors’ stake would remain entirely protected and, upon the [t]rial

[c]ourt’s directive, it could be refunded to them.”).

Based on the foregoing, we find that the record does not support the

orphans’ court’s position that Appellants are not asserting any right to the

$300,000.00 held in escrow. Therefore, we are constrained to conclude that

the orphans’ court abused its discretion in denying Appellants’ request to

expand their intervention. Consequently, we reverse the orphans’ court’s

order and remand to the orphans’ court to allow Appellants to expand the

scope of their intervention.

Order reversed. Case remanded. Jurisdiction relinquished.

5/14/2024

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