In re Estate of McAleer

• Decision Date: 09 August 2018
• Docket Number: No. 932 WDA 2017,932 WDA 2017
• Citation: 194 A.3d 587
• Parties: IN RE: the ESTATE OF William K. MCALEER, Deceased Appeal of: William McAleer
• Court: Pennsylvania Superior Court

194 A.3d 587

IN RE: the ESTATE OF William K. MCALEER, Deceased

Appeal of: William McAleer

No. 932 WDA 2017

Superior Court of Pennsylvania.

Argued February 27, 2018

Filed August 9, 2018

William S. Stickman, IV, Pittsburgh, for appellant.

Arnold H. Caplan, Pittsburgh, for Lange, M. and Lange, S., participating parties.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER,^* J.

OPINION BY SHOGAN, J.:

Appellant, William McAleer, appeals from the order directing him to comply with the discovery request presented by Appellees, Stephen Lange and Michael Lange, in this estate matter involving a trust created by Decedent, William K. McAleer. After careful review, we quash.

We summarize the history of this case as follows. Appellant is the trustee of the William K. McAleer Revocable Living Trust ("the Trust"), which was created by Decedent on November 30, 2012, for the benefit of Appellant and his two stepbrothers, Appellees. Trust Document, 11/30/12 (Record Number 1). Since Decedent's death on May 4, 2013, Appellees have raised various issues pertaining to the administration of the Trust, which led to Appellant retaining two law firms, i.e. , Julian Gray & Associates and K&L Gates.

On March 17, 2014, Appellant filed a first and partial account relating to the administration of the Trust. First and Partial Accounting, 3/17/14 (Record Number 2). Appellees filed objections to the first and partial account filed by Appellant. Appellees also sought disclosure of information pertaining to two bank accounts, and Appellant retained K&L Gates to respond. On March 30, 2016, the trial court dismissed Appellees' objections with prejudice. Order, 3/30/16.

On August 31, 2016, Appellant filed a Second and Final Accounting. Second and Final Accounting, 8/31/16 (Record Number 24). On November 14, 2016, Appellees filed objections claiming that Appellant paid expenses in the administration of the Trust that were unreasonable, including excessive trustee and attorney fees. Objections, 11/14/16 (Record Number 26). On March 2, 2017, Appellees served a request for production of documents including billing statements for all trustee fees and attorney fees. On April 12, 2017, Appellant produced substantially redacted attorney invoices from both law firms.¹

Appellees filed a motion to compel service of unredacted copies of the invoices on May 8, 2017. Motion to Compel Discovery, 5/8/17 (Record Number 34). The trial court held a hearing on May 18, 2017. On May 30, 2017, the trial court entered an order directing Appellant to produce the unredacted invoices within thirty days. Order, 5/30/17 (Record Number 39). Appellant turned over unredacted trustee invoices, and only the attorney invoices are at issue. This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

1) Did the Court of Common Pleas err in ordering Appellant to produce unredacted attorney bills where doing so will disclose material protected by the attorney-client privilege and the attorney work product doctrine?

Appellant's Brief at 3.

Our scope of review in an appeal from an Orphans' Court decree is limited. When reviewing a decree entered by the Orphans' Court, we must determine whether the record is free from legal error and the Orphans' Court's factual findings are supported by the evidence. In re Estate of Angle , 777 A.2d 114, 122 (Pa. Super. 2001).

Before we address the underlying merits of Appellant's issue, we must determine whether the trial court's order is appealable. In re Miscin , 885 A.2d 558, 560-561 (Pa. Super. 2005). "The question of the appealability of an order goes directly to the jurisdiction of the [c]ourt asked to review the order." Moyer v. Gresh , 904 A.2d 958, 963 (Pa. Super. 2006). See also In re Estate of Borkowski , 794 A.2d 388, 389 (Pa. Super. 2002) (observing that the threshold question of the appealability of an order affects the jurisdiction of this Court over the case). As a general rule, an appeal can be taken only from a final order. Estate of Borkowski , 794 A.2d at 389. No appeal will be permitted from an interlocutory order unless specifically provided for by statute. Id.

Pennsylvania Rule of Appellate Procedure 342 addresses appeals as of right from various orders of the Orphans' Court and provides, in part, as follows:

(a) General rule. An appeal may be taken as of right from the following orders of the Orphans' Court Division:

(1) An order confirming an account, or authorizing or directing a distribution from an estate or trust;

(2) An order determining the validity of a will or trust;

(3) An order interpreting a will or a document that forms the basis of a claim against an estate or trust;

(4) An order interpreting, modifying, reforming or terminating a trust;

(5) An order determining the status of fiduciaries, beneficiaries, or creditors in an estate, trust, or guardianship;

(6) An order determining an interest in real or personal property;

(7) An order issued after an inheritance tax appeal has been taken to the Orphans' Court pursuant to either 72 Pa.C.S. § 9186(a)(3) or 72 Pa.C.S. § 9188, or after the Orphans' Court has made a determination of the issue protested after the record has been removed from the Department of Revenue pursuant to 72 Pa.C.S. § 9188(a); or(8) An order otherwise appealable as provided by Chapter 3 of these rules.

Pa.R.A.P. 342(a). Thus, Rule 342 permits appeals as of right from the enumerated orders or from orders that meet the requirements of the other Chapter 3 Rules of Appellate Procedure pertaining to the appealability of orders, as discussed infra .

Our review of the record on appeal indicates that the Orphans' Court order that directed Appellant to comply with discovery did not qualify as one of the enumerated orders set forth under Rule 342 as being appealable as of right. Pa.R.A.P. 342(a)(1-7). Accordingly, we must consider whether this order is appealable under any of the rules in Chapter 3 of the Rules of Appellate Procedure. Pa.R.A.P. 342(a)(8). It is well settled that an appeal may be taken from: (1) a final order or an order certified as a final order ( Pa.R.A.P. 341 ); (2) an interlocutory order as of right ( Pa.R.A.P. 311 ); (3) an interlocutory order by permission ( Pa.R.A.P. 312, 42 Pa.C.S. § 702(b) ); or (4) a collateral order ( Pa.R.A.P. 313 ). See Pace v. Thomas Jefferson University Hospital , 717 A.2d 539, 540 (Pa. Super. 1998) (discussing the appealability of orders).

We next consider whether the order on appeal is a final order. Pennsylvania Rule of Appellate Procedure 341 defines final orders as follows:

(a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.

(b) Definition of final order. A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) RESCINDED

(3) is entered as a final order pursuant to paragraph (c) of this rule.

(c) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order ....

Pa.R.A.P. 341 (emphasis added). Thus, pursuant to Rule 341, an order is final if it disposes of all claims and all parties or if a statute expressly defines it as final. An Orphans' Court's confirmation of the final accounting of an estate, after exceptions have been filed and ruled upon, is the final order for purposes of appeal. In re Estate of Habazin , 451 Pa.Super. 421, 679 A.2d 1293 (1996). Moreover, we have stated that, in general, discovery orders are not final and are therefore unappealable. In re Estate of Moskowitz , 115 A.3d 372, 389 (Pa. Super. 2015) (quoting T.M. v. Elwyn, Inc. , 950 A.2d 1050, 1056 (Pa. Super. 2008) ).

Our review of the record reflects that the order on appeal is not a confirmation of the final account and that the estate and its assets remain under administration. Rather, the appealed order compels Appellant to satisfy a discovery request. Therefore, the order in question is not a final order under Pa.R.A.P 341.

We also consider whether the order on appeal is an interlocutory order that is appealable as of right.

Pennsylvania Rule of Appellate Procedure 311 addresses "interlocutory appeals as of right." Generally, discovery decrees do not give rise to an interlocutory appeal as of right under Rule 311. Estate of Moskowitz , 115 A.3d at 390. Consequently, the order on appeal directing discovery does not fall within the category of appealable interlocutory orders under Rule 311.

Next, we address whether the matter before us is an appeal from an interlocutory order by permission. Pennsylvania Rule of Appellate Procedure 312 addresses "interlocutory appeals by permission." Such permission must be sought from and granted by the appellate court under the rules set forth in Chapter 13 of the Rules of Appellate Procedure. Our review of the record reflects that Appellant never sought permission from this Court to appeal from the order in question. Consequently, no permission was granted allowing the appeal. Therefore, Rule 312 is not applicable to this matter.

We last turn to Pa.R.A.P. 313, which permits appeals as of right from collateral orders. Pa.R.A.P. 313(a) ; J.S. v. Whetzel , 860 A.2d 1112, 1116 (Pa. Super. 2004). For an order to be appealable under Rule 313(b), it must satisfy the three factors identified in the rule: "(1) the order is...