*1 FRIDENBERG, Anna E. ESTATE OF
Deceased. Bank,
Appeal N.A. of Wachovia Pennsylvania.
Superior Court
Argued March 2009. Aug.
Filed 30, 2009.
Reargument Denied Oct. Solano, A. Philadelphia,
Carl for appel- lant. Tesoro, M. Atty.,
Claudia Asst. Dist. Com., Philadelphia, for Participating Party. STEVENS,
BEFORE: KLEIN and KELLY, JJ. KELLY, BY
OPINION
J.:
¶ Appellant,
Bank, N.A.,
Wachovia
ap-
peals from the
Philadelphia
order of the
County
Pleas,
Court of Common
Division, denying
application
certain commissions on
trust
compensation for trust administration ser-
vices. Appellant challenges
Court’s
conclusion
such commissions
were barred
In re Williamson’s
(1951).
368 Pa.
phans’ authorized the demolition of ¶ 6 Under section 45 of the Fiducia Surgical Memorial Build- (the 7,1917, ries Act of P.L. 447 June surgical that a of a ing and directed floor Act),4 in force at the time of the death of proposed patient designated care tower be Fridenberg, prohibited Ms. a trustee “Fridenberg Surgical Floor.” Memorial 5, 1981, receiving adjudication In an dated March second “commission” for that the in- previously Court directed trust services if the trustee had support come from the trust be used to received for services as ex surgical floor. of the will which the ecutor under testa mentary trust was established. The 1917
¶ Appellant
eventually
Wachovia
be-
10,
repealed
April
Act was
the Act of
corporate
Fidelity—
came the
successor to
(1945 Act).
1945,
However,
P.L. our
Philadelphia
Company.
January
Trust
On
in the case of In re Wil
12, 2006, following the death of another
that the
supra,
liamson’s
decided
trustee,
Taylor,
individual
Bruce
Wachovia
repeal
of section 45
the 1945 Act was
filed the third account under the Friden-
retroactively,
as a
trust,
applied
to be
denial
berg
covering
period from the
Fourteenth
through
account in
of due
under
end
the second
2005,
Taylor’s
March
the date of Mr.
Amendment to the United States Constitu-
Taylor
appeal.
for Mr.
not at issue
none of which are at issue in this
3. Commissions
appeal.
in this
2.See
In re: Articles Consolidation
Medical Cen-
Formation
the Albert Einstein
against
prohibition
4. The
dual commissions
ter,
5, 1952,
Court of Common
Act of 1917 was
section 45 of the Fiduciaries
Pleas,
Term, 1951,
December
No. 2918. The
prohibition
a re-enactment of a
con-
itself
other consolidated entities were the Mount
in the Act March
P.L. 53
tained
Hospital
Sinai
Association
the Northern
(the
Act).
Hospital
Liberties
Association. See id.
implied
theory
tion on a
contract.
Id. at
cial and modern
changed
conditions have
greatly
so
Act
since the
of 1864 and the
Act of
supra, that we should limit
case,
Leg-
After the Williamson
Williamson
and Scott
*3
law,
again amended the
enacting
islature
Estate,
and
supra,
[In re] Coulterl’s]
(1953
1, 1953,
190,
May
the Act of
P.L.
(1954)]
209,
Pa.
108
681
[379
A.2d
to
Act), which,
Act,
sought
like the 1945
also
facts,
their
and under our King’s Bench
Later,
to allow “dual commissions.”
powers,
powers granted
and under the
Estate,
Supreme
in In re Scott’s
by
20, 1891,
to
May
us
the Act of
[ P.L.
]
332,
(1965),
Pa.
8. The Act became effective in 120 No- Brief, 19); Appellant's also at 14— vember 2006. As the Act was not in effect (Commonwealth’s 12-18); (Amicus period Appellant until after the for which Pennsylvania Curiae Brief of Bankers Associa- compensation, directly seeks the statute is not tion, 6-9). is, however, appeal. at issue in this It re- ferred to Court and in the 10. Because the trust includes assets attribut- parties, powers appointment briefs both as well as the amicus able to and a rever- (A) THE INTEREST ALLEGEDLY 12 On June Attorney General’s ob- BY THE sustained the DENIED LEGISLATION requested payment RIGHT, jection, holding the A SUPPOSED EMBOD- IS in the matters “barred the decisions be IED IN RE- LEGISLATION ]; ]; [ Estate Scott Estate [ of Williamson PEALED IN TO RECEIVE and, Op. at (Orphans’ Estate [ ].” Ehret WITHOUT SERVICES TRUSTEE 12). Otherwise, it confirmed the account REASONABLE PAYING COMPEN- rejected absolutely. THEM; FOR AND SATION case law been that this had (B) THE EX- LEGISLATURE legislative superseded by the numerous THAT PRESSLY PROVIDES ITS amendments, Legisla- concluding: “The STATUTES AUTHORIZING COM- ture could not do 1982 and 2006 what MISSIONS FROM PRINCIPAL constitutionally prohibited doing BE APPLIED SHOULD RETROAC- 14.). (Id. in 1945 This and 1953.” TIVELY, AND IT AHAS RATION- timely appeal followed. AL BASIS FOR SO PROVIDING? questions three on raises *5 (3)MAY THE ATTORNEY GENER- appeal: AL, DE- WHO IS CHARGED WITH (1) PROBATE, THE ES- UNDER ENACTED FENDING STATUTES CODE, TATE AND FIDUCIARIES LEGISLATURE, BY THE INSTEAD WHICH AUTHORIZES PAYMENT THAT THE ADVOCATE LEGISLA- OF REASONABLE COMPENSATION BE TION DECLARED INVALID OF INCOME OR TO TRUSTEES OUT ENFORCED, AND NOT AND PRINCIPAL, A A IS TRUSTEE OF THEREBY OPPOSE PAYMENT OF WHO RE- [sic] PERPETUAL TRUST BY COMMISSIONS AUTHORIZED CEIVED FROM COMMISSIONS THE LEGISLATION? THE PRINCIPAL AS EXECUTOR OF THE SETTLOR’S ESTATE IN 1941 2). Brief, (Appellant’s PROHIBITED FROM RECEIVING ¶ 14 Our standard of review for deci- COMMISSIONS FROM PRINCIPAL Orphans’ sions of the Court is well settled. THE OF TRUST FOR TRUSTEE reviewing SERVICES RENDERED AFTER EN- a decree entered When OF THE PEF CODE? Orphans’ ACTMENT this Court must de- (2) termine whether the record is free from AP- DOES THE RETROACTIVE legal factual find- error and the court’s PLICATION OF LEGISLATION AU- ings supported by are the evidence. Be- THORIZING COMMISSIONS SUCH cause the Court sits as the A VIOLATE TRUST BENEFICIA- fact-finder, credibility determines RY’S DUE PROCESS RIGHTS UN- and, review, DER THE on we will FOURTEENTH AMEND- witnesses credibility MENT THE not reverse its determinations TO UNITED STATES CONSTRUCTION, WHERE: absent an abuse of that discretion. interest, 3). sionary only Stipulation, about consists of Gener- 27% Fridenberg’s original fee, assets from Ms. estate oppose al does not the remainder of the Fidelity-Philadelphia on which and concedes that a successor trustee "would Trust received an executor's fee. charging getting prohibited not be from stipulation General re- (Com- additional commissions.” scope opposition duced the monwealth’s $46,731.64, fee. or of the overall trust 27% However, give we are not constrained to ceived constraint of prece- Williamson as Ehret, any resulting the same deference to le- authority. dential See supra, at conclusions. Where the rules of law gal Secondly, light of the lengthy leg- palpably on which the court relied are history islative recited wrong clearly inapplicable, we will Court documenting unfaltering itself reverse the court’s decree. intent of the Legislature permit “dual commissions,” previously even for Bouks, estab- In re Estate 5-6 (citations trusts, lished Court’s conten- (Pa.Super.2008) quotation omitted). clearly tion that the “commissions [ ] marks unequivocally barred well-estab- here, 15 In on appeal Appel- the case law,” 15), (Orphans’ lished Op., is argues requested lant fees are conclusory more than compelling. Third- permitted by plain language of at least ly, Court’s reliance on Wil- statutes, five different enacted subsequent preclusive liamson as 2006, allowing reasonable legislation misplaced; trustees, for trust services to executor/ only 1951 was addressing It explicitly several retroactive. asserts statute. The Williamson Court approval of the contested trust fees not, to, could attempt and did not address pursuant to such would not of- the constitutionality of the future PEF fend the federal due clause. We it, Code or amendments to let alone later agree. most, statutes. At pro- Williamson could Further, it contends that the Attor- analytic principles vide to apply to the ney improperly challenged General *6 Nevertheless, subsequent legislation. the constitutionality legislation enabling of the Orphans’ engage any Court declined to in of the fees issue rather than analysis subsequent legislation. of the it, defending and the trial court erred in objections. sustaining Ap- such Because Orphans’ by 19 The Court erred pellant failed to this issue with raise substituting summary its conclusion for trial it preserve properly court or for our analysis. constitutional It is well-settled review, we find it to be waived. presumed that is to be consti Preliminarily, 17 we observe that in lawfully tutional. “A enacted statute com dispute. this case no material facts are in a presumption constitutionality mands Court noted that “the Attor- clearly, upheld and should be unless it ney object General does not to the reason- palpably, plainly and the consti violates questioned payments!.]” ableness of the Teeter, tution.” Commonwealth v. 11). Rather, (Orphans’ Op., Ct. as al- (Pa.Super.2008) (emphasis A.2d observed, ready con- 1922(3) § See also Pa.C.S.A. payments cluded that were barred Wil- (presumption Assembly that General does liamson, Ehret-, Scott and not intend to violate Constitution of Unit further not in “[i]t concluded Commonwealth). ed States or of Fur or, any charity, the best interest of thermore, doubts are to be resolved “[a]ll public, to let Trustees collect commissions finding legislative in favor of that the en clearly unequivocally which are and barred passes actment constitutional muster. (Id. by well-established law.” Moreover, statutes are to be construed First, possible uphold whenever their consti express we observe that the Commonwealth, tutionality.” v. intent of Ehret to limit Williamson and DePaul (Pa.2009) (citations per- Scott to their facts eliminated the and omitted). quotation concurring dissenting) (emphasis internal marks & in Therefore, in conclud- event, any original). Williamson is dis- ing that in Legislature could not do “[t]he tinguishable on its facts. constitutionally and 2006 what was ¶ 21 In implied the instant case the con 1953,” in prohibited doing 1945 and tract issue is moot. Einstein Medical Cen 14), (Orphan’s atOp., erred assum- ter, “remainderman,” object does ing controlling still Williamson was request.12 to the trust fee authority by failing give due defer- question process there can be no of a due presumption ence to the of constitutionali- ty, premised violation on an disregarding abrogation as well as the un- of an equivocal intent of our to implied fees, by change contract trust abolish compensation prohibition. the dual the facts assumed in Williamson.13 For reasons, all Appellant’s argu these first
¶ Moreover, apart we note that even ment merits relief. is entitled from Ehret’s limitation of Williamson to fees, requested facts, concededly trustee application of the rule in reasonable, highly problematical Williamson is here.11 for its ordi repeal Williamson struck down the of Sec- nary permitted services as under the stat interfering tion 45 as rights by with vested utes effect at the time the services were trustee, implied contract between the rendered. tenant, life remaindermen violation ¶ 22 In question, Appellant its second Bell, who, process. of due Then-Justice specifically argues that application previously noted later wrote both Scott subsequent legislation authorizing pay- Justice, commented, and Ehret as Chief ment of requested, the trust fees even to “Concededly there never was writ- trust, an of a pre-1945 executor/trustee specific contract; ten or oral or and the does not violate the due cause of implies majority contract which the the Fourteenth Amendment. defining which it As the refrains from is noth- question, effect, ing merely but a creation or invention of the addresses the Williamson, (Bell, J., supra Court.” at 57 underlying Williamson, assertions in *7 ists; indeed, Wachovia, 11. We majority Appellant note that the corpo- Williamson its successor, Legislature general called on the to revise the rate acquired by has now been system fiduciary compensation, Fargo. even while Wells invalidating previous Legisla- a effort of the Williamson, supra ture to do so. See sure, at 54. Attorney 13.To be the General now ar- gues advocating general he is on behalf of the Similarly, argument rights public, (Com- the merely specific that the charity. a expectations Brief, parties, 31-33). including of the the monwealth's at 27 n. How- ever, compensation, scheme of Attorney were fixed forever the argue General does not that comport does not implied with the other general there is an contract with the Hospital facts of the public precluding case. The Jewish Asso- the of the at fees ciation, original residuary beneficiary Attorney argue issue. Nor does the General trust, longer requested no exists as It objectively such. the fees unreason- consolidated into the contrary, Albert Einstein Medical Attorney able. To the General Center. The Appellant trust was established for the resign, concedes that if were to perpetual upkeep Fridenberg of The compensation Memori- “some additional Surgical Building, al longer probably which paid also no would have to be to its succes- Orphans' (and exists. The Court let likely it be demol- sor in the future most neither ished; beneficiary Attorney is now the Einstein nor the General would Surgical original 29) Memorial grounds object).” Floor. The Fidel- have (empha- at {Id. ity-Philadelphia Company longer Trust no ex- sis Williamson is really only generalized issue is not controlling precedent. second Appellant of the re-phrasing first issue. gives independent no argues legislative changes also that reason for the due assertion. Nei- compensation are reasonable as permitting Indeed, ther does the Commonwealth. as recognition changes of the dramatic below, noted Attorney General dis- (Appel- nature of trust administration. claims challenge to “the constitutional- 32). Brief, lant’s This tracks ity any legislative enactments on then- the observation Chief Justice Bell made (Commonwealth’s 30). Brief, face.” id., supra, Ehret See in 1967. at 421. Therefore, Appellant’s second issue also purposes Appellant’s For our current merits relief. point may simply be summarized as as- Finally, Appellant questions wheth- serting paradigmatic shift from mere General, er “the who principal, charged conservation of with the inciden- is income, production tal of limited to a total with defending statutes enacted theory return of trust administration Legislature,” may “instead advocate that appreciation which seeks be declared invalid and not production well as of income from a vari- enforced, thereby oppose payment ety of financial and investment instru- commissions authorized the legisla- ments.14 maintains that 2). tion?” (Appellant’s increase substantial administrative ¶ 25 Preliminarily, we observe that Ap- duties for trustees forms a rational basis pellant claims it through raised this issue legislative for the amendment of restric- “filing of the third account and in its compensation tions on trustee un- created in response brief to the General’s dating der different economic conditions (Id., objections.” at 39 n. Appellant’s back Civil War era. Neither the actually citation refers to its Memorandum the Attorney Court nor General in Support of Law Compensa- Trustees disputes this assessment. we tion, (Memorandum). dated June here, as the Williamson merely note A did, review of this Memorandum that confirms prerogative Court itself it is the Appellant’s argument merely of the to amend the law actual respond changes.15 Authority to such “[t]he Gen- (Memorandum, eral is not absolute.” For the already reasons discussed 198a). 6/3/08, R.R. The Memoran- issue, Appellant’s first we with dum asserts that trustees are entitled to Appellant’s second issue. We further note services, reasonable for their *8 that Orphans’ the Court’s conclusion of Attorney and that the General does not unconstitutionality, tracking language the power” agree- have “absolute veto over the Williamson, premised expressly by charity. ments made a It then cites to exclusively on the Court’s read- Williamson, decisions, Scott, a series of Court and Ehret. ing of 12-13). However, binding examples on this as of court Op. at we Ehret, that, already have approval concluded under of trustee over the true, point, change 14. For a fuller discussion of this see sion. If this be such radical Pennsylvania amicus curiae brief of Bankers should be made the and not Association, pages at 18 to 30. Williamson, supra (empha- at the Court.” original). sis in may present 15. “It well be that conditions system requires general demand that the revi- (See id., any pre-[ at ... statutes ... objections. ] the Code Attorney General’s (Id. are unconstitutional as written.” 10-12). 31). Rather, argues the Commonwealth in this addresses Nothing law, in that “as a matter of a case with appeal, raised on specific question the ramifications, possible constitutional authority, namely, General’s expected General is to base his non, constitutionality challenge vel caselaw, litigation position ‘controlling’ on fact, only In reference to statute. way goes. whichever That is what he constitutionality apart pre from the issues (Commonwealth’s Brief, at did here.” itself, in the entire sented Williamson 33).16 observed in Supreme As Memorandum outside of the referenced Ehret, pointedly “Sir Edward Coke stated: and, vague candidly, rather pages, is a law,’ the life of the to which I ‘Reason is obscure, passing “providing reference to faileth, add: “Where reason both Justice system representation virtual for a ” Respect imperiled.’ for the Law are will address such constitutional issues as trusts, Estate, supra unlike Ehret’s 421. We note may respect there be with Trust, Coke, Ehret, all inter quoted citing where not 14). (Id., maxim, By ests have vested.” its own full legal an ancient text of terms, passage excludes the Friden- which is also relevant here: “Ratio est Finally, it berg anima, trust. the third account legis mutatur legis mutata ratione constitutionality at (“Reason self does not address law; et lex.” is the soul of the failed to all. has when the reason of the law has been that it demonstrate raised the issue changed, changed.”). the law is also authority challenge Attorney General’s ¶ 28 Order reversed. Case remanded fact, In constitutionality of statutes. disposition accordance with this did not address this jurisdiction opinion. relinquished. Panel Accordingly, Appellant’s third question. 302(a) (“Is Pa.R.A.P. issue is waived. See KLEIN Judge dissenting files a court are sues not raised lower opinion. waived and cannot be raised for the first KLEIN, BY appeal.”); time on see also Commonwealth DISSENTING OPINION (Pa.Su Strunk, v. J.: (“Even
per.2008)
issues of constitutional
majority’s
I
Although agree that the
dimension cannot be raised for the first
logical
preferable
outcome is both
appeal.”).
time on
light
required
of a
the duties
trustee/ex-
ecutor,
¶27
I cannot
that In re Ehret’s
Moreover,
Gen
(1967),
427 Pa.
dual ELECTRONIC REGIS SYSTEMS, INC., taking TRATION barred fee from as Nomi although Mortgage nee for American changed trust the rule before Home Ac ceptance, Inc., against the fee the trust was American Home d/b/a Therefore, Mortgage Servicing, Inc., claimed. as much as I Appellee principle majority, with the I believe we v. required to follow the rule until the Kenneth L. RALICH and Karen Supreme specifically allows us to do Ralich, Appellants. R. otherwise. I must dissent. Superior Pennsylvania. Court of Briefly, I note that Ehret’s Estate does not overrule Estate or Williamson’s April Submitted 2009.
Scott’s Estate. Ehret’s ap- Aug. Filed 2009. bank, pellant never an executor of the Reargument Denied Oct. estate, sought compensation for its work as trustee for the estate. the law- Until
suit, the bank had never paid any been
compensation or commission for its work. situation,
In this Supreme Court al- fairly
lowed the bank to compensated be
for the work it had performed. Ehret’s
Estate did not involve the dual commis-
sions issue Williamson’s Estate and
Scott’s which are at issue here.
The Supreme at least as it was
constituted 1967 when Ehret’s Estate decided, may have been signaling its
willingness to revisit the dual commission
rule, reason, but for whatever it never has.
¶ 3 The issue of retroactive application
of the Acts of 1945 and 1953 has been negative by
answered Scott’s I
and do not believe that liberty we are at ignore that decision. IWhile have no majority’s otherwise with the
analysis conclusion, we have no au-
thority to reach that conclusion. It is for to change its rule.
¶ Therefore, I respectfully dissent.