author: HERRON, J.,

text:
    In re Archdiocesan Cemeteries

      C.P. of Philadelphia County,
    No. 1366 NP of 2013

      Russell J. ResslerandKevinR. Boyle, for Archdiocese of Philadelphia.

      Denis J. Lawler, for StoneMor.

      Lawrence Barth, Senior Deputy Attorney General.
    February 4, 2014 —
   HERRON, J.,

The petition filed by the archdiocese of Philadelphia raises the issue of whether entering into a lease agreement and a management agreement with a third party cemetery company for the maintenance, management and operation of thirteen archdiocesan cemeteries constitutes a diversion of property from the purposes, uses and trusts to which these cemeteries have been lawfully dedicated. In entering these agreements, the archdiocese emphasizes its intent to maintain ownership of the cemeteries as well as their Catholic character. By entering into lease and management agreements with StoneMor Operating LLC, StoneMor Pennsylvania LLC, and StoneMor Pennsylvania Subsidiary LLC. (collectively “StoneMor”), the archdiocese endeavors to mitigate the administrative and financial burdens that its own management of the cemeteries might otherwise impose.

After careful consideration of the petition, the addendum, the certification of service, and the hearings, this court concludes that the archdiocese’s proposed lease and management agreements with StoneMor do not constitute a diversion of property from the purposes, uses and trusts to which they have been lawfully dedicated. Whether these agreements are financially prudent is beyond the scope of this court’s review.

Procedural History

A critical, initial concern raised by the archdiocese’s petition to transfer management of its thirteen cemeteries was to assure that all parties in interest had notice of the petition and any hearing. Because of the delicate issues and concerns raised by this petition, this court on October 29,2013 issued a decree requiring that the notice set forth in the petition’s “advertisement” be given to lot holders in all 13 archdiocesan cemeteries listed in the petition as follows:

a. Publication in The Philadelphia Inquirer (a newspaper of general circulation in Philadelphia and surrounding counties) over three consecutive weeks;
b. By posting on or near the front door of the main cemetery office or other prominent place at each of the cemeteries;
c. By posting on or near the front door of the nearest Catholic Church to each cemetery location referenced in the petition; and
d. By inserting the advertisement in any publication of the Catholic Church disseminated to parishioners in the geographical area where the cemeteries are located on at least one occasion prior to a hearing.

A hearing was scheduled for December 11, 2013 where the archdiocese was required to certify that it had provided the requisite notice. At that December hearing, however, this court ordered a continuance until January 6, 2014 to allow for additional good faith efforts to provide adequate notice to individuals affected by the proposed lease of these Catholic cemeteries.

At the beginning of the January 6, 2014 hearing, counsel for the archdiocese outlined its various efforts to notify interested parties about the petition and hearing. A written certification submitted by petitioner’s counsel also outlined these efforts and is attached. Counsel noted that in addition to the actions outlined in the certification, there had been news stories in the Delaware County Times as well as on KYW during the weekend prior to the January hearing. The advertisement was posted in its original form in the Philadelphia Inquirer over three consecutive weeks (November 8, November 15 and November 27). The advertisement was also posted on or near the front door of the main cemetery offices or other prominent places for several weeks prior to the initial December 11, 2013 hearing. Beginning the week of November 23, the advertisement was inserted into the parish church bulletins in the areas near the cemeteries in the two consecutive weekends prior to the December hearing.

In response to the December 11, 2013 order, the archdiocese for the second time posted a revised advertisement in the Philadelphia Inquirer over three specific weeks: December 20, 2013; December 27, 2013 and January 3, 2014. The revised advertisement gave notice of the new hearing date, the existence of a dedicated website and advised that objections could be made in writing filed with the court or by appearing at the January hearing. On December 20, 2013, the archdiocese website page established a prominent link giving notice of the public hearing, and making available for downloading such documents as: the petition; notice of the hearing; a list of frequently asked questions; the lease agreement; the management agreement; a side letter regarding the trust; a side letter regarding employees and a news release. A notice of the new hearing date was also posted on www. Catholicphilly.com website. In addition, good faith efforts were made to insert the advertisement in the bulletins of all the active archdiocesan parishes on December 22, 2013, December 29, 2013 and January 5, 2014. Finally, around December 19, the revised bulletin was mailed to cemeteiy plot owners who are currently receiving invoices.

In response to these notices, the archdiocese received more than 200 communications, by phone or letter. It forwarded the written correspondence to this court. In response to his notice, the attorney general issued a letter of no objection. Upon questioning by this court, Lawrence Barth, senior deputy attorney general, clarified that with this letter of no objection the attorney general’s office was taking the position that the proposed transactions did not constitute a diversion of property from its dedicated purposes.

Under the proposed transactions, the archdiocese and StoneMor would enter into a lease agreement for the following eight cemeteries:

Holy Sepulchre Cemetery in Philadelphia, Pennsylvania Calvary Cemetery in West Conshohocken, Pennsylvania SS. Peter and Paul Cemetery in Springfield, Pennsylvania All Saints Cemetery in Bucks County, Pennsylvania All Souls Cemetery in Coatesville, Pennsylvania St. John Neumann Cemetery in Chalfont, Pennsylvania Resurrection Cemetery in Bensalem Pennsylvania Holy Savior Cemetery in Chester County Pennsylvania

The introductory provisions of the lease agreement affirms that the “landlord desires to pursue projects which provide for the maintenance, upkeep, improvement and continued mission of the cemeteries in a manner consistent with the standards, customs and practices of the Roman Catholic Church.” The lease requires the tenant to make an upfront rental payment of $53,000,000 to the archdiocese. Beginning in the sixth year, the tenant would be required to pay a fixed rent of $1,000,000 per year with increases periodically until the 35th lease year. The intricate 60 page lease agreement contains various provisions, including the tenant’s right to propose to develop non-christian and/or non-sectarian burial grounds at Holy Savior Cemetery, All Saints Cemetery and All Souls Cemetery. These proposals are subject to the landlord’s consent which shall not be unreasonably withheld. During the first two (2) years of the lease, there shall be no non-catholic burial at the cemeteries, except to the extent that the landlord grants permission in accordance with its custom and practice. Approximately 5% of the current burials are non-catholics. After two years, the tenant shall have the right to conduct Christian burials in catholic burial gardens subject to the landlord’s consent. The lease gives the tenant the right to request the sale of undeveloped property in the cemeteries, but the landlord has the absolute discretion to reject that proposal. If the landlord agrees to the proposed sale, the tenant is required to pay it 51% of the net proceeds as additional rent. With the written consent of the landlord, the tenant shall have the right to construct and maintain cell phone towers in a reasonable location and reasonable manner. Any revenues from such structures would be shared as set forth in Art. 11, Section 2.10.

The archdiocese and StoneMor also proposed to enter into a management agreement for the following five cemeteries:

Holy Cross Cemetery in Yeadon, Pennsylvania Immaculate Heart of Mary Cemetery in Linwood, Pennsylvania St. Michael Cemetery in Chester, Pennsylvania Cathedral Cemetery in Philadelphia, Pennsylvania New Cathedral Cemetery in Philadelphia, Pennsylvania

The management agreement charged the tenant with “[maintaining the existing character of the cemeteries and keeping in good order, condition and repair all facilities and properties within the cemeteries, including access roads, streets, sidewalks and curbs, in a manner which is consistent with the current design and appearance of the cemeteries and with the Standards of Care for the Catholic Cemeteries of the Archdiocese of Philadelphia....”

The financial considerations motivating the archdiocese’s decision to enter into the lease and management agreements were spelled out during the hearing by Timothy O’Shaughnessy, chief financial officer of the archdiocese of Philadelphia since April 2012. He noted that around 2011a financial review by the archbishop uncovered two compelling financial issues confronting the archdiocese. First, the archdiocese was operating with a significant deficit in the range of $ 15 to $20 million a year. In response, the archdiocese took steps to reduce this deficit to $5 million on an annual basis. The second financial issue facing the archdiocese is its unfunded liabilities in excess of $300 million which Mr. O’Shaughnessy characterized as “the result of financial mismanagement that took place over a period of time.” In broad terms, Mr. O’Shaughnessy identified four components of these liabilities: the lay person pension plan as of June 30,2013 was underfunded by approximately $140 million; the priest pension plan is underfunded by approximately $90 million; insurance liability is underfunded by $30 million, and; approximately $80 million is owed to the trust and loan fund which is the parish deposit money.

To reduce these deficits, the archdiocese has taken various actions. In June 2012, it laid off 50 people. It sold a retirement home for clergy in Ventnor, New Jersey. It sold the archbishop’s residence on City Line Avenue. It now seeks to address the financial costs of operating its thirteen cemeteries. A financial review of the cemeteries disclosed that they had a cumulative operating loss of around $6 million over the past three fiscal years. To stem these losses, the archdiocese engaged the international financial accounting and advisory firm, KPMG, to review potential transactions, including the proposed agreements with StoneMor. An internal finance council also analyzed this StoneMor transaction. In the summer of 2012, the archdiocese began a series of negotiations, and by that fall it focused exclusively on striking an agreement with StoneMor.

It is of critical importance that under the terms of the transaction with StoneMor, Mr. O’Shaughnessy testified, the archdiocese retains ownership of the cemeteries. Of the total thirteen archdiocesan cemeteries, the five that will be subject to a management agreement “are more or less full today and won’t present much opportunity for future sale of burial rights. For the most part, they need to be cared for at this point.” The other eight cemeteries will be subject to a lease agreement. The archdiocese will receive an upfront payment of $53 million for StoneMor prior to their commencing operations. Beginning from year 6 through year 35 the archdiocese would receive additional rents with a cumulative value of $36 million. Mr. Shaughnessy testified that StoneMor is a large cemetery operating company for over 250 cemeteries in 27 states and Puerto Rico. The archdiocese plans to use the $53 million upfront payment from this transaction to reduce the shortfall in the trust and loan fund by $30 million, with the balance split evenly between the insurance fund and priest pension fund.

After Mr. O’Shaughnessy completed his testimony, those present at the hearing with objections were invited to testify. One witness, who identified himself as a funeral director who sells vaults and caskets, expressed criticism of any sale of cemetery property where the archdiocese would receive 51% of the net proceeds. He was also concerned about allowing burial of non-catholics in a catholic cemetery without the customary letter from a priest. Another witness stated that she had concerns StoneMor might have access to the Perpetual Care trust fund, despite testimony that those funds would go into an irrevocable trust. Another witness expressed her concern that plots where her relatives were buried might be sold. Other witnesses stated their concern that the catholic church was abandoning its cemeteries which are a sacred trust or that the installation of cell phone towers would imperil the peace and quiet of the cemeteries.

Legal Analysis

Beyond its precise legal issues, the archdiocese’s petition implicates delicate issues of faith and mortality. This is reflected in the various letters that were sent directly to this court or to the petitioner. It is nonetheless essential to keep a sharp focus on the applicable legal standard. It is well established that “the law of Pennsylvania prevents a diversion of church property from a use to which it was originally dedicated to another inconsistent use.” Saint John the Baptist Greek Catholic Church of Allentown v. Musko, 448 Pa. 136, 142, 292 A.2d 319, 322 (1972) (citation omitted). This principle has been embraced by the legislature as set forth in 10 P.S. section 81 which provides:

Whensoever any property, real or personal, has heretofore been or shall hereafter be bequeathed, devised, or conveyed to any ecclesiastical corporation, bishop, ecclesiastic, or other person, for the use of any church, congregation, or religious society, for or in trust for religious worship or sepulture, or for use by said church, congregation, or religious society, for a school, educational institution, convent, rectory, parsonage, hall, auditorium, or the maintenance of any of these, the same shall be taken and held subject to the control and disposition of such officers or authorities of such church, congregation or religious society, having a controlling power according to the rules, regulations, usages, or corporate requirements of such church, congregation, or religious society, which control and disposition shall be exercised in accordance with and subject to the rules and regulations, usages, canons, discipline and requirements of the religious body, denomination or organization to which such church, congregation or religious society shall belong, but nothing herein contained shall authorize the diversion of any properly from the purposes, uses, and trusts to which it may have been heretofore lawfully dedicated or to which it may hereafter, consistently herewith, be lawfully dedicated. 10 P.S. §81 (emphasis added).

Apotential threshold issue is whether an Orphans’ Court in Philadelphia has jurisdiction over the management of cemeteries located in outside counties. Upon request, the parties convincingly addressed this issue in careful, exhaustive briefs. They argue that the archdiocese is an unincorporated nonprofit entity that is analogous to either a trust or a nonprofit corporation. While both analogies have a certain merit, the trust analysis is more compelling and consistent with the relevant analysis under 10 P.S. §81.

In its brief, the archdiocese notes that it was established in 1873 for charitable and religious purposes. It was never formally incorporated. According to StoneMor, “[tjitle to the cemeteries was acquired over the years by deeds in the names of various bishops and archbishops in their official capacities on behalf of the archdiocese.” Under the recent amendments of the Pennsylvania Uniform Unincorporated Nonprofit Association Law, 15 Pa.C.S. A. §§ 9111 and 9115(b) effective September 9, 2013, the acquisition of these properties is akin to a trust relationship for the benefit of the archdiocese as an unincorporated association. Nonetheless, section 9111 of the Pennsylvania Uniform Unincorporated Nonprofit Association Law specifically states that “[njothing in this chapter shall be deemed to repeal or supersede section 7 of the act of April 26, 1855”(10 P.S § 81), which are the provisions the archdiocese invokes in its initial petition seeking a determination that its proposed agreements with StoneMor do not constitute a diversion of charitable assets.

Under the PEF code, this Orphans’ Court clearly has jurisdiction over inter vivos trusts. See 20 Pa.C.S. §711(3). When a court has jurisdiction over a trust, the PEF code provides that venue shall be where the situs of the trust is located. 20 Pa.C.S. § 722. In this case, that situs is Philadelphia, which is the headquarters for the archdiocese. Moreover, according to StoneMor, all of the deeds ofthe cemeteries are titled in the name of archdiocese or in the name of the archbishop at the time the cemetery was purchased. The archdiocese’s petition asks for a determination as to the contractual relations between the two parties in the management of the cemeteries. It does not implicate a sale or transfer of title to that property. Consequently, it is an action in personam and not in rem over which this court may exercise jurisdiction. See, e.g. Stefanick v. Minucci, 460 Pa. 574, 576, 333 A.2d 920, 922 (1975)(distinguishing between an in personam action to compel an agreement of sale for real property from an in rem action to quiet title); Esposita v. Peden, 9 Pa. D & C 3d 712, 717 (Ct. Common Pleas Somerset Cty. 1978) (“[A]n action for specific performance of a contract is a transitory in personam action”).

Although both parties offer the alternative view that the archdiocese be analogized to a nonprofit corporation, that approach leads to serious ambiguities under 20 Pa.C.S.A § 726. This is because Section 726 provides that venue for a nonprofit corporation would be either in the county where the registered office is located or in the absence of such registered office, “in a county where any property held or controlled by the nonprofit corporation is located.” Since the archdiocese appears to admit that it has no registered office, Section 726 would appear to root venue in the diverse counties where the cemeteries are located. Another PEF Code section not cited by the parties is 20 Pa.C.S. § 727 which provides that venue for cemetery companies “shall be in the county where the burial ground, or any part thereof, is located....” It is well established, however, the claims of improper venue may be waived. See, e.g. Pa.R.C.P. 1006 (3)(e); Zappala v. Brandolini Prop. Mgmt. Inc., 589 Pa. 516, 538, 909 A.2d 1272, 1285 (2006).

In this case, both parties have submitted themselves to the jurisdiction of this court, waiving any claims of improper venue which are, of course, distinct from jurisdiction. For all of these reasons, the statutory provisions supporting the trust analogy on the facts of this case offer the clearer, more convincing guidance.

In turning to the narrow substantive issue of whether the proposed lease and management agreements constitute a diversion of any property from the purposes, uses and trusts to which the cemeteries have been lawfully dedicated as set forth in 10 P.S. §81, the assurances of the attorney general are highly persuasive because he is charged with protecting such interests. See e,g., Com. v. Citizens Alliance for Better Neighborhoods, 983 A.2d 1274, 1277 (209)(“it is the well settled law of the Commonwealth that the attorney general is responsible for the public supervision of charities through his parens patriae powers”). Significantly, no formal objections have been filed of record to the archdiocese’s petition despite the extensive notice outlined at the beginning of the January 6, 2014 hearing. One of the concerns expressed by a witness at the hearing that StoneMor might access the Perpetual Care Fund was specifically raised by Mr. Barth’s questioning of Mr. O’Shaughnessy who confirmed that once that fund was transferred to an irrevocable trust, StoneMor would not have access either to it or its earnings. Moreover, he confirmed that such actions as building cell phone towers and the sale of property would be subject to the approval of the archdiocese. Finally, both the lease and management agreements state their intent to maintain the catholic nature of the cemeteries. In light of these assurances, the proposed lease and management agreements do not constitute a diversion of any property from the purposes, uses and trusts to which the cemeteries have been lawfully dedicated. The ultimate financial prudence of this transaction, of course, is beyond the scope of review.

Conclusion

As set forth in the contemporaneously issued decree, the petition filed by the archdiocese is approved.

FINAL DECREE

And now, this 4th day of February 2014, upon consideration of the petition filed by the archdiocese of Philadelphia, the addendum thereto, the hearings thereon, and for the reasons set forth in the contemporaneously issued decree, it is hereby ordered:

1. The lease agreement and management agreement between the archdiocese of Philadelphia and StoneMor Operating LLC, StoneMor Pennsylvania LLC, and/ or StoneMor Pennsylvania Subsidiary, LLC for the thirteen cemeteries set forth in the archdiocese’s petition do not constitute a diversion of any property from the purposes, uses, and trusts to which the cemeteries have been lawfully dedicated.
2. The initial upfront rental payment received by the archdiocese of Philadelphia from the lease agreement may be used by the archdiocese of Philadelphia to address existing obligations of the archdiocese (as set forth in the audited financial statements for the archdiocese of Philadelphia Office for Financial Services for the period ending June 20, 2012) so as to strengthen its overall financial condition in furtherance of its religious, charitable, and educational purposes.

Exceptions to this decree may be filed within twenty (20) days from the entry of the final decree. An appeal from this final decree may be taken to the appropriate appellate court within thirty (30) days from the entry of the decree. See Phila. O.C. Rule 7.1.A. and Pa. O.C. Rule 7.1 as amended, and Pa.R.A.P. 902 and 903.

      . 1/6/14 N.T. at 6-9.

      . 1/6/14 N.T. at 9-13.

      . 1/6/14 N.T. at 15 (A.G. Barth).

      . 10/15/13 petition, ex. D — lease agreement (hereinafter “lease agreement”) at 1.

      . Lease agreement, art. 11, §§ 2.1 & 2.2

      . 1/6/14 N.T. at 67 (O’Shaughnessy).

      . Lease, art. II, §§ 2.5 and 2.6.

      . Lease, art. II, §2.4.

      . Lease, art. II, §2.8

      . 10/15/13 Archdiocese petition, ex. E, management agreement (hereinafter “management agreement”), article II, § 2.01(a).

      . 1/6/14 N.T. at 47 (O’Shaughnessy).

      . 1/6/14 N.T. at 46-48 (O’Shaughnessy).

      . 1/6/14 N.T. at 46,49-50 (O’Shaughnessy).

      . 1/6/14 at 52.
      Q: So this is a lease and management agreement; it’s not a sale?

        A: Correct. We will retain ownership of the cemeteries. (O’Shaughnessy).

      . 1/6/14 N.T. at 51 (O’Shaughnessy).

      .1/6/14 N.T. at 52-57 (O’ Shaughnessy).

      . 1/6/14 N.T. at 73-80 (Francis Galante)

      . 1/6/14 N.T. at 88-92 (J. White). See also 116114 N.T. at 58 & 69 (T. O’Shaughnessy testifying that with the consummation of this transaction, the Perpetual Care Trust Fund of approximately $30 million would be transferred into an irrevocable trust and the interest would not be available to StoneMor).

      . 1/6/14 N.T. at 94-97 (A. Crescenzo)

      . 1/6/14 N.T. at 105 (P. Brennan) and at 99 (C. Landy).

      . 1/16/14 StoneMor brief at 2. See also 1/16/14 archdiocese brief at 3-4.

      . See, e.g. 15 Pa.C.S.A. § 9111 (b) and § 9115(b). The committee comment — 2013 to section 9115 notes that at common law a nonprofit association was not a legal entity and as a consequence “it could not acquire, hold or convey real or personal property.” This chapter changes the law to make such a transfer of property effective: “Sub-section 9111(b)(1) is not a retroactive rule, It applies to the facts existing when this chapter took effect. At that time, subsection (b)(1) applies to a purported transfer of property that under prior law could not be given effect at the time it was made. Subsection (b)(1) belatedly makes it effective when this subchapter took effect and not when made.” Committee comment-2013 to 15 Pa.C.S.A. §9111.

      . See 15 Pa.C.S. §9111(c)(l).

      . Section 726 provides: Venue of nonprofit corporations except as otherwise prescribed by general rules, in exercising the jurisdiction of the court over the property or affairs of a domestic or foreign nonprofit corporation, the venue shall be in the county where the registered office of the corporation is located or deemed to be located for venue purposes or, in the absence of a registered office within this Commonwealth, in a county where any property held or controlled by the nonprofit is located.” 20 Pa.C.S.A. § 726.

      . In somewhat tortured argument, the archdiocese’s brief states: “If the archdiocese had been incorporated, Section 726 of the PEF code unquestionably would require venue in Philadelphia County alone since the archdiocese’s registered office would be located in Philadelphia. It would be counterintuitive to conclude that, simply because the archdiocese is unincorporated, the legislature would require it to file actions in counties other than Philadelphia even though, similar to a corporation registered in Philadelphia, the archdiocese established its headquarters in Philadelphia.” 1/16/14 archdiocese brief at 9.

      . 1/6/14 N.T. at 15 (Lawrence Barth).

      . 1/6/14 N.T. at 69-70 (O’Shaughnessy).


source: Caselaw Access Project

author: STEINBERG, J.,

license: Public Domain

text:
    Commonwealth v. Rodriguez

      Kevin McCloskey, for Commonwealth.

      Karen Schular, for defendant.
    December 20, 2013
   STEINBERG, J.,

— On September 11, 2013, the defendant was arrested and charged with possession with intent to deliver (2 counts) and possession of a controlled substance (2 counts). The police recovered fourteen (14) bags of marijuana and fifteen (15) bags of cocaine from the defendant’s front left pocket after an encounter on the streets of Allentown.

A “motion to suppress” was filed by counsel for the defendant on December 2, 2013, alleging the interaction between the police and the defendant did not comport with the search and seizure protections afforded by the United States and Pennsylvania constitutions. On December 9, 2013, a suppression hearing was held during which Officer Ryan Koons and Officer Alex De La Iglesia, of the Allentown Police Department, testified.

Background

On September 11, 2013, the police were on alert due to a “rash” of armed robberies in the area of Refwal and Tilghman Streets. Officer De La Iglesia estimated the number of robberies to be ten (10), and they had occurred in the previous one (1) to two (2) weeks.

Officer De La Iglesia, who was in plain clothes and in an unmarked vehicle, observed the defendant and another male loitering under circumstances that led him to alert other officers. For example, the defendant was walking backwards, peering down every baker’s alley, and appeared “hyper-vigilant.”

Officer Koons, who was partnered with Officer Robert Flores, pulled their patrol vehicle next to the defendant’s location and engaged in some “chit-chat” with the defendant. Both officers remained in their vehicle until the defendant provided information that was inconsistent with Officer De La Iglesia’s observations. Specifically, the defendant claimed to have been at the Red Bam Bar and Grill, but he was observed loitering on Refwal Street.

Officer Koons exited the patrol vehicle and told the defendant about the discrepancy. The defendant responded that he had done nothing wrong. Officer Koons then asked the defendant to consent to a pat-down, and with that the defendant put his hands up, and said “that’s fine.”

Officer Koons did a pat-down of the exterior of the defendant’s left, front pants pocket, and it was immediately apparent what was inside the pocket. It was described as “squishy,” “cellophane” with individual “nubs.” Based upon his experience, which included hundreds of arrests, Officer Koons identified the items as drags. The cocaine and marijuana were recovered and the defendant was arrested.

Discussion

It has been frequently explained that there are three categories of interactions between citizens and the police: “mere encounters,” “investigative detentions,” which subject a person to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest; and “arrests” or “custodial detentions.” See Commonwealth v. Cottman, 764 A.2d 595, 598 (Pa. Super. 2000); Commonwealth v. Stevenson, 894 A.2d 759 (Pa. Super. 2006). The “‘mere encounter’ (or request for information), [] need not be supported by any level of suspicion....” Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa. Super. 2008) citing Commonwealth v. Mendenhall, 715 A.2d 1117, 1119 (Pa. 1998). A “mere encounter” is not so intrusive or intense to require constitutional protections. Commonwealth v. Boswell, 721 A.2d 336, 340 (Pa. 1998).

No constitutional provision prohibits police officers from approaching a citizen in public to make inquiries of them, and not every contact with the police constitutes a seizure. Commonwealth v. Coleman, 19 A.3d 1111, 1116 (Pa. Super. 2011)(Both the United States and Pennsylvania Supreme Courts have held that the approach of a police officer followed by questioning does not constitute a seizure.). See also Commonwealth v. Guess, 53 A.3d 895, 901 (Pa. Super. 2012). In Commonwealth v. Reid, 811 A.2d 530, 545 (Pa. 2002) cert. denied, 540 U.S. 850 (2003) quoting Florida v. Royer, 460 U.S. 491, 497 (1983), it was again explained that “[l]aw enforcement officers do not violate the fourth amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen ....” See also United States v. Drayton, 536 U.S. 194, 200 (2002).

A court must consider all the circumstances surrounding the encounter to determine whether a seizure has occurred. Collins, 950A.2d at 1046. No bright-line test has been created to determine whether the interaction was a mere encounter or seizure because of the “myriad of daily situations in which policemen and citizens confront each other on the street.” Mendenhall, 715 A.2d at 1120 quoting Terry v. Ohio, 392 U.S. 1, 12 (1968). Instead, the circumstances considered “to determine whether the demeanor and conduct of the police would have communicated to a reasonable person that he or she was not free to decline the officer’s request or otherwise terminate the encounter” include, but are not limited to, the following:

[T]he number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer’s demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked.

Collins, 950 A.2d at 1047 citing Commonwealth v. Beasley, 761 A.2d 621, 624-625 (Pa. Super. 2000). See also Commonwealth v. Bennett, 827 A.2d 469, 478 (Pa. Super. 2003)(Factors to consider include nature, length and location of detention; whether suspect was transported against his or her will; how far and why; whether the law enforcement officer showed, threatened, or used force; and the investigative method employed to confirm or dispel suspicions).

Here, the police had every right to approach and speak with the defendant on a public street without that conversation being considered a seizure. It was an encounter without any demonstrable force. The presence of two officers did not change the character of the interaction, particularly since only Officer Koons spoke with the defendant. The defendant was alerted to the reason for the officers’ presence, but was never treated as a suspect in the robberies. No weapons were displayed, nor were lights and sirens used as the officers approached in their vehicle. Moreover, no handcuffs or restraints were used, and the tone of Officer Koons was conversational.

The tenor of the interaction did change when the defendant provided a version of his activities that was inconsistent with what Officer De La Iglesia observed. However, the defendant was not detained, but was asked to consent to a pat-down.

“Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search [] provided they do not induce cooperation by coercive means.” Drayton, 536 U.S. at 201; Commonwealth v. Au, 42 A.3d 1002, 1013 (Pa. 2012). As stated in Drayton, and equally applicable in the within case, there ‘”was nothing coercive [or] confrontational’ about the encounter. There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.” Id. at 204.

When the underlying encounter is found to be lawful, the voluntariness of the consent to search becomes the exclusive focus. Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012); Commonwealth v. Bell, 871 A.2d 267, 273 (Pa. Super. 2005); Commonwealth v. Moultrie, 870 A.2d 352, 356 (Pa. Super. 2005). Generally, police officers may not conduct a warrantless search or seizure unless an exception applies. “One such exception is consent, voluntarily given.” Bell, 871 A.2d at 273. “Absent some coercive conduct by police, a request for cooperation or consent to search does not automatically convert an undeniably permissible encounter into an illegal seizure.” Commonwealth v. Smith, 732 A.2d 1226, 1231 (Pa. Super. 1999), aff’d 836 A.2d 5 (Pa. 2003), quoting Commonwealth v. Shelly, 703 A.2d 499, 502 (Pa. Super. 1997). See also Commonwealth v. Cleckley, 738 A.2d 427 (Pa. 1999) (Defendant, who was confronted with claim that he sold drugs, voluntarily consented to search of change purse in which cocaine was located); Commonwealth v. Roberts, 771 A.2d 23 (Pa. Super. 2001)(Officer’s interaction with defendant was a “mere encounter” even though officer told the defendant prior to securing his consent to search both his person and vehicle, that he believed he had just witnessed a drug transaction.).

A totality of the circumstances test leads to the conclusion that the pat-down search in this case was voluntary. Anon-exclusive list of factors that have evolved in considering whether a search was consensual include the following:

(1) the presence or absence of police excesses;
(2) physical contact or police direction of the subject’s movements;
(3) the demeanor of the police officer;
(4) the location of the encounter;
(5) the manner of expression used by the officer in addressing the subject;
(6) the content of the interrogatories or statements;
(7) whether the subject was told that he or she was free to leave; and
(8) the maturity, sophistication, and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will).

Commonwealth v. LaMonte, 859 A.2d 495, 500-501 n.4 (Pa. Super. 2004) quoting Commonwealth v. Strickler, 757 A.2d 884, 897-898, 901. See also Caban, 60 A.3d at 127.

The defendant’s reaction to the request by Officer Koons to conduct a pat-down was unequivocal and without hesitation. He raised his hands and said “that’s fine”. The consent was “not the result of duress or coercion, express or implied.” Moultrie, 870 A.2d at 359 quoting Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003) appeal denied 839 A.2d 350 (Pa. 2003). Although the defendant was not told that he had the right to refuse consent, the failure to do so is only one factor in evaluating the validity of a consent. Cleckley, 738 A.2d at 433. The totality of the circumstances leads to the conclusion that the defendant’s consent was the “product of an essentially free and unconstrained choice.” Moultrie, 870 A.2d at 359-360.

The plain feel doctrine also permitted Officer Koons to seize the non-threatening contraband. “[A]n officer may also properly seize non-threatening contraband detected through the sense of touch during a protective frisk for weapons.” Commonwealth v. Zhahir, 751 A.2d 1153, 1158 (Pa. 2000) citing Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). The plain feel doctrine requires the following: (1) the officer must lawfully be in a position to detect the presence of contraband; (2) the incriminating nature of the contraband must be “immediately apparent”; and (3) the officer must have a lawful right of access to the object. In re C.C., 780 A.2d 696, 699 (Pa. Super. 2001).

“Immediately apparent means that the officer readily perceives, without further exploration or searching, that what he is feeling is contraband.” Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000). Officer Koons was lawfully in a position to detect the drugs, and immediately recognized what was in the defendant’s pocket. Officer Koons, who testified that he has conducted numerous pat-downs, was confident from the items “tactile impression,” which included “individual nubs,” that drugs would be retrieved. His decision to seize the contraband was objectively reasonable. Zhahir, 751 A.2d at 1163. A police officer’s experience may be regarded as a relevant factor. Commonwealth v. Thompson, 985 A.2d 928, 935 (Pa. 2009). The experience of Officer Koons demonstrated a “nexus between his experience and the search [] or seizure of evidence.” Id.

For all the foregoing reasons, the seizure of the cocaine and marijuana was lawful, and the motion to suppress must be denied.

ORDER

And now, this 20th day of December, 2013, following a suppression hearing and review of caselaw submitted for this court’s review;

It is hereby ordered that the “motion to suppress” is denied.

      . 35 P.S. § 780-113(a)(30).

      . 35P.S. § 780-113(a)(16).


author: WILLIAMSON, J.,

text:
    In re Mutchler

      Daniel M. Corveleyn, for petitioners.

      James J. Conavoy, for respondents.
    January 7, 2014
   WILLIAMSON, J.,

— This matter comes before the court on the petition to remove executor/ prevent auction of decedent’s real property (“petition”) filed by Terry L. Mutchler, Star Donna Parker, H. Joseph Mutchler, heirs of the estate of Star J. Mutchler, a/k/a Star Jean Mutchler (“decedent”). The decedent died on February 9, 2013, leaving a will dated May 9, 2006 and a first codicil thereto dated December 20, 2010. The will and codicil were admitted to probate on February 20, 2013. Letters of testamentary were granted to David W. Mutchler (“executor”).

The heirs to the estate are the decedent’s seven (7) children: David W. Mutchler, Terry L. Mutchler, Linda J. Rushin, Scott M. Mutchler, Star Donna Parker, Charles J. Mutchler, and H. Joseph Mutchler. A hearing was held on December 23, 2013 on the petition to remove executor. This court previously cancelled the auction of real property by court order entered November 4, 2013 following the filing of the petition. We took testimony and are now prepared to render a decision.

Removal of a personal representative is determined as follows:

§3182 — GROUNDS FOR REMOVAL
The court shall have exclusive power to remove a personal representative when he:
(1) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law; or
(2) (repealed section)
(3) has become incapacitated to discharge the duties of his office because of sickness or physical or mental incapacity and his incapacity is likely to continue to the injury of the estate; or
(4) has removed from the Commonwealth or has ceased to have a known place of residence therein, without furnishing such security or additional security as the court shall direct; or
(4.1) has been charged with voluntary manslaughter or homicide, except homicide by vehicle, as set forth in sections 3155 (relating to persons entitled) and 3156 (relating to persons not qualified), provided that the removal shall not occur on these grounds if the charge has been dismissed, withdrawn or terminated by a verdict of not guilty; or
(5) when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office.

20 Pa. C.S.A. §3182.

The petitioners allege that the executor has mismanaged the estate or failed to perform a duty imposed by law. The petitioners also allege the executor does not reside in Pennsylvania and has not furnished security. The petitioners were also concerned with the distribution of some of the personal property, unpaid bills, the cleanliness of the house, and attempts to sell the house. There was also some question as to what other assets may exist in the estate; however, we note that is an issue properly raised following an accounting, or if necessary, a petition to compel an accounting.

Concern for personal property distribution involved pieces of jewelry, a family Bible, and whether or not any items were distributed to non-heir family members. We find the executor’s testimony credible as follows:

1. That the executor’s daughter received a teacup and saucer and (2) knick-knacks the decedent bought at the Salvation Army;
2. Linda Rushin received the family Bible;
3. The executor retained a gold ring until determining how it should be distributed.

We see no mismanagement or waste of the estate in these actions. The items given to the executor’s daughter appear negligible in value and if any heir wants them, they may request it from the executor. There was no testimony from the petitioners as to how the Bible should be distributed; only that it should not have been distributed to Linda. The petitioners can raise this objection to any account filed; however, it is not a matter arising to mismanagement of the estate. We also wonder how the petitioners would distribute the Bible, as there is only one, and yet there are seven heirs. We note that Linda Rushin, the only heir living locally, testified she took the Bible because she read the Bible with her parents every time she visited. The executor seems to have made the sound decision that

Linda would cherish the Bible the most.

The retention of the gold ring by the executor for later distribution is also a wise decision at this time. There are seven heirs, with several at odds over a perceived distribution scheme. Holding the ring until a possible agreement can be reached by all involved appears prudent at this time.

Finally, Linda Rushin testified she received a pearl necklace from the decedent during the decedent’s lifetime. Whether she did, or she took it after the decedent’s death, we find the executor’s testimony credible that he requested Linda return anything she took after the decedent died. This is all the executor can do, and we do not find, under the circumstances, that any mismanagement or failure to perform a duty occurred.

We also find the executor’s testimony credible that there was no water shut-off and that the water bill was paid. Likewise, we find the executor’s testimony credible that upon notice getting to him of the electric bill, that it was promptly paid. Therefore, we find no waste, mismanagement or failure to perform a duty as executor for unpaid bills.

The petitioners take issue with the cleanliness and care of the real property of the estate on west Main Street, Stroudsburg. This is in conjunction with the petitioners’ concern to obtain the best price for the real property in a sale. We believe the house is in a rough condition compared to others currently on the market. The home is an older home, on a busy thoroughfare that is zoned commercial. It is on a .11 acre lot. There are many commercial uses surrounding the property. The pictures introduced as exhibits show the older condition that the home is in at this time. We understand the sentimental value of the home, and the idea that a cleaner home in good repair will bring a more attractive sales price.

The executor is admittedly away from the Commonwealth a lot as a truck driver. His time is understandably limited preventing his personal attention to see that the house is in pristine condition and the grounds regularly manicured. While this may add some value to the property, and lead to a sale, we find it would not create much added value. There also was no testimony that any of the heirs offered to clean or repair the house to improve the value. Based upon the testimony, we do not find the executor was derelict in any of his duties based upon the condition of the home.

The executor has obtained a drive-by appraisal (outside access only) of $31,000 and a full appraisal (with inside access) of $55,000 from McKeown Real Estate. The petitioners obtained an appraisal of $70,000 from Richard DeLuca. As with any real property, it is only ultimately worth what a willing buyer will pay a willing seller. We find the executor obtained the appraisals to have a sense of the value of the property. The drive-by was because the executor was unavailable to open the house to the appraisers at that time. After receiving negative feedback from other heirs, the executor arranged a full appraisal. The heirs arranged their own appraisal when not fully satisfied. All three appraisals confirm the house would likely bring a modest sale price.

Following a discussion with Thomas McKeown, real estate appraiser and broker, the executor determined the best course of action was a sale by auction. Petitioners did not agree with the agreed minimum reserve bid of $42,000 in order to sell the house (meaning any bid $42,000 or higher would buy the house). There was some discussion the petitioners would accept $60,000 as a reserve bid, but when a cash buyer was presented by Thomas McKeown, after the auction was cancelled, the petitioners would not agree to a sale at that price.

The actions of the executor in this regard do not arise to mismanagement, waste, or failure to perform a duty. In fact, an auction would allow heirs to bid on the property if they so desired. It would also promptly dispose of the real property, realize proceeds to all heirs, and allow the auction market to set a price. This does not always result in the highest price being realized, but is not out of the ordinary in similar circumstances with similar types of real estate. An auction also eliminates any second guessing of what listing price to set, or what offer to accept. In turn, it would likely reduce chances of disagreement amongst the heirs. As the executor believes an auction is the best way to proceed, and the petitioners previously agreed a $60,000 reserve should be set, we find the matter should proceed to auction as proposed, in the spring of 2014, with a reserve price of $60,000.

The petitioners also take issue with the executor’s delay in disposing of the real property. The decedent died in February 2013, and the executor did not obtain the first appraisal until August 2013. The executor did set an auction date with McKeown Real Estate for November 2013, which was only cancelled by order of this court upon the petition filed by the petitioners in this matter.

We do not find that the executor has mismanaged, wasted or failed to perform a duty under these circumstances. Again, the executor admittedly has a busy work schedule. He took time to have all of the heirs (some of whom had to travel great distances) come to the house to take personal property which occurred in May 2013. The executor had to work with heirs who were questioning his actions and actions of other heirs. Finally, the delay in obtaining an appraisal and listing for auction is not a practice that is out of the ordinary in an estate. This is especially so where there are (7) heirs. While the matter may not have progressed at the speed with which the petitioners preferred, the executor did not mismanage or fail to undertake his duties that would necessitate his removal.

Finally, the petitioners assert that the executor is not a Pennsylvania resident, and therefore, must post security, or be removed under 20 Pa. C.S. A. §3182 (4). Following a great deal of testimony in this regard, we find the executor credible and that he is a Pennsylvania resident. Therefore, no security, or bond, was required to be filed.

The executor stated he is an over the road trucker for a company based in North Dakota. He has been employed in that capacity by his current employer from June 2013 to present. Prior to that, he was unemployed from December 2012-June 2013 having voluntarily left his job due to his mother, the decedent, being sick and then dying. Prior to December 2012, the executor had been employed for a short period of time as a truck driver for a different company based in North Dakota. We note this is a second career for the executor, having previously been a police officer with the Stroud Area Regional Police in Monroe County, Pennsylvania, and now retired.

The executor testified he works six (6) weeks on with one day off per week, and then fifteen (15) consecutive days off. He testified he has owned a home in Carlisle, Pennsylvania for many years, and lives there on his fifteen (15) days off each six (6) week cycle. He lives out of his truck or company provided housing in North Dakota during the six (6) week schedule he is over the road. The executor keeps a mailbox in North Dakota because he gets paid there. He registered a vehicle in November 2013 in North Dakota, which he bought there, because he did not have time to register the initial plate in Pennsylvania while working. The executor spends time at his daughter’s house in Bath, Pennsylvania to see her and his grandchildren. The executor used that address when taking out letters because he receives all of his mail there that his daughter either forwards to him or holds for him until he is home from North Dakota. The executor regards his home in Carlisle, Pennsylvania as being his permanent residence. We find this testimony credible.

We note that one’s residence is where they consider to be domiciled. In this case, the testimony of the executor supports the fact that he is a resident of Pennsylvania. He considers his domicile to be his home in Carlisle, Pennsylvania. Therefore, there was no need for the executor to furnish security for this estate. As such, the executor has not violated section 3182 (4).

We find no other reason that the interests of the estate are likely to be jeopardized by the executor continuing in office. The executor has been cooperative with counsel for the estate, cooperative with other heirs (contrary to the apparent feelings of the petitioners), and has acted in the best interests of the estate. Therefore, we will deny the petition to remove executor and to prevent auction of the real property. We will order that an auction take place consistent with certain directives set forth in this opinion.

Finally, we do not find the petitioners acted in any bad faith. Therefore, we will deny the request of the estate to reimburse the advertising expense of the cancelled auction, attorney’s fees, and interest and penalty on payment of inheritance tax from the petitioners’ share of the estate.

ORDER

And now, this 7th day of January, 2014, the petition to remove executor and to prevent auction of decedent’s real property is denied.

The executor’s request that the petitioners reimburse the estate the advertising expense of the cancelled auction, attorney’s fees and other costs to defend the petition, and any interest or penalty on payment of the inheritance tax is denied.

It is further ordered as follows:

1. An auction of the real property located at 1670 West Main Street, Stroudsburg, Pennsylvania 18360 shall take place in the Spring of 2014, no later than May 31, 2014.

2. A minimum reserve of $60,000 shall be placed on the real estate at time of auction.

      . We also note the petitioners take issue with the fact Linda Rushin was named as a contingent executor and her serving as same since she and her husband previously filed (and since dismissed) a personal injury suit against the decedent. This was due to Linda Rushin’s husband trip and fall and resulting serious injury at decedent’s property. For various reasons, which we need not set forth, this is not an issue that applies in this matter. As the executor has not committed acts that require his removal, there is no need to consider Linda Rushin to serve in his place.


author: LOVECCHIO, J.,

text:
    In re Estate of Edler

      Heather Willis Lewis, Peter Facey, for petitioner.

      Dan Mathers, for respondent.
    January 31, 2014
   LOVECCHIO, J.,

— This matter came before the court on Kieth M. Edler’s petition to restore non-charitable irrevocable trust. The relevant facts follow.

Vivian M. Edler (“Mrs. Edler”) was a resident of Lycoming County and had three sons: Terry R. Edler (“Terry), Kieth M. Edler (“Kieth”) and Del S. Edler (“Del”). Mrs. Edler executed a will dated January 3,2007, leaving her estate in three equal shares to sons, all of whom were then living.

On May 20, 2010, while Mrs. Edler was a patient at the Williamsport Hospital, she signed a durable power of attorney naming Kieth her agent. The power of attorney contained a notice to the principal signed by Mrs. Edler and an acknowledgement of the agent signed by Kieth as required by 20 Pa.C.S. §5601 (c) and (d).

In early 2011, Kieth met with individuals associated with the Malee Law Firm, who drafted the Vivian Edler Irrevocable Trust (“Trust”). On or about February 25, 2011, Kieth executed the Trust, signing the document both as power of attorney for Mrs. Edler and as trustee. After executing the Trust, Kieth transferred Mrs. Edler’s real estate and all the funds in her bank accounts into the Trust.

While the Trust provided the income to Mrs. Edler, it divested her of any interest in or benefit of the principal (corpus) of the Trust. In fact, pursuant to the terms of the Trust, the distribution committee (which consisted of Kieth and his daughter, Jeanine Schepers) could distribute all of the trust assets to Mrs. Edler’s children, grandchildren, and/or their spouses while Mrs. Edler was still living.

Mrs. Edler was dissatisfied with her inability to access the principal of her financial accounts, and she contacted the Office of the Aging. It was the position of the Office of the Aging that the establishment of the Trust was not consistent with the Probate, Estate and Fiduciary (PEF) Code. Kieth consulted with the Malee Law Firm on or about May 17, 2011, and agreed to tenninate the Trust and transfer all its assets back into Mrs. Edler’s name. The accounts were distributed to Mrs. Edler on or before May 25, 2011, and a corrective deed conveying the real estate back to Mrs. Edler was executed on June 1, 2011. In consideration of these actions, Mrs. Edler agreed to release any and all claims she may have had against Kieth regarding the establishment of the Irrevocable Trust.

On October 18, 2011, Mrs. Edler conveyed the real estate to Del and executed a new last will and testament (the “2011 Will”), pursuant to which Del would receive all of the household contents of the real estate, and the residue of her estate would be distributed 50% to Del, 30% to Kieth, and 20% to Terry’s children. The Will also appointed Del as executor of Mrs. Edler’s estate.

Mrs. Edler died on August 29,2012. The 2011 Will was probated on November 27, 2012 and letters testamentary were issued to Del.

Kieth filed a petition to restore the trust on May 9, 2013. He also filed a praecipe for lis pendens against the real estate on May 13, 2013. The estate filed an answer and new matter on May 30,2013. Kieth field a reply to the new matter on July 10, 2013.

The court held a conference in this matter on July 17, 2013. Counsel for the parties asserted that several purely legal issues controlled the outcome of this case, which could be decided on briefs. The parties have filed their briefs and the matter is ripe for decision.

Counsel for Kieth argued that the general, broad language in the power of attorney gave Kieth the authority to transfer all of Mrs. Edler’s property into an irrevocable trust. Counsel for Kieth also asserted that the transfer of the property back to Mrs. Edler was a legal nullity because the distribution committee could not transfer any property to the settlor pursuant to the terms of the trust and the transfers did not include the consents and/or signatures of all of the beneficiaries to terminate the trust as required by section 7740.1 of the PEF Code.

Counsel for the estate contended that the creation of an irrevocable trust was a legal nullity because, absent specific language in the power of attorney, section 5603 of the PEF Code precluded the creation of an irrevocable trust. In the alternative, the estate argued that the trust was lawfully terminated and/or Kieth was barred by the doctrines of accord, satisfaction or release.

DISCUSSION

The power of attorney states in relevant part:

KNOW ALL MEN BY THESE PRESENTS, That I, VIVIAN M. EDLER, of 172 School House Lane, English Center, Pennsylvania, appoint KEITH MERLE EDLER, of484 Knipe Road, Liberty, Pennsylvania, my true and lawful agent with full power of substitution for me and in my name and on my behalf generally to transact all business and to sign, acknowledge and deliver all contracts, deeds and other instruments needed to effectuate any matter or transaction pertaining to my affairs, all as effectually, in all respects, as I could do personally.
Without intending to limit or restrict the foregoing general powers, my said agent, shall have full and separate authority:
(1) To make limited gifts.
(2) To create a trust for my benefit....

Powers of attorney are governed by chapter 56 of the PEF Code. Section 5601(a) states:

(a) General rule. — In addition to all other powers that may be delegated to an agent, any or all of the powers referred to in section 5602(a)(relating to form of power of attorney) may lawfully be granted in writing to an agent and, unless the power of attorney expressly directs to the contrary, shall be construed in accordance with the provisions of this chapter.

20 Pa.C.S. §5601(a). One of the powers referred to in section 5602(a) is the power to create a trust. 20 Pa.C.S. §5602(a)(2). Section 5603(b) describes the power to create a trust as follows:

(b) Power to create a trust. — A power “to create a trust for my benefit” shall mean that the agent may execute a deed of trust, designating one or more persons (including the agent) as original or successor trustees and transfer to the trust any or all property owned by the principal as the agent may decide, subject to the following conditions:
(1) The income and corpus of the trust shall either be distributable to the principal or to the guardian of his estate, or to be applied for the principal’s benefit, and upon the principal’s death, any remaining balance of the corpus and unexpended income of the trust shall be distributed to the deceased principal’s estate.
(2) The deed of trust may be amended or revoked at any time and from time to time, in whole or in part, by the principal or the agent, provided that such amendment by the agent shall not include any provision which could not be included in the original deed.

20 Pa. C.S. §5603(b).

Kieth contends that, in light of the broad, general powers granted through the initial paragraph of the power of attorney, he had the power to create an irrevocable trust, notwithstanding the provisions of section 5603. The court cannot agree.

The object of all statutory construction is to ascertain and effectuate the intent of the general assembly. 1 Pa.C.S. § 1921(a). Section 5602 of the PEF Code provides that unless the power of attorney “expressly directs to the contrary” the power of attorney will be construed in accordance with chapter 56, which includes the limitations contained in section 5603. Words and phrases in a statute are to be construed according to their common usage, unless they are technical words or words that have acquired a peculiar meaning. See 1 Pa.C.S. § 1903(a). The word “expressly” means explicitly, specifically or particularly (Merriam-Webster’s Online Dictionary). While the initial paragraph of the power of attorney gave Kieth very broad, general powers, it did not specifically give him the power to create an irrevocable trust or contain any other language to explicitly indicate that the powers granted to him would not be construed in accordance with the conditions contained in section 5603.

Following the initial paragraph that generally gave Kieth the power to transact business and handle Mrs. Edler’s affairs, the specific power “to create a trust for my benefit” is listed. This language has a specific statutory meaning as set forth in section 5603, which does not include the power to create an irrevocable trust. Furthermore, “specific provisions ordinarily are regarded as qualifying the meaning of broad general terms in relation to a particular subject.” Eighth North-Val, Inc. v. Parkinson, 773 A.2d 1248, 1255 (Pa. Super. 2001).

Moreover, pursuant to the rules of statutory construction, the general assembly does not intend an absurd result. 1 Pa.C.S. §1922. Kieth’s interpretation would create an absurd result such that a grant of broad, general powers would give an agent the authority to create a revocable or irrevocable trust, but specifically listing the power to create a trust would only give an agent the authority to create a revocable trust as provided in section 5603.

This case presents the type of situation that the provisions of section 5603(b) were designed to prevent. Contrary to her wishes, Kieth created an irrevocable trust that divested Mrs. Edler of the corpus of all her assets. The Trust established by Kieth did not conform to the limitations contained in either 5603(b)(1) or (2). Paragraph (b)(1) requires that both the income and the corpus of the trust be distributable to the principal or the guardian of his estate or be applied for the principal’s benefit. In contravention of this statute, the Trust created by Kieth precluded any payment to be made to or for the benefit of Mrs. Edler (Trust, article 3.02). Section 5603 (b)(2) of the PEF Code states that the deed of trust may be revoked at any time by the principal or the agent. 20 Pa.C.S. §5603(b)(2). The Trust created by Kieth precluded Mrs. Edler from altering, amending, modifying, revoking or terminating the Trust in any capacity whatsoever (Trust, article 2.01). Absent explicit language to the contrary, the general assembly clearly intended to limit the creation of a trust by an agent under a power of attorney to a revocable trust where both the income and the corpus are distributed to the principal or applied for her benefit. Since explicit language to the contrary is noticeably absent from the power of attorney in this case, the creation of an irrevocable trust which divested Mrs. Edler of the corpus of all her assets was a legal nullity.

In the alternative, the court finds that Trust was lawfully terminated and/or Kieth is barred from challenging the transfer of all assets back to Mrs. Edler. Section 5603(b)(2) states that the “deed of trust may be amended or revoked at any time and from time to time, in whole or in part, by the principal or the agent....” Here, the deed of Trust was revoked by both the principal and the agent when Kieth and Mrs. Edler executed the corrective deed and Kieth transferred all assets back to Mrs. Edler.

The terms of the Trust agreement also permitted the distribution committee to terminate the Trust. Article 7.03 of the Trust agreement states in relevant part:

The then current members of the distribution committee acting by unanimous vote, with the consent of the trustee but otherwise acting in their sole and exclusive discretion, may terminate the trust or amend or modify the trust in such manner as the distribution committee shall determine advisable from time to time; provided however, that no such modification or amendment shall cause the principal of the trust to revert to the settlor, or the creditors of the settlor or the creditors of the estates of settlor.

While the Trust precluded the corpus of the Trust to revert to Mrs. Edler through a modification or amendment, it did not preclude the corpus from reverting to Mrs. Elder through termination of the Trust. The distribution committee consisted of Kieth and his daughter, Jeannine Schepers, both of whom agreed to terminate the Trust and transfer the assets back to Mrs. Edler, as evidenced by the their signatures as distribution committee members on the corrective deed.

Finally, under the unique facts and circumstances of this case, the court finds that Kieth is barred by contract principles and/or equity from challenging the termination of the Trust and the transfer of all assets back to Mrs. Edler. The documents and the portion of the facts that are not in dispute show that shortly after the Trust was created issues arose concerning the validity of the Trust and its conformity to the PEF Code. Kieth consulted with an attorney, who informed him that the Trust had to be terminated because it was improperly formed. Kieth signed the corrective deed and transferred all the assets back to Mrs. Edler in exchange for a release of any and all claims she may have regarding the establishment of the Trust. If Kieth was unhappy with his attorney’s advice, he could have sought the advice of another attorney. He did not do so. Instead, he settled the dispute. It would be contrary to contract principles and patently unjust to permit Kieth to wait nearly two years and then revive the dispute approximately six months after Mrs. Edler’s death.

Accordingly, the following order is entered:

ORDER

And now, this 31st day of January 2014, the court denies the petition to restore trust.

      . Terry died on February 24, 2011, survived by his three adult children.

      . The court also questions whether the trust created by Kieth complied with the special rules for gifts.