J-A18035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: TRUST AGREEMENT OF JAMES 

CASTELLI, DATED OCTOBER 9, 1985

APPEAL OF: SAMUEL F. NAPOLI, 

PERSONAL REPRESENTATIVE OF THE 

ESTATE OF ANITA CASTELLI NAPOLI

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 155 WDA 2021

Appeal from the Order Entered January 5, 2021

In the Court of Common Pleas of Washington County Orphans' Court at 

No(s): No. 63-15-0083

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: May 16, 2024

Samuel F. Napoli, Personal Representative of the Estate of Anita Castelli 

Napoli,1 appeals from the order removing Anita Napoli (“Napoli”) as trustee of 

the Trust of James Castelli, Dated October 9, 1985 (“Trust”). The order also

enjoined the dissipation and spoliation of assets and former assets of the 

Trust. Napoli argues the court erred in permanently removing her as trustee,

issuing an injunction sua sponte and without considering the preliminary 

injunction factors. 

We dismiss Napoli’s challenge to her removal as trustee as moot. We

conclude the court improperly issued a preliminary injunction and therefore 

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1 Anita Napoli was a party to the litigation in the trial court and filed the notice 

of appeal. She passed away during the pendency of this appeal. Samuel F. 

Napoli, Personal Representative of the Estate of Anita Castelli Napoli, was 

substituted as a party pursuant to Pennsylvania Rule of Appellate Procedure 

502(a). We will use “Napoli” when referring to both the appellant and Anita 

Napoli. 
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reverse the portion of the order that enjoined transfer, dissipation, or 

spoliation of trust assets.

In April 2016, Victor Castelli, Jr., (“Victor”) filed a petition to remove 

Napoli as trustee of the Trust.2, 3 Victor alleged, among other things, that 

Napoli had engaged in self-dealing and transferred assets from the Trust to a 

company she owned with her sister, Darietta Oliverio.

The court held a non-jury trial on January 28, 29, 30, and 31, with an 

additional day scheduled for March 5, 2020. The trial was limited “solely to 

the ultimate issue of Anita Napoli’s removal as trustee.” Order, Jan. 17, 2020. 

In February 2020, Napoli voluntarily submitted her resignation, eliminating 

the need for the last day of testimony. On March 5, 2020, the court entered 

an order removing Napoli as trustee:

AND NOW, this 5th day of March, 2020, based on the 

testimony and evidence heard, and the resignation 

submitted and filed by trustee Anita Napoli executed 

February 26, 2020, and filed with the Register of Wills on 

February 27, 2020, the Court hereby accepts the 

resignation, and hereby permanently removes Ms. Napoli as 

a trustee of the trust under the agreement of James Castelli 

dated October 9, 1985.

The Court further orders that Ms. Napoli hereafter shall not

be considered as a trustee of that family trust.

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2 The Trust’s settlor, James Castelli died in March 1993. At his death, the Trust 

had three co-trustees, Napoli, Dario D. Castelli, and Victor Castelli, Sr. Dario 

Castelli and Victor Castelli, Sr. have since passed away.

3

In January 2015, Victor filed a petition for rule to show cause why an 

accounting should not be filed. Napoli filed an accounting in November 2015, 

and Victor filed objections.
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Order, Mar. 5, 2020. 

The order appointed AmeriServ Trust & Financial Services as corporate 

trustee and stated that in a separate order, the court would appoint “an 

appropriate member of the bar as a co-trustee.” Id. It also placed restrictions 

on the trust property:

The Court orders that Anita Napoli deliver all trust property 

forthwith to AmeriServ Trust & Financial Services, that she 

provide an accounting within sixty (60) days of today’s date 

of all trust assets, and that no other assets be subject to 

spoliation or dissipation, including but not limited to the 

assets now or formerly of Super Outdoor Theaters, until 

such time as the accounting can be resolved in any 

remaining matters in that regard.

Id.

In May 2020, Victor filed a motion to clarify and amend the order. Victor 

argued, among other things, that the court should have included a finding that 

Napoli breached her duties as trustee and included “additional language to 

prevent any further spoliation or dissipation of assets of all Castelli family 

entities.” Brief in Support of Motion to Clarify and Amend the March 5, 2020 

Order, filed June 19, 2020, at 7. Napoli filed a response to Victor’s motion and 

a cross-motion to modify the order, asking the court to remove certain

language: “based on the testimony and evidence heard,” “permanently 

removes,” and “including but not limited to the assets now or formerly of 

Super Outdoor Theaters.” Napoli’s Response to Petitioner’s Motion to Clarify 

and Amend the March 5, 2020 Order of Court and Respondent’s Cross Motion 

to Modify, filed July 27, 2020, at ¶ 31.
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The court heard argument and issued an amended order. The order 

contained the following paragraph accepting Napoli’s resignation and 

“permanently” removing her as trustee:

Based on the testimony and evidence presented, and the 

resignation submitted by trustee Anita Napoli, executed 

February 26, 2020 and filed with the Register of Wills on 

February 27, 2020, the Court hereby accepts the resignation 

and permanently removes Ms. Napoli as a trustee of the 

trust under the Trust Agreement of James Castelli, dated 

October 9, 1985; Anita Napoli shall not be considered a 

trustee of said trust hereafter.

Order, dated Oct. 9, 2020.

4

It further ordered that assets and former assets of the trust not be 

subject to spoliation or dissipation, and enjoined the transfer, dissipation, and 

spoliation of assets or former assets of the trust:

It is further ORDERED that Anita Napoli deliver all trust 

property forthwith to the successor trustees, AmeriServ and 

[Nora Gieg] Chatha, and ORDERS that no other assets of 

the trust and assets formerly of the trust be subject to 

spoliation or dissipation, and that all such assets, including 

but not limited to any Castelli family entity, Super Outdoor 

Theaters, Inc., Castelli Brothers Company, LP, or any 

successor entities to the aforementioned, are hereby 

enjoined from transfer, dissipation or spoliation until such 

time as the accounting of the former trustee and any 

remaining matters relating to the trust property are 

resolved, and further order of court.

Id. Napoli filed a notice of appeal.

Napoli raises the following issues:

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4 This order was dated October 9, 2020, but was not docketed until January 

5, 2021.
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1. Whether the Lower Court erred in sua sponte entering an 

injunction and purporting to enjoin entities that are not 

parties to these proceedings? 

2. Whether the Lower Court [e]rred in Ordering that Anita 

Napoli is “permanently removed” as Trustee “based on the 

testimony and evidence presented” after Anita Napoli had 

already resigned as Trustee before the factual hearing was 

concluded and therefore the Petition to remove her as 

Trustee was moot? 

3. Whether the Lower Court erred in (a) entering the 

January 17, 2020 Order of Court which granted Petitioner, 

Victor Castelli’s, pretrial (i) Motion in Limine to Limit the 

Scope of Trial To Petitioner’s Amended Petition and May 13, 

2016 Citation Issued to Trustee Anita Napoli by the 

Washington County Clerk for the Orphans’ Court and 

Proposed Order of Court, and (ii) Petitioner’s Motion in 

Limine to Exclude from Trial the Testimony and Reports of 

Richard F. Brabender, JD, CVA and Proposed Order of Court, 

and (b) denying Anita Napoli's Motion to Frame Issues for 

Trial and to Limit Testimony Regarding Damages? 

4. Whether this appeal is timely? 

Napoli’s Br. at 5-6 (suggested answers omitted).

We will address Napoli’s second, third, and fourth claims first, for ease 

of disposition. In her second claim, Napoli challenges the order removing her

as a trustee. She maintains the court erred in entering an order “permanently 

remov[ing]” her as trustee “based on the testimony and evidence presented.”

Id. at 25. Napoli argues the issue had been made moot by her prior 

resignation, in February 2020. Id. at 39. She maintains the court cannot 

remove someone who already resigned, the court cannot make factual 

findings without a complete record, and the words “permanently removed” 

were offensive and unnecessary. Id. at 25-26. Napoli also contends the court 
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should not have drawn a negative inference from her decision not to testify. 

She states she did not testify because the issue of her removal was moot.

In her third issue, the trial court erred in granting Victor’s motions in 

limine which limited the trial to the issue of the removal of Napoli as trustee 

and excluded evidence from her expert and in denying her motions.

In her fourth claim, Napoli argues that the appeal is timely. She points 

out that the trial court invited requests to amend the order and accepted 

argument on the motion to clarify and her response. She further claims the 

order did not merely “clarify” the order but replaced it with a new one.

As Napoli has passed away during the pendency of this appeal, her 

challenges to the language of the order removing her as trustee and to the 

pre-trial motions related to the trial to determine whether she should be 

removed as trustee are dismissed as moot.5 There no longer is “an actual 

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5 Further, the appeal of the order removing her as trustee and of the pre-trial 

orders was untimely. Pennsylvania Rule of Appellate Procedure 342 provides 

that certain appeals may be taken as of right from orders issued in the 

Orphans’ Court Division, including “[a]n order determining the status of 

fiduciaries, beneficiaries, or creditors in an estate, trust, or guardianship.”

Pa.R.A.P. 342(a)(5). That rule further provides that the failure to appeal an 

order appealable under Rule 342(a)(1)-(7) constitutes a waiver: “Failure to 

appeal an order that is immediately appealable under paragraphs (a)(1)-(7) 

of this rule shall constitute a waiver of all objections to such order and such 

objections may not be raised in any subsequent appeal.” Pa.R.A.P. 342(c).

In March 2020, the trial court accepted Napoli’s resignation and 

permanently removed her as trustee. Napoli did not appeal. That order, which 

determined the status of fiduciaries, was appealable as of right, and she 

waived her objections to the order removing her as trustee when she failed to 

appeal. See id. The March 2020 and October 2020 orders as related to her 

(Footnote Continued Next Page)
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claim or controversy” for our review. See In re Appointment of a Guardian 

of Gerber, 824 A.2d 1204, 1206 (Pa.Super. 2003) (noting that “[i]f events 

occur to eliminate the claim or controversy at any stage in the process, the 

case becomes moot”).6

Turning to her first issue, Napoli challenges the court’s enjoining of 

dissipation and spoliation of trust property. Napoli maintains that the court 

should not have issued an injunction because the requirements for doing so 

were not met. She also faults the court for issuing an injunction against those 

who were not parties to the action, and an entity allegedly no longer is in 

existence. She also argues that the court improperly entered the injunction 

sua sponte, as Victor only sought her removal and a surcharge, and points out 

that Victor did not post a bond. She disagrees with the trial court that it did 

not issue an injunction, stating there is no way to interpret the order other 

than as an injunction. She argues that contrary to the court’s conclusion, it

did not have “equitable powers” over the assets, and she disputes the finding 

that she engaged in self-dealing.

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removal as trustee are virtually indistinguishable, with just minor changes in 

sentence structure. The court made no substantive changes. That the trial 

court invited the parties to raise with it any concerns did not alter that Napoli 

had to file a timely appeal and a failure to do so would result in a waiver of 

the objections. See id. Napoli therefore waived any objection to her removal 

as trustee when she failed to appeal the March 2020 order.

6 These issues do not involve “an important public interest that is capable of 

repetition but is likely to continually evade appellate review.” In re 

Appointment of a Guardian of Gerber, 824 A.2d at 1206.
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The court maintained that it did not enter a preliminary injunction, but 

rather included language to protect the trust assets from dissipation or 

spoliation. Trial Court Opinion, dated Dec. 22, 2021, at 10 (“1925(a) Op.”). It 

reasoned that the language was an exercise of its equitable powers over the 

assets of the Trust to ensure the assets belonging to the Trust are preserved.

Id. The court referenced testimony from Victor’s expert regarding breaches 

by Napoli and from Napoli’s expert’s testimony, who testified at trial, that he 

believed Napoli had engaged in self-dealing. Id. at 10-14.

An orphans’ court has a “broad grant of judicial authority” that includes 

“all legal and equitable powers required for or incidental to the exercise of its 

jurisdiction.” In re Estate of Damario, 412 A.2d 842, 844 (Pa. 1980). If a 

court finds a breach of trust, the remedies available include the ordering of 

“any appropriate relief,” which may include voiding an act of a trustee, 

imposing a lien or constructive trust on trust property, or recovering trust 

property. 20 Pa.C.S.A. § 7781(b)(9)(i)-(iii). However, any such order is 

subject to statutory provisions protecting those who deal with trustees. 20 

Pa.C.S.A. §§ 7781(b)(9), 7790.2 (providing for protection of people dealing 

with trustee). 

We cannot agree with the trial court that it did not issue an injunction. 

The amended order barred the “transfer, dissipation or spoliation” of the 

trust’s assets and former assets, including “any Castelli family entity, Super 

Outdoor Theaters, Inc., Castelli Brothers Company, LP, or any successor 

entities to the aforementioned”:
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It is further ORDERED that Anita Napoli deliver all trust 

property forthwith to the successor trustees, AmeriServ and 

Attorney Chatha, and ORDERS that no other assets of the 

trust and assets formerly of the trust be subject to spoliation 

or dissipation, and that all such assets, including but not 

limited to any Castelli family entity, Super Outdoor 

Theaters, Inc., Castelli Brothers Company, LP, or any 

successor entities to the aforementioned are hereby 

enjoined from transfer, dissipation or spoliation until such 

time as the accounting of the former trustee and any 

remaining matters relating to the trust property are 

resolved, and further order of court.

Order, Oct. 9, 2020 (emphasis added). This portion of the order works as a

preliminary injunction, both requiring and prohibiting certain actions, and it 

was appealable as of right. See Pa.R.A.P. 311(a)(4). Unlike the failure to 

appeal orders appealable under Rule 342(a), a failure to appeal an 

interlocutory order under Rule 311 does not waive objections thereto. 

Pa.R.A.P. 311(g). 

We review the grant of a preliminary injunction for an abuse of 

discretion. Duquesne Light Co. v. Longue Vue Club, 63 A.3d 270, 275 (Pa. 

Super. 2013) (citation omitted).

A court may issue a preliminary injunction “only after written notice and 

hearing unless it appears to the satisfaction of the court that immediate and 

irreparable injury will be sustained before notice can be given or a hearing 

held.” Pa.R.C.P. 1531(a). Similarly, the Orphans’ Court rules provide that the 

court may, upon petition, grant a preliminary injunction to prevent the 

dissipation of assets. See Pa.O.C.R. 7.4 (“[u]pon petition, the court may issue 

a preliminary, special, or permanent injunction in accordance with the rules 
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and procedures provided in Pa.R.C.P. 1531”); Ambrogi v. Reber, 932 A.2d 

969, 975 (Pa.Super. 2007) (upholding preliminary injunction that prevented 

the sale of real property without placing the net proceeds into a court 

supervised escrow account). 

To establish entitlement to preliminary injunctive relief, a party must 

show that: (1) “an injunction is necessary to prevent immediate and 

irreparable harm that cannot be adequately compensated by damages[;]” (2) 

“greater injury would result from refusing an injunction than from granting it, 

and, concomitantly, that issuance of an injunction will not substantially harm 

other interested parties in the proceedings[;]” (3) a preliminary injunction 

“will properly restore the parties to their status as it existed immediately prior 

to the alleged wrongful conduct[;]” (4) “the activity it seeks to restrain is 

actionable, that its right to relief is clear, and that the wrong is manifest, or, 

in other words, must show that it is likely to prevail on the merits[;]” (5) the 

injunction it seeks is “reasonably suited to abate the offending activity[;]” and 

(6) “a preliminary injunction will not adversely affect the public interest.”

Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 

995, 1001 (Pa. 2003).

Here, the trial court abused its discretion. It acted on its own motion 

and failed to make findings about any of the six factors required to issue a 

preliminary injunction. Furthermore, although there was a hearing, the 

hearing focused on whether Napoli should be removed as trustee, and not on 

whether the court should grant injunctive relief. We must therefore reverse 
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the portion of the order providing that the assets and former assets of the 

trust “including but not limited to any Castelli family entity, Super Outdoor 

Theaters, Inc., Castelli Brothers Company, LP, or any successor entities to the 

aforementioned are hereby enjoined from transfer, dissipation or spoliation.” 

Order, dated Oct. 9, 2020.

Accordingly, we dismiss the appeal from the portions of the October 

2020 order removing Napoli as a trustee of the Trust and mandating or 

prohibiting her taking certain acts as moot. We reverse the portion of the order 

enjoining the dissipation and spoliation of assets.

Appeal dismissed in part. Order reversed in part. Case remanded. 

Jurisdiction relinquished.

5/16/2024