J-A21034-23

2024 PA Super 53

TRUST OF JOHN S. MIDDLETON

APPEAL OF: PATRICK J. RILEY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1843 EDA 2022

Appeal from the Order Entered June 27, 2022

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

No(s): 2020-X0633

BEFORE: BENDER, P.J.E., LAZARUS, J., and NICHOLS, J.

OPINION BY BENDER, P.J.E.: FILED MARCH 25, 2024

Appellant, Patrick J. Riley (“Riley”), appeals from the order entered on 

June 27, 2022, in the Court of Common Pleas of Montgomery County Orphans’ 

Court, granting an emergency petition to compel the trustee to make 

distributions to the sole current beneficiary of the Trust of John S. Middleton. 

After careful review, we vacate and remand for further proceedings.

John S. Middleton (“Settlor” or “Grantor”) established an inter vivos,

irrevocable trust under an agreement dated March 3, 2002 (“Trust 

Agreement”), and named Larry P. Laubach, Esquire (“Laubach”), as the initial 

trustee. Under the Trust Agreement, Settlor retained an annuity interest for 

two years. At the conclusion of the two-year period, the trust was divided

into two equal trusts — one for the benefit of Settlor’s son, John P. Middleton 
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(“John”), and the other for the benefit of Settlor’s daughter, Frances B. 

Middleton.1

On February 5, 2020, in accordance with the terms of the Trust 

Agreement, Laubach was removed from his position as trustee. On February 

6, 2020, Settlor appointed Riley as the successor trustee. Later that same 

day, Riley, acting in his role as trustee, executed a document in which he 

purportedly appointed Bridgeford Trust Company, LLC (“Bridgeford”), of 

Pierre, South Dakota, as a co-trustee and concurrently changed the situs of 

the Trust — jointly with Bridgeford — from Montgomery County, Pennsylvania 

to South Dakota. See Appointment of Co-Trustee, Change of Administrative 

Situs, and Delegation to Co-Fiduciary as Agent, 2/6/20, at 1-5. 

On February 14, 2020, John filed a petition seeking a declaratory 

judgment that the attempted trustee appointment and change of situs are

void and invalid ab initio (“Declaratory Petition”), in which he relied heavily on 

the following relevant provisions of the Trust Agreement:

TWELFTH -- Administrative Powers: Except as may be 

prohibited hereinabove or by the [Internal Revenue Code of 1986, 

as amended (“I.R.C.”)] and the Treasury Regulations pertaining 

to qualified annuity interests, Trustee or Trustees shall have the 

following powers in addition to those otherwise provided herein or 

by law, to be exercised in Trustee’s or Trustees’ absolute 

discretion:

...

____________________________________________

1 This matter pertains only to the trust created for the benefit of John, which 

is referred to herein as “the Trust.” 
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15. To change the situs for administrative and accounting 

purposes of any trust created hereunder to any jurisdiction, 

without the necessity of court approval. 

...

FOURTEENTH -- Situs of Trust: The situs of this trust shall 

be the Commonwealth of Pennsylvania, and all questions 

pertaining to the construction and validity of the provisions of this 

Agreement shall be governed by the law of that Commonwealth. 

...

SIXTEENTH -- Trustees: In the event Larry P. Laubach (or 

any successor to him) becomes unable to serve or continue to 

serve, Grantor shall appoint a successor Trustee who is a “nonfamily member” as defined below. ...

In addition, at such time as a child or grandchild of Grantor 

for whom a trust has been established herein reaches thirty 

(30) years of age, such child or grandchild shall become a 

Co-Trustee of his or her respective trust. Subject to the 

foregoing, upon a child or grandchild of Grantor reaching thirty 

(30) years of age, the Trustees then serving for the trust of such 

child or grandchild shall be limited to a four (4) year term with the 

first such four (4) year term beginning upon the child or 

grandchild’s reaching thirty (30) years of age. Such four (4) year 

term shall be renewable in the absolute discretion of the child or 

grandchild for whom a trust is established.

Furthermore, Trustees serving hereunder from time to time

are authorized to appoint at any time, by unanimous action 

if more than one Trustee is then serving, additional 

Trustees. Each such designation or appointment shall be made 

by written instrument other than a will, and may be revoked in 

writing at any time prior to its becoming effective. 

A “non-family member Trustee” shall refer to a corporation or an 

individual who is neither a descendant of Grantor nor married to 

such a person, nor any person who is a “related or subordinate 

party” to Trustee as defined in I.R.C. Section 672(c). ...

Trustees designated or appointed pursuant to this Item 

SIXTEENTH shall qualify as such by attaching hereto a 

written acceptance of the office and thereupon shall 

undertake all of the obligations and powers assigned to 

“Trustees” hereunder. 
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Trust Agreement, 3/3/03, at 20-21, 23, 26-29 (emphases added).

John averred that, in accordance with Item Sixteenth of the Trust 

Agreement, he became a co-trustee in 2014, when he turned 30 years of age, 

and that he properly accepted his appointment in writing. Declaratory 

Petition, 2/14/20, at ¶¶ 5(d), 5(f), 7. As such, John argued that Riley’s

unilateral appointment of Bridgeford as a co-trustee, as well as the purported 

change in situs of the Trust to South Dakota were void and invalid ab initio. 

Id. at ¶¶ 36, 44. See also id. at ¶ 34 (noting that “pursuant to Item 

SIXTEENTH of the Trust Agreement, in order to appoint additional co-trustees, 

if more than one trustee is serving, the appointment of additional trustees 

must be ‘by unanimous action’”); id. at ¶ 35 (John’s indicating that he did not 

consent to or join in the appointment of Bridgeford as co-trustee); id. at ¶ 37 

(stating that Item TWELFTH ¶ 15 of the Trust Agreement grants the trustees 

the power to change the situs of the Trust for administrative and accounting 

purposes); id. at ¶ 38 (“Pursuant to 20 Pa.C.S. § 7763(a), ‘[c]o[-]trustees 

who do not reach a unanimous decision may act by majority decision.’”); id.

at ¶ 42 (“John, as a co-trustee ... was not consulted with and did not consent 

to or join in the change of situs of the Trust from Pennsylvania to South 

Dakota.”); id. at ¶ 43 (asserting that Riley did not have the power to 

unilaterally change the situs of the Trust).

Riley filed an answer and new matter to John’s Declaratory Petition, 

contesting John’s assertion that he became a co-trustee in 2014. While Riley 

consented that John reached the age of 30 in 2014, he averred that at the 
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time of Bridgeford’s appointment and the change in situs to South Dakota, 

John had not accepted the position of trustee in accordance with the terms of 

the Trust Agreement. Answer and New Matter, 10/2/20, at ¶¶ 6-7.2 In fact, 

he stated that the only alleged “evidence” provided by John of his supposed 

acceptance of the position — namely, a January 11, 2018 redacted letter 

addressed to Laubach — merely reflected John’s “‘intent’ at some unspecified 

time in the future to so accept such position, but not his then present 

acceptance of the duties and responsibilities of a co-trustee.” Id. at ¶ 7. 

Hence, Riley argued that he was not obligated to seek John’s joinder or 

consent to either appoint Bridgeford as a co-trustee or to change the situs of 

the Trust. Id. at ¶ 10. Additionally, Riley asserted that because the situs was 

____________________________________________

2 As Riley noted, 20 Pa.C.S. § 7761 provides, in relevant part, that a person 

designated as trustee accepts the trusteeship:

(1) By substantially complying with a method of acceptance 

provided in the Trust instrument; or

(2) If the Trust instrument does not provide a method or the 

method provided in the Trust instrument is expressly made 

exclusive, by accepting delivery of the Trust property, 

exercising powers or performing duties as a Trustee or by 

otherwise indicating acceptance of the Trusteeship....

Answer and New Matter at ¶ 59. See also id. at ¶ 61 (Riley’s stating that 

trustees designated under Item Sixteenth of the Trust Agreement “shall 

qualify as such by attaching hereto a written acceptance of the office and 

thereupon shall undertake all of the obligations and powers assigned to 

‘Trustees’ hereunder” (quoting Trust Agreement at 29)); id. at ¶ 60 (Riley’s 

advancing that “at no time prior to February 6, 2020[,] did John comply with 

either the method of acceptance of the [t]rusteeship provided in the Trust 

[Agreement] or otherwise exercising [sic] any powers or perform any duties 

as Trustee that would indicate acceptance of the [t]rusteeship...”).
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properly moved to South Dakota, the Court of Common Pleas of Montgomery 

County, Pennsylvania, Orphans’ Court Division lacks jurisdiction over the 

administration of the Trust. Id. at ¶¶ 25-26.

3

 

Riley subsequently proceeded with filing a request for limited discovery 

against John and Laubach regarding John’s purported acceptance of the office 

of co-trustee prior to February 2020. A status conference was held on 

February 1, 2021; however, no hearing date was scheduled on John’s 

Declaratory Petition, nor did the court rule on Riley’s discovery request at that 

time. 

On May 19, 2022, while the Declaratory Petition was still pending and 

the question regarding the orphans’ court’s jurisdiction over the 

administration of the Trust remained unresolved, John filed an emergency 

petition seeking to compel Riley to make distributions from the Trust “to 

preserve seat licenses John owns for seats to the Los Angeles Lakers (the 

‘Lakers’), a professional basketball team in the National Basketball Association 

(the ‘NBA’).” John’s Brief at 5.4 Riley filed preliminary objections to the 

Emergency Petition, arguing that the orphans’ court could not rule on the 

____________________________________________

3 We note that Settlor also filed an answer and new matter to John’s 

Declaratory Petition, to which John filed preliminary objections. By order of 

court dated August 25, 2022, the orphans’ court sustained John’s preliminary 

objections on the grounds that “Settlor lacks standing to respond to the 

Petition.” Order, 8/22/22, at 1. Settlor’s answer and new matter was thereby 

stricken. Id. Settlor filed a timely appeal from that order at docket no. 2449 

EDA 2022, which we address in a separate writing. 

4 John’s petition seeking distributions from the Trust is referred to herein as 

the “Emergency Petition.” 
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request for distributions without first deciding if it has jurisdiction. Riley’s 

Brief at 10. See also Preliminary Objections, 5/24/22, at ¶¶ 1-7 (reminding 

the orphans’ court that John’s Declaratory Petition raises the question of which 

court has jurisdiction over administration of the Trust, which must be resolved 

before the court can undertake such oversight of the Trust and rule on John’s 

request for “emergency” distributions). 

While the Emergency Petition was still pending, John was notified by the 

Lakers’ business office that his Lakers season seat licenses were “subject to 

immediate cancellation,” unless two equal payments of $176,095.06 were

received by the Lakers — the first by June 27, 2022, and the second by August 

15, 2022. John’s Brief at 9-10. Thus, on June 24, 2022, John filed a praecipe 

with the orphans’ court to amend his proposed preliminary decree to the 

Emergency Petition in accordance with the cancellation notice received from 

the Lakers. Id. at 10. Without addressing Riley’s preliminary objections or 

holding an evidentiary hearing on either the Emergency Petition or the 

underlying Declaratory Petition, the orphans’ court entered an order on June 

27, 2022, directing Riley to make the two payments necessary to avoid 

cancellation of John’s seat licenses. Id. See Order (“Distribution Order”), 

6/27/22, at 1-2.

Riley filed a timely notice of appeal, followed by a timely, court-ordered 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The 

orphans’ court filed its Rule 1925(a) opinion on August 31, 2022, in which it

opined that its June 27, 2022 order is not immediately appealable. See
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Orphans’ Court Opinion (“OCO”), 8/31/22, at 1 (“This order is neither a final 

order under Pa.R.A.P. 341, nor a collateral order under Pa.R.A.P. 313.”); id.

at 2 (opining that the order appealed from is not an appealable orphans’ court 

order under Pa.R.A.P. 342). Additionally, on October 7, 2022, John filed a 

motion to dismiss this appeal as moot pursuant to Pa.R.A.P. 1972(a)(4), 

noting that Riley had already made the distributions in accordance with the 

Distribution Order.5 

Herein, Riley presents the following issues for our review:

1. Whether the orphans’ court erred in rendering an adjudication 

of [John’s] Emergency Petition ... by exercising jurisdiction over 

the Trust and directing distributions from the Trust without first 

ruling on a prior pending petition concerning whether 

Pennsylvania has jurisdiction over the administration of the 

Trust. 

2. Whether the orphans’ court erred in rendering an adjudication 

of the Emergency Petition and directing distributions from the 

Trust without holding an evidentiary hearing as to the 

jurisdictional issue of whether ... John ... was a co-trustee of the 

Trust prior to February 6, 2020[,] whose consent was 

necessary to appoint another trustee and change the situs of 

the trust. 

3. Whether the orphans’ court erred in rendering an adjudication 

of the Emergency Petition and mandating distributions from the 

Trust without holding an evidentiary hearing to resolve 

numerous disputed issues of fact raised by the Emergency 

Petition. 

4. Whether the orphans’ court erred in rendering an adjudication 

of the Emergency Petition when there was a pending Petition 

for Leave to Conduct Oral and Written Discovery, seeking 

____________________________________________

5 By per curiam order dated October 7, 2022, the disposition of John’s 

application to dismiss the appeal was deferred to the merits panel and is 

discussed further infra. 
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documents and other discovery directly relevant to the issue of 

whether the court had jurisdiction.

5. Whether the orphans’ court erred in rendering an adjudication 

of the Emergency Petition directing distributions from the Trust 

in order “to preserve the status quo” without holding a hearing 

to allow the presentation of evidence to establish what the 

status quo was. 

Riley’s Brief at 6-7 (cleaned up). 

Before we reach the merits of the issues raised by the appellant, we 

must first determine whether this appeal is properly before us. “The question 

of the appealability of an order goes directly to the jurisdiction of the Court 

asked to review the order.” Beltran v. Piersody, 748 A.2d 715, 717 (Pa. 

Super. 2000). “Jurisdiction is purely a question of law; the appellate standard 

of review is de novo, and the scope of review is plenary.” Commonwealth 

v. Merced, 265 A.3d 786, 789 (Pa. Super. 2021). 

Our “jurisdiction is generally limited to appeals from final orders of 

courts of common pleas, unless a statute provides otherwise.” Williams v. 

Williams, 385 A.2d 422, 422 (Pa. Super. 1978). As the record reveals that 

the issues regarding the validity of Bridgeport’s appointment as a co-trustee 

as well as the change in situs of the Trust are still pending below, we agree 

with the orphans’ court that its June 27, 2022 order directing Riley to make 

distributions from the Trust is not a final order, because it does not dispose of 

all claims and all parties. See Pa.R.A.P. 341(b). Nonetheless, we disagree 

with the orphans’ court’s position that the order is not appealable under 

Pa.R.A.P. 342. Pursuant to Rule 342, “[a]n appeal may be taken as of right 

from ... [a]n order confirming an account, or authorizing or directing a 
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distribution from an estate or trust[.]” Pa.R.A.P. 342(a)(1). See also id. at

Comment (“Orders falling within subdivisions (a)(1)-(7) no longer require the 

lower court to make a determination of finality.”). Moreover, the failure to 

appeal an order that is immediately appealable under Rule 342(a) “shall 

constitute waiver of all objections to such order and such objections may not 

be raised in any subsequent appeal.” Pa.R.A.P. 342(c).

Here, the order from which Riley appealed expressly states, in relevant 

part:

1. Pursuant to 20 Pa.C.S. § 7711, to preserve the status quo 

and to prevent the forfeiture of seat licenses worth in excess 

of $3,000,000, Patrick J. Riley is hereby ordered to make 

the following distributions to John P. Middleton from the

above-captioned [T]rust[:]

(a) $176,095.06 by 5:30 p.m. PDT on June 27, 2022; and 

(b) $176,095.06 by 5:30 p.m. PDT on August 15, 2022.

2. Nothing in this order shall limit Patrick J. Riley’s ability or 

duty to exercise his discretion to make additional 

distributions to John P. Middleton for his education, medical 

care or support in reasonable comfort in addition to the 

amount set forth in this order.

Distribution Order at ¶¶ 1-2. There is no question that this is an order 

“directing a distribution from [a] ... trust[.]” Pa.R.A.P. 342(a)(1). 

Consequently, the Distribution Order was immediately appealable as of right 

pursuant to Rule 342(a)(1).

6

 

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6 We further observe that the Distribution Order constitutes a mandatory 

preliminary injunction. See 15 Standard Pennsylvania Practice 2d § 83:9 

(“Mandatory preliminary injunctions command positive acts on part of one 

(Footnote Continued Next Page)
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We now turn to John’s motion to dismiss this appeal on the grounds of 

mootness. John avers that Riley has fully complied with the Distribution Order

by making both of the payments as directed by the orphans’ court, and that 

those distributions “cannot be undone.” Motion to Dismiss, 10/7/22, at ¶¶ 4, 

5, 18, 26. He further asserts that “[w]hen a party complies with a decree 

from which it has appealed, the party’s appeal from that decree is moot.” Id.

at ¶ 19 (citing Easton Theatres, Inc. v. Wells Fargo Land and Mort. Co., 

Inc., 449 A.2d 1372 (Pa. 1982)). See also id. at ¶ 23 (“When, as here, ‘the 

terms of the order ... on appeal have been fully executed and there remains 

no power to grant the relief sought,’ the appeal should be dismissed as moot.”

(quoting Graziano Constr. Co., Inc. v. Lee, 444 A.2d 1190, 1194 (Pa. 

Super. 1982)). As it is well established that this Court “cannot enter 

judgments or decrees to which effect cannot be given,” id. at ¶ 25 (quoting 

Graziano, 444 A.2d at 1193), John requests that we dismiss the instant 

appeal as moot. Id. at 8.

In response, Riley advances that the issue on appeal is not the 

distributions made in accordance with the Distribution Order but, rather,

“Riley’s right to an evidentiary hearing on jurisdiction and his right to an 

evidentiary hearing [as to the status quo] before a mandatory injunction is 

entered.” Response to Motion to Dismiss, 10/12/22, at 1-2. He argues that 

____________________________________________

party to maintain the status quo between the parties.”). Thus, we would also 

deem the Distribution Order an interlocutory appeal as of right. See Pa.R.A.P. 

311(a)(4) (permitting an interlocutory appeal as of right from an order 

granting injunctive relief). 
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“[t]he order appealed from must be vacated, not to claw back the payments 

made to the Lakers, but so as to undo the premature exercise of jurisdiction 

by the orphans’ court.” Id. at 2 (unnecessary capitalization omitted).

7 See 

also id. at 10 ¶ 17 (stating that the orphans’ court’s granting of John’s 

Emergency Petition “was an exercise of jurisdiction over the Trust without first 

adjudicating the issue of jurisdiction which had been pending before the 

[c]ourt since February 14, 2020”). Moreover, Riley asserts that the orphans’ 

court “granted the Emergency Petition expressly to preserve the status quo 

while totally unaware of the actual status quo ... because it never held a 

hearing on [John’s] Emergency Petition....” Id. 

This Court has explained the doctrine of mootness as follows:

As a general rule, an actual case or controversy must exist at all 

stages of the judicial process, or a case will be dismissed as moot. 

An issue can become moot during the pendency of an appeal due 

to an intervening change in the facts of the case or due to an 

intervening change in the applicable law. In that case, an opinion 

of this Court is rendered advisory in nature. An issue before a 

court is moot if in ruling upon the issue the court cannot enter an 

order that has any legal force or effect. 

____________________________________________

7 While Riley admits that he made both the required distributions, he avers

that he made these payments — not pursuant to the Distribution Order —

but, rather, pursuant to an agreement that he reached with John prior to the 

issuance of the court’s order and to fulfill his fiduciary duties to the Trust. 

Response to Motion to Dismiss at ¶¶ 3-4. In fact, Riley indicates that the first 

payment “had already been made before the [Distribution] Order was issued.” 

Id. at ¶ 3. “The making of the first payment gave rise to a fiduciary duty to 

make the second[,] because without the second payment, the first payment 

would have been an unnecessary waste of Trust resources because the seat 

license[s] would have been lost.” Id. at ¶ 4.
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In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (en banc) (citations and 

quotation marks omitted). “It is impermissible for courts to render purely 

advisory opinions. In other words, judgments or decrees to which no effect 

can be given will not, in most cases, be entered by this Court.” First Union

Nat. Bank v. F.A. Realty Investors Corp., 812 A.2d 719, 724 (Pa. Super. 

2002) (citation omitted).

Nevertheless, this Court will decide questions that otherwise have 

been rendered moot when one or more of the following exceptions 

to the mootness doctrine apply: 1) the case involves a question of 

great public importance, 2) the question presented is capable of 

repetition and apt to elude appellate review, or 3) a party to the 

controversy will suffer some detriment due to the decision of the 

trial court.

In re D.A., 801 A.2d at 616 (citations omitted). 

Instantly, John argues that this appeal is moot because “Riley has fully 

complied with the [Distribution] Order.” Motion to Dismiss at ¶ 5. See also

id. at ¶ 26 (“Here, Riley made the distributions from the Trust as directed by 

the [c]ourt, and those distributions cannot be undone.”). He reasons that, “in 

determining whether an appeal is moot, this Court looks to whether the relief 

sought by the appellant can be granted[,]” and that we cannot enter a 

judgment or decree to which no effect can be given. Id. at ¶ 25 (citing 

Graziano, 444 A.2d at 1193). 

It is true that where “there remains no power to grant the relief sought,”

an appeal should be dismissed as moot. Graziano, 444 A.2d at 1194. 

However, that is not the case here. As Riley points out, he is not asking that 
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the payments be “undone.” See Response to Motion to Dismiss at 2, 12. To 

the contrary, he seeks the following relief on appeal:

Based upon all of the foregoing, this Court should 1) vacate the 

[o]rphans’ court[’s] order dated June 27, 2022[,] so as to avoid 

any waivers of Riley’s objections to a) the exercise of jurisdiction 

over this Trust in Pennsylvania and b) the entry of injunctive relief 

without a hearing; and 2) remand the matter to the [o]rphans’ 

court with instructions a) to hold an evidentiary hearing on the 

[Declaratory] Petition, following discovery, and b) not to issue any 

further injunctive relief without: i) expediting [John’s] production 

of the documents on which he bases his claims in the 

[Declaratory] Petition and which he claims demonstrate that 

jurisdiction lies here in Pennsylvania because he was allegedly a 

[t]rustee at the time of the change of situs; and ii) holding a 

hearing to determine the status quo, the potential of irreparable 

harm[,] and the need for emergency relief before a full evidentiary 

hearing can be held on the [Declaratory] Petition.

Riley’s Brief at 45-46. Hence, Riley is essentially seeking our review of the 

orphans’ court’s exercise of jurisdiction over the Trust without first conducting 

an evidentiary hearing to determine whether it had jurisdiction over the 

administration of the Trust. Because the issue of the orphans’ court’s 

jurisdiction remains unresolved and such a determination is essential for the 

resolution of the parties’ rights and the underlying matters, we cannot agree 

that this appeal is moot. See F.A. Realty Investors Corp., 812 A.2d at 725

(concluding that despite the entry of a consent order and the appellant’s 

payment in full of the judgment amount owed to the appellees, the appeal 

was not moot where the question of whether the trial court had jurisdiction to 

enter the consent order remained unresolved and could still impact the 
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respective legal rights and obligations of the parties).8 Thus, we will address 

Riley’s claims.9 

We review the merits of Riley’s claims mindful of the following: In an 

appeal from an orphans’ court’s decision, 

[we] must determine whether the record is free from legal error 

and the court’s factual findings are supported by the evidence. 

Because the [o]rphans’ [c]ourt sits as the fact-finder, it 

determines the credibility of the witnesses and, on review, we will 

not reverse its credibility determinations absent an abuse of that 

discretion. However, we are not constrained to give the same 

deference to any resulting legal conclusions. Where the rules of 

law on which the court relied are palpably wrong or clearly 

inapplicable, we will reverse the court’s decree. 

In re Vincent J. Fumo Irrevocable Children’s Trust ex rel. Fumo, 104 

A.3d 535, 539 (Pa. Super. 2014) (citation omitted). Moreover, to the extent 

that the appellant’s claims involve statutory interpretation and/or 

interpretation of the Trust document, such issues present questions of law 

____________________________________________

8 John’s Motion to Dismiss this appeal as moot is hereby DENIED.

9 On January 11, 2024, Riley filed an application under Pa.R.A.P. 2501(a), 

requesting that we take judicial notice of a subsequent appeal filed by John at 

docket number 3220 EDA 2023. In his application, Riley indicates that John 

has purportedly filed numerous emergency requests for distributions from the 

Trust since his filing of the Emergency Petition at issue in the matter sub 

judice. Application for Judicial Notice, 1/11/24, at ¶¶ 4-5. John’s appeal at 

3220 EDA 2023 is allegedly from the orphans’ court’s denial of one of these 

additional emergency distribution requests. Id. at ¶ 8. Riley suggests that 

this subsequent appeal warrants judicial notice, “as it demonstrates that the 

issue on appeal here is ‘likely to repeat itself,’ thereby assuring that the within 

appeal is not moot.” Id. at ¶ 9. See also id. at ¶ 3 (noting that a question 

which is likely to repeat itself is an exception to the mootness doctrine). Due 

to our disposition in this case, it is unnecessary to take judicial notice of this 

appeal. Hence, Riley’s Application for Judicial Notice is hereby DENIED. 
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over which our standard of review is de novo and our scope of review is 

plenary. See In re Jackson, 174 A.3d 14, 29 (Pa. Super. 2017); B.K.M. v. 

J.A.M., 50 A.3d 168, 172 (Pa. Super. 2012). 

We begin by considering whether the Montgomery County Orphans’ 

Court had jurisdiction over the Trust at the time it adjudicated John’s 

Emergency Petition, as each of the questions before us is dependent on a 

determination of this issue. In accordance with the Trust Agreement, “the 

situs of this [T]rust shall be the Commonwealth of Pennsylvania, and all 

questions pertaining to the construction and validity of the provisions of this 

Agreement shall be governed by the law of that Commonwealth.” Trust 

Agreement at 26. However, the trustee(s) shall have the power to “change 

the situs [of the Trust] for administrative and accounting purposes ... to any 

jurisdiction, without the necessity of court approval.” Id. at 23 ¶ 15. Thus, 

while the terms of the Trust are to be interpreted by Pennsylvania law, the 

situs where the Trust is administered can be changed by the trustee(s). 

Essentially, Riley argues that the situs of the Trust was transferred from 

Pennsylvania to South Dakota on February 6, 2020; hence, the Trust shall 

now be administered in accordance with South Dakota law. According to John,

however, he became a co-trustee in 2014. As such, John maintains that the 

purported transfer of the Trust situs to South Dakota was void and invalid ab 

initio and, therefore, the Trust is still governed by the law of this 

Commonwealth. To resolve this conflict of laws issue, we turn to 

Pennsylvania’s choice-of-law rules. See Melmark, Inc. v. Schutt By and 
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Through Schutt, 206 A.3d 1096, 1104 (Pa. 2019) (“Courts conduct a choiceof-law analysis under the choice-of-law rules of the forum state.”). 

Pennsylvania has adopted the Restatement (Second) of Conflicts of 

Laws, which provides in relevant part:

The administration of an inter vivos trust of interests in movables 

is governed as to matters which can be controlled by the terms of 

the trust

(a) by the local law of the state designated by the settlor 

to govern the administration of the trust, or

(b) if there is no such designation, by the local law of the 

state to which the administration of the trust is most 

substantially related. 

Restatement (Second) of Conflict of Laws § 272 (1971). “Matters of 

administration” are defined as “those which relate to the management of the 

trust[,]” which include “matters relating to the duties owed by the trustee to 

the beneficiaries[;] ... the powers of a trustee, such as ... the exercise of 

discretionary powers, the requirement of unanimity of the trustees in the 

exercise of powers, and the survival of powers[;] ... the removal of the trustee 

and the appointment of successor trustee....” Id. at § 272, Comment a; id.

at § 271, Comment a. 

The Comments to Section 272 explain that “[t]he settlor of an inter vivos

trust may designate in the trust instrument a state whose local law is to govern 

the administration of the trust.” Id. at § 272, Comment c. However, “[w]hen 

the settlor does not designate a state whose local law is to govern the 

administration of the trust, its administration will be governed by the local law 
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of the state to which the administration is most substantially related.” Id. at

§ 272, Comment d. Moreover, Comment e to Section 272 states:

If the actual place of administration is changed ... because ... in 

the exercise of a power of appointment a trustee is appointed 

whose place of business or domicil is in another state, the question 

arises whether thereafter the administration of the trust is 

governed by the local law of the other state. This depends on the 

terms of the trust, express or implied. Such a change of the 

applicable law may be expressly authorized by the terms of the 

trust, or it may be authorized by implication, such as when the 

trust instrument contains a power to appoint a trustee in another 

named state. A simple power to appoint a successor trustee may 

be construed to include a power to appoint a trust company or 

individual in another state. In such cases, the law governing the 

administration of the trust thereafter is the local law of the other 

state and not the local law of the state of original administration.

On the other hand, the terms of the trust may show the [settlor’s]

intention that the trust is always to be administered under the 

local law to the original state. In such a case[,] the mere fact that 

... by the exercise of a power of appointment a ... trustee is 

appointed who is domiciled in another state does not result in a 

change of the law applicable to the administration of the trust.

Id. at § 272, Comment e. 

Here, the terms of the Trust allow for the transfer of the Trust situs “to 

any jurisdiction[,]” Trust Agreement at 23 ¶ 15, and contain no language 

indicating that the Settlor intended for the Trust to always be administered 

under Pennsylvania law. Rather, the Trust Agreement merely states that “all 

questions pertaining to the construction and validity of the provisions 

of this Agreement shall be governed by the law of [the] Commonwealth[ of 

Pennsylvania].” Id. at 26 (emphasis added). The Trust Agreement is silent 

as to which state’s law shall govern the administration of the Trust. Thus, 

if the situs of the Trust was in fact transferred to South Dakota, we would 
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likely determine that the laws of South Dakota would apply. See SDCL § 55-

3-48 (“Unless the governing instrument or a court order expressly prohibits 

the change of the law of another jurisdiction to govern the administration of 

the trust, the laws of South Dakota shall govern the administration of a trust 

while the trust is administered in South Dakota.”). Alternatively, if the 

transfer of situs was not valid and the situs remains in Pennsylvania, the laws 

of the Commonwealth would apply. See 20 Pa.C.S. § 722 (“When a 

Pennsylvania court has jurisdiction of any trust, ... except as otherwise 

provided by law, the venue for all purposes shall be in the county where at 

the time being is the situs of the trust.”); 20 Pa.C.S. § 711 (granting the 

orphans’ court exclusive and mandatory jurisdiction over matters regarding 

the administration of inter vivos trusts, the distribution of personal property 

of inter vivos trusts, and the appointment and removal of a trust fiduciary). 

Based on our review, whether the transfer of situs to South Dakota was 

valid is dependent on resolution of the question regarding whether John 

properly accepted the role as a co-trustee in accordance with the Trust 

Agreement. This is a matter of factual dispute between the parties, which 

must be resolved in the orphans’ court. Accordingly, we vacate the June 27, 

2022 order and remand for the orphans’ court to conduct an evidentiary 

hearing and to determine whether it has jurisdiction over this matter.10 

____________________________________________

10 Due to our disposition, we need not address Riley’s claim that the orphans’ 

court erred in directing distributions from the Trust without first holding an 

(Footnote Continued Next Page)
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Order vacated. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished. 

Date: 3/25/2024

____________________________________________

evidentiary hearing to determine the status quo. However, in the event that 

the orphans’ court is deemed to have jurisdiction over the Trust, we note that

“[a] court shall 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, in which case the court may issue a preliminary ... injunction without a 

hearing or without notice.” Pa.R.Civ.P. 1531(a). See also Pa.O.C.R. 7.4 

(“Upon petition, the court may issue a preliminary, special, or permanent 

injunction in accordance with the rules and procedures provided in Pa.R.Civ.P. 

1531.”).