J-A10031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.G., A MINOR

APPEAL OF: MATTHEW AND LUANN 

GAIN

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2844 EDA 2018

Appeal from the Order Dated August 13, 2018

In the Court of Common Pleas of Chester County

Orphans’ Court at No(s): 1512-1598

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 25, 2019

Appellants, Matthew and Luann Gain, appeal from the order entered in 

the Chester County Court of Common Pleas, Orphans’ court, which confirmed

the first and final account of Appellee, Wilmington Trust, N.A., former trustee 

of the L.G. Special Needs Trust (“Trust”). For the following reasons, we vacate 

and remand for further proceedings. 

The relevant facts and procedural history of this appeal are as follows. 

Appellants are the natural parents of L.G., a minor. Soon after her birth, L.G. 

was diagnosed with several permanently debilitating developmental and 

mental disabilities, rendering her wholly dependent on others for her care for 

the rest of her life. On September 26, 2012, the Orphans’ court approved the 

establishment of the Trust and appointed Appellee as trustee. Appellee served 

as trustee until April 21, 2017, when the Orphans’ court approved the 

appointment of a successor trustee. 
J-A10031-19

- 2 -

On March 23, 2018, the Orphans’ court ordered Appellee to file an 

account of its administration of the Trust. Appellee filed its first and final 

account on May 31, 2018. With its account, Appellee filed a copy of a May 30, 

2018 letter that Appellee claimed its counsel had sent to Appellants and 

Appellants’ counsel along with Appellee’s first and final account. The May 30, 

2018 letter provided, in relevant part: “The audit of the Account will be held 

on a date to be determined at 201 West Market Street, West Chester, PA, 

19380.” (See Account Notice Letter, dated 5/30/18; R.R. at 381a-382a.) The 

letter stated the due date for filing any objections was on or before the audit 

date, but the letter did not state that Appellee would provide the date of the 

audit upon request. Appellee does not dispute that Appellants’ counsel 

requested notice of the date scheduled for the audit or that Appellee gave no 

date. Appellants filed no objections to the account. The Orphans’ court 

conducted an audit of Appellee’s first and final account on August 1, 2018, 

and entered a decree of distribution on August 2, 2018. Subsequently, the 

court confirmed Appellee’s account on August 13, 2018. 

On September 12, 2018, Appellants filed a timely notice of appeal from 

the August 13th order. The next day, September 13, 2018, Appellants filed a 

petition for reconsideration of the August 13th order, a request for leave to file 

nunc pro tunc objections to Appellee’s first and final account, and attached a 

copy of their proposed objections to the account. The Orphans’ court ordered 

Appellants on September 14, 2018, to file a concise statement of errors 
J-A10031-19

- 3 -

complained of on appeal per Pa.R.A.P. 1925(b); Appellants timely complied 

on October 4, 2018. The court did not rule on Appellant’s September 13th

reconsideration petition. 

Appellants raise the following issues for our review:

DID THE ORPHANS’ COURT COMMIT AN ERROR OF LAW

AND/OR ABUSE OF DISCRETION BY AFFIRMING 

[APPELLEE’S] ACCOUNT...AND DISCHARGING [APPELLEE] 

OF ALL LIABILITY WHEN [APPELLEE]’S NOTICE OF AUDIT 

WAS FACIALLY DEFECTIVE IN VIOLATION OF ORPHANS’ 

COURT RULE 2.5?

DID THE ORPHANS’ COURT COMMIT AN ERROR OF LAW 

AND/OR ABUSE OF DISCRETION BY RELYING INSTEAD ON 

THE MAILBOX RULE AND AN AUDIT CALENDAR AS 

PROVIDING THE REQUISITE NOTICE TO [APPELLANTS] 

WHEN NEITHER THE MAILBOX RULE NOR THE AUDIT 

CALENDAR REMEDIED THE FACIALLY DEFECTIVE NOTICE?

DID THE ORPHANS’ COURT COMMIT AN ERROR OF LAW 

AND/OR ABUSE OF DISCRETION BY CONCLUDING THAT 

THE LACK OF NOTICE TO [APPELLANTS] DID NOT 

PREJUDICE THEM AS A MATTER OF LAW?

DID THE ORPHANS’ COURT COMMIT AN ERROR OF LAW 

AND/OR AN ABUSE OF DISCRETION BY FAILING TO 

CONSIDER [APPELLANTS]’ OBJECTIONS AFTER THEY WERE 

FILED?

FOR INSTANCE, DID THE ORPHANS’ COURT COMMIT AN 

ERROR OF LAW AND/OR ABUSE OF DISCRETION BY 

APPROVING AN ACCOUNT THAT CONTAINED PAYMENTS TO 

AN ARCHITECT AND ENGINEER, CHILTON DESIGNS, LLC 

AND MICHAEL J. SIGGINS, FOR SERVICES THAT WERE SO 

SUBSTANDARD THAT [APPELLANTS] HAD TO HAVE THE 

SERVICES OF A NEW SET OF PROFESSIONALS OBTAINED 

AND APPROVED BY THIS COURT FOR A RESIDENCE TO BE 

OWNED BY THE TRUST AND WHICH HAS AND WILL COST 

THE TRUST A SUBSTANTIAL AMOUNT?

(Appellants’ Brief at 5-6). 
J-A10031-19

- 4 -

In their issues combined, Appellants argue Appellee’s letter 

accompanying its accounting failed to include the date and time of the audit 

of Appellee’s first and final account. Appellants claim Appellee also failed to 

provide written notice of the audit date and time, when Appellants’ counsel 

specifically requested that information. Appellants aver the Orphans’ court 

incorrectly relied upon the “mailbox rule” codified in Orphans’ Court Rule 2.5(f)

to decide that Appellee provided Appellants proper notice of the account filing 

and audit. Appellants maintain the audit calendar did not serve to put them

on written notice of the audit date of Appellee’s account, or substitute for the 

required written notice from Appellee of the account and audit, or relieve 

Appellee of its obligation to comply with Orphans’ Court Rule 2.5(d). 

Appellants submit Appellee’s failure to comply with the notice requirements in 

Orphans’ Court Rule 2.5 precluded Appellants from raising objections to 

Appellee’s account and deprived Appellants of an opportunity to challenge the 

account in a hearing on the record. Appellants conclude this Court should 

reverse the Orphans’ court’s order confirming Appellee’s account and remand 

for further proceedings on Appellants’ objections to Appellee’s account. We 

agree relief is due. 

Initially, we observe:

Our standard of review of the findings of an [O]rphans’ court 

is deferential.

When reviewing a decree entered by the Orphans’ 

[c]ourt, this Court must determine whether the record 

is free from legal error and the court’s factual findings 
J-A10031-19

- 5 -

are supported by the evidence. Because the Orphans’ 

[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.

[T]he Orphans’ court decision will not be reversed unless 

there has been an abuse of discretion or a fundamental error 

in applying the correct principles of law.

In re Estate of Whitley, 50 A.3d 203, 206-07 (Pa.Super. 2012), appeal 

denied, 620 Pa. 724, 69 A.3d 603 (2013) (internal citations and quotation 

marks omitted). “An abuse of discretion is not merely an error of judgment; 

if, in reaching a conclusion, the court overrides or misapplies the law, or the 

judgment exercised is shown by the record to be either manifestly 

unreasonable or the product of partiality, prejudice, bias or ill will, discretion 

has been abused.” Silver v. Pinskey, 981 A.2d 284, 291 (Pa.Super. 2009) 

(en banc) (quoting Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)). 

“Our scope of review is also limited: we determine only whether the court’s 

findings are based on competent and credible evidence of record.” In re 

Estate of Karschner, 919 A.2d 252, 256 (Pa.Super. 2007) (quoting In re 

Estate of Westin, 874 A.2d 139, 142 (Pa.Super. 2005)). 

The Probate, Estates and Fiduciaries (“PEF”) Code provides in relevant 

part that the court at any time can direct a personal representative to file an 

account of administration. 20 Pa.C.S.A. § 3501.1. The PEF Code requires the 

person or entity filing the account to give notice to all persons entitled to 
J-A10031-19

- 6 -

notice. 20 Pa.C.S.A. § 3501.2. Section 3503 states in pertinent part as 

follows:

§ 3503. Notice to parties in interest

The personal representative shall give written notice of 

the filing of his account and of its call for audit or 

confirmation to every person known to the personal 

representative to have or assert an interest in the estate as 

beneficiary, heir, next of kin or claimant, unless the interest 

of such person has been satisfied or unless such person fails 

to respond to a demand under section 3532(b.1) (relating 

to at risk of personal representative).

20 Pa.C.S.A. § 3503 (emphasis added). The rules governing court procedure 

in the Orphans’ Court provide in relevant part: 

Rule 1.2. Construction and Application of Rules

(a) The Rules adopted by the Supreme Court regulating the 

practice and procedure of the Orphans’ Court Divisions of 

this Commonwealth and the local rules adopted by such 

courts shall be liberally construed to secure the just, timely 

and efficient determination of every action or proceeding to 

which they are applicable. The court at every stage of any 

action or proceeding may disregard any error or defect of 

procedure that does not affect the substantive rights of 

the parties in interest. 

* * *

Pa.O.C. Rule 1.2(a) (emphasis added). Rule 2.5 addresses an accountant’s 

duty to provide notice of filing an account, in pertinent part, as follows:

Rule 2.5. Notice of Account Filing

(a) No Account shall be confirmed or statement of proposed 

distribution approved unless the accountant has given 

written notice of the filing of the Account as provided in 

subparagraph (d) of this Rule to the following, as applicable:
J-A10031-19

- 7 -

* * *

(3) any other individual or entity known to the accountant 

to have or claim an interest in the estate or trust as a 

beneficiary, heir, or next of kin, except for those legatees or 

claimants whose legacies or claims have been satisfied in 

full as reflected in the Account or will be satisfied in full as 

proposed in the petition for adjudication/statement of 

proposed distribution; and

* * *

(d) Written notice, as provided in subparagraph (a) of this 

Rule, shall be mailed at least 20 days prior to the audit in 

those counties having a separate Orphans’ Court Division or 

20 days prior to the date by which objections must be filed 

in all other counties, and the written notice shall state 

the date of the audit or the date by which objections 

must be filed, and the time and place of the audit, if 

one is to be held, to the extent then known. If an 

audit is to be held and the time and place of the audit 

is not known at the time the notice is mailed, the 

notice shall state that the time and place of the audit 

will be provided upon request. A copy of the Account, 

petition for adjudication/statement of proposed distribution, 

and any legal paper filed therewith shall be sent with the 

notice, unless the recipient of the notice is a trust 

beneficiary who is not a “qualified beneficiary” as defined in 

20 Pa.C.S.[A]. § 7703, or unless the court orders otherwise 

in a particular matter.

* * *

(f) All notices and additional notices shall be sent by firstclass United States mail, postage prepaid. Service by mail 

is complete upon mailing.

* * *

Pa.O.C. Rule 2.5(a)(3), (d), (f) (emphasis added). In other words, an 

accounting party must provide interested individuals written notice of its filing 

of an account in the Orphans’ court. 20 Pa.C.S.A. § 3503; Pa.O.C. Rule 
J-A10031-19

- 8 -

2.5(a)(3), (d). The accountant also bears the burden to provide interested 

parties with written notice of (i) the date by which objections to its account 

are due and (ii) the time and place the court will conduct an audit of the

account. Id. Where the accountant is unaware, at the time it files its account,

of the time and place the court will hold an audit, the accountant must state 

in the written notice that the accountant will provide the time and place of the 

audit upon future request. Pa.O.C. Rule 2.5(a)(3), (d). A fundamental legal 

doctrine applicable in this context is: “[P]ersons having property rights cannot 

be deprived of them by judicial proceedings of which they were not notified 

and in which they were not given an opportunity to be heard.” In re Galli’s 

Estate, 340 Pa. 561, 572, 17 A.2d 899, 904 (1941). If the accountant fails 

to comply with the notice requirements and affects the substantive rights of 

the uninformed party, the error cannot be disregarded and the court’s 

confirmation of the account cannot stand. Pa.O.C. Rules 2.1, 2.5; In re 

Galli’s Estate, supra. 

Instantly, Appellants are the parents of L.G., a permanently disabled 

minor child and beneficiary of the Trust. Appellee served as trustee of the 

Trust from September 26, 2012, to April 21, 2017. In March 2018, the 

Orphans’ court ordered Appellee to file an account of its administration of the 

Trust, and Appellee filed an account on May 31, 2018. Appellee filed 

contemporaneously with its account a copy of a May 30, 2018 notice letter 

addressed to Appellants that read, in part: “The audit of the Account will be 
J-A10031-19

- 9 -

held on a date to be determined at 201 West Market Street, West Chester, 

PA, 19380.” (See Account Notice Letter, dated 5/30/18; R.R. at 381a-382a.) 

The letter stated the due date for filing any objections was on or before the 

audit date, but the letter did not state that Appellee would provide the date of 

the audit upon request. See Pa.O.C. Rule 2.5(d). Appellee does not dispute 

that Appellants’ counsel requested notice of the date scheduled for the audit

or that Appellee gave no date. Appellants filed no objections to the account. 

The Orphans’ court audited Appellee’s account on August 1, 2018, entered a 

decree of distribution on August 2, 2018, and subsequently confirmed 

Appellee’s account on August 13, 2018. 

Appellee characterizes its failure to provide the date as a “minor 

omission” that did not prejudice Appellants or prevent them from filing timely 

objections. In essence, Appellee offers a “constructive notice” defense to its 

failure to comply with the relevant procedural rules. Nevertheless, Rule 2.5(d) 

requires actual written notice of the time and place of the audit. Appellee’s 

error affected the substantive rights of Appellants, which the law will not 

disregard. Thus, the court’s confirmation of Appellee’s account as entered, 

without proper notice of the audit to Appellants, cannot stand. Pa.O.C. Rules 

2.1, 2.5; In re Galli’s Estate, supra. 

Based upon the foregoing, we conclude Appellee failed to provide 

compliant notice per Pa.O.C. Rule 2.5(d). Therefore, the Orphans’ court erred 

when it confirmed Appellee’s account. Accordingly, we vacate the order 
J-A10031-19

- 10 -

confirming Appellee’s account and remand for Appellee to provide Appellants 

with actual written notice of the time and place of a new audit and the filing 

deadline for Appellants’ objections. See Estate of Whitley, supra. The 

Orphans’ court shall then conduct a new audit of Appellee’s account, where 

Appellants shall have the opportunity to attend and argue their objections to 

Appellee’s account. Due to our disposition, we decline to address Appellants’ 

other claims on appeal. Additionally, nothing in our disposition of this appeal 

resolves any substantive claims regarding Appellee’s account. 

Order vacated; case remanded with instructions. Jurisdiction is 

relinquished. 

Judge Ott joins this memorandum.

Judge Lazarus files a concurring statement in which Judge Ott 

joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/19