J. A09013/16

 

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF JOHN H. NORRIS, 

JOHN H. NORRIS LIFE INSURANCE 

TRUST AGREEMENT

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

APPEAL OF: PEOPLESBANK, 

A CODORUS VALLEY COMPANY, 

TRUSTEE

:

:

:

No. 1117 MDA 2015

Appeal from the Order Entered May 27, 2015,

in the Court of Common Pleas of York County

Orphans’ Court Division at No. 67-08-1482

IN RE: ESTATE OF JOHN H. NORRIS, 

JOHN H. NORRIS LIFE INSURANCE 

TRUST AGREEMENT

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

: No. 1178 MDA 2015

APPEAL OF: 

YVONNE RENEE PLOURDE GURZELL

:

:

Appeal from the Order Entered May 27, 2015,

in the Court of Common Pleas of York County

Orphans’ Court Division at No. 6708-1482

BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2016

PeoplesBank, a Cordorus Valley Company (“the Bank”), appeals from 

the order entered May 27, 2015, removing it as co-trustee of the John H. 

Norris inter vivos life insurance trust (“the Trust”). Yvonne Rene Plourde 

Gurzell (“Gurzell”) has cross-appealed from the same order. After careful 
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review, we vacate the order, reinstate the Bank as co-trustee, and remand 

for further proceedings.

The trial court has aptly summarized the history of this case, in 

relevant part, as follows:

John H. Norris (“Decedent”) executed a Last 

Will and Testament on February 8, 2005. Decedent 

died on September 28, 2008. The York County 

Register of Wills issued Letters Testamentary on 

October 9, 2008 to Anna L. Norris, Decedent’s wife. 

The will named Anna L. Norris as executrix of the 

estate and as individual trustee of [the Trust]. 

American Guaranty & Trust Company was named 

corporate trustee from the Deed of Trust signed 

February 21, 2000 and amended May 17, 2000. 

American Guaranty & Trust Company has since been 

purchased by Royal Bank of Canada Trust Company 

(“RBC”). RBC resigned as corporate trustee on 

December 29, 2008 having never received or 

administered any trust assets. [The Bank] accepted 

the successor trusteeship on December 20, 2012. 

[The Bank] received trust assets from Mrs. Norris 

and began service on December 21, 2012.

Decedent was survived by his wife, children 

from his first marriage and step-children. 

Mary Florence Norris Michel, Patricia Jane Norris 

Slaughter and John C. Norris are Decedent’s children 

from his first marriage. [Gurzell], Samantha R. 

Plourde and Jeffery James Plourde are Decedent’s 

step-children. In his will, Decedent left his personal 

and household effects, including automobiles, and 

insurance on that property to his wife, Anna Norris. 

Decedent gives the residue of the estate, real and 

personal to the trustee or trustees under the Deed of 

Trust signed February 21, 2000, as amended 

May 17, 2000 under which American Guaranty & 

Trust Company, is named as the trustee, in trust, to 

treat it as an addition to the principal subject to that 

deed as it exists at Decedent’s death. The will 

names Anna Norris as executrix with [] Gurzell as 
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replacement executor [sic] should Anna Norris not 

qualify for any reason. The will does not name any 

other beneficiaries aside from Anna Norris.

Trial court opinion, 10/28/15 at 1-2.

Under [Paragraph XXIII(C) of the Deed of 

Trust], it is mentioned that the individual trustee is 

authorized at any time, and from time to time by an 

instrument in writing delivered to the other trustee 

serving, to remove the corporate trustee without 

stating any reason for such action, provided he or 

she simultaneously by written instrument appoints 

another corporate trustee in its place. Under D, no 

successor trustee shall be obliged to examine the 

accounts, records or acts of a previous trustee, nor 

shall any such trustee in any way or manner be 

responsible for any act or omission to act on the part 

of any such previous trustee or such individual 

trustee. Any claim or action against any such 

trustee shall, in any event, be filed by a beneficiary 

in the appropriate court. Subparagraph E mentions 

that any individual trustee may resign at any time 

without court approval. Under F, the fiduciaries 

serving are given the power to invest the principal 

and/or income of the trust estate in any assets or 

security. Lastly, subparagraph G provides that the 

corporate trustee shall receive compensation in 

accordance with its standard schedule of fees in 

effect while its services are performed.

Id. at 3-4.

On or about August 12, 2013, [the Bank] 

notified Mrs. Norris of its intent to resign as 

co-trustee. On August 14, 2013, [the Bank] filed a 

Petition for Adjudication/Statement of Proposed 

Distribution for [the Trust]. The case was listed for 

the September 11, 2013 audits with the Honorable 

Judge Penny L. Blackwell presiding. [The Bank] filed 

its accounting and gave proper notice of the audit to 

all interested parties. At the time of the 

September 11, 2013 audit no objections were filed 

as to [the Bank]’s accounting, save for counsel for 
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John C. Norris, one of Decedent’s children, 

expressing no objections to the account itself or to 

[the Bank] withdrawing, but that a successor trustee 

should be named before [the Bank] could withdraw. 

[The Bank] agreed that Mrs. Norris should select a 

successor pursuant to the terms of the trust and that 

no selection has been made at the time by 

Mrs. Norris. [Gurzell] was also present during the

audit as one of the beneficiaries but made no 

objections at the call of the audit or filled [sic] any 

written objections by the end of that business day.[1] 

Judge Blackwell rescheduled the matter for a 

subsequent hearing on October 1[6], 2013 to resolve 

pending matters.

At the October 16, 2013 hearing, new petitions 

were filed and counsel for [Gurzell] entered his 

appearance. Counsel requested an additional 

sixty days to discuss the matters pending and 

determine the issues that would be the subject of a 

hearing. The parties agreed that [the Bank] can 

remain involved for the time being, that its 

investment strategy is appropriate and that it will not 

be responsible for losses to the trust from the date of 

the close of the accounting until the date that funds 

are transferred.

On November 18, 2013, Mrs. Norris filed a 

Petition to Appoint Successor Trustee and Authorize 

Payment of Expenses. Counsel Trust Company 

located in York, Pennsylvania was identified as the 

 

1 Gurzell takes issue with the statement that no objections were raised to 

the Bank’s Petition for Adjudication/Statement of Proposed Distribution 

presented for audit on September 11, 2013. According to Gurzell, she 

appeared in person, without counsel, and voiced her objections. (Gurzell’s 

brief at 2; notes of testimony, 9/11/13 at 3.) The trial court found that 

while Gurzell did appear at the September 11, 2013 audit hearing, she did 

not actually voice any objection to the Trust accounting. (Trial court 

opinion, 10/28/13 at 21-22.) Gurzell did not file any written objections as 

required by local rule. (Id. at 22.) While counsel for Gurzell filed a petition 

to stay the adjudication of the Bank’s accounting, no formal objections to the 

Trust accounting were actually filed. (Id. at 22.) The issue is not germane 

to the instant appeal.
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successor trustee. On November 7, 2013, [the 

Bank] filed an Answer to Petition to Appoint 

Successor Trustee and Authorize Payment of 

Expenses. In its Answer, [the Bank] did not object 

to the appointment of Counsel Trust as its successor 

and indicated that any issues concerning Mrs. Norris’ 

loans did not preclude a confirmation of its 

accounting.[2] On November 22, 2013, [Gurzell] 

filed a Motion to Stay Executrix’s Petition to Appoint 

Successor Trustee and Authorize Payment of 

Expenses Pending Adjudication of Executrix’s 

Accounting for the Norris Trust. In [her] Petition, 

[Gurzell] alleged that Mrs. Norris should provide 

documentation as to the funding of the Marital and 

Residual Trusts and also questions some expenses 

incurred by the estate.

On November 25, 2013, Judge Blackwell issued 

an Order directing that [the Bank]’s action to defer 

payments from the trust is deemed reasonable given 

the status of the case. In addition, it was ordered 

that no successor corporate guardian can occur 

unless all parties agree to the appointment and/or by 

order of court after a hearing. Another hearing for 

the request to stay payment was scheduled for 

July 9, 2014 before this Court.

At the July 9, 2014 hearing this Court indicated 

that Mrs. Norris had filed an inventory and directed 

that an estate accounting should be filed within 

sixty days. [The Bank] was not permitted to resign 

until this Court could further review the record and 

see if a decision could be made. [The Bank] was 

permitted to file[] a memorandum of law addressing 

the topic of due diligence when taking trust funds. 

The memorandum of law was filed on July 17, 2014. 

On July 22, 2014, this Court stayed Mrs. Norris’ 

Petition to Appoint Successor Trustee and Authorize 

Payment of Expenses pending adjudicating of the 

estate accounting. [The Bank] indicated that it is 

 

2 This is a reference to a $450,000 loan from the Bank to Mrs. Norris which 

Mrs. Norris contends should be repaid from the estate. (Trial court opinion, 

10/28/15 at 4.)
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only involved in the trust accounting and has no role 

in the estate accounting.

On January 28, 2015, [Gurzell] filed a Motion 

to Compel Distribution for the Residuary Trust for 

litigation expenses. A hearing was held on 

January 28, 2015 that concerned the estate 

accounting and subpoenas issued in regards to 

documents from an accountant. The parties were 

directed to come up with a case management plan 

so that the Court could address the remaining issues. 

A subsequent hearing was held on May 27, 2015. 

[The Bank] indicated that [Gurzell]’s objections dealt 

with the estate accounting not the trust accounting. 

[The Bank] requested its administration adjudicated 

so that funds could be transferred for further 

administration. [Gurzell] alleged that the trust 

should not be transferred until the residuary trust 

accounting is reconciled. [The Bank] concurred on 

the appointment of its successor and indicated that it 

assumed no liability for its predecessor. [Gurzell] 

alleged that there were pending objections on the 

residuary trust accounting. This Court issued an 

Order removing [the Bank] as trustee and appointing 

Counsel Trust as successor trustee at the conclusion 

of the May 27, 2015 hearing.

On June 12, 2015, [the Bank] filed a Petition 

Seeking Confirmation of Trust Accounting and 

Amendment of the Court’s May 27, 2015 Order 

Removing [the Bank] as Trustee. On June 23, 2015, 

Mrs. Norris filed an Answer to [the Bank]’s Petition 

Seeking Confirmation of Trust Accounting and 

Amendment of the Court’s May 27, 2015 Order 

Removing [the Bank] as Trustee. [The Bank] also 

filed a Notice of Appeal to the Superior Court on 

June 26, 2015 before this Court could decide its 
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June 12, 2015 Petition.[3] On July 1, 2015, this 

Court issued an Order Directing [the Bank] to File [a] 

Statement of Matters Complained [of] on Appeal. 

[The Bank] filed [its] 1925(b) statement on July 13, 

2015. A Notice of Cross-Appeal to the Superior 

Court was filed on July 9, 2015 by [] Gurzell []. On 

July 10, 2015, this Court issued an Order Directing 

[Gurzell] to File [a] Statement of Matters 

Complained [of] on Appeal. [Gurzell] filed [her] 

1925(b) statement on July 20, 2015. [The Bank] 

and [Gurzell] now appeal to the Superior Court from 

this Court’s Order issued on May 27, 2015.

Id. at 4-7.

The Bank has raised the following issues for this court’s review:

A. Did the Orphans’ Court’s removal of the 

Trustee sua sponte, without a hearing, fail to 

comply with the requirements of 20 Pa.C.S. 

§§ 3183, 3184, and 7766?

B. Did the Orphans’ Court’s removal of the 

Trustee sua sponte, without a hearing, violate 

the consent Order dated November 25, 2013, 

ordering that no successor corporate trustee 

shall be appointed “unless all parties agree to 

the appointment and/or by order of court after 

a hearing,” and the Order dated July 22, 2014, 

staying the appointment of a successor trustee 

pending the adjudication of the Trustee’s 

accounting?

 

3 The trial court indicates that it was inclined to amend the order of May 27, 

2015, in order to allow the Bank to resign as opposed to being removed. 

(Trial court opinion, 10/28/15 at 15.) An order removing a trustee is a final 

order proper for appellate review. In re Georgiana’s Estate, 458 A.2d 

989, 991 (Pa.Super. 1983), affirmed, 475 A.2d 744 (Pa. 1984). Therefore, 

the Bank was required to file its appeal notice within 30 days. 

Pa.R.A.P. 903(a).
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The Bank’s brief at 2.4

This Court recently reaffirmed our standard of review 

of an Orphans’ Court decree:

When reviewing a decree entered by the 

Orphans’ Court, this Court must 

determine whether the record is free 

from legal error and the court’s factual 

findings are supported by the evidence. 

Because the Orphans’ Court 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 Estate of Hooper, 80 A.3d 815, 818 

(Pa.Super. 2013).

When the Orphans’ Court arrives at a legal 

conclusion based on statutory interpretation, our 

standard of review is de novo and our scope of 

review is plenary. Brown v. Levy, Pa. , 73 

A.3d 514, 517 (2013).

In re Estate of Fuller, 87 A.3d 330, 333 (Pa.Super. 2014).

The Probate, Estates and Fiduciaries (“PEF”) Code, Section 7766, 

“Removal of trustee,” provides, in relevant part, as follows:

(a) Request to remove trustee; court 

authority.--The settlor, a cotrustee or a 

beneficiary may request the court to remove a 

 

4 Gurzell raises substantially the same issues on appeal and agrees with the 

Bank that the trial court’s order of May 27, 2015, removing the Bank as 

trustee, was in error.
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trustee or a trustee may be removed by the 

court on its own initiative.

(b) When court may remove trustee.--The 

court may remove a trustee if it finds that 

removal of the trustee best serves the 

interests of the beneficiaries of the trust and is 

not inconsistent with a material purpose of the 

trust, a suitable cotrustee or successor trustee 

is available and:

(1) the trustee has committed a 

serious breach of trust;

(2) lack of cooperation among 

cotrustees substantially impairs the 

administration of the trust;

(3) the trustee has not effectively 

administered the trust because of 

the trustee’s unfitness, 

unwillingness or persistent failures; 

or

(4) there has been a substantial 

change of circumstances. A 

corporate reorganization of an 

institutional trustee, including a 

plan of merger or consolidation, is 

not itself a substantial change of 

circumstances.

(d) Procedure.--The procedure for removal and 

discharge of a trustee and the effect of 

removal and discharge shall be the same as 

that set forth in sections 3183 (relating to 

procedure for and effect of removal) and 3184 

(relating to discharge of personal 

representative and surety).

20 Pa.C.S.A. § 7766(a), (b) & (d).

[R]emoval of a trustee is a drastic remedy which 

should be employed only when clearly necessary. 
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In Re White, 321 Pa.Super. 102, 104, 467 A.2d 

1148, 1150 (1983), rev’d. on other grounds, 506 

Pa. 218, 484 A.2d 763 (1984). An order removing a 

trustee will only be reversed however, if there has 

been an abuse of discretion. Crawford’s Estate, 

340 Pa. 187, 190, 16 A.2d 521, 523 (1940).

In re Francis Edward McGillick Foundation, 594 A.2d 322, 332 

(Pa.Super. 1991), reversed in part on other grounds, 642 A.2d 467 (Pa. 

1994).

Section 3183 of the PEF Code provides,

The court on its own motion may, and on the petition 

of any party in interest alleging adequate grounds for 

removal shall, order the personal representative to 

appear and show cause why he should not be 

removed, or, when necessary to protect the rights of 

creditors or parties in interest, may summarily 

remove him. Upon removal, the court may direct 

the grant of new letters testamentary or of 

administration by the register to the person entitled 

and may, by summary attachment of the person or 

other appropriate orders, provide for the security 

and delivery of the assets of the estate, together 

with all books, accounts and papers relating thereto. 

Any personal representative summarily removed 

under the provisions of this section may apply, by 

petition, to have the decree of removal vacated and 

to be reinstated, and, if the court shall vacate the 

decree of removal and reinstate him, it shall 

thereupon make any orders which may be 

appropriate to accomplish the reinstatement.

20 Pa.C.S.A. § 3183.

Here, the first three subsections of 20 Pa.C.S.A. § 7766(b) are clearly 

inapplicable. There is no allegation that the Bank has committed a serious 

breach of trust, that there is a lack of cooperation between the Bank and 
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Mrs. Norris as co-trustees, or that the Bank has not effectively administered 

the Trust. The trial court relied on Subsection (4), a substantial change of 

circumstances. See In re McKinney, 67 A.3d 824, 832 (Pa.Super. 2013) 

(a showing that the current trustee has administered the trust in a way that 

undermined or harmed the beneficiaries’ interests is not needed for a 

no-fault removal of a trustee for a substantial change in circumstances). 

According to the trial court, the Bank’s desire to resign as corporate trustee 

is, in and of itself, a “substantial change of circumstances” which permits 

removal. (Trial court opinion, 10/28/15 at 18.) We disagree. As explained 

further infra, there is a significant difference between discharge and 

removal. The PEF Code does not allow no-fault removal of a trustee anytime 

a trustee requests to resign.

In addition, in any trustee removal action, the plain language of the 

statute requires that removal best serve the interests of the beneficiaries of 

the trust. In re McKinney, 67 A.3d at 831, citing 20 Pa.C.S.A. § 7766(b). 

The trial court found that Mrs. Norris has been prejudiced by the delay in 

adjudication of the Bank’s accounting. (Trial court opinion, 10/28/15 at 

16-17.) According to the trial court, the Trust is “at a standstill” with no 

distributions able to be made to Mrs. Norris until the issue of the Bank’s 

resignation and accounting is resolved. (Id. at 17.) However, the trial court 

acknowledges that any delay was caused by Gurzell, not the Bank. (Id. at 

16-17.) In addition, the Bank disputes the trial court’s assertion that 
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Mrs. Norris is not receiving distributions of income from the Trust while the 

matter is stayed. (The Bank’s brief at 18 n.7.)

Furthermore, the trial court failed to hold a hearing on the matter as 

required by 20 Pa.C.S.A. § 3183, which provides that,

The court on its own motion may, and on the petition 

of any party in interest alleging adequate grounds for 

removal shall, order the personal representative to 

appear and show cause why he should not be 

removed, or, when necessary to protect the rights of 

creditors or parties in interest, may summarily 

remove him.

Contrary to the trial court’s reference to “Mrs. Norris’ request to remove [the 

Bank] as trustee,” Mrs. Norris never petitioned for removal of the Bank. 

(Trial court opinion, 10/18/15 at 17.) Rather, Mrs. Norris acquiesced in the 

Bank’s petition to resign by identifying a successor corporate trustee. The 

Bank was removed on the court’s own motion. There is no allegation that 

summary removal was necessary to protect the rights of creditors or parties 

in interest. In fact, as stated above, the trial court relied on Section 7766’s 

no-fault removal provision and indicated that, “this Court was inclined to 

amend its Order issued on May 27, 2015 in order to allow [the Bank] to 

resign as opposed to being removed[.]” (Id. at 15.) The trial court 

explicitly did not find any fault on behalf of the Bank as to its administration 

of the Trust. (Id. at 10.) Therefore, before it could be removed, the Bank 

was statutorily entitled to an evidentiary hearing. Matter of Estate of 
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Velott, 529 A.2d 525, 527 (Pa.Super. 1987). Summary removal was 

inappropriate and unwarranted.

The trial court states that at the May 27, 2015 hearing, counsel were 

given the opportunity to present argument as to the Bank’s potential 

removal and appointment of Counsel Trust Company as successor trustee. 

(Trial court opinion, 10/28/15 at 11.) However, the purpose of the May 27, 

2015 hearing was to address outstanding discovery motions related to 

objections to the estate accounting. No witnesses were sworn and no 

testimony was offered on behalf of any party. The order scheduling the 

May 27 proceeding specifically stated that no testimony would be taken. In 

addition, while the parties discussed the resignation of the Bank and 

appointment of a successor corporate trustee, the Bank’s “removal” was 

never discussed since no one had petitioned for its removal. The trial court 

failed to hold a hearing in accordance with 20 Pa.C.S.A. § 3183 before 

ordering the Bank’s removal as trustee.

We also agree that the order sua sponte removing the Bank as 

trustee was contrary to at least two prior orders of court, including the 

November 25, 2013 consent order by Judge Blackwell specifically directing 

that no successor corporate trustee can be appointed without agreement of 

all the parties and/or by order of court after a hearing. Neither contingency 

had occurred in this case; the parties had not consented to appointment of a 

successor corporate trustee, and no hearing had been held on the issue. 
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The trial court states that the Bank’s status has remained in limbo for nearly 

two years, and “This Court also highly doubts that the Honorable 

Judge Blackwell intended for [the Bank] to continue their involvement for 

nearly two years after a successor trustee was identified.” (Trial court 

opinion, 10/28/15 at 10.) Nevertheless, the November 25, 2013 order, 

which has never been amended or rescinded, could not be overruled by a 

court of coordinate jurisdiction. Commonwealth v. Starr, 664 A.2d 1326, 

1331 (Pa. 1995) (“[T]his Court has long recognized that judges of coordinate 

jurisdiction sitting in the same case should not overrule each other[’s] 

decisions.”).

Similarly, the July 22, 2014 order stayed Mrs. Norris’ Petition to 

Appoint Successor Trustee and Authorize Payment of Expenses pending 

adjudication of the Bank’s trust accounting. There has never been an 

adjudication of the accounting. It was improper for the trial court to 

summarily remove the Bank as trustee without lifting the stay and holding a 

hearing.

Resignation and removal are not interchangeable. The trial court 

correctly observes that under 20 Pa.C.S.A. § 7770,5a successor trustee is 

not liable for the acts of its predecessor. (Trial court opinion, 10/28/15 at 

14.) Therefore, the Bank is not liable for any acts or omissions of RBC. 

 

5

“A successor trustee shall not be personally liable for the acts or omissions 

of the trustee’s predecessor and shall have no duty to investigate the acts or 

omissions of the predecessor.” 20 Pa.C.S.A. § 7770.
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(Id.) The trial court states that, “While [the Bank’s] accounting should have 

been adjudicated, we find no reason to further discharge [the Bank] from 

liability under § 3184 when § 7770 specifically states that a successor 

trustee shall not be personally liable.” (Id. at 15.) However, under 

Section 3184,6a trustee is discharged from all future liability, not only acts 

or omissions of a predecessor trustee. By removing the Bank as a trustee 

under Section 7766 instead of granting its petition for resignation following 

an adjudication and discharge under Section 3184, the Bank was 

substantially prejudiced. The removal of a trustee, even on a no-fault basis, 

does not shield the trustee from all future liability. Resignation, following 

adjudication and discharge, shields the trustee from future liability, while 

removal does not. Therefore, the distinction is crucial. There were no 

grounds for removal and the Bank was entitled to an adjudication of the 

Trust accounting and discharge.

 

6 After confirmation of his final account and 

distribution to the parties entitled, a personal 

representative and his surety may be discharged by 

the court from future liability. The court may 

discharge only the surety from future liability, 

allowing the personal representative to continue 

without surety, upon condition that no further assets 

shall come into the control of the personal 

representative until he files another bond with 

sufficient surety, as required by the register.

20 Pa.C.S.A. § 3184.
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Order vacated. The Bank is hereby reinstated as corporate trustee. 

Remanded for further proceedings consistent with this memorandum. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2016