J-A06019-18

2018 PA Super 227

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* Retired Senior Judge assigned to the Superior Court.

IN RE: THE ESTATE OF WILLIAM K. 

MCALEER, DECEASED

APPEAL OF: WILLIAM MCALEER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 932 WDA 2017

Appeal from the Order Entered May 30, 2017

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

No(s): No. 0334 of 2014

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.: FILED AUGUST 9, 2018

Appellant, William McAleer, appeals from the order directing him to 

comply with the discovery request presented by Appellees, Stephen Lange 

and Michael Lange, in this estate matter involving a trust created by 

Decedent, William K. McAleer. After careful review, we quash.

We summarize the history of this case as follows. Appellant is the 

trustee of the William K. McAleer Revocable Living Trust (“the Trust”), which 

was created by Decedent on November 30, 2012, for the benefit of Appellant 

and his two stepbrothers, Appellees. Trust Document, 11/30/12 (Record 

Number 1). Since Decedent’s death on May 4, 2013, Appellees have raised 

various issues pertaining to the administration of the Trust, which led to 

Appellant retaining two law firms, i.e., Julian Gray & Associates and K&L 

Gates.
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On March 17, 2014, Appellant filed a first and partial account relating 

to the administration of the Trust. First and Partial Accounting, 3/17/14

(Record Number 2). Appellees filed objections to the first and partial 

account filed by Appellant. Appellees also sought disclosure of information 

pertaining to two bank accounts, and Appellant retained K&L Gates to 

respond. On March 30, 2016, the trial court dismissed Appellees’ objections 

with prejudice. Order, 3/30/16.

On August 31, 2016, Appellant filed a Second and Final Accounting. 

Second and Final Accounting, 8/31/16 (Record Number 24). On November 

14, 2016, Appellees filed objections claiming that Appellant paid expenses in 

the administration of the Trust that were unreasonable, including excessive 

trustee and attorney fees. Objections, 11/14/16 (Record Number 26). On 

March 2, 2017, Appellees served a request for production of documents 

including billing statements for all trustee fees and attorney fees. On April 

12, 2017, Appellant produced substantially redacted attorney invoices from 

both law firms.1

Appellees filed a motion to compel service of unredacted copies of the 

invoices on May 8, 2017. Motion to Compel Discovery, 5/8/17 (Record 

Number 34). The trial court held a hearing on May 18, 2017. On May 30, 

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1 As the trial court indicated, billing documents from Julian Gray & Associates 

were presented to Appellees with 223 entries redacted. Trial Court Opinion, 

7/12/17, at 1. Also, Appellees received billing statements from K&L Gates 

with 98% of the invoice redacted. Id.
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2017, the trial court entered an order directing Appellant to produce the 

unredacted invoices within thirty days. Order, 5/30/17 (Record Number 39). 

Appellant turned over unredacted trustee invoices, and only the attorney 

invoices are at issue. This timely appeal followed. Both Appellant and the 

trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue for our review:

1) Did the Court of Common Pleas err in ordering Appellant to 

produce unredacted attorney bills where doing so will disclose 

material protected by the attorney-client privilege and the 

attorney work product doctrine?

Appellant’s Brief at 3.

Our scope of review in an appeal from an Orphans’ Court decree is 

limited. When reviewing a decree entered by the Orphans’ Court, we must 

determine whether the record is free from legal error and the Orphans’ 

Court’s factual findings are supported by the evidence. In re Estate of 

Angle, 777 A.2d 114, 122 (Pa. Super. 2001).

Before we address the underlying merits of Appellant’s issue, we must 

determine whether the trial court’s order is appealable. In re Miscin, 885 

A.2d 558, 560-561 (Pa. Super. 2005). “The question of the appealability of 

an order goes directly to the jurisdiction of the [c]ourt asked to review the 

order.” Moyer v. Gresh, 904 A.2d 958, 963 (Pa. Super. 2006). See also

In re Estate of Borkowski, 794 A.2d 388, 389 (Pa. Super. 2002) 

(observing that the threshold question of the appealability of an order affects 

the jurisdiction of this Court over the case). As a general rule, an appeal 
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can be taken only from a final order. Estate of Borkowski, 794 A.2d at 

389. No appeal will be permitted from an interlocutory order unless 

specifically provided for by statute. Id.

Pennsylvania Rule of Appellate Procedure 342 addresses appeals as of 

right from various orders of the Orphans’ Court and provides, in part, as 

follows:

(a) General rule. An appeal may be taken as of right from the 

following orders of the Orphans’ Court Division:

(1) An order confirming an account, or authorizing 

or directing a distribution from an estate or trust;

(2) An order determining the validity of a will or 

trust;

(3) An order interpreting a will or a document that 

forms the basis of a claim against an estate or trust;

(4) An order interpreting, modifying, reforming or 

terminating a trust;

(5) An order determining the status of fiduciaries, 

beneficiaries, or creditors in an estate, trust, or 

guardianship;

(6) An order determining an interest in real or 

personal property;

(7) An order issued after an inheritance tax appeal 

has been taken to the Orphans’ Court pursuant to 

either 72 Pa.C.S. § 9186(a)(3) or 72 Pa.C.S. § 9188, 

or after the Orphans’ Court has made a 

determination of the issue protested after the record 

has been removed from the Department of Revenue 

pursuant to 72 Pa.C.S. § 9188(a); or

(8) An order otherwise appealable as provided by 

Chapter 3 of these rules.
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Pa.R.A.P. 342(a). Thus, Rule 342 permits appeals as of right from the 

enumerated orders or from orders that meet the requirements of the other 

Chapter 3 Rules of Appellate Procedure pertaining to the appealability of 

orders, as discussed infra.

Our review of the record on appeal indicates that the Orphans’ Court 

order that directed Appellant to comply with discovery did not qualify as one 

of the enumerated orders set forth under Rule 342 as being appealable as of 

right. Pa.R.A.P. 342(a)(1-7). Accordingly, we must consider whether this 

order is appealable under any of the rules in Chapter 3 of the Rules of 

Appellate Procedure. Pa.R.A.P. 342(a)(8). It is well settled that an appeal 

may be taken from: (1) a final order or an order certified as a final order 

(Pa.R.A.P. 341); (2) an interlocutory order as of right (Pa.R.A.P. 311); (3) 

an interlocutory order by permission (Pa.R.A.P. 312, 42 Pa.C.S. § 702(b)); 

or (4) a collateral order (Pa.R.A.P. 313). See Pace v. Thomas Jefferson 

University Hospital, 717 A.2d 539, 540 (Pa. Super. 1998) (discussing the 

appealability of orders).

We next consider whether the order on appeal is a final order. 

Pennsylvania Rule of Appellate Procedure 341 defines final orders as follows:

(a) General rule. Except as prescribed in subdivisions (d), 

and (e) of this rule, an appeal may be taken as of right from any 

final order of an administrative agency or lower court.

(b) Definition of final order. A final order is any order that:

(1) disposes of all claims and of all parties; or
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(2) RESCINDED

(3) is entered as a final order pursuant to 

paragraph (c) of this rule.

(c) Determination of finality. When more than one claim 

for relief is presented in an action, whether as a claim, 

counterclaim, cross-claim, or third-party claim or when multiple 

parties are involved, the trial court or other governmental unit 

may enter a final order as to one or more but fewer than all of 

the claims and parties only upon an express determination that 

an immediate appeal would facilitate resolution of the entire 

case. Such an order becomes appealable when entered. In the 

absence of such a determination and entry of a final 

order, any order or other form of decision that adjudicates 

fewer than all the claims and parties shall not constitute a 

final order. . . .

Pa.R.A.P. 341 (emphasis added). Thus, pursuant to Rule 341, an order is 

final if it disposes of all claims and all parties or if a statute expressly defines 

it as final. An Orphans’ Court’s confirmation of the final accounting of an 

estate, after exceptions have been filed and ruled upon, is the final order for 

purposes of appeal. In re Estate of Habazin, 679 A.2d 1293 (Pa. Super. 

1996). Moreover, we have stated that, in general, discovery orders are not 

final and are therefore unappealable. In re Estate of Moskowitz, 115 

A.3d 372, 389 (Pa. Super. 2015) (quoting T.M. v. Elwyn, Inc., 950 A.2d 

1050, 1056 (Pa. Super. 2008)).

Our review of the record reflects that the order on appeal is not a 

confirmation of the final account and that the estate and its assets remain 

under administration. Rather, the appealed order compels Appellant to 
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satisfy a discovery request. Therefore, the order in question is not a final 

order under Pa.R.A.P 341.

We also consider whether the order on appeal is an interlocutory order 

that is appealable as of right. Pennsylvania Rule of Appellate Procedure 311 

addresses “interlocutory appeals as of right.” Generally, discovery decrees 

do not give rise to an interlocutory appeal as of right under Rule 311. 

Estate of Moskowitz, 115 A.3d at 390. Consequently, the order on appeal 

directing discovery does not fall within the category of appealable 

interlocutory orders under Rule 311.

Next, we address whether the matter before us is an appeal from an 

interlocutory order by permission. Pennsylvania Rule of Appellate Procedure 

312 addresses “interlocutory appeals by permission.” Such permission must 

be sought from and granted by the appellate court under the rules set forth 

in Chapter 13 of the Rules of Appellate Procedure. Our review of the record 

reflects that Appellant never sought permission from this Court to appeal 

from the order in question. Consequently, no permission was granted

allowing the appeal. Therefore, Rule 312 is not applicable to this matter.

We last turn to Pa.R.A.P. 313, which permits appeals as of right from 

collateral orders. Pa.R.A.P. 313(a); J.S. v. Whetzel, 860 A.2d 1112, 1116 

(Pa. Super. 2004). For an order to be appealable under Rule 313(b), it must 

satisfy the three factors identified in the rule: “(1) the order is separable 

from the main cause of action; (2) the right involved is too important to be 
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denied review; and (3) the claim would be irreparably lost if review is 

postponed.” Id. (citing Ben v. Schwartz, 729 A.2d 547 (Pa. 1999); 

Pa.R.A.P. 313(b)).

An order is “separable” from the main cause of action if it is capable of 

review without considering the underlying merits of the case. Crum v. 

Bridgestone/Firestone N. Am. Tire, LLC, 907 A.2d 578, 583 (Pa. Super. 

2006). Second, the “importance prong” is satisfied if the interests that 

potentially go unprotected without immediate appellate review are 

significant relative to the efficiency interests sought to be advanced by 

adherence to the final judgment rule. Id. Moreover, “it is not sufficient that 

the issue be important to the particular parties. Rather it must involve rights 

deeply rooted in public policy going beyond the particular litigation at hand.” 

Id. (quoting Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003)). To satisfy the 

third factor, an issue must actually be lost if review is postponed. Keefer v. 

Keefer, 741 A.2d 808, 813 (Pa. Super. 1999). “All three elements must be 

satisfied to permit review of an interlocutory appeal under the collateral 

order rule.” Estate of Moskowitz, 115 A.3d at 389 (quoting Jacksonian 

v. Temple University Health System Foundation, 862 A.2d 1275, 1279 

(Pa. Super. 2004)).

We are mindful that orders are not deemed to be collateral orders 

liberally. The Pennsylvania Supreme Court noted that:

[t]he United States Supreme Court has stated that the “collateral 

order doctrine” must be narrowly applied lest it be allowed to 
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swallow the general rule, Digital Equipment Corporation [v. 

Desktop Direct, Inc., 511 U.S. 863, 868 (1994)], and has 

characterized the requirements for an appealable collateral order 

as “stringent.” See Midland Asphalt Corp. v. United States, 

489 U.S. 794, 799, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 

(1989). Although in Pennsylvania the doctrine has been reduced 

from case law and set forth in our Rules of Appellate Procedure 

as establishing a class of orders that may be appealed as of 

right, it nevertheless remains a specialized, practical application 

of the general rule that only final orders are appealable as of

right. Accordingly, we find it appropriate to interpret Rule 313 

narrowly. Claims must be analyzed not with respect to the 

specific facts of the case, but in the context of the broad public 

policy interests that they implicate. Only those claims that 

involve interests “deeply rooted in public policy,” Digital 

Equipment Corp., 511 U.S. at 884 [], can be considered “too 

important to [be] denied review.” 

Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999).

We now address whether the order directing Appellant to comply with 

Appellees’ discovery request and to produce complete and unredacted billing 

statements for trustee billing, as well as all attorney billing, meets all of the 

three prongs necessary to establish a collateral order. First, our review of 

the record reflects that the order on appeal is interrelated with the 

underlying merits of the pending challenges brought by Appellees, that being 

the proper billing of the Trust and subsequent payments from the Trust 

proceeds. Consequently, the first factor is not met in this case. Accordingly, 

because all three factors must be present, and the order before us fails to 

satisfy the first factor, we conclude that the instant appeal is not taken from 

a collateral order.

We observe Appellant has asserted that the order on appeal qualifies 
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as an immediately appealable collateral order because it compels the 

production of privileged information. Appellant’s Brief at 1. Appellant 

contends that the attorney invoices sought in discovery are protected by the 

attorney-client privilege and the work product doctrine. Appellant’s Brief at 

16-29.

As we previously noted, in general, discovery orders are not final and 

are therefore unappealable. Estate of Moskowitz, 115 A.3d 372, 389 (Pa. 

Super. 2015). “However, discovery orders involving privileged material are 

nevertheless appealable as collateral to the principal action pursuant to 

Pa.R.A.P. 313.” Id.

In Pennsylvania, the attorney-client privilege operates in a 

two-way fashion to protect confidential client-to-attorney or 

attorney-to-client communications made for the purpose of 

obtaining or providing professional legal advice. Gillard v. AIG 

Ins. Co., 15 A.3d 44, 59 (Pa. 2011); see 42 Pa.C.S. § 5928. In 

describing the purpose of the privilege, we have said: “The 

attorney-client privilege exists to foster a confidence between 

attorney and client that will lead to a trusting and open 

dialogue.” Gocial v. Independence Blue Cross, 827 A.2d 

1216, 1222 (Pa. Super. 2003).

Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 

(Pa. Super. 2012).

Further, we have explained the following:

Pennsylvania law imposes a shifting burden of proof in 

disputes over disclosure of communications allegedly protected 

by attorney-client privilege. The party invoking a privilege must 

initially “set forth facts showing that the privilege has been 

properly invoked; then the burden shifts to the party seeking 

disclosure to set forth facts showing that disclosure will not 

violate the attorney-client privilege, e.g., because the privilege 
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has been waived or because some exception applies.” 

Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1266 

(Pa. Super. 2007) (citations omitted), aff’d, 605 Pa. 468, 992 

A.2d 65 (Pa. 2010). Accordingly, “[i]f the party asserting the 

privilege does not produce sufficient facts to show that the 

privilege was properly invoked, then the burden never shifts to 

the other party, and the communication is not protected under 

attorney-client privilege.” Id. at 1267.

Id. Likewise, the same burden applies to a party seeking to invoke the 

protections of the work-product doctrine. See generally T.M. v. Elwyn, 

Inc., 950 A.2d at 1062.

In addition, we are mindful that the duty to furnish information to 

beneficiaries of a trust is defined in Section 82 of The Restatement (Third) of 

Trusts, which provides, in part, as follows:

§ 82 Duty to Furnish Information to Beneficiaries

(2) Except as provided in § 74 [(relating to the effect of power of 

revocation)2] or as permissibly modified by the terms of the 

trust, a trustee also ordinarily has a duty promptly to respond to 

the request of any beneficiary for information concerning the 

trust and its administration, and to permit beneficiaries on a 

reasonable basis to inspect trust documents, records, and 

property holdings.

Restatement (Third) of Trusts § 82(2).

Comment e addresses requests for information under subsection 2, 

and provides as follows:

____________________________________________

2 The comment to Section 82 explains that the information requirements of 

the section do not apply to revocable trusts while the settlor is alive and 

competent. Restatement (Third) of Trusts § 82, cmt. a.
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e. Requested information and access. Under the general rule of 

Subsection (2), a trustee ordinarily has a duty, with reasonable 

promptness, to provide information that is requested regarding 

the trust property or its administration by any beneficiary, a 

right not limited to fairly representative beneficiaries. The 

trustee is also to grant access to books and records of the trust, 

and to permit inspection of the trust’s property holdings, on a 

reasonable basis, at reasonable hours and intervals, to any 

beneficiary, including with the participation of the beneficiary’s 

accountant, attorney, or other advisor. On petition by the 

trustee or a beneficiary, however, a court may limit the 

frequency or extent of such inquiries by one or more of the 

beneficiaries, weighing the remoteness or substantiality of their 

interests in the trust against the burdens, intrusiveness, and 

privacy considerations that may be involved.

Restatement (Third) of Trusts § 82, cmt. e.

Also, comment f explains the following limitations on disclosure to 

beneficiaries:

f. What need not be disclosed? A trustee is privileged to refrain 

from disclosing to beneficiaries or co-trustees opinions obtained 

from, and other communications with, counsel retained for the 

trustee’s personal protection in the course, or in anticipation, of 

litigation (e.g., for surcharge or removal). This situation is to be 

distinguished from legal consultations and advice obtained in the 

trustee’s fiduciary capacity concerning decisions or actions to be 

taken in the course of administering the trust. Communications 

of this latter type are subject to the general principle entitling a 

beneficiary to information that is reasonably necessary to the 

prevention or redress of a breach of trust or otherwise to the 

enforcement of the beneficiary’s rights under the trust.

Restatement (Third) of Trusts § 82, cmt. f.

We observe that our Supreme Court considered the issue of a 

beneficiary’s right to access trust files in In re Estate of Rosenblum, 328 

A.2d 158 (Pa. 1974). In addressing the issue, the Court relied upon the 

precursor to Section 82, i.e., Section 173 of the Restatement (Second) of 
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Trusts, to support its proposition that “[t]he right of access to trust records 

is an essential part of a beneficiary’s right to complete information 

concerning the administration of the trust.” Id. at 164-165. The Court in 

Rosenblum noted that “[t]his section [from the Restatement] is declaratory 

of the common law of Pennsylvania.” Id. at 165. The Court then stated 

that

“[i]t places [the beneficiaries of a trust] on a different footing 

from other litigants who seek discovery of documents under our 

Rules of Civil Procedure. A beneficiary’s right of inspection has 

an independent source in his property interest in the trust 

estate, and the right may be exercised irrespective of the 

pendency of an action or proceeding in court.”

Id.

The trial court offered the following discussion pertaining to Appellant’s 

attempt to assert the attorney-client privilege:

On May 18th, [Appellant’s counsel] set forth only a general 

argument of privilege on behalf of the Trustee as to the Gray 

billings. As to the K&L bills, [Appellant’s counsel] stated: “I can’t 

speak for the K&L Gates bills because they belong to K&L Gates. 

I produced them to Attorney Caplan as an attorney to K&L 

Gates, but have no knowledge of them. (5/18/17 Motions 

argument at p. 7). The Trustee presented no facts to the Court 

to show that he properly invoked a privilege in this case.

Furthermore, the Court finds persuasive Follansbee v. 

Gerlach, 56 Pa. D. & C. 4th 483, 22 Fiduc. Rep. 2d 319, 6 

All. Co. Disc. Op. 15 (Civ. Div. Allegh., June 13, 2002). In 

Follansbee, the Honorable R. Stanton Wettick Jr. found that 

where the trustee-client obtains legal advice from an attorney 

relating to the trust, that legal advice must be shared with the 

beneficiaries. Pursuant to Follansbee and the logic set forth in 

that opinion, the billings that are the subject of this appeal 

should be shared in full, since the Beneficiaries, in effect, paid 

for the legal services rendered by Gray and K&L.
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Trial Court Opinion, 7/12/17, at 2. We are constrained to agree with the 

trial court.

Our review of the record reflects that, prior to the trial court’s order 

compelling Appellant to produce the discovery documents in question,

Appellant did not provide any facts to support his attempt to invoke the 

attorney-client privilege and work-product doctrine protections. Appellant 

never filed an objection to Appellees’ discovery request in which he could 

have raised those protections. Instead, Appellant simply replied to the 

discovery request by presenting Appellees with substantially redacted copies 

of attorney invoices. Appellees then filed a motion to compel discovery, to 

which Appellant failed to respond or object. Rather, Appellant’s first attempt 

to invoke the protections was during oral argument at a hearing in response 

to the motion to compel, which was held on May 18, 2017. N.T., 5/18/17, 

at 5-6. At the hearing, Appellant’s counsel mentioned the attorney-client 

privilege and the work-product doctrine as justification for redacting the 

documents provided to Appellees. Id. However, Appellant failed to set forth 

specific facts to show that either the attorney-client privilege or the work 

product doctrine was applicable and properly invoked.

Further, a non-final discovery order can be subject to appellate review 

under the collateral order doctrine if a colorable claim of the attorney-client 

privilege is raised. See Sherwin-Williams Co., 39 A.3d at 375-376. 

However, beyond a general discussion of relevant legal principles at the 
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hearing, Appellant did not describe, explain, or substantiate the applicability 

of the attorney-client privilege or the work product doctrine before the trial 

court in this particular case. Accordingly, appellate review is precluded.

Moreover, we conclude that under the law as presented in the 

Restatement (Third) of Trusts and our Supreme Court’s ruling in Estate of 

Rosenblum, Appellant, as a trustee, has a duty to share with Appellees, as 

beneficiaries, complete information concerning the administration of the 

Trust. As set forth in comment f of Section 82, “[a] trustee is privileged to 

refrain from disclosing to beneficiaries or co-trustees opinions obtained from, 

and other communications with, counsel retained for the trustee’s personal 

protection in the course, or in anticipation, of litigation (e.g., for surcharge 

or removal).” However, Appellant neither argued nor presented evidence to 

establish that the redacted information pertained to communications from 

counsel retained for Appellant’s personal protection in the course of 

litigation. Accordingly, there is no evidence that the information qualifies as 

privileged under comment f to the Restatement (Third) of Trusts. Hence, we 

are left to conclude that the information contained in the attorney invoices 

qualifies as communications subject to the general principle entitling a 

beneficiary to information reasonably necessary to the prevention or redress 

of a breach of trust or otherwise to the enforcement of the beneficiary’s 

rights under the trust. For this reason as well, Appellant cannot invoke the 

protections of the attorney-client privilege.
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In conclusion, the order under review in the instant case is not a final 

order, an order certified as final, an interlocutory order appealable as of 

right, an interlocutory order appealable by permission, or an appealable 

collateral order. Consequently, we conclude that this appeal is not properly 

before this Court. Accordingly, the appeal is hereby quashed.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2018