J-A22024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF JOHN J. LUCIANI, 

SR., DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: CHRISTOPHER LUCIANI

No. 293 MDA 2016

Appeal from the Order Entered January 21, 2016

In the Court of Common Pleas of Lackawanna County

Orphans' Court at No(s): 35-02-683

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 21, 2016

Appellant, Christopher Luciani, appeals from the order denying his 

objections to and approving the first and final account of his father, John J. 

Luciani, Sr.’s (“Father”), federal estate tax credit shelter trust. Christopher 

argues that the orphans’ court erred in concluding that the distribution of the 

entirety of the trust principal to his mother, Ann Luciani (“Mother”), during 

her lifetime violated the terms of the trust. After careful review, we conclude 

that the orphans’ court’s findings and conclusions are well supported by the 

record, and therefore affirm.

For the purposes of this appeal, the following facts are undisputed. In 

1993, Father and Mother executed coincident, reciprocal wills and revocable 

trusts. The wills, in relevant part, bequeathed the majority of the value of 
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their property to their respective revocable trusts. The trusts, in turn, 

provided for the immediate disbursement to a surviving spouse of “the 

smallest amount of principal needed to reduce the Federal Estate Tax falling 

due because of the death of Settlor to the lowest possible figure.” At the 

time, the federal estate tax provided for an exemption for the first $600,000 

of value passed through an estate to a non-spouse. The remaining assets 

would stay in a “Residuary Trust.”

The Residuary Trust provided that the net income of the trust could be 

disbursed, at the sole discretion of the trustees, to the surviving spouse or 

to any of the couple’s four children. Of primary importance to this case, the 

Residuary Trust also provided for the disbursement of the principal of the 

trust, under the trustees’ sole discretion, for the “health, education, support 

or maintenance” of the surviving spouse or any of the couple’s four children.

Furthermore, two of the couple’s children, Jill Mooty and Christopher, 

were appointed trustees of the Residuary Trust. Both children were involved 

in running the family business of Concrete Step Units (“CSU”). Mooty, an 

accountant, assisted with bookkeeping and tax preparation, while 

Christopher was heavily involved in the day-to-day operations of the 

business.

In 2001, the federal government enacted sweeping tax reform, 

including a proposed phase-out of the federal estate tax. Pursuant to the 

reform, the estate tax exemption was raised to $1,000,000 in 2002, and 
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escalating yearly thereafter until the estate tax would be eliminated in 2010.

Ultimately, the federal estate tax was reinstated with a significantly higher 

exemption that would have covered the entirety of Father’s estate.

Father passed away in 2002, and Mother survived him. According to 

estate administration documents, the estate bequeathed $1,156,084 to 

Father’s revocable credit shelter trust.1 The trust retained $942,000 worth of 

stock in two companies, CSU and Wayne Crushed Stone (“WCS”), in the 

Residuary Trust. The trust transferred a brokerage account valued at 

$164,084 and $25,000 each of CSU and WCS stock to Mother. These 

distributions were memorialized in a family settlement agreement that

Christopher signed.

Pursuant to distributions in 2003 and 2006, the Residuary Trust’s 

trustees transferred the entirety of the trust’s principal to Mother. While 

Christopher testified that he did not remember signing to authorize these 

transfers, he did not testify that the signatures were forgeries.

Both parties to this appeal agree that in 2006, Mother amended her 

revocable trust agreement in a manner that modified the distribution 

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1

The family settlement agreement indicates that only $942,000 was 

bequeathed to the trust, with $214,084 being bequeathed directly to Mother.

A family settlement agreement can be an informal arrangement amongst the 

heirs, and can be inferred from circumstances. See Walworth v. Abel, 52 

Pa. 370, 373 (1866). Thus, the fact that the written agreement does not 

reflect the precise accounting of the estate, but rather the ultimate 

distributions, does not affect the relevant circumstances of this appeal.
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scheme to the four children. However, this document is not in the certified or 

reproduced record. The parties agree that the disposition of assets contained 

in this amendment was different from that contained in the Residuary Trust. 

See Appellant’s Brief, at 16; Appellee’s Brief, at 10. The only evidence 

regarding the content of Mother’s 2006 amended trust agreement came 

from the scrivener, Attorney Nicholas Tellie:

In 2006 mom comes back to the office and amends her trust and 

what she amended was the allocation portion. So she said in her 

trust, in the 2006 amendment, that upon my death the real 

estate of Concrete Steps would be transferred by direct or 

subject to reorganization, tax free exchanges and so forth, to 

Wayne Crushed Stone. Then you left the operating company of 

Concrete Steps and that would still be distributed to Christopher 

and Nancy, the daughter. The remaining assets instead of just 

being shared with Jill and John Jr. would be shared with all four. 

That’s how she reallocated it. Why, again, it was numbers, 

valuations that Jill was reviewing so she signed that I think in 

June or something like that. That wouldn’t work because you had 

half of the shares in her husband John’s trust that said the real 

estate wasn’t going to be transferred – just Christopher and 

Nancy would receive Concrete Steps with the real estate, and 

the two children remaining, Jill and John Jr., would receive the 

remaining assets. Her amendment, which earned half the stock, 

was going to go differently. Her amendment she wanted to 

allocate it with Concrete Steps removing the real estate to 

Wayne Crushed Stone. Still Christopher and Nancy receiving the 

stock and the four children sharing. Well, that wouldn’t work. 

You got two trustees over here, and four trustees over here with 

different – so the only logical and reasonable thing to do was to 

transfer the assets from the estate of the father to the mother, 

which would effectuate her reallocation, which was just – all four 

children were involved it was just a different reallocation. How 

the numbers worked out. I’m assuming Jill did it with values 

equal or similar. That was the background in the 2006 

distribution.

N.T., 10/27/15, at 75-76.
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Mother passed away in April 2012. Shortly thereafter, Christopher’s 

brother, John Luciani, Jr., filed a petition requesting that Nancy Nealon, as 

de facto trustee, and Christopher and Mooty, as named trustees, file a first 

and final account of the Residuary Trust. On October 24, 2012, Mooty filed a 

first and final account of the Residuary Trust, indicating that the principal of 

the trust had been transferred to Mother as set forth above.

Both Christopher and John, Jr. objected to the account, asserting that 

the transfers to Mother were not authorized under the terms of the 

Residuary Trust. Mooty passed away in February 2013, and her estate was 

substituted for her as a party. Prior to her death, Mooty was deposed.

In 2015, the orphans’ court held a hearing on Christopher’s and John, 

Jr.’s objections to the account. At the close of the objectors’ case-in-chief, 

the orphans’ court dismissed Nealon from the case, as no evidence had been 

presented that she had acted as a trustee. Mooty’s estate presented the 

deposition testimony of Mooty and the testimony of Attorney Tellie as both a 

factual and expert witness. On January 19, 2016, the orphans’ court denied 

Christopher’s and John, Jr.’s objections. Christopher then filed this timely 

appeal. John, Jr. did not file an appeal and is no longer a party to this action.

On appeal, Christopher raises three issues for our review. Issues one 

and three are essentially identical, in that Christopher argues that the 

distributions from the Residuary Trust were not appropriate under the terms 
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of the Residuary Trust. Our standard in reviewing decisions of the orphans’ 

court is as follows:

The findings of a judge of the orphans’ court division, sitting 

without a jury, must be accorded the same weight and effect as 

the verdict of a jury, and will not be reversed by an appellate 

court in the absence of an abuse of discretion or a lack of 

evidentiary support. This rule is particularly applicable to findings 

of fact which are predicated upon the credibility of the witnesses, 

whom the judge has had the opportunity to hear and observe, 

and upon the weight given to their testimony. In reviewing the 

orphans’ court’s findings, our task is to ensure that the record is 

free from legal error and to determine if the orphans’ court’s 

findings are supported by competent and adequate evidence and 

are not predicated upon capricious disbelief of competent and 

credible evidence.

When the trial court has come to a conclusion through the 

exercise of its discretion, the party complaining on appeal has a 

heavy burden. It is not sufficient to persuade the appellate court 

that it might have reached a different conclusion if, in the first 

place, charged with the duty imposed on the court below; it is 

necessary to go further and show an abuse of the discretionary 

power. An abuse of discretion is not merely an error of 

judgment, but if in reaching a conclusion the law is overridden or 

misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will, 

as shown by the evidence [of] record, discretion is abused. A 

conclusion or judgment constitutes an abuse of discretion if it is 

so lacking in support as to be clearly erroneous.

We are not constrained to give the same level of deference to 

the orphans’ court’s resulting legal conclusions as we are to its 

credibility determinations. We will reverse any decree based on 

palpably wrong or clearly inapplicable rules of law. Moreover, 

we are not bound by the chancellor's findings of fact if there has 

been an abuse of discretion, a capricious disregard of evidence, 

or a lack of evidentiary support on the record. If the lack of 

evidentiary support is apparent, reviewing tribunals have the 

power to draw their own inferences and make their own 

deductions from facts and conclusions of law. Nevertheless, we 

will not lightly find reversible error and will reverse an orphans’ 

court decree only if the orphans’ court applied an incorrect rule 
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of law or reached its decision on the basis of factual conclusions 

unsupported by the record.

In re Paxson Trust I, 893 A.2d 99, 112-113 (Pa. Super. 2006) (citations 

and quotation marks omitted; brackets in original).

Christopher’s challenge to the account of the Residuary Trust requires 

us to construe its terms. “The touchstone in construing a trust is the settlor’s 

intent; the language of the trust deed itself is the best and controlling 

evidence of such intent.” In re Estate of Devine, 910 A.2d 699, 703 (Pa. 

Super. 2006) (citation omitted).

The Residuary Trust explicitly set forth Father’s intent: “The intent is 

to treat the children of settlor equally after taking into consideration all of 

the values. ... The intent is that each child shall receive equal values.” 

Revocable Trust Agreement, 3/9/93, at 5-6. Furthermore, the Residuary 

Trust provided that the trustees, within their discretion, could transfer the 

principal of the Residuary Trust to Mother or any of the children for purposes 

of “health, education, support or maintenance.” Id., at 4. Thus, the 

Residuary Trust gave the trustees significant discretion in how to distribute 

the principal of the trust, so long as the distribution was done in a manner 

that ultimately treated Christopher, John, Jr., Nealon, and Mooty equally.

Based upon the certified record before us, we cannot say that the 

children were ultimately treated disparately. In fact, we cannot even 

ascertain how the principal of the Residuary Trust was ultimately distributed. 
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Mother’s trust agreement is not in the record. Nor is any accounting of her 

estate or trust.

While it is possible that the distribution to Mother of the entirety of the 

principal of the Residuary Trust, for the undisputed purpose of estate 

planning, was not entirely authorized by the trust, that conclusion cannot be 

reached without a finding that Mother’s estate plan was not in accordance 

with the stated intent of the Residuary Trust. Furthermore, there is no 

allegation, and no proof, that Mother dissipated these assets in a manner 

that defeated the Residuary Trust’s purposes. 

The Residuary Trust at issue here was an estate-planning tool, with a 

primary goal of reducing of the impact of the federal estate tax. By 2002, 

that concern had been largely mooted by changes in the law. Beyond that, 

the trust explicitly and clearly stated its intent to treat the children equally 

after the death of Mother. The certified record contains no evidence that 

Mother’s inter vivos gifts, estate, and trust distributions did not treat the

children equally.2 Therefore, Christopher did not establish his right to relief, 

and is due no relief on this issue on appeal.

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2

There is some evidence in the record that Mother’s changes were 

motivated by the discovery of valuable mineral rights in land transferred to 

Christopher and John, Jr., thereby causing an imbalance in the values of the 

shares to be distributed to the children by the Residuary Trust. See N.T., 

Deposition of Jill Mooty, 1/16/13, at 33. However, it is unclear who 

transferred this property to the brothers, or whether this transfer was an

inter vivos gift or a distribution from an estate or trust. Furthermore, it is not 

(Footnote Continued Next Page)
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In his remaining issue, Christopher contends that the orphans’ court 

erred in permitting Attorney Tellie to testify to Father’s intent in construing 

the Residuary Trust. We conclude that this issue is moot, as we have already 

determined, referring to only the trust agreement itself, that Christopher is 

not entitled to relief on appeal.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2016

(Footnote Continued) _______________________

even clear that this was a factor that motivated Mother’s changes. Under 

these circumstances, we cannot conclude that this passing reference is 

capable of supporting any finding relevant to this matter.