J-A15046-14

2014 PA Super 235

THE VINCENT J. FUMO IRREVOCABLE

CHILDREN’S TRUST FOR THE BENEFIT 

OF ALLISON FUMO

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: VINCENT J. FUMO

No. 2459 EDA 2013

Appeal from the Decree August 1, 2013

In the Court of Common Pleas of Philadelphia County

Orphans’ Court at No(s): 1557(IV) of 2012

BEFORE: PANELLA, J. LAZARUS, J. and JENKINS, JJ.

DISSENTING OPINION BY PANELLA, J. FILED OCTOBER 17, 2014

I respectfully dissent from my esteemed colleagues in the Majority. I 

would reverse the decree entered by the orphans’ court on August 1, 2013, 

as it relates to the declaration of the Vincent J. Fumo’s (Settlor) appointment 

of successor trustee, Anthony Repici, D.O., as null and void. 

Our courts have long recognized a trust as a “fiduciary relationship 

with respect to property, subjecting the person by whom the title to the 

property is held to equitable duties to deal with the property for the benefit 

of another person.” In re Estate of Warden, 2 A.3d 565, 572 (Pa. Super. 

2010) (citations omitted). “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). We are compelled to ascertain 
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Settlor’s intent at the time of the Trust’s creation as it is paramount to our 

interpretation of the trust, particularly the provisions related to the 

appointment of successor trustees. 

The Trust contains definitive provisions regarding its trustees. See The 

Vincent J. Fumo Irrevocable Children’s Trust Agreement (“Trust”), 6/23/06, 

at FOURTEENTH. The Trust appointed Rosanne Pauciello as the original 

trustee and names Mitchell Rubin as successor trustee. See id., at 

FOURTEENTH ¶ B. The language is clear: 

[I]f neither ROSEANNE PAUCIELLO nor MITCHELL RUBIN shall be 

able and willing to serve as Trustee of any Trust hereunder at 

any time, he or she shall be succeeded by such one or more 

individuals, or such series of one or more individuals, to serve as 

Trustees in consecutive order, as the last of them to serve shall 

designate in his or her Will or other written instrument delivered 

to the Settlor, if he is then living, or if he is not, to the adult 

beneficiary or beneficiaries of the Trusts hereunder.

Id. 

The Trust further defines Settlor’s intent should a trustee fail to 

designate a successor trustee: 

If such Trustee fails so to designate a successor for a period of 

sixty (60) days following their inability or unwillingness to serve, 

or if all of their designees die, resign or are unable to serve, the 

vacancy may be filled by such individual or individuals as may be 

designated by the Settlor, if he is then living... 

Id. (emphasis added). 

The Majority, relying on the orphans’ court findings based solely upon 

Settlor’s Son’s, Vincent E. Fumo, testimony, states that “in an e-mail dated 

September 8, 2011, Pauciello notified Cosanzo, then president of the FFLP, 
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that she was resigning as trustee.” Majority Opinion at 10. That e-mail 

stated that Pauciello tendered her resignation, “effective immediately.” 

Petitioner’s Exhibit AF-4. Under the terms of the Trust, Mitchell Rubin then 

became the successor trustee by default on that same date. Mitchell Rubin 

was unwilling to serve, but did not renounce his appointment until October 

14, 2011. See Renunciation by Successor Trustee, 10/14/11, Petitioner’s 

Exhibit AF-8. Under the Trust provisions previously cited, Rubin had sixty 

days to exercise his power to appoint a new trustee. He did not exercise this 

power and sixty days elapsed thereby transferring to Settlor, the ability to 

fill the vacancy with a successor of his choice. Thus, it is evident that 

Roseanne Pauciello acted beyond the scope of her authority in appointing a 

successor trustee, namely Samuel Bennett, on December 28, 2012. On this 

basis alone, I would agree with the orphans’ court and the Majority that 

Samuel Bennett’s appointment is a nullity. As a corollary thereto, I would 

find Samuel Bennett’s appointment of Anthony Repici, D.O., as successor 

trustee a nullity.

However, on June 19, 2013, Settlor, as ratified by the express terms 

of the Trust, designated Anthony Repici to serve as trustee of the Trust, 

effective immediately. See Settlor’s Contingent Designation of Successor 

Trustee for the Trust Established For the Benefit of Allison Fumo pursuant to 

The Vincent J. Fumo Irrevocable Children’s Trust Agreement. 

NOW THEREFORE, should a challenge be raised as to Mr. 

Bennett’s authority to designate a successor Trustee, or should 

the Court otherwise determine that Mr. Bennett was not 
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authorized to designate a successor Trustee, or should Mr. 

Bennett’s designation of Dr. Repici fail for any other reason, 

pursuant to the powers granted to me as Settlor under the Trust 

Agreement, on this 19th day of June, 2013, I do hereby 

designate Dr. Anthony Repici as Trustee of the Trust, effective 

immediately.

Id. Accordingly, Dr. Repici was properly appointed by Settlor, as successor 

trustee of the Trust effective June 19, 2013. 

At the time the orphans’ court entered its decree, there were only two 

petitions before it: Daughter’s Petition for Termination of Trust, or in the 

Alternative, Appointment of a Successor Trustee, filed on October 26, 2012 

and an amended Petition filed on October 31, 2012. Both petitions were filed 

during the period of time the Trust was without an appointed trustee. 

Daughter never filed an amended petition seeking to invalidate Samuel 

Bennett’s appointment as trustee, nor did she petition the orphans’ court for 

the removal of Dr. Repici. 

The orphans’ court has the authority to govern the administration of 

trusts. Under this authority, the orphans’ court may remove a trustee. The 

removal of a trustee, however, is a drastic action, and should not be 

undertaken at the mere whim of a beneficiary. See In re White, 506 Pa. 

218, 223, 484 A.2d 763, 765 (1984); In re Barnes Estate, 339 Pa. 88, 95, 

14 A.2d 274, 277 (1970). Rather, “because of the discretion normally 

granted to a trustee, the settlor’s confidence in the judgment of the 

particular person whom the settlor selected to act as trustee is entitled to 

considerable weight.” In re McKinney, 67 A.3d 824, 835 (Pa. Super. 2013) 

(citation omitted). Our courts have long required that some substantial 
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reason must be shown before that special confidence is usurped and a 

fiduciary is replaced. See In re Barnes Estate, 339 Pa., at 94, 14 A.2d at 

277.

In support of its decision to take drastic action in removing Dr. Repici, 

the orphans’ court relies upon the no-fault provision for removal prescribed 

in the Uniform Trust Code, 20 PA.CONS.STAT.ANN. § 7766(b)(4). While I agree 

that under § 7766(a) a “trustee may be removed by the court on its own 

initiative,” that section sets forth precise requirements which must be met 

by clear and convincing evidence. In re McKinney, 67 A.3d at 830. Under 

the express provisions of the statute, Daughter must present clear and 

convincing evidence for the orphans’ court to find that (1) removal of the 

trustee best serves the interests of the beneficiaries of the trust; (2) 

removal is not inconsistent with the material purpose of the trust; (3) a 

suitable co-trustee or successor trustee is available; and (4) there has been 

a substantial change of circumstances. See 20 PA.CONS.STAT.ANN. § 

7766(b)(4). Daughter unquestionably failed to meet these requirements. 

The language of the Uniform Law Comment to § 7766 is telling of our 

legislature’s intent in crafting the requirement that, prior to removal, 

Daughter must establish that removal best serves the interests of the 

beneficiaries of the trust. The Comment defines “the term ‘interests of the 

beneficiaries’” as “mean[ing] the beneficial interests as provided in the terms 

of the trust not as defined by the beneficiaries.” 20 PA.CONS.STAT.ANN. § 

7766(b), Comment. While Daughter maintains that her beneficial interests of 
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the Trust are being compromised due to bad investments and 

mismanagement of the funds of the Trust, she has not shown any actions on 

the part of Dr. Repici, in his capacity as trustee, exercised in contravention 

of the beneficial interests of the Trust. 

The provisions of the Trust clearly outline the expansive “Powers of 

Trustees” in exercising their fiduciary duties. See Trust, at SIXTH. Of 

particular relevance are the following provisions:

SIXTH: Trustees shall have the following powers...

A. [t]o make investments (including without limitation, 

investments in the common trust funds maintained by any 

corporate fiduciary acting hereunder)...

B. To sell, pledge, mortgage, lease without limit of time, or 

exchange any assets, to themselves or to others, on such 

terms and conditions as they made decide.

C. To purchase, grant, sell or exchange options for the 

acquisition or transfer of any assets, including securities for 

such periods of time and on such other terms and conditions 

as they may decide.

D. In dealing with any proprietorship, partnership interest, stock 

of any closely held corporation, or any other business or 

professional interest which may be held hereunder....

(6) Borrow money from the banking department of any 

corporate fiduciary that may serve hereunder....

(7) Make additional investments in or advances to the 

business if they consider such action to be in the 

best interests of any trust hereunder and the 

beneficiaries of any trust hereunder...

...

G. To borrow money, from themselves or from others, for any 

purpose which they consider to be for the benefit of the 
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trusts, and to mortgage or pledge assets held thereunder 

to secure the repayment thereof. 

Trust, at SIXTH, ¶¶ A, B, C, D, G (emphasis added). 

Again, while Daughter may disagree with how the Trust is being 

funded and managed, the language of the Trust clearly empowers the acting 

trustee to manage the funds in any way he or she may deem fit as long as 

the beneficial interests of the trust are not being compromised. The record is 

is uncontradicted that Dr. Repici is more than just a physician. Additionally, 

the record does not support the finding that he is an “alter ego” for Settlor 

as the orphans’ court and Majority characterize him. Majority Opinion at 22. 

Settlor, as father of the beneficiaries, entrusted his long-time family friend 

to carry out the beneficial interests of the Trust. Dr. Repici has a background 

in business studies, in addition to the practice of medicine. More importantly, 

Dr. Repici has personal knowledge of the Trust and the beneficiary’s financial 

situation. Without any evidence that Dr. Repici, in his capacity as trustee, 

acted outside his scope of authority, removal is simply not warranted due to 

the weight to be given to the settlor’s intent.

Likewise, Daughter has failed to establish that removal of Dr. Repici is 

inconsistent with the material purpose of the Trust. The patently expressed 

purpose of the Trust is defined in Section THIRD, Paragraph A (1) as follows:

(1) Trustees shall distribute to the Beneficiary so much of the 

net income and principal as the Trustees deem necessary 

for the Beneficiary’s health, maintenance, support and 

education, or for the education of the Beneficiary’s Issue, 

after first taking into account any other income and 

resources of the Beneficiary. Any income not so expended 

shall be accumulated and added to the principal.
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Trust, at THIRD, ¶ A. (1). 

Settlor’s intent is clear. The Trust was created to provide for the 

“health, maintenance, support and education” of Daughter prior to the 

attainment of the age of forty. Id., at ¶ A. (2). After attaining the age of 

forty, Daughter may withdraw the entire balance of undistributed income 

and principal at any time upon written request. See id. Daughter has not 

attained the age of forty thus requiring a trustee to administer the Trust. 

Daughter’s health, maintenance, support and educational needs are 

evidently being suitably met by the Trust. To seek Dr. Repici’s removal as 

trustee without illustrating any actions on his part inconsistent with the 

material purpose of the Trust constitutes a disregard for the Settlor’s intent 

in favor of the whims of the beneficiary. 

While I would agree that Sylvia DiBona may be a suitable successor 

trustee based upon her professional background and experience, removal of 

Dr. Repici is not warranted here even if the orphans’ court determined there 

to be a “substantial change in circumstances” under § 7766(b)(4).