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J-A24038-21  

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

IN RE: THE CHRISTINE D'ANDREA 
IRREVOCABLE TRUST 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

PPEAL OF: MARK D'ANDREA 

 No. 579 EDA 2020 

Appeal from the Order Entered January 10, 2020 
In the Court of Common Pleas of Montgomery County Orphans' Court at 
No(s):  No. 2017-X3620 

IN RE: THE CHRISTINE D'ANDREA 
IRREVOCABLE TRUST 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

PPEAL OF: CHRISTINE D'ANDREA 

 No. 580 EDA 2020 

Appeal from the Order Entered January 10, 2020 
In the Court of Common Pleas of Montgomery County Orphans' Court at 
No(s):  No. 2017-X3620 

IN RE: THE CHRISTINE D'ANDREA 
IRREVOCABLE TRUST 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

PPEAL OF: CHRISTINE D'ANDREA 

Appeal from the Order Entered January 10, 2020 
In the Court of Common Pleas of Montgomery County Orphans' Court at 
No(s):  No. 2017-X3620 

 No. 581 EDA 2020 

    A

    A

    A

 

 

 

 

 

 

 

  

BEFORE:   LAZARUS, J., DUBOW, J., and PELLEGRINI, J.* 

MEMORANDUM BY LAZARUS, J.: 

 

 

     FILED MARCH 21, 2023 

 

These are cross-appeals from the adjudication,1 entered2 in the Court of 

Common Pleas of Montgomery County, confirming the account filed by Mark 

D’Andrea (“Mark”), Co-Trustee of the Trust Under Deed of Velma D’Andrea, 
____________________________________________ 

* Retired Senior Judge assigned to the Superior Court. 

 At the outset, we note that our review of this matter has been significantly 
impeded by the failure of the Orphans’ Court to make proper findings of fact 
and determinations of credibility in relation to many of the objections raised 
by Christine.  Many of the court’s rulings on specific objections were stated in 
a conclusory manner, without reference to controlling law or facts of record.  
As  a  result,  this  Court  was  compelled  to  comb  the  record  in  an  effort  to 
ascertain the propriety of those rulings.  Accordingly, we remind the Orphans’ 
Court of its obligation to provide an opinion detailing the reasons for its rulings 
and where in the record those reasons may be found.  See Pa.R.A.P. 1925(a).   

  1

  2

 For reasons which are lost to time, the Orphans’ Court issued two identical 
adjudications in this matter.  The first was signed by the court on December 
30,  2019,  mailed  to  the  parties  on  January  6,  2020,  and  docketed/sent  on 
January 10, 2020.  The second adjudication was signed by the Orphans’ Court 
on  January  7,  2020,  mailed  to  the  parties  on  January  8,  2020,  and 
docketed/sent  on  February  3,  2020.    To  confuse  matters  even  further,  on 
January 31, 2020, the court signed an “Amended Order,” which was docketed 
and sent on February 3, 2020, stating that “the Adjudication dated January 7, 
2020,  is  appealable  thirty  (30)  days  from  the  date  of  this  order.”    Order, 
1/31/20.  As a result of the Orphans’ Court’s perplexing actions, Christine filed 
two notices of appeal, one referencing each adjudication.  Mark filed his notice 
of appeal on January 29, 2020, referencing the date of the first adjudication 
entered by the court.  Because the second adjudication is identical to the first, 
we will consider the first adjudication to be the operative one for purposes of 
determining the timeliness of the parties’ notices of appeal, both of which were 
timely filed within thirty days of January 10, 2020, the date that adjudication 
was  docketed  and  sent  to  the  parties.    See  Pa.R.A.P.  108(b)  (“The  date  of 
entry  of  an  order  in  a  matter  subject  to  the  Pennsylvania  Rules  of  Civil 
Procedure shall be the day on which the clerk makes the notation in the docket 
that  notice  of  entry  of  the  order  has  been  given  as  required  by  Pa.R.Civ.P. 
236(b).”).  We have amended the captions to reflect  the date on which the 
first adjudication was entered.   

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J-A24038-21 

J-A24038-21 

Settlor, f/b/o Christine D’Andrea (“Christine”).  Upon careful review, we affirm 

in part, reverse in part, and remand for additional proceedings consistent with 

the dictates of this memorandum. 

Settlor was the D’Andrea family matriarch  who controlled  the family’s 

successful  cement  business.    In  1999,  Settlor  created  fourteen  separate 

irrevocable trusts for the benefit of various family members, including trusts 

for her son, Mark, and his wife, Christine.  At issue in this matter is the trust 

created for the benefit of Christine (“Trust”).  Under the terms of the Trust, 

Mark and Christine were named as co-trustees,3 with net income payable at 

least quarterly to Christine.  As co-trustee, Mark was also given discretion to 

“pay to or apply for the benefit of [Christine] so much of the principal (up to 

the entire amount thereof) as the co-Trustee . . . deems advisable from time 

to  time,  for  her  comfort,  health,  education,  maintenance[,]  and  support.”  

Christine  D’Andrea  Irrevocable  Trust,  at  ¶  SECOND(a)(2).    Mark  was  also 

named as business trustee and given broad powers to invest Trust funds in 

any closely-held businesses as he should deem fit.  See id. at ¶ SIXTH.  Settlor 

waived any conflicts of interest arising from Mark’s investment of Trust funds 

in a business in which he also serves as an officer, director, or employee.  See 

id.  at  ¶  SIXTH(f).    Settlor  further  released  Mark,  as  business  trustee,  from 

any liability “for depreciation in value or loss by reason of the retention of any 

____________________________________________ 

3 As beneficiary of the Trust, Christine was barred from participating in any 
decision  regarding  the  distribution  of  income  or  principal.    See  Christine 
D’Andrea Irrevocable Trust, at ¶ SEVENTH(b).  
 

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J-A24038-21 

such  business  interest[,]  except  for  depreciation  or  loss  resulting  from 

fraudulent acts” of the business trustee.  Id. at ¶ SIXTH(g).  Upon Christine’s 

death,  income  is  distributable  to  Mark,  if  he  survives,  along  with  such 

discretionary distributions of principal as the trustee may  deem appropriate 

for his health, education, maintenance, and support.  See ¶ SECOND(b)(B).   

Upon the death of the survivor of Christine and Mark, the remaining principal 

is to be held in further separate trusts for Mark’s living descendants until each 

such descendant attains the age of 35.  See id. 

The  family  cement  business  was  liquidated  in  2010  and  the  proceeds 

were distributed to the Trust, Mark’s trust, and Mark individually.  The Trust 

received $503,715.60 in securities and a 29.985% interest in property located 

at  14051  Townsend  Road  in  Philadelphia  (“Townsend  Road  Property”).4    

Settlor died on December 24, 2011.  On January 1, 2013, Mark formed Mark 

D’Andrea, LLC (“LLC”) to maintain and manage the Townsend Road Property.  

The LLC was owned as follows:  (1) Mark, individually, 40.612%; (2) the Trust, 

29.985%;  and  (3)  Mark’s  trust,  29.403%.    Contributions  totaling  $423,000 

were made by the members, in proportion to their ownership interests.  Mark 

began to market the Townsend Road Property  for sale in 2012.  After  Mark 

rejected several offers he deemed too low, the property was ultimately sold 

in July 2017 for $1,750,000, nearly $700,000 over its appraised value.  See 

____________________________________________ 

4 The Townsend Road Property was purchased in the early 2000s by the family 
business,  which  was  operated  out  of  a  building  at  that  location.    Mark  also 
operated  his  separate  business,  Mark  D’Andrea,  Inc.,  out  of  the  Townsend 
Road Property.   

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J-A24038-21 

N.T.  Trial,  4/9/19,  at  93,  96  (Mark’s  accountant  testifying  as  to  sale  and 

appraised values).  Following the closing of the sale, on September 18, 2017, 

Mark repaid the Trust its $126,836.55 principal investment in the LLC.  The 

remainder of the sale proceeds were deposited into an interest-bearing money 

market  account  pending  final  distribution.    On  May  9,  2018,  Mark  issued  a 

final distribution of the Trust’s proportional share of the settlement proceeds 

in the amount of $315,023.90.   

Exponentially complicating this matter is the fact that Mark and Christine 

were separated in 2016 and acrimonious divorce proceedings are still ongoing.  

Christine  spent  the  majority  of  the  couple’s  marriage  as  a  stay-at-home 

mother, while Mark ran his lucrative business until his retirement in 2012.  As 

sole  breadwinner,  Mark  paid  the  vast  majority  (if  not  all)  of  the  family’s 

expenses.  At trial, Mark expressed frustration with Christine’s spending and 

housekeeping  habits,  and  even  accused  her  of  killing  his  dog.    Christine 

accused  Mark  of  being  abusive  and  controlling.    This  unfortunate  situation 

forms  the  backdrop  of  this  case,  which  was  initiated  by  Christine  with  the 

filing, on October 2, 2017, of a “Petition for Citation to Show Cause Why Mark 

D’Andrea Should Not Be Removed as Co-Trustee and a Successor Co-Trustee 

Appointed,  Why  Mark  D’Andrea  Should  Not  Immediately  Deposit  Proceeds 

from the Sale of a Trust Asset to the Trust, and Why Mark D’Andrea Should 

Not Be Surcharged.”  On November 21, 2017, the court ordered Mark to file 

an account of his trusteeship, which he did on January 3, 2018.  Christine filed 

objections,  raising  numerous  claims  regarding,  inter  alia,  Mark’s  alleged 

- 5 - 

J-A24038-21 

improper use of Trust funds.  Following discovery, a hearing was conducted 

on April 8 and 9, 2019.  At the April 8, 2019 hearing, Mark advised the court 

of his resignation as co-trustee.  Both parties filed post-trial briefs.     

On September 9, 2019, Mark filed a petition for adjudication, to which 

Christine  raised  numerous  additional  objections.    Among  other  things, 

Christine objected to Mark’s request for counsel fees and requested that the 

court  order  Mark  to  pay  her  counsel  fees.    The  parties  submitted  briefs 

addressing  the  issues  raised  in  Christine’s  objections  to  the  petition  for 

adjudication.    On  January  10,  2020,  the  Orphans’  Court  entered  its 

adjudication,  in  which  it  sustained,  in  part,  and  denied,  in  part,  Christine’s 

objections  to  the  account.    Both  parties  filed  motions  for  reconsideration.  

Before the court could act on those motions,5 the parties filed cross-appeals, 

followed  by  court-ordered  Pa.R.A.P.  1925(b)  concise  statements  of  errors 

complained of on appeal.  

Mark raises the following issues for our review: 

1.  Did  the  Orphans’  Court  err  when  it  only  surcharged  Mark 
despite [finding] that Christine breached her fiduciary duties as 
co-trustee and is responsible for any loss that results from her 

____________________________________________ 

5 A trial court no longer has the power to act on a motion for reconsideration 
when it fails to issue an order expressly granting the motion within the time 
prescribed for seeking appellate review.  See Manufacturers and Traders 
Trust  Co.  v.  Greenville  Gastroenterology,  SC,  108  A.3d  913,  918  (Pa. 
Super. 2015) (“If a court fails to act on a timely reconsideration motion within 
the appeal period, it loses jurisdiction to do so.”).  Here, the Orphans’ Court 
did  not  act  on  the  motions  for  reconsideration  within  the  thirty-day  appeal 
period.  Accordingly, the court’s inaction had the effect of a denial pursuant to 
Pa.R.A.P. 1701.   

- 6 - 

J-A24038-21 

negligence as co-trustee and by summarily dismissing Mark’s 
equitable claims in a footnote? 

2.  Did the Orphans’ Court err when it surcharged Mark for 50% of 
certain household expenses contrary to the terms of the Trust, 
the RESTATEMENT (THIRD) OF TRUSTS, testimony of counsel 
for the Trust, and undisputed facts that Mark personally paid 
the majority of household expenses? 

3.  Did the Orphans’ Court err when it held that $126,000 from the 
Trust  was  the  only  liquidity  for  sustaining  the  operations  of 
Mark D’Andrea, LLC[,] and surcharged Mark as a result when 
the Trust only owned 29.985% of the LLC? 

4.  Did  the  Orphans’  Court  err  in  surcharging  Mark  for  alleged 
mathematical and accounting errors[,] and in particular[,] for 
failing to identify a “loan” to the LLC in the accounting[,] when 
Christine presented no evidence on this issue at trial and when 
the accounting reflects that such “loan” was repaid to the Trust 
[as a “capital contribution”]? 

5.  Did the Orphans’ Court err in surcharging Mark in the amount 
of  $14,175  for  the  alleged  loss  of  interest  on  the  sale  of  the 
Townsend  Road  Property  when  the  Trust  already  received 
interest as part of the distribution from the LLC, the timing of 
the payment was due to actions of professionals to complete 
the sale, there was no objection to the timing[,] and had the 
sale  been  completed  sooner,  the  proceeds  would  have  been 
placed  in  the  Trust’s  investment  account  with  interest  well 
below 6%? 

6.  [D]id  the  Orphans’  Court  err  in  finding  that  Mark  engaged  in 

self-dealing? 

attorneys’ fees? 

7.  Did  the  Orphans’  Court  err  in  denying  Mark’s  request  for 

Brief of Appellant, at 10-11 (unnecessary capitalization omitted). 

 

Christine raises the following claims on cross-appeal: 

1.  Did the [Orphans’ Court] err in failing to surcharge [Mark] for 
household  expenses  [he]  paid  directly  from  the  [T]rust,  where 
substantial evidence demonstrated that these household expense 

- 7 - 

J-A24038-21 

payments  were  improper  and  indistinguishable  from  other 
household expense payments for which [Mark] was surcharged? 

2.  Did the [Orphans’ Court] err in failing to surcharge [Mark] for 
paying credit card bills with [T]rust funds, where the credit card 
bills  related  to  household  expenses  that  were  indistinguishable 
from  other  household  expense  payments  for  which  [Mark]  was 
surcharged, and the [Orphans’ Court] improperly based its ruling 
on the beneficiary/co-trustee being aware of the payments? 

3.  Where [Mark] solely controlled a management company that 
he  co-owned  with  the  [T]rust,  paid  his  own  personal  expenses 
with  that  company’s  funds,  then  reimbursed  the  company  from 
the [T]rust, was  the [Orphans’ Court]  erroneously unclear as to 
whether it surcharged [Mark] for those specific personal expense 
payments or[,] in the alternative, did it err in failing to surcharge 
[Mark] for the lost interest to the [T]rust from those payments? 

4.  Where the trustee that co-owns real property with the [T]rust 
collects  a  large  management  fee  for  himself  from  the  sale 
proceeds  of  that  property,  and  the  [Orphans’  Court]  found  that 
the purported basis for the fee was incredulous, did the [Orphans’ 
Court] err by failing to surcharge [Mark] for the [T]rust’s share of 
the management fee? 

5.    Where  the  [Orphans’  Court]  found  that  [Mark]  breached  his 
fiduciary  duty  to  the  [T]rust,  caused  financial  harm  to  the 
[T]rust[,] and surcharged the [T]rustee, did the [Orphans’ Court] 
err in failing to rule that [Christine] was entitled to attorneys’ fees? 

Brief of Cross-Appellant, at 5-6.  

 

We begin by noting our standard and scope of review: 

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.  The Orphans’ Court[’s] decision 
will not be reversed unless there has been an abuse of discretion 
or a fundamental error in applying the correct principles of law. 

- 8 - 

J-A24038-21 

This Court’s standard of review of questions of law is de novo, and 
the scope of review is plenary, as we may review the entire record 
in making our determination.  When we review questions of law, 
our standard of review is limited to determining whether the trial 
court committed an error of law. 

In  re  Fiedler,  132  A.3d  1010,  1018  (Pa.  Super.  2016)  (citations  and 

quotation marks omitted).  

 

We  begin  by  addressing  Mark’s  claims.    However,  where  appropriate, 

we will address certain of the parties’ claims together for ease of disposition.  

Mark  first  asserts  that  the  Orphans’  Court  erred  by  only  surcharging  him, 

despite finding that Christine breached her fiduciary duties as co-trustee and 

by dismissing Mark’s equitable claim of laches on the basis of unclean hands.  

Specifically, Mark asserts that the court erred in summarily concluding that, 

because Mark’s conduct as Trustee was “less than respectable,” he was barred 

by  the doctrine of  unclean hands from asserting  the defense of laches.  He 

also asserts that, because Christine was a co-trustee who failed to uphold her 

fiduciary  obligation  to  use  reasonable  care  to  prevent  her  co-trustee  from 

committing a breach of trust, the court erred by only imposing a surcharge on 

him.  He is entitled to no relief.   

We begin by addressing Mark’s laches claim.  The question of whether 

laches applies is a question of law; thus, we are not bound by the trial court’s 

decision on the issue.  Fulton v. Fulton, 106 A.3d 127, 131 (Pa. Super. 2014) 

(citations omitted).   

Laches, similar to a statute of limitations, may bar a party from 
seeking equitable relief after the lapse of a certain period, usually 
six years.  Laches bars relief when the complaining party is guilty 

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J-A24038-21 

of want of due diligence in failing to promptly institute the action 
to the prejudice of another. 

Laches is not excused by simply saying:  “I did not know.”  If by 
diligence  a  fact  can  be  ascertained[,]  the  want  of  knowledge  so 
caused  is  no excuse for a stale claim.   The  test  is not what  the 
plaintiff knows, but what he might have known, by the use of the 
means of information within his reach, with the vigilance the law 
requires of him. 

In  re  Estate  of  Warden,  2  A.3d  565,  579  (Pa.  Super.  2010)  (internal 

citations and quotation marks omitted).   

 

In order to prevail on an assertion of laches, a trustee must establish:  

(1) a delay arising from the beneficiary’s failure to exercise due diligence; and 

(2) prejudice to the trustee resulting from the delay.  Sprague v. Casey, 550 

A.2d  184,  187  (Pa.  1988).    “[T]he  sort  of  prejudice  required  to  raise  the 

defense of laches is some changed condition of the parties [that] occurs during 

the  period  of,  and  in  reliance  on,  the  delay.”    Id.  at  188.    The  question  of 

laches is factual and is determined by examining the circumstances of each 

case.  Id. at 188. 

 

Here,  Mark  has  failed  to  argue,  much  less  establish,  that  he  suffered 

any prejudice as a result of any delay on Christine’s part.  See id.  Accordingly, 

we cannot say that the Orphans’ Court erred in declining to apply the doctrine 

of laches in this matter.6 

____________________________________________ 

6 Although the Orphans’ Court declined to apply laches based on the doctrine 
of unclean hands, “it is a well-settled doctrine in this Commonwealth that a 
trial court can be affirmed on any valid basis appearing of record.”  In re T.P., 
78 A.3d 1166, 1170 (Pa. Super. 2013).   

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J-A24038-21 

 

Mark also asserts that the Orphans’ Court should have also imposed a 

surcharge on Christine because she, too, breached her fiduciary duties as co-

trustee.  However, Mark failed to raise this claim before the Orphans’ Court.  

“Issues not raised in the trial court are waived and cannot be raised for the 

first time on appeal.”  Pa.R.A.P. 302(a).  Accordingly, Mark has waived this 

claim for purposes of appellate review. 

 

Mark next claims that the Orphans’ Court erred by surcharging him for 

50% of certain household expenses paid from the Trust, which he claims was 

contrary  to  the  terms  of  the  Trust,  the  Restatement  (THIRD)  of  Trusts,  the 

testimony of William C. Hussey, II, Esquire, counsel for the Trust, and the fact 

that Mark, personally, paid the majority of household expenses.  Specifically, 

the court surcharged Mark for 50% of the following expenses that were paid 

from Trust funds: 

•  $450.00 for child psychiatric evaluation; 

•  $12,137.61 for school property taxes for marital home; 

•  $12,680.00 for joint property at Commodore Bay Club (shore 

home); 

•  $400.00 to Progressive Insurance for snowmobile insurance; 

•  $993.00 for children’s dental care; 

•  $691.63 for clothes dryer for marital home; and 

•  6% statutory  interest for loss of  interest on  trust funds  used 

for children’s tuition and later reimbursed. 

See Adjudication, 1/7/20, at 12. 

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J-A24038-21 

Mark  asserts  that  these  distributions  were  permissible  under  the 

discretionary  powers  granted  to  him  under  Paragraph  SECOND(a)(2)  of  the 

Trust, which provides that the trustee may “pay to or apply for the benefit of 

[Christine] so much of the principal (up to the entire amount thereof) as [the 

trustee]  deems  advisable  from  time  to  time,  for  her  comfort,  health, 

education,  maintenance  and  support[.]”    See  Brief  of  Appellant,  at  36; 

Christine D’Andrea Irrevocable Trust, 6/30/99, at ¶ SECOND(a)(2).  He claims 

that “[t]he word ‘support’ is generally used to mean articles for the sustenance 

of  the  family,  as  food,  etc.”    Id.,  quoting  Winthrop  Co.  v.  Clinton,  46  A. 

435, 437 (Pa. 1900).  Mark argues that “[t]rust terms for ‘support’ have also 

been ‘interpreted to mean that the trustee is to be guided by the beneficiary’s 

accustomed standard of living, or “station  in  life,” and usually also  includes 

support for the beneficiary’s household.’”  Brief of Appellant, quoting BOGERT’S 

THE LAW OF TRUSTS AND TRUSTEES § 228.  Mark asserts that, as a family member, 

he was permitted to tangentially benefit from the expenditures and it would 

be “hard to conceive of a distribution to a parent or a married person . . . that 

does  not  have  an  ancillary  benefit  for  that  person’s  immediate  family 

members.”    Brief  of  Appellant,  at  37,  quoting  N.T.  Trial,  4/9/19,  at  178 

(testimony of Attorney Hussey).  Mark also argues that, because he paid the 

vast  majority  of  the  household’s  large  expenses,  including  the  mortgage, 

vacation home, taxes, insurance, and vehicle expenses, it was proper to use 

Christine’s trust to discharge a portion of her obligation of support.  Id. at 39.  

Finally, Mark asserts that his reliance on the advice of counsel regarding the 

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propriety of payments from the trust relieves him of liability pursuant to the 

terms  of  Paragraph  FIFTH  of  the  Trust,  which  provides  that  the  “Trustee  is 

expressly relieved of any liability or responsibility whatsoever for any act or 

failure to act, or for following the advice of . . . attorneys . . ., so long as the 

Trustee exercises due care in their selection.”  Id. at 40-42, quoting Christine 

D’Andrea Irrevocable Trust, 6/30/99, at ¶ FIFTH(p).  

 

In response, Christine argues that “[t]here is no provision in the Trust 

that allows Trustee to make distributions to benefit himself or relieve his own 

support obligations” and that Paragraph SECOND(a)(2) “is clearly designed to 

benefit  [Christine],  for  her  comfort,  health,  education,  maintenance,  and 

support.”  Brief of Appellee, at 27 (emphasis in original).  She asserts that “a 

careful reading of Winthrop Co. finds support for a more narrow definition of 

support,  applying  the  definition  to  costs  related  to  ‘necessities,’  something 

costs  such  as  the  Commodore Bay  Club  condominium  fees  and  snowmobile 

insurance premiums do not meet.”  Id.  Regarding Mark’s argument that the 

payments discharged Christine’s duty of support, Christine argues that “courts 

do  not  get  involved  in  support  determinations  where  the  parties  are  living 

under the same roof” and that “married persons are liable for [the] support of 

each other according to their respective abilities to provide support[.]”  Id. at 

29.  Thus, “[g]iven that [Mark] voluntarily retired from his wildly successful 

business[,]  which  generat[ed]  over  $1,000,000  annually  versus  [Christine,] 

who  was  primarily  a  [housewife]  raising  the  parties’  children,  if  there  were 

support  obligations[,]  they  would  be  substantially  larger  on  [Mark’s  part].”  

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J-A24038-21 

Id.  Christine also challenges Mark’s claim that he paid “virtually all” of the 

household  expenses,  asserting  that  the  testimony  supporting  the  claim  is 

“vague”  and  “self-serving”  and  “in  no  way  establishes  relative  support 

obligations  to  entitle  [Mark]  to  unilaterally  justify  the  amount  of  money  he 

distributed from the Trust for household expenses to benefit himself.”  Id. at 

32.    Finally,  Christine  argues  that  Mark’s  “advice  of  counsel”  defense  fails, 

because Mark “selectively or falsely presented information to his attorney to 

get the advice he wanted” and legal advice “is only as accurate and reliable 

as the underlying information [the attorney] receives from the client.”  Id. at 

33.  

In general, “[a] trustee is under a duty to the beneficiary to administer 

the trust solely in the interest of the beneficiary.”  In re Paxson Trust I, 893 

A.2d 99, 121 (Pa. Super. 2006). 

It  is  abundantly  clear  that  trustees  may  not  profit  from  trust 
property.  Cases old and new, decided by every level of court in 
this  Commonwealth,  support  this  basic  rule.    “[T]here  is  no 
principle  better  settled  than  that  a  trustee  is  not  permitted  to 
obtain  any  profit  or  advantage  to  himself  in  managing  the 
concerns of the cestui que trust.”  Raybold[ v. Raybold], 20 Pa. 
[308,] 312 [(1853)].  “It is a well[-]recognized general rule that 
a  trustee  or  fiduciary  may  not  use  trust  property  for  his  own 
benefit and if he does[,] he is liable to a cestui que trust for profits 
made by him from the use of trust property.”   Stahl, Attorney 
General v. First Pennsylvania Banking and Trust Company, 
[] 191 A.2d 386, 388 ([Pa.] 1963). 

Id. at 122.   

The  terms  “support”  and  “maintenance”  are  “[p]robably  the  most 

common guides used in grants of discretion” and are “sometimes accompanied 

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by a reference to the beneficiary’s accustomed standard of living or station in 

life.”    Restatement  (Third)  of  Trusts,  §  50,  cmt.  (d)(2).    “The  accustomed 

manner  of  living  for  these  purposes  is  ordinarily  that  enjoyed  by  the 

beneficiary at the time of the settlor’s death or at the time when an irrevocable 

trust is created.”  Id.   

Language  of  “comfort”  often  accompanies  a  support  standard.  
Whether  modifying  support  (e.g.,  “comfortable  support”  or 
“support  in  reasonable  comfort”)  or  as  an  additional  standard 
(“support and comfort”), the normal construction is the same:  the 
language  adds  nothing  to  the  usual  meaning  of  accustomed 
support (supra) for a beneficiary whose lifestyle is already at least 
reasonably comfortable. 

Id. at cmt. (d)(3). 

 

A  support  standard  normally  covers  not  only  the  beneficiary’s  own 

support but also that of persons for whom provision is customarily made as a 

part of the beneficiary's accustomed manner of living.  Id. at cmt. (d)(2).  This 

generally includes the support of members of the beneficiary’s household and 

the costs of suitable education for the beneficiary’s children.  Id. 

Here, the record reflects payments from the Trust for everyday family 

and  household  expenses,  of  the  type  generally  borne  by  married  persons, 

which Mark, in his capacity as trustee, chose to pay—in full—from Christine’s 

trust.  The Orphans’ Court was presented with a unique situation in which one 

spouse  is  serving  as  the  trustee  of  the  other  spouse’s  trust  and  making 

discretionary  distributions  that  not  only  discharge  the  beneficiary  spouse’s 

obligation  of  support,  but  also  relieves  the  trustee  spouse  of  his  own 

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J-A24038-21 

obligation.  To the extent that Mark historically paid the vast majority of the 

family expenses from his own income, this was the result of a joint decision 

of the parties, that Mark would work outside the home to support the family 

financially, while Christine would work as a homemaker and raise the couple’s 

children.  Mark’s desire to be relieved of some of these financial obligations 

does not justify his use of Trust assets to do so.  The Orphans’ Court made 

credibility determinations and concluded that Mark simply took advantage of 

his access to Trust funds to offset his own obligation of support to the family 

unit  and  did  so  in  violation  of  his  fiduciary  duty.7    In  re  Paxson  Trust  I, 

supra (trustees may not profit from trust property).  We can discern no abuse 

of discretion. 

The court also acted within its discretion to reject Mark’s claim that he 

relied on the advice of counsel in utilizing Trust funds to pay for these specific 

expenses is not supported by the record.  As the Orphans’ Court noted, “[n]o 

clear  and  convincing  evidence  was  presented  [that  Mark]  consulted  a 

professional  prior  to  [engaging  in]  the  .  .  .  transactions.”    Adjudication, 

1/7/20, at 11 (emphasis in original).     

In  a  related  claim,  Christine  asserts  that  the  Orphans’  Court  erred  in 

failing  to  surcharge  Mark  for  other  household  expenses  for  which  he 

reimbursed himself from the Trust, where substantial evidence demonstrated 

that  these  payments  were  improper  and  indistinguishable  from  the  above 

____________________________________________ 

7 We note that the Orphans’ Court only surcharged Mark for one-half of the 
expenditures in question. 

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J-A24038-21 

payments for which Mark was surcharged.  Specifically, Christine challenged 

the following payments:  (1) payments dated 1/18/11, 3/1/11, and 5/16/11 

totaling $18,294.51, identified in the account as “distribution[s] FBO Christine 

D’Andrea” and testified to by Mark as payments made directly to himself in 

reimbursement of household expenses such as housecleaning, groceries, and 

the family dog; (2) a payment to the Avalon Yacht Club dated 2/28/12 in the 

amount of $1,350 for family membership dues and a required food minimum; 

and  (3)  additional  payments  dated  4/8/11,  4/10/12,  7/3/12,  7/10/12,  and 

8/16/12,  made  directly  to  Mark  from  the  trust,  totaling  $14,078.29,  in 

reimbursement for “household expenses.” 

Mark counters that, unlike the expenses discussed above for which the 

Orphans’  Court  surcharged  him,  the  household  expenses  referenced  in  this 

claim were “beyond normal household  expenses and/or were for Christine’s 

sole benefit.”  Brief of Cross-Appellee, at 29.  Mark asserts: 

These  [payments]  were  for  reimbursement  for  payments  he 
personally  made  for  Christine’s  personal  credit  cards  at  Kohl’s, 
American Express, Bloomingdale[’]s and Macy[’]s.  No testimony 
was  presented  regarding  the  March  1,  2011  payment  in  the 
amount of $2,405.19.  With respect to the $5,000 payment, Mark 
testified that this was for the non-essential household expenses 
of a housekeeper Christine hired and grooming bills for a puppy 
Christine bought.   

Id. at 28.  With regard to the 2015 Avalon Yacht Club payment, Mark argues 

that he derived no benefit from the family’s membership in the club that year.  

Mark testified that he “told Christine he wanted to resign their membership . 

- 17 - 

J-A24038-21 

at 29.   

. . but ultimately they did not resign because Christine wanted to keep it.”  Id. 

 

 “When  seeking  to  impose  a  surcharge  against  [a  trustee]  for  the 

mismanagement of an estate, those who seek the surcharge bear the burden 

of proving the [trustee’s] wrongdoing.”  Estate of Geniviva, 675 A.2d 306, 

311  (Pa.  Super.  1996).    Nevertheless,  “where  a  significant  discrepancy 

appears on the face of the record, the burden shifts to the [trustee] to present 

exculpatory evidence and thereby avoid the surcharge.” Id.  See In re Ellis’ 

Estate, 333 A.2d 728 (Pa. 1975) (where account reflected dual payment of 

realty commissions for same property, burden of going forward with evidence 

establishing  prudence,  skill,  and  due  care  shifted  to  accountant);  In  re 

Lohm’s Estate, 269 A.2d 451 (Pa. 1970) (where large overpayment in taxes 

is shown, burden shifts to fiduciary to present exculpatory evidence to avoid 

surcharge). 

  Here,  the  Orphans’  Court  overruled  these  objections  “due  to 

insufficient evidence presented at trial.”  See Adjudication, at 12 (overruling 

objections to household expenses).  In doing so, the court improperly placed 

the burden on Christine to prove the impropriety of the distributions.  On the 

face  of  the  account,  the  descriptions  of  the  distributions—i.e.,  “Distribution 

FBO Christine D’Andrea,” “Check Number 1004,” and “Household Expenses”—

are  vague  and,  particularly  in  the  case  of  those  distributions  labelled 

“household expenses,” suggestive of a breach of fiduciary duty, where Mark 

had an obligation of support to the family unit and that obligation was satisfied 

- 18 - 

by  the  Trust  to  which  he  owed  a  fiduciary  duty.    See  discussion,  supra.  

Moreover,  where  Mark  paid  the  bills  and  maintained  control  of  the  Trust’s 

check register, any  documentary  proof supporting  these distributions  would 

be  in  Mark’s  possession  and  most  readily  available  to  him,  not  Christine.  

Accordingly,  the burden fell  to Mark  to present evidence of the propriety of 

these distributions.  He failed to do so. 

At trial, Mark presented no evidence other than his own, often vague,8 

testimony  in  support  of  payments  he  made  from  the  Trust  to  himself  in 

____________________________________________ 

8 For example, the following exchange occurred between Mark and Christine’s 
counsel: 
 

Q:  Now, let’s go down further.  We are going to the 5/12/11 entry, 
check 1007, all right? 

:  That’s $5,000.  It’s a deposit to Sovereign, right? 

:  So that was a check to you, not to a credit card or reimbursing 

you for a credit card payment, right? 

:  And that’s not itemized anywhere, correct? 

:  That is not itemized anywhere, I do not believe, at least not in 

the stuff you gave me. 

:  But you are aware that they were household expenses, right, 

such as housecleaning? 
 

(Footnote Continued Next Page) 

- 19 - 

:  All right.  

:  Yes. 

:  Um-hum. 

  A

  Q

  A

  Q

  A

  Q

  A

  Q

J-A24038-21 

J-A24038-21 

reimbursement of household expenses.  He provided no receipts, credit card 

bills, or other documentary support for his claim that the expenses were for 

Christine’s  sole  benefit.    In  short,  Mark  failed  to  demonstrate  that  the 

payments  for  “household  expenses”  were  properly  paid  from  the  Trust.  

Estate of Geniviva, supra.  Accordingly, we direct the court to impose an 

additional  surcharge  in  the  amount  of  $16,186.40,  or  50%  of  the  total 

payments, for “household expenses.”   

____________________________________________ 

A:  They were—I don’t know what they were, because I don’t 
know  what  they  were.    I  would  have  to  really  go  back  and 
research  that  and  see  if  I  still  have  those  bills.    I  don’t  know 
what they are.  

. . . 

:  If we go further there is another check entry at 1041 on April 

:  That’s also $5,000 to Mark D’Andrea? 

A:  Correct.   

:  For household expenses, right? 

:  And household expenses means things like a cleaner, is that 

:  They could mean a lot of things.  Household expenses, I am 
not sure specifically what they are.  I could probably get you 
an answer[,] if you want one[,] of what they are exactly.  I didn’t 
make the number up.  I didn’t just flip a coin and say $5,000.  It 
was done for a reason like I did everything accounting-wise for a 
reason. 
  

N.T. Trial, 4/8/19, at 201-03 (emphasis added). 

- 20 - 

10, 2012? 

: Yes. 

:  Yes.  

right? 

  Q

  A

  Q

  Q

  A

  Q

  A

Our  review  of  the  Avalon  Yacht  Club  payment  is  hampered  by  the 

Orphans’ Court’s application of the incorrect evidentiary standard, as well as 

its failure to make any credibility determinations.  Christine testified that Mark 

used the yacht club membership during the summer of 2015; Mark testified 

that  he  wanted  to  relinquish  the  membership  and  only  visited  Avalon  once 

that  season.    Accordingly,  we  are  constrained  to  remand  this  issue  to  the 

Orphans’ Court for reevaluation in light of the proper evidentiary standard.   

Next, Mark asserts that the Orphans’ Court erred in ruling on Christine’s 

objection number 12.9  In ruling on that objection, the court stated as follows: 

Among  the  [LLC’s]  three  initial  investing  entities,  evidence 
presented  at  trial  showed  that  only  the  $126,000  trust  fund 
investment provided liquidity for sustaining company operations.  
[Mark’s] admission that he used Management Company funds for 
debts outside of company operations, some of which he repaid, is 
sufficient  to  SUSTAIN  Objection  #12,  and  [Mark]  is  subject  to 
surcharge as stated in objection 2 herein[,10] as these expenses 
appear to be the same.   

Objection  is  made  to  [Mark’s]  deviation  from  the  Trust  terms 
governing  investments  of  principal  in  any  closely-held  business, 
which  specifically  provide  that  “only  assets  actually  invested  in 
any  such  business  shall  be  liable  for  the  debts  incurred  in  its 
operation,”  by  paying  additional  expenses  not  related  to  the 
management of Townsend Rd. out of  the LLC, including  but  not 
limited  to  [Mark’s]  household  bills  and  All  Seasons  Marina 
expenses for [Mark’s] personal boat. 
 

0 The surcharges related to Christine’s objection number 2 were addressed 
above in Mark’s first claim on appeal.  

  1

Objections to First Intermediate Accounting, 2/2/18, at ¶ 12.  

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____________________________________________ 

9 Objection No. 12 stated: 
 

J-A24038-21 

J-A24038-21 

Adjudication, at 14.   

 

Mark argues that  

to the extent that [his] conduct as manager of the LLC is being 
challenged,  such  conduct  is  not  properly  addressed  via  this 
lawsuit,  and  would  instead  need  to  be  challenged  under  the 
Pennsylvania  Revised  Uniform  Limited  Partnership  Act,  15 
Pa.C.S.A.  §  8611  et  seq.,  or  the  Pennsylvania  Uniform  Limited 
Liability Company Act of 2016, 15 Pa.C.S.A. § 8811 et seq.  See 
Retina Assocs. of Greater Phil. v. Retinovi[t]reous Assocs., 
176 A.3d 263, 277 (Pa. Super. 2017).  Challenges to the action[s] 
of a[n] LLC manager or member may only be brought pursuant to 
15 Pa.C.S.A. § 8881 (involving direct actions by LLC member) or 
15  Pa.C.S.A.  §  8882  (involving  derivative  actions).    Christine 
failed to raise any such claims before the Orphans’ Court. 

Brief of Appellant, at 42-43.   

 

Mark  further  asserts  that,  even  if  his  conduct  as  manager  of  the  LLC 

could  be  challenged  in  this  litigation,  “[t]he  Trust  terms  give  the  Business 

Trustee  the  power  to  operate  that  closely[-]held  business  as  he  see[s]  fit[] 

and without regard to any conflicts that would normally exist between his roles 

as  Trustee  and  in  the  business.”    Id.  at  43.    Thus,  in  failing  to  distinguish 

between his actions as manager of the LLC and trustee of the Trust, the court 

improperly surcharged Mark for actions taken in his capacity as manager of 

the LLC.  

 

In addition, Mark alleges that the court’s finding that “only the $126,000 

trust fund investment provided liquidity for sustaining company operations,” 

Adjudication, 1/7/20, at 12, is directly contrary to the evidence of record and 

“completely disregards the fact that the Trust owned only a 29.985% interest 

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J-A24038-21 

in  the  LLC,  a  fact  which  it  explicitly  recognizes  earlier  in  the  Adjudication.”  

Brief of Appellant, at 44.  Mark argues that 

the evidence established that Mark created a checking account for 
the LLC, which each member contributed to in proportion to their 
ownership  interest,  and  that  any  expenses  for  sustaining  the 
company  operations  were  paid  from  that  account  (i.e.  in 
proportion  to  the  ownership  interest  of  the  LLC).    This  fact  is 
further  supported  by  the  Operating  Agreement—as  executed  by 
Christine—and  general  ledgers  of  the  LLC,  which  reflect  capital 
contributions from both Mark personally and from Mark’s  [t]rust 
in addition to the contributions made by [Christine’s] Trust.  

Id. at 44.    

 

Finally,  Mark  asserts  that  the  court’s  reference  to  “Objection  2”  is 

misplaced,  as  the  expenses  for  which  Mark  was  surcharged  under  that 

objection were paid from the Trust and not the LLC. 

In  a  related  claim  on  cross-appeal,  Christine  argues  that  the  court’s 

ruling  on  this  objection  is  “unclear  as  to  whether  an  additional,  separate 

amount should be imposed for this surcharge, or if the [Orphans’ Court] found 

that  the  surcharge  amount  awarded  [with  regard  to]  Objection  No.  2  also 

covers” this objection.  Brief of Cross-Appellant, at 39.  She asserts that, to 

the  extent  the  Orphans’  Court  intended  to  impose  a  separate  surcharge 

amount related to Objection No. 12, it must specifically include that amount 

in the Adjudication.  If no additional surcharge was intended, Christine asserts 

she is entitled to “interest income lost for the period that the funds relating to 

the [c]apital [c]ontributions [s]urcharge were improperly removed from the 

Trust[.]”  Id. at 40. 

- 23 - 

J-A24038-21 

Here,  the  parties  are  correct  that  the  Orphans’  Court  adjudication  is 

completely  unclear  as  it  relates  to  the  disposition  of  Objection  No.  12.  

However, we agree with Mark that, in ruling on this objection, the Orphans’ 

Court  both  misconstrued  the  record  and  committed  an  error  of  law  by 

purporting to surcharge Mark for his conduct as manager of the LLC.   

First, the court’s statement that the $126,00 capital contribution from 

the Trust provided the LLC’s only liquidity is patently belied by the record.  The 

LLC’s ledgers, introduced at trial, clearly show capital contributions not only 

from  Christine’s  Trust,  but  from  Mark,  individually,  and  from  the  Mark 

D’Andrea  Trust,  in  amounts  proportionate  to  their  respective  ownership 

interests.  See generally, Respondent’s Exhibits R2-R7 (Mark D’Andrea LLC 

Year-to-Date Ledgers).  As discussed infra, the capital contributed to the LLC 

by Christine’s Trust was repaid in full, with interest, following the sale of the 

Townsend Road Property.  

Second, the Settlor permitted Mark, as Business Trustee, to invest Trust 

funds in any closely-held business as he saw fit, to “deal with any business 

interest as freely as [Settlor] could have done,” and released him from any 

loss in value by reason of the retention of any such business interest, except 

for losses resulting from fraud.  Christine D’Andrea Irrevocable Trust, ¶ SIXTH.  

Thus,  Mark’s  investment  of  Trust  property  in  the  LLC  was  within  his  broad 

discretionary powers under the Trust.  To the extent that Christine wishes to 

challenge Mark’s actions in his capacity as manager of the LLC, we agree with 

Mark that her recourse must be had under the Pennsylvania Limited Liability 

- 24 - 

J-A24038-21 

Company  Act.    Accordingly,  any  additional  surcharge  intended  by  the  court 

with respect to Objection No. 12 must be vacated.11  

Mark next asserts that the Orphans’ Court erred in surcharging him for 

alleged  mathematical  and  accounting  errors,  and  in  particular,  for  failing  to 

identify a “loan” to the LLC in the accounting, where Christine presented no 

evidence on this issue at trial and the accounting reflects that such “loan” was 

repaid  to  the  Trust  as  a  “capital  contribution.”    Specifically,  the  court 

surcharged Mark in the amount of $20,989.50, “[even though] this was not 

addressed at trial[,]” Adjudication, 1/7/20, at 15, for a loan purportedly made 

by the Trust to the LLC.  Because the evidence demonstrates that the court 

mischaracterized as loans certain capital contributions from the Trust to the 

LLC,  which  contributions  were  ultimately  repaid  with  interest,  we  conclude 

that the court erred in imposing this surcharge.  

“One who seeks to surcharge a trustee for breach of trust must bear the 

burden of proving the particulars of the trustee’s wrongful conduct.”  Estate 

of  Pew,  655  A.2d  521,  543  (Pa.  Super.  1994).    Here,  Christine  alleged  in 

objection number 16 that an entry in a “trial balance sheet” for the LLC12 in 

the amount of $20,989.50, characterized as a “loan,” was not included in the 

____________________________________________ 

11  As  noted  above,  it  does  not  appear  that  the  court  actually  imposed  a 
separate  surcharge  as  to  Objection  No.  12.    However,  in  the  interest  of 
thoroughness,  we  clarify  that  any  such  surcharge  is,  or  would  have  been, 
inappropriate. 
   
12 The trial balance sheet was introduced at Mark’s deposition as Exhibit MDA-
38. 

- 25 - 

J-A24038-21 

account,  and  was  never  repaid.    Christine  presented  no  evidence  at  trial 

regarding this claim.  However, Mark testified at his deposition that  he had 

initially miscoded contributions of capital from the Trust as “loans” in 2013.   

Q:  I know we talked earlier about capital contributions that were 
made by each person, there’s a series of loans here. 

A:  Yes, back in ’13 this is initially the first year the company was—
at  some  point  I  may  have  been  miscoding  stuff  and  I  think 
[accountant Victor Broyan] had me change these from loans to—
you know?  I thought he told me loans to put them in, I think it’s 
been changed.  But all the numbers add up, capital contribution[,] 
loan[,]  I  think  [they]  all  [were]  intended  to  be  the  same  thing, 
member[’]s capital.  It was miscoded one time and he had me fix 
it.  I think entries were made to do that.   

Deposition of Mark D’Andrea, 7/30/18, at 103-04. 

 

A comparison of the LLC’s “trial balance sheet” for the year 2013 with 

the  account  entries  showing  the  Trust’s  capital  contributions  for  that  same 

year confirm Mark’s testimony.  Both documents reflect total payments from 

the Trust to the LLC of $26,986.50.  As the record reflects that the challenged 

2013  Trust  payments  are  fully  accounted  for  in  the  account,  see  First 

Intermediate Account of Mark D’Andrea, 1/3/18, at 152-53, the court erred in 

imposing a surcharge in that amount. 

Mark next alleges that the Orphans’ Court erred in surcharging him in 

the  amount  of  $14,175  for  the  alleged  loss  of  interest  on  the  sale  of  the 

Townsend  Road  property.13    Specifically,  Mark  asserts  that:    (1)  the  Trust 

____________________________________________ 

13  The  Townsend  Road  Property  was  initially  constructed  by  the  family 
business and was jointly owned by the business and Settlor.  At some point, 
(Footnote Continued Next Page) 

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J-A24038-21 

already  received  interest  as  part  of  the  distribution  from  the  LLC;  (2)  the 

timing of the payment was due to actions of professionals in completing the 

sale;  (3)  there  was  no  objection  to  the  timing;  and  (4)  had  the  sale  been 

completed  sooner,  the  proceeds  would  have  been  placed  in  the  Trust’s 

investment  account  with  interest  well  below  6%.    We  agree  that  the  court 

erred in imposing this surcharge.  

To obtain a surcharge, a beneficiary has the burden of proving not only 

a breach of fiduciary duty, but also that “a related loss occurred.”  Estate of 

Lychos, 470 A.2d 136, 142 (Pa. Super. 1983).  The burden then shifts to the 

trustee to prove that the loss would have occurred in the absence of the breach 

of fiduciary duty.  Id.  

At trial, Christine presented no evidence to support her claims that the 

ten-month delay in distributing the net proceeds of sale constituted a breach 

of fiduciary duty, or that the Trust suffered a loss as a result.  In fact, the sole 

evidence presented regarding interest on the sale proceeds was a letter from 

Mark’s accountant, Victor Broyan, to Mark’s attorney, William Hussey, Esquire, 

providing the details of the sale and distribution of the proceeds.  See Broyan 

Letter, 5/15/18 (Trial Exhibit R-22).  The letter reflects that, between the date 

of the sale and the date final distribution was made, the sale proceeds earned 

interest  in  the  amount  of  $7,692.94.    Mr.  Broyan  testified  that  final 

____________________________________________ 

Mark purchased Settlor’s interest in the property.  The LLC was operated out 
of the property, and the Trust received a 29.985% ownership interest in the 
property, commensurate with its ownership share in the LLC.   

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J-A24038-21 

distributions were made in proportion to each party’s ownership interests, see 

N.T.  Trial,  4/9/19,  at  104,  and  the  figures  contained  in  Mr.  Broyan’s  letter 

reflect  that  the  Trust’s  final  distribution  included  its  proportionate  share  of 

interest earned.  Accordingly, because Christine failed to sustain her burden 

of proof, Estate of Lychos, supra, the Orphans’ Court erred in imposing a 

surcharge for lost interest on the Townsend Road sale proceeds.   

Mark  next  claims  that  the  Orphans’  Court  erred  in  finding  that  he 

engaged in self-dealing.  Specifically, Mark claims that, in appointing him as 

the  co-trustee  and  sole  trustee  with  authority  to  make  distributions  to 

Christine,  Settlor  implicitly  waived  any  conflict  of  interest.    See  Brief  of 

Appellant, at 56.  Mark also claims that, to the extent he was surcharged for 

any conflicts of interest with respect to the LLC, those conflicts were waived 

by the Settlor. 

In  general,  [a]  trustee  is  under  a  duty  to  the  beneficiary  to 
administer the trust solely in the interest of the beneficiary.  The 
rule prohibits both self-dealing and conflicts of interest.  Thus, the 
trustee must neither (1) deal with trust property for the benefit of 
himself  or  third  parties,  nor  (2)  place  himself  in  a  position 
inconsistent with the interests of the trust. 

In re Paxson Trust I, 893 A.2d  at 119, quoting  Estate of McCredy, 470 

A.2d 585, 597 (Pa. Super. 1983) (quotation marks and brackets omitted).   

[A] trustee is bound not to do anything which can place him in a 
position inconsistent with the interests of the trust, or which have 
a tendency to interfere with his duty in discharging it . . . [and] 
may not profit at the expense of the beneficiaries nor assert any 
adverse interest in the trust property.  

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J-A24038-21 

In re Union Real Estate Inv. Co. First Mortgage 6% Gold Bonds, 1 A.2d 

662, 666 (Pa. 1938) (citations omitted).   

 

Nevertheless,  the  settlor  can  waive  the  application  of  the  rule  of 

undivided  loyalty,  either  explicitly  under  the  terms  of  the  trust,  or  by 

implication, by knowingly placing her trustee in a position that might conflict 

with the interests of the trust or its beneficiaries and giving the trustee power 

to act in that dual capacity.  Estate of McCredy, 470 A.2d at 600. 

 

Here,  we  agree  with  Mark  that  Settlor  explicitly  waived  all  conflicts 

relating to Mark’s interests as an owner, officer, director, or employee of any 

business with which Mark chose to deal  in  his  capacity  as  business  trustee.  

See Christine D’Andrea Irrevocable Trust, 6/30/99, at ¶ SIXTH.  However, the 

Settlor  did  not  include  any  similar  language  in  either  Paragraph  SECOND 

(dispositive provisions), or any other provision of the Trust.  Moreover, there 

is  no  inherent  conflict  of  interest  within  an  intact  marital  unit,  such  that  it 

would be reasonable to infer that Settlor implicitly waived any such conflicts 

by appointing Mark as co-trustee, and Mark cites no case law to support this 

proposition.  Thus, having concluded, supra, that Mark breached his fiduciary 

duty by utilizing Trust funds to discharge his own duty of support, we find no 

merit to this claim. 

We  now  turn  to  our  review  of  the  remainder  of  Christine’s  claims  on 

cross-appeal.14  Christine first asserts that the Orphans’ Court erred in failing 

____________________________________________ 

14  We  address  Mark’s  final  claim,  regarding  attorneys’  fees,  together  with 
Christine’s related claim, infra.  

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to surcharge Mark for paying her American Express credit card bills with Trust 

funds,  where  the  credit  card  was  used  for  household  expenses  that  were 

indistinguishable  from  other  household  expenses  for  which  Mark  was 

surcharged.  Christine asserts that, in declining to surcharge Mark, the court 

improperly  concluded  that  Christine  was  aware  of  those  payments,  as  “the 

record establishes that [Christine] did not know of the use[,] or the extent of 

the use[,] of the Trust to pay the Amex bills.”  Brief of Cross-Appellant, at 31.   

We are constrained to agree with the Orphans’ Court’s  determination, 

as it was based on credibility determinations regarding Christine’s knowledge 

as to whether the funds used to pay her credit card bills came out of the trust.  

In re Fiedler, supra.  While Christine denied knowing the source of the funds, 

she also admitted to having personally paid at least one credit card bill using 

a  check  from  the  trust  account,  which  clearly  identified  the  payors  as 

“Christine D’Andrea and Mark D’Andrea CO-TTEES.”  N.T. Trial, 4/8/19, at 52.  

Christine  testified  that  she  did  not  know  what  “CO-TTEES”  meant  and  that, 

when she asked him, Mark did not provide a clear answer.  See id.  However, 

Mark testified that Christine was, in fact, aware of the payments: 

Q:  When [Christine] testified that she didn’t know that her trust 
was paying her Amex bills, do you agree with that statement? 

A:  Not even close.   

N.T. Trial, 4/9/19, at 82.  The Orphans’ Court credited Mark’s testimony that 

Christine was aware of, and acquiesced to, these payments, and the court’s 

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determination  is  supported  by  record  testimony.    Accordingly,  Christine  is 

entitled to no relief on this claim.     

 

Next,  Christine  asserts  that  the  Orphans’  Court  erred  in  failing  to 

surcharge Mark for the Trust’s share of the management fee he paid to himself 

as manager of the LLC.  Christine asserts she raised this issue  in Objection 

No. 13, which states as follows: 

Objection is made to [Mark’s] failure to distribute the [Property] 
sale  proceeds  from  July  18,  2017,  in  the  gross  amount  of 
$524,825.00,  causing  the  Trust  assets  to  remain  over-
concentrated in the LLC, resulting in the loss of income and a loss 
of principal appreciation. 

Objections to First Intermediate Account of Mark D’Andrea, 2/2/18, at ¶ 13.   

 

Christine’s  objection  makes  no  mention  of  the  management  fee,  nor 

could it reasonably be read to encompass an objection thereto.  Moreover, in 

ruling on this objection, the Orphans’ Court made no mention of management 

fees.  “Issues not raised in the trial court are waived and cannot be raised for 

the first time on appeal.”  Pa.R.A.P. 302(a).  Because she failed to properly 

raise  a  claim  regarding  LLC  management  fees  before  the  Orphans’  Court, 

Christine has waived it on appeal.    

Finally,  both  parties  assert  that  the  Orphans’  Court  erred  in  failing  to 

award  them  attorneys’  fees.    Christine  asserts  that  the  court  should  have 

awarded her attorneys’ fees—which she requested in the WHEREFORE clause 

of her objections—in light of the fact that the litigation was made necessary 

by Mark’s misconduct as co-trustee.  The Orphans’ Court’s adjudication was 

silent as to Christine’s request for fees.  However, Christine notes in her brief 

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that, while she “has not yet filed a petition for payment of her attorneys’ fees, 

[she] will do so following [the] results of these cross-appeals.”  Brief of Cross-

Appellant, at 44.  Because the Orphans’ Court failed to address this issue in 

its adjudication, we dismiss this claim, without prejudice to Christine’s right 

to file an appropriate petition before the Orphans’ Court.     

Mark also asserts that the court erred in failing to award him attorneys’ 

fees.    Mark  claims  that,  “‘[a]s  a  general  rule[,]  the  expenses  of  filing  an 

account  by  a  trustee  are  properly  chargeable  to  the  trust  estate,’  including 

attorney’s fees.”  Brief of Appellant, at 58, quoting In re Band’s Estate, 124 

A.2d 498, 500 (Pa. Super. 1956).  Mark argues that, because he successfully 

defended  over  half  of  the  objections  filed  by  Christine,  he  is  entitled  to  a 

portion of the attorneys’ fees related to the surcharge action.  Mark notes that 

one of the primary bases for the Orphans’ Court’s denial of fees is contradicted 

by the court’s own findings earlier in the Adjudication.  See Brief of Appellant, 

at  61.    Specifically,  the  court  noted  Mark’s  “subordinat[ion  of]  his  fiduciary 

duty in favor of his personal desire for revenge against” Christine, as a result 

of  which  he  “fail[ed]  to  make  income  distributions  in  accordance  with  trust 

terms.”  Adjudication, 1/7/20, at 16 (ruling on request for attorneys’ fees).  

However, previously, the court specifically overruled Christine’s objection to 

Mark’s  failure  to  make  those  same  quarterly  distributions  because  he  had 

made  other  discretionary  distributions  for  Christine’s  benefit  in  lieu  thereof.  

See id. at 12 (ruling on objection relating to mandatory distributions).    

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“In passing upon the amount of counsel fee[s] we bear in mind the well 

settled  principle  that:    ‘Supervision  of  the  amount  of  compensation  is 

peculiarly within the discretion of the court below.  Unless such discretion is 

clearly  abused  the  judgment  will  not  be  disturbed  on  appeal[.]’”  In  re 

Browarsky’s Estate, 263 A.2d 365, 366 (Pa. 1970), quoting Faust’s Estate, 

73 A.2d 369, 370 (Pa. 1950).  “The general rule is that each party to adversary 

litigation is required to pay his or her own counsel fees. . . .  In the absence 

of a statute allowing counsel fees, recovery of such fees will be permitted only 

in exceptional circumstances[.]”  Estate of Wanamaker, 460 A.2d 824, 825 

(Pa. Super. 1983). 

 

“It is well[-]established that whenever there is an unsuccessful attempt 

by a beneficiary to surcharge a fiduciary[,] the latter is entitled to an allowance 

out  of  the  estate  to  pay  for  counsel  fees  and  necessary  expenditures  in 

defending himself against the attack.”  In re Browarsky’s Estate, 263 A.2d 

at  366,  quoting  Wormley  Estate,  59  A.2d  98,  100  (Pa.  1948).    However, 

where  objections  to  an  account  result  in  surcharges  with  respect  to  some 

claims, but not others, a court acts within its discretion in choosing whether 

to award attorneys’ fees.  See In re Jones' Estate, 23 A.2d 434 (Pa. 1942). 

 

Here, we conclude that the Orphans’ Court acted within its discretion in 

denying Mark’s request for attorneys’ fees related to the surcharge action.  In 

particular, the court found that Mark breached his fiduciary duty by using trust 

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assets for his own benefit, and we affirm that determination herein.15  Under 

such circumstances, the court did not abuse its discretion in declining to award 

fees stemming from the surcharge action.  See id. 

However, we conclude that the court abused its discretion in failing to 

award Mark reasonable attorneys’ fees and costs incurred in the preparation 

and filing of the account.  “It is the right, and generally the duty, of a trustee 

to secure legal advice and assistance in preparing and presenting an account 

to the Orphans’ Court.”  In re Band’s Estate, 124 A.2d at 501.  “As a general 

rule the expenses of filing an account by a trustee are properly chargeable to 

the trust estate.”  Id. at 500.  Accordingly, on remand, we direct the Orphans’ 

Court  to  hold  further  proceedings  to  determine  reasonable  fees  and  costs 

payable to Mark in conjunction with the preparation and filing of the account.  

Order affirmed in part and reversed in part.  Case remanded for further 

proceedings to determine:  (1) the propriety of the payment of Avalon Yacht 

Club fees from trust funds and (2) reasonable fees and costs incurred by Mark 

in the preparation and filing of the account.  Jurisdiction relinquished.  

     

____________________________________________ 

15 We agree with Mark that the Orphans’ Court contradicted itself by faulting 
Mark for failing to pay mandatory distributions, while declining to surcharge 
him  for  that  reason.    However,  the  fact  remains  that  he  engaged  in  self-
dealing.   
 

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Judgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/21/2023 

 

 

    J

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