Schwartz, I. v. Speyer, D.

• Court: Superior Court of Pennsylvania
• Decided: January 6, 2020
• Docket: 2539 EDA 2018
• Status: Unpublished

Opinion

J-A24010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ILENE SCHWARTZ : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DEBRA SPEYER : No. 2539 EDA 2018

Appeal from the Order Entered July 30, 2018 In the Court of Common Pleas of Montgomery County Civil Division at No(s): #2016-27328

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 06, 2020

Ilene Schwartz (Ms. Schwartz), the plaintiff/appellant,1 appeals pro se

from the order entered on July 30, 2018, by the Court of Common Pleas of

Montgomery County that sustained the preliminary objections filed by Debra

Speyer (Ms. Speyer), the defendant/appellee, and dismissed Ms. Schwartz’s

complaint, which was an attempt by Ms. Schwartz to re-litigate a will contest

involving her aunt’s will that had concluded in 2007, when Ms. Schwartz filed

a praecipe to withdraw her appeal from the probate of her aunt’s estate. We

affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1Ms. Schwartz is the niece of the decedent, Katherine Winokur, who died in 1998, and whose will is again the subject of this appeal. J-A24010-19

Initially, we note that Ms. Schwartz’s brief does not contain a Statement

of Questions Involved as required by Pa.R.A.P. 2116(a). The rule provides in

pertinent part that:

The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.

Pa.R.A.P. 2116(a). Based upon this error alone, we could conclude that Ms.

Schwartz has waived any and all issues for review by this Court. See Wirth

v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014) (stating “[t]his rule is to be

considered in the highest degree mandatory, admitting of no exception;

ordinarily no point will be considered which is not set forth in the statement

of questions involved or suggested thereby”) (citation omitted). However,

because Ms. Schwartz has itemized the four points she wishes to contest in

the argument section of her brief, we choose not to quash this appeal for

failure to include a Statement of Questions Involved.

Rather, we review this case in relation to the arguments she presents,

and also conclude that the orphans’ court correctly determined that Ms.

Schwartz did not have standing and that her complaint was barred pursuant

to the doctrines of res judicata and collateral estoppel. Having examined the

certified record, the briefs submitted by the parties, the applicable law, and

the thorough opinion authored by the Honorable Joseph A. Smyth, Senior

Judge of the Court of Common Pleas of Montgomery County, dated March 5,

-2- J-A24010-19

2019, we conclude that Judge Smyth’s well-reasoned opinion accurately

disposes of the arguments presented. Accordingly, we adopt Judge Smyth’s

opinion as our own and affirm the July 30, 2018 order on that basis.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/6/20

-3- 2016-27328-0027 08:59Page Opinion, Circulated 12/16/2019 AM 1

Court of Common Pleas of Montgomery County-Civil Action

Ilene Schwartz, Plaintiff-Appellant No. 16-27328 (Pa. C.P. Montg. County July 30, 2018), appeal docketed, No. 2539 EDA 2018 (Pa. Super. Ct. Sept. 5, 2018) vs. Debra Speyer, Defendant-Appellee

OPINION Mar/,£2019 Smyth,S.J.

Introduction:

This case, delayed from the beginning, is a self-represented party's attempt to re-litigate

her contest of her aunt's will against the executor after withdrawing an appeal in Orphan's Court

in 2007 that did the same thing. The civil side of this Court dismissed Plaintiffs complaint on

Defendant's "preliminary .. objections. and Plaintiff pursued an appeal to the Superior Court of

Pennsylvania, necessitating this opinion under the Pennsylvania Rules of Appellate Procedure,

Pa.R.A.P. 1925(a).

Case History:

Plaintiff, niece of a decedent, instituted this action against Defendant, the decedent's

executor (though these identities were not then knowable by the Court) in November 2016 by

filing a writ of summons, which was served on the executor that December. The case lay

dormant for approximately a year until November 21, 2017, when an attorney appeared for the

ecutor and filed a praecipe to enter a rule upon the niece to file a complaint within twenty days

der Pa.R.C.P. 1037(a). She did not comply until January 16, 2018.

The complaint reported that the decedent, Katherine Winokur, died in 1998 (twenty years

efore the filing of the complaint), and the executor, an attorney, who also held a power of

attorney for the decedent during her lifetime, petitioned the Register of Wills for and received 2016-27328-0027 Opinion, Page 2

letters testamentary to probate a will from 1993, which she had prepared. {Compl. paras. 3-4, 7.)

The decedent was a widow with no children whose intestate heirs were her nieces and nephews,

including Plaintiff. (Compl. para. 5.) Plaintiff did not attach a copy of the will to her complaint,

but Defendant did to her preliminary objections to it. The will states, inter alia,

I direct that funds from my estate [alleged to amount to about $1,000,000] be placed in the "Abraham and Bessie Diperstein/Katherine Winokur Charitable Foundation" which my executor [{Defendant)] shall establish after my death, and which funds my executor shall administer and distribute to the charities that she sees fit to receive such funds.

Due to the poor treatment I have received by family members over the years, I have not bequest {sic} any property to anyfamily member.

(Prelim, Objs. Ex.Bat 1 (emphasis added).)

After the executor had probated the will with the Register of Wills, in 1999 the niece

filed an appeal to the Orphan's Court under the Decedents, Estates and Fiduciaries Code, 20 Pa.

C.S. § 908, represented by attorneys from a firm prominently including one who now occupies .

the Orphan's Court bench, Judge Murphy. In a motion to withdraw as counsel filed in the

Orphan's Court on Ianuary 31, 2007, Judge Murphy related how the niece had failed to respond

to a half dozen letters sent to her over a sixteen-month period in 2003/2004 concerning the

subject of the representation, and how she could no longer be reached at any of the work or home

telephone numbers she had provided, or they had been changed. Judge Ott of the Orphan's

Court scheduled a hearing on the motion to withdraw as counsel, but before the hearing was

held, on March 23, 2007, the decedent's niece, represented by the Murphy firm, voluntarily

withdrew the appeal from probate with prejudice (Prelim. Objs. Ex. C) and consented to

counsel's withdrawal. Judge Ott then canceled the hearing and dismissed counsel's motion to

withdraw as moot. On February 6, 2012, the executor filed with the Register of Wills a final

status report under the Pennsylvania Orphan's Court Rules, Pa. O.C.R. 6.12, 589 Pa. LXI (2006)

2 2016-27328-0027 Opinion, Page 3

(current version at Pa. O.C.R. 10.6(b) (effective Sept. l, 2016)), that administration of the estate

was completed. In re Estate of Winokur, No. l 998-X3431 (Pa. Orphans' Ct. Montg. County Feb.

6, 2012).

Subsequently, in 2014, an outfit that apparently searches for lost estate assets contacted

the niece about a supposed account of the decedent's in the amount of $59,000 in which the

niece supposedly had an interest. (Compl. para. 15.) She entered into arrangements with the

firm to pursue the asset; however, that effort bore no fruit, and the parties ended the relationship.

(Compl, paras. 16" 17.)

She then, in late 2016, filed and served on the executor the writ of summons in this case,

and about a year later, after being prompted by the executor to do so and some further delay,

filed a complaint in January 2018. The pro se complaint had counts for fraud, theft by deception,

breach of fiduciary duty, unjust enrichment, and conversion in the executor's handling of the

decedent's assets and estate.

On February 1, 2018, the executor timely filed and served preliminary objections under

the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1028. The preliminary objections argued

1) "lack of capacity to sue," Pa.R.C.P. 1028(a)(5), in that the niece as a non-beneficiary of her

aunt's estate had no standing to sue the estate's executor; 2) the doctrines of collateral estoppel

and res judicata barred the niece from re-litigating the validity of the will, after her previous

petition challenging the will was withdrawn with prejudice in 2007; 3) "legal insufficiency of

[the complaint] (demurrer)," Pa.R.C.P. 1028(a)(4), as to the niece's attempt to state a claim for

fraud; 4) failure to state a valid cause of action for theft by deception; 5) legal insufficiency of

the attempted claim of breach of fiduciary duty; 6) lack of any fiduciary duty owing to the niece

from the executor; 7) legal insufficiency of the attempted claim of unjust enrichment; 6) legal

3 2016-27328-0027 Opinion, Page 4

insufficiency of the attempted claim of conversion; 8) the complaint's demand for in excess of

$1,000,000 plus continuing interest violated Pa.R.C.P. 102l(b) ("Any pleading demanding relief

for unliquidated damages shall not claim any specific sum."); 9) the complaint's demand for

attorneys' fees should be stricken as legally unsupported; 10) the complaint's demand for

unspecified other relief should be stricken; 11) the complaint's demand for punitive damages

should be stricken as unwarranted; and 12) allegations taken from the withdrawn appeal from

probate (Compl. paras. 4-11) and asserting Defendant's alleged mistreatment of Plaintiff's aunt

should be stricken as "scandalous or impertinent," Pa.R.C.P. 1028(aX2).

On March 13, 2018, twenty days past the twenty-day period ordinarily provided to file a

responsive pleading by Pa.R.C.P. 1026(a) ("[E]very pleading subsequent to the complaint shall

be filed within twenty days after service of the preceding pleading .... '') (albeit the preliminary

objections were not endorsed with a notice to plead under Pa.R.C.P. 1361), the niece moved for a

sixty-day extension of time to respond to the preliminary objections. The executor answered the

motion, and on March 23, 2018, Judge Silow of this Court granted an extension of sixty days

from that date for the niece to respond to the preliminary objections. She filed her response late

even under the extension, on May 29, 2018.

Meanwhile, the case passed the deadline to be placed in the Court's trial-readiness

program under local rule, Montg. Co., Pa., R.C.P. "'200(3)(b) ("If an outside-arbitration[-]limit

case is not praeciped [sic] for [t]rial within 18 months of the date of filing or transfer of said

action, the case will be scheduled by the Court for a Case Management Conference before the

Court or its designee ...."). On June 5, 2018, Judge Rogers, Civil Administrative Judge of the

Court, entered an order scheduling a case-management/settlement conference under Rule 200 for

4 2016-27328-0027 Opinion, Page 5

July 31, 2018. On June 8, 2018, the executor filed a reply to the niece's response to the

preliminary objections.

Upon review of the preliminary objections, response, and reply in the context of the

complaint, the Court found most of the preliminary objections to have merit. On July 30, 2018,

the Court entered an order sustaining the preliminary objections and dismissing the complaint.

Twenty-nine days later, on August 28, 2018, the niece filed what she captioned

"Emergency Motion To Strike The Order Dismissing Complaint Entered By Judge Joseph Smyth

On The Eve Of The Case Management Settlement Conference Due To An Actual Conflict Of

Interest That Judge Smyth Possesses Against Plaintiff And Her Witness." The text of the

"emergency" motion did not identify the source of the alleged conflict of interest the undersigned

allegedly had with Plaintiff or her "witness" (allegedly, her son), but in any event, the motion did

not immediately come to the attention of the undersigned because Plaintiff certified service of

the motion only upon opposing counsel, not the undersigned, and she filed no cover sheet with

the motion as required under local rule, Montg. Co., Pa., R.C.P. 208.3(b)(l), so no return date on

the motion was set by the Court and it was never processed as a motion under that rule. The

motion also complained of the undersigned having handled the preliminary objections when

another judge of the Court was listed on the docket as the judge assigned to the case; however,

since the start of 2016, this Court has had in place a program in which all preliminary objections

are assigned to senior judges of the Court, see Montg. Co., Pa., R.C.P. 1028(c) cmt. 2 (effective

Jan. 1, 2016), and the undersigned had ruled on the executor's preliminary objections in that

capacity. At the time of doing so, the undersigned had no specific knowledge or recollection of

Plaintiff's identity or of any potential conflict she alleged existed. In retrospect, even had the

motion with its scanty description of an alleged conflict been properly and timely presented for

5 2016-27328-0027 Opinion, Page 6

disposition, the undersigned would have had no basis for undoing the ruling sustaining the

preliminary objections and disqualifying himself from the case under the prevailing standard:

A motion for disqualification or recusal is properly directed to and decided by the jurist whose participation is challenged. In disposing of a recusal request, a jurist must first make a conscientious determination of his or her ability to assess the case before the court in an impartial manner, free of personal bias or interest in the outcome. "This is a personal and unreviewable decision that only the jurist can make." Once satisfied with that self-examination, the jurist must then consider whether or not continued involvement in the case would tend to undermine public confidence in the judiciary.

Commonwealth v. Travaglia, 541 Pa. 108, 144, 661 A.2d 352, 370 (1995) (citations omitted)

(quoting Goodheart v. Casey, 523 Pa. 188, 201, 565 A.2d 757, 764 (1989) (decision of three,

justice supreme court))); cf McFarlandv. Ethicon, Inc., No. 20 EM 2019 (Pa. Mar. 12, 2019)

(denying emergency application for extraordinary relief and/or King's Bench jurisdiction and for

stay based on trialjudge's mother's pending lawsuit against separate subsidiary of party). The

niece has not preserved for appeal any claim that the undersigned jurist should have disqualified

himself from this case or, not having done so sua sponte, should have vacated the order

sustaining preliminary objections and dismissing the action for any purported conflict, bias, or

interest. Cf Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal."); Reilly ex rel. Reilly v. Se. Pa. Transp. Auth., 507 Pa. 204,

224, 489 A.2d 1291, 1301 ( 1985) ("The failure to preserve an issue [of disqualification of a trial

judge] on appeal will be excused only when a strong public interest outweighs the need to protect

the judicial system from improperly preserved issues.").

The niece took any consideration of her "emergency" motion (filed twenty-nine days

after the order giving rise to the alleged emergency) off the table by filing this appeal to the

Superior Court of Pennsylvania the next day, August 29, 2018, the thirtieth and final day to

appeal under Pa.RA.P. 903(a). See Pa.R.A.P. 170l(a) ("Except as otherwise prescribed by these

6 2016-27328-0027 Opinion, Page 7

rules, after an appeal is taken ... the trial court ... may no longer proceed further in the

matter."). As with the "emergency" motion, the.niece failed to prove service of her appeal on the

undersigned, thus violating Pa.R.A.P. 906(aX2). (She served the notice of appeal only on

opposing counsel, and not on any of the officials of the Court upon whom Pa.R.A.P. 906(a)(2)-

(4) required service. The notice of appeal also failed to comply with Pa.R.A.P. 904(a) (requiring

request for transcript or statement in absence of transcript of proceedings); the "emergency"

motion made representations about what had transpired at the case management/settlement

conference on July 31, 2018, although there is no indication whether that proceeding was

recorded.) The Court did not become alerted to the appeal (or to the "emergency" motion) until

receiving notice of the docketing of the appeal from the Superior Court on or after September 10,

2018, and then had to try to reconstruct the case from the Superior Court's notice back through

entry of the July 30, 2018, order sustaining the executor's preliminary objections.

Present Issues:

Does a non-beneficiary have standing to challenge the actions of an executor of an estate

in a civil action after proceedings in Orphan's Court have concluded? Do the proceedings in

Orphan's Court in which the non-beneficiary raised the same claims work res judicata and

collateral estoppel on her civil action?

Discussion:

Although the Court found merit to many of the executor's preliminary objections,

including demurrers to the niece's discrete claims, we will confine our discussion to the

"omnibus" objections, those that challenged the validity of the entirety of the complaint and

warranted its dismissal: The niece lacked standing to sue the executor, and the collateral

7 2016-27328-0027 Opinion, Page 8

estoppel/resjudicata (issue/claim preclusion) effect of the proceeding in Orphan's Court barred

this civil action.

Lack of standing is a proper preliminary objection under Pa.R.C.P. 1028(a)(5)

("Preliminary objections may be filed by any party to any pleading and are limited to the

following grounds: ... (5) lack of capacity to sue .... "), "Prior to judicial resolution of a

dispute, an individual must as a threshold matter show that he has standing to bring the action...

. [A] controversy is worthy of judicial review only if the individual initiating the legal action has

been 'aggrieved.'" Pittsburgh Palisades Park. LLC v, Commonwealth, 585 Pa. 196, 203-04, 888

A.2d 655, 659 (2005) (quoting In re Hickson, 573 Pa. 127, 136, 821 A.2d 1238, 1243 (2003)).

The keystone to standing in these terms is that the person must be negatively impacted in some real and direct fashion. If the individual "is not adversely affected in any way by the matter he seeks to challenge], he] is not 'aggrieved' thereby and has no standing to obtain a judicial resolution of his chaUenge. In particular, it is not sufficient for the person claiming to be 'aggrieved' to assert the common interest of all citizens in procuring obedience to the law."

Pittsburgh Palisades, 585 Pa at 204, 888 A.2d at 660 (quoting Hickson, 573 Pa. at 136, 821

A.2d at 1243).

All of the niece's claims in this case challenged the alleged actions or omissions of her

deceased aunt's fiduciary--her attorney, power of attorney, and later executor-In the handling of

the decedent's affairs and estate during her lifetime and after she died. Someone who is not the

beneficiary of or who has no interest in an estate lacks standing to contest a fiduciary's handling

of the estate. See In re Kilpatrick's Estate, 368 Pa. 399, 84 A.2d 339 (1951) (holding surviving

husband had no standing as party interested in estate of deceased wife's first husband as would

permit surviving husband to file petition for review of final account filed in first husband's estate

and confirmed by court notwithstanding that successful prosecution of claim would result in

8 2016-27328-0027 Opinion, Page 9

increase of first husband's estate and hence estate of deceased wife); Oudry-Davis v. Findley, 64 , Pa. Super. 92 (1916) (holding one of decedent's two children had no right to maintain action at

law to recover one-half of sum of money alleged to have been wrongly paid out by decedent's

agent where plaintiff showed no title from decedent in latter's lifetime to any part of money

sought to be recovered nor that it had been allotted to her since decedent's death under any

family arrangement).

If the niece contended, as she did, that she had been improperly excluded from her aunt's

estate by the will the executor had drafted and her actions and omissions in the handling of the

estate and/or before that in the handling of the aunt's affairs as her attorney and power of

attorney, the remedy was to seek to participate in the Orphan's Court proceedings to contest the

matter. Having done so, and then having withdrawn the contest in 2007-nine years before

instituting this action-the niece is not entitled to maintain an action against the executor on the

civil side of the Court on the same subject. Cf. Decedents, Estates and Fiduciaries Code, 20 Pa.

C.S. § 711 ("Except as provided in section 712 (relating to nonmandatory exercise ofjurisdiction

through the orphans' court division) and section 713 (relating to special provisions for

Philadelphia County), the jurisdiction of the court of common pleas over the following shall be

exercised through its orphans' court division: (1) Decedents' estates.--The administration and

distribution of the real and personal property of decedents' estates .... (2) Testamentary

trusts.e-The administration and distribution of the real and personal property of testamentary

trusts, and the reformation and setting aside of any such trusts, whether created before or after

the effective date of this chapter . . . . (12) Fiduciaries.-The appointment, control, settlement of

the accounts of, removal and discharge of, and allowance to and allocation of compensation

among, all fiduciaries of estates and trusts, jurisdiction of which is exercised through the

9 2016-27328-0027 Opinion, Page 10

orphans' court division, except that the register shall continue to grant letters testamentary and of

administration to personal representatives as heretofore.... (17) Title to personal property.-

The adjudication of the title to personal property in the possession of the personal representative,

or registered in the name of the decedent or his nominee, or alleged by the personal

representative to have been in the possession of the decedent at the time of his death.' (18)

Appeals and proceedings from registers.-Appeals from and proceedings removed from

registers. . . . (22) Agents.-All matters pertaining to the exercise of powers by agents acting

under powers of attorney as provided ... in Chapter 56 (relating to powers of attorney)."). The

niece's memorandum of law in response to the preliminary objections cited no case law to

support her opposition to the executor's argument that the niece lacked standing to maintain this

civil action to challenge the executor's handling of the decedent's affairs and estate (Resp. Mem.

Law 7-8) and this Court found none either.

Res judicata, or claim preclusion, is a doctrine by which a former adjudication bars a later action on all or part of the claim which was the subject of the first action. Any final, valid judgment on the merits by a court of competent jurisdiction precludes any future suit between the parties or their privies on the same cause of action. Res judicata applies not only to claims actually litigated, but also to claims which could have been litigated during the first proceeding if they were part of the same cause of action.

Collateral estoppel, or issue preclusion, is a doctrine which prevents re- litigation of an issue in a later action, despite the fact that it is based on a cause of action different from the one previously litigated. The identical issue must have been necessary to final judgment on the merits, and the party against whom the plea is asserted must have been a party, or in privity with a party, to the prior action and must have had a full and fair opportunity to litigate the issue in question.

Balent v. City of Wilkes-Barre, 542 Pa. 555, 563-64, 669 A.2d 309, 313 (1995) (citations

omitted); cf Hunsicker v. Brearman, 402 Pa. Super. 347, 586 A.2d 1387 (1991) (holding

motorist was precluded under doctrine of res judicata from commencing new suit in order to

10 2016-27328-0027 Opinion, Page 11

assert claim for personal injuries against plaintiff motorists who had instituted negligence action

against him where motorist filed counterclaim in action which did not demand compensation for

personal injuries and he settled suit with plaintiff motorists resulting in his counterclaim being

marked "settled, discontinued, and ended with prejudice," notwithstanding fact that motorist had

instituted his new action prior to settling plaintiff motorists' action; motorist was not required to

file counterclaim but once he did so he was required to assert all causes of actions he had against

plaintiff motorists).

Ordinarily, res judicata and collateral estoppel are affirmative defenses that must be

raised in an answer as new matter under Pa.R.C.P. 1032(a), and are not grounds for preliminary

objection under Pa.R.C.P. 1028(a), "unless the complaint 'sets forth in detail, either directly or

by reference, the facts and issues pleaded by the prior suit."' Weinar v. Lex, 116 A.3d 907, 926

(Pa. Super. Ct. 2017) (quoting Kiely v. J.A. Cunningham Equip; Inc., 387 Pa. 598, 601--02, 128

A.2d 759, 760 (1957)), appeal denied, 189 A.3d 994 (Pa. 2018). Here, the niece's civil

complaint was nearly the same as the appeal she filed from probate under 20 Pa.C.S. § 908

(through Judge Murphy as counsel), but withdrew-and then attached as an exhibit to her civil

complaint filed over nine years later. (Compl. Ex. D.) She withdrew the appeal with prejudice

on March 23, 2007, the Orphans' Court dismissed her counsel's petition for leave to withdraw as

.moot in an order dated March 26, 2007, and on February 6, 2012, the executor filed with the

Register of Wills a final status report of completed administration of the estate. The only

significant addition to the civil action raises allegations about the asset allegedly discovered by

the "claim bureau" that told the niece, after she withdrew her appeal and the estate was

concluded, about an account of the estate in which she allegedly had an interest--before she

terminated her relationship with that firm as well. Any such account belonging to the estate

11 2016-27328-0027 Opinion, Page 12

would have been subject to the executor's administration at the time the niece's appeal was filed

and later withdrawn, and rights to the account determined when the estate became finalized. On

the face of the pleadings, including the exhibits attached to them containing the prior pleadings

from the Orphan's Court proceedings> the Court could find, and did, that the niece's civil action

against the executor was barred by issue/claim preclusion. Cf Gray v. PennyMac Corp., 2019

PA Super 7 (affirming dismissal of mortgagor's prose action over mortgagee's changing of

locks on premises as frivolous on defendant's motion under Pa.R.C.P. 233.1 (a) ("Upon the

commencement of any action filed by a pro se plaintiff in the court of common pleas, a

defendant may file a motion to dismiss the action on the basis that ( 1) the pro se plaintiff is

alleging the same or related claims which the pro se plaintiff raised in a prior action against the

same or related defendants, and (2) these claims have already been resolved pursuant to a written

settlement agreement or a court proceeding.") where mortgagor had previously attempted to set

off or otherwise avoid liability for defaulting on mortgage in related prior actions by mortgagee

against mortgagor in foreclosure and by mortgagor against mortgagee to garnish rent and claims

had already been resolved in prior court proceedings).

Conclusion:

"[The Superior] Court will reverse the trial court's decision regarding preliminary

objections only where there has been an error oflaw or abuse of discretion." Brosovic v.

Nationwide Mut. Ins., 841 A.2d 1071, 1073 (Pa Super. Ct. 2004) (affirming dismissal of suit on

preliminary objections), quoted in Cooper v. Frankford Health Care Sys., Inc., 960 A.2d 134,

144 (Pa. Super. Ct. 2008) (affirming dismissal of suit on preliminary objections).

When the court has come to a conclusion by the exercise of its discretion, the party complaining of it 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

12 2016-27328-0027 Opinion, Page 13

to go further and show an abuse of the discretionary power. "An abuse of discretion is not merely an error ofjudgment, 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 or the record, discretion is abused."

Paden v. Baker Concrete Constr., Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995) (quoting

Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934) (unanimous opinion)).

This lower Court respectfully suggests that it did not err at law or abuse its discretion in

sustaining the executor's preliminary objections and dismissing the niece's civil action

contesting the handling of her aunt's affairs and estate by the executor when the same claims

raised in the action had been, or could have been, the subject of the niece's prior contest in

Orphans' Court that she withdrew with prejudice, and the niece, a non-beneficiary in the estate,

had no standing to pursue the executor again on the civil side of the Court. The Court

respectfully asks that the honorable Superior Court affirm the decision sustaining preliminary

objections and dismissing this action.

BY THE COURT:

• S.J.

cc: Ilene Schwartz Jeffrey B. Mccarron, Esquire