J-A22010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS D. BEGLEY JR., AS IN THE SUPERIOR COURT OF ADMINISTRATOR OF THE ESTATE OF PENNSYLVANIA LESLIE SINON POWELL AND GERALD K. MORRISON, AS EXECUTOR OF THE ESTATE OF WILLIAM POWELL
Appellants
v.
RHOADS & SINON LLP, STANLEY SMITH AND SHERILL MOYER
Appellees No. 155 MDA 2014
Appeal from the Order Entered December 30, 2013 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2011 CV 3840
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2015
Appellants, Thomas D. Begley Jr. and Gerald K. Morrison, as
administrators of the Estate of Leslie Sinon Powell (“Wife’s Estate”) and the
Estate of William Powell (“Husband’s Estate”), respectively, appeal from the
order granting the preliminary objections of Appellees Rhoads & Sinon LLP,
Stanley Smith and Sherill Moyer. After careful review, we affirm in part,
reverse in part, and remand for further proceedings.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A22010-14
The complaint filed by the Appellants describes the following factual
summary. Wife was the lifetime income beneficiary of a trust settled by her
mother and known as the “Leslie Sinon Powell Trust” (“LSP Trust”). Under
the LSP Trust, Wife also had the power to appoint the assets of the LSP
Trust by specific reference in her Will.1 In 2009, Wife executed a Will,
prepared by Appellees, bequeathing the residue of her estate, including a
general reference to powers of appointment, to Husband. However, this Will
did not specifically reference the power of appointment contained in the LSP
Trust.
On February 19, 2010, Wife’s mother passed away. Appellees Smith
and Moyer, as Executors and Attorneys for the estate of Wife’s mother,
contacted Husband and Wife to discuss the estate. At the same time, Smith
and Moyer were retained by Husband and Wife for their own estate planning
purposes. On March 9, 2010, the parties met to discuss the distribution of
Wife’s mother’s estate. As alleged in the complaint, Smith and Moyer never
alerted Wife to the fact that her Will did not adequately exercise the power
of appointment contained in the LSP Trust.
1 Neither the LSP Trust nor Wife’s Will are part of the certified or reproduced record on this appeal. As Appellees never objected the absence of these documents, we are left to accept the allegations in the complaint concerning these documents as true, pursuant to our standard of review, set forth below.
-2- J-A22010-14
On March 12, 2010, Husband contacted Appellees via e-mail,
requesting that Smith and Moyer prepare a codicil to Wife’s Will that
specifically exercised the power of appointment in Husband’s favor. Moyer
responded, indicating that a codicil would be drafted for Husband and Wife’s
approval.
On March 17, 2010, Husband notified Appellees that Wife had been
diagnosed with cirrhosis of the liver, and requested that the codicil be
deemed an urgent matter. Two days later, on Friday March 19, Moyer
responded, indicating that the codicil would be ready for Wife’s review by
“early next week.” Husband responded that same evening:
The sooner the better. Leslie is in serious condition and will most likely be hospitalized tomorrow. I am seriously concerned about the foot dragging on the part of Rhoads & Sinon in this and other matters.
On March 22, Moyer responded, indicating that the codicil was ready
for Wife’s review, and that Husband should provide a date for Wife to meet
with Appellees to “privately to review the changes” to her Will.
Unfortunately, Wife had already fallen into a coma from which she never
recovered. As a result, the significant assets in the LSP Trust were not
appointed to Husband, and instead were distributed pursuant to the terms of
the LSP Trust.
Husband and Wife’s Estate subsequently filed a Writ of Summons in
this matter. Before the Complaint was filed, Husband also passed away, and
the successor executors of the Estates were substituted as parties. The
-3- J-A22010-14
Estates then filed a six count complaint, asserting the following claims: I –
Breach of Fiduciary Duty to Husband and Wife; II – Legal Malpractice On
Behalf of Both Husband and Wife; III – Intentional and Reckless Misconduct
of Smith and Moyer; IV – Negligent Supervision of Smith and Moyer by
Rhoads & Sinon; V – Breach of Contract with Wife, Asserted by Husband as
Intended Third Party Beneficiary; and VI – Breach of Contract with Husband.
Appellees filed preliminary objections to the Complaint, including an
objection asserting that neither Estate had standing to assert these claims.
The trial court sustained this objection, and this timely appeal ultimately
followed.
On appeal, the Estates purport to raise seven issues for our review.
However, in contravention of Pa.R.A.P., Rule 2119(a), the argument section
of the Estates’ appellate brief is only divided into three parts. These parts
blend arguments for multiple issues, and in some instances, don’t fully
develop the relevant argument. In light of this, as well as the observation
that the trial court’s order was limited to a conclusion that neither Estate has
standing, and the fact that the standing issue is controlling, we will address
only the issue of standing.
Our standard when reviewing a trial court’s decision to sustain
preliminary objections is as follows.
The scope of review in determining whether a trial court erred in sustaining preliminary objections and dismissing a complaint is plenary.
-4- J-A22010-14
In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. When sustaining the trial court’s ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt, and this Court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or an abuse of discretion.
Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012)
(citation omitted). When reviewing an order sustaining preliminary
objections, this court accepts as true all well-pleaded facts in the complaint
as well as reasonable inferences that can be drawn therefrom. See Al
Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 190 (Pa. Super.
1994).
At its heart, the complaint in this matter involves a claim that
Appellees failed in their duty to draft a Will for Wife that effectuated her
testamentary intent. As noted by the trial court, the Pennsylvania Supreme
Court has developed a stringent test for determining who has standing to
bring such a claim. The Supreme Court held that the estate of the testator
has no standing, as the estate suffers no harm. See Guy v. Liederbach,
459 A.2d 744, 749 (Pa. 1983). Thus, the trial court in the present case was
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J-A22010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS D. BEGLEY JR., AS IN THE SUPERIOR COURT OF ADMINISTRATOR OF THE ESTATE OF PENNSYLVANIA LESLIE SINON POWELL AND GERALD K. MORRISON, AS EXECUTOR OF THE ESTATE OF WILLIAM POWELL
Appellants
v.
RHOADS & SINON LLP, STANLEY SMITH AND SHERILL MOYER
Appellees No. 155 MDA 2014
Appeal from the Order Entered December 30, 2013 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2011 CV 3840
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2015
Appellants, Thomas D. Begley Jr. and Gerald K. Morrison, as
administrators of the Estate of Leslie Sinon Powell (“Wife’s Estate”) and the
Estate of William Powell (“Husband’s Estate”), respectively, appeal from the
order granting the preliminary objections of Appellees Rhoads & Sinon LLP,
Stanley Smith and Sherill Moyer. After careful review, we affirm in part,
reverse in part, and remand for further proceedings.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A22010-14
The complaint filed by the Appellants describes the following factual
summary. Wife was the lifetime income beneficiary of a trust settled by her
mother and known as the “Leslie Sinon Powell Trust” (“LSP Trust”). Under
the LSP Trust, Wife also had the power to appoint the assets of the LSP
Trust by specific reference in her Will.1 In 2009, Wife executed a Will,
prepared by Appellees, bequeathing the residue of her estate, including a
general reference to powers of appointment, to Husband. However, this Will
did not specifically reference the power of appointment contained in the LSP
Trust.
On February 19, 2010, Wife’s mother passed away. Appellees Smith
and Moyer, as Executors and Attorneys for the estate of Wife’s mother,
contacted Husband and Wife to discuss the estate. At the same time, Smith
and Moyer were retained by Husband and Wife for their own estate planning
purposes. On March 9, 2010, the parties met to discuss the distribution of
Wife’s mother’s estate. As alleged in the complaint, Smith and Moyer never
alerted Wife to the fact that her Will did not adequately exercise the power
of appointment contained in the LSP Trust.
1 Neither the LSP Trust nor Wife’s Will are part of the certified or reproduced record on this appeal. As Appellees never objected the absence of these documents, we are left to accept the allegations in the complaint concerning these documents as true, pursuant to our standard of review, set forth below.
-2- J-A22010-14
On March 12, 2010, Husband contacted Appellees via e-mail,
requesting that Smith and Moyer prepare a codicil to Wife’s Will that
specifically exercised the power of appointment in Husband’s favor. Moyer
responded, indicating that a codicil would be drafted for Husband and Wife’s
approval.
On March 17, 2010, Husband notified Appellees that Wife had been
diagnosed with cirrhosis of the liver, and requested that the codicil be
deemed an urgent matter. Two days later, on Friday March 19, Moyer
responded, indicating that the codicil would be ready for Wife’s review by
“early next week.” Husband responded that same evening:
The sooner the better. Leslie is in serious condition and will most likely be hospitalized tomorrow. I am seriously concerned about the foot dragging on the part of Rhoads & Sinon in this and other matters.
On March 22, Moyer responded, indicating that the codicil was ready
for Wife’s review, and that Husband should provide a date for Wife to meet
with Appellees to “privately to review the changes” to her Will.
Unfortunately, Wife had already fallen into a coma from which she never
recovered. As a result, the significant assets in the LSP Trust were not
appointed to Husband, and instead were distributed pursuant to the terms of
the LSP Trust.
Husband and Wife’s Estate subsequently filed a Writ of Summons in
this matter. Before the Complaint was filed, Husband also passed away, and
the successor executors of the Estates were substituted as parties. The
-3- J-A22010-14
Estates then filed a six count complaint, asserting the following claims: I –
Breach of Fiduciary Duty to Husband and Wife; II – Legal Malpractice On
Behalf of Both Husband and Wife; III – Intentional and Reckless Misconduct
of Smith and Moyer; IV – Negligent Supervision of Smith and Moyer by
Rhoads & Sinon; V – Breach of Contract with Wife, Asserted by Husband as
Intended Third Party Beneficiary; and VI – Breach of Contract with Husband.
Appellees filed preliminary objections to the Complaint, including an
objection asserting that neither Estate had standing to assert these claims.
The trial court sustained this objection, and this timely appeal ultimately
followed.
On appeal, the Estates purport to raise seven issues for our review.
However, in contravention of Pa.R.A.P., Rule 2119(a), the argument section
of the Estates’ appellate brief is only divided into three parts. These parts
blend arguments for multiple issues, and in some instances, don’t fully
develop the relevant argument. In light of this, as well as the observation
that the trial court’s order was limited to a conclusion that neither Estate has
standing, and the fact that the standing issue is controlling, we will address
only the issue of standing.
Our standard when reviewing a trial court’s decision to sustain
preliminary objections is as follows.
The scope of review in determining whether a trial court erred in sustaining preliminary objections and dismissing a complaint is plenary.
-4- J-A22010-14
In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. When sustaining the trial court’s ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt, and this Court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or an abuse of discretion.
Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012)
(citation omitted). When reviewing an order sustaining preliminary
objections, this court accepts as true all well-pleaded facts in the complaint
as well as reasonable inferences that can be drawn therefrom. See Al
Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 190 (Pa. Super.
1994).
At its heart, the complaint in this matter involves a claim that
Appellees failed in their duty to draft a Will for Wife that effectuated her
testamentary intent. As noted by the trial court, the Pennsylvania Supreme
Court has developed a stringent test for determining who has standing to
bring such a claim. The Supreme Court held that the estate of the testator
has no standing, as the estate suffers no harm. See Guy v. Liederbach,
459 A.2d 744, 749 (Pa. 1983). Thus, the trial court in the present case was
correct in granting the preliminary objections to any claims made by Wife’s
Estate.
In contrast, the Court in Guy held that certain intended beneficiaries
of a Will have standing to raise such a claim against the drafter of a will.
-5- J-A22010-14
See id., at 751. A beneficiary has standing to raise the claim where he is a
named legatee, and where the circumstances of the relationship between the
testator and the attorney, as well the will itself, indicate the testator’s intent
to benefit the legatee. See id., at 751-752.
Under the applicable standard of review, the first requirement from
Guy is met by paragraph 12 of the Complaint, which alleges that Wife
bequeathed the residue of her estate to Husband, including all property
subject to Wife’s powers of appointment. Husband is therefore a named
legatee.
The second requirement under Guy is less straightforward in its
application. However, under the unique circumstances of this case, it is
reasonable to infer from the allegations in the Complaint that Wife intended
for Husband to receive the assets from the LSP Trust. As noted above,
paragraph 12 indicates that Wife’s Will bequeathed all property subject to
Wife’s powers of appointment to Husband. Furthermore, the Complaint
alleges that Wife was unaware that her Will was insufficiently specific to
legally exercise her power of appointment under the LSP Trust until Husband
noticed the issue on March 12, 2010. Finally, paragraph 17 of the Complaint
alleges that Wife expressed to Smith and Moyer her desire to leave all of her
assets, save a $25,000 specific bequest to a cousin, to Husband. These
allegations, taken as true, are sufficient to establish that Wife intended to
appoint the assets of the LSP Trust in favor of Husband.
-6- J-A22010-14
These circumstances are distinguishable from Hess v. Fox
Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007). In Hess, a panel of this
Court addressed a scenario where the plaintiffs claimed that their legacy was
diminished, in contravention of the testator’s intent, by the actions of her
husband after her death. Under the operative will, the testator’s husband
had the power to withdraw all of the principal from a marital trust after her
death. The testator’s husband exercised this power after the testator’s
death by withdrawing a significant sum of money from the marital trust.
Upon the husband’s death, the residue of the marital trust was bequeathed
to the plaintiffs. The plaintiffs sued the drafters of the testator’s will,
asserting that the will did not effectuate her testamentary intent.
This Court held that the plaintiffs did not have standing, as they did
not “claim that they received a legacy less than that bequeathed to them
according to the text of [the testator’s] will.” Id., at 808. Rather, they
claimed “only that [the testator’s] true intent was to bequeath them a
greater legacy than that afforded by the will.” Id. (emphasis in original).
In contrast, the complaint filed by the Estates in this case alleges that
Wife intended for her will to appoint the assets of the LSP Trust in favor of
Husband. The text of the will, as set forth in the complaint, supports this
interpretation. Pursuant to the complaint, the only reason Wife’s will did not
effectuate this testamentary intent is that Wife was unaware of the
-7- J-A22010-14
requirement of specificity in the LSP Trust. Once she was made aware of
this requirement, she requested that Smith and Moyer rectify this oversight.
We therefore conclude that the trial court erred in concluding that
Husband’s Estate lacks standing as an intended third party beneficiary of the
lawyer/client relationship between Wife and Appellees. As noted above, the
trial court did not err in concluding that Wife’s Estate lacks standing to bring
such claims.
Order affirmed in part and reversed in part. Case remanded for
further proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/9/2015
-8-