J-A30031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEREMIAH KAPLAN,                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MORRIS J. KAPLAN, TIMONEY KNOX,
LLP, JAMES M. JACQUETTE AND GEORGE
RITER,

                            Appellees                No. 1395 EDA 2014


                  Appeal from the Order Entered March 24, 2014
              in the Court of Common Pleas of Philadelphia County
            Civil Division at No.: October Term, 2013 No. 131000362


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 10, 2015

        Appellant, Jeremiah Kaplan, appeals from the         order sustaining

preliminary objections to subject matter jurisdiction and venue of Appellees,

Morris J. Kaplan, Timoney Knox, LLP, James M. Jacquette, and George Riter,

and transferring the matter to the Orphans’ Court Division of Montgomery

County, Pennsylvania.1 Appellant argues jurisdiction and venue are proper

in Philadelphia. After careful review, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   Appellees also raised preliminary objections based upon pendency of a
prior action, insufficient claim specificity, and legal insufficiency, which the
trial court did not address. (See Trial Court Opinion, 6/12/14, at 1 n.3).
J-A30031-14



      The trial court summarized the factual and procedural history of this

case as follows:

            On October 8, 2013, [Appellant] filed suit against
      [Appellees] . . . assert[ing] that [Decedent] Bernard Kaplan’s
      November 15, 2007 [w]ill and [l]iving [t]rust should be
      rescinded because each was procured through undue influence
      and fraudulent misrepresentation.

            On January 21, 2014, [Appellee] Morris J. Kaplan filed
      preliminary objections[, to which the remaining Appellees
      joined.] . . . On March 20, 2014, the [trial c]ourt sustained
      [Appellees’] [p]reliminary [o]bjections to the [trial c]ourt’s
      subject matter [jurisdiction] and venue. The complaint was
      transferred to the Montgomery County Orphan’s Court for the
      disposition of the remaining preliminary objections.

             Separately, on October 10, 2012, [Appellant] invoked the
      jurisdiction of the Orphan’s Court Division of the Court of
      Common Pleas of Montgomery County by filing two [p]etitions
      concerning [Decedent’s] November 15, 2007 [w]ill and [l]iving
      [t]rust. Appellant’s [p]etitions named [Appellees] Morris Kaplan
      and James M. Jacquette as respondents. The first [p]etition was
      a citation to show cause why appeal from probate of
      [Decedent’s] November 15, 2007 [w]ill should not be sustained.
      The second [p]etition was a citation to show cause why the
      November 15, 2007 [a]mendent and [r]estatement of
      [Decedent’s] [l]iving [t]rust should not be rescinded. Discovery
      on these petitions proceeded for a year.

            Decedent [], a Montgomery County resident, died on
      October 12, 2011. On October 19, 2011, the Montgomery
      County Register of Wills admitted [Decedent’s] November 15,
      2007 [will] to probate. The [l]etters [t]estamentary were issued
      to [Appellees] Morris J. Kaplan and [] Jacquette as co-
      [e]xecutors of the estate.

            [Appellant] resides in Montgomery County, Pennsylvania.
      [Appellee] Morris J. Kaplan is the primary owner and operator of
      a nursing care facility in Montgomery County.           [Appellees
      Jacquette] and Riter both reside in Montgomery County and
      provide legal services through their law firm, [Appellee] Timoney


                                    -2-
J-A30031-14


       Knox, LLP in Montgomery County. [Appellee] Timoney Knox,
       LLP, is a law firm located in Montgomery County.

(Trial Court Opinion, 6/12/14, at 1-3) (footnotes omitted).2

       On March 24, 2014, the trial court sustained Appellees’ preliminary

objections. (See Order, 3/24/14, at 1). Appellant timely appealed on April

17, 2014.3

       Appellant raises the following issues for our review:

       I.    Whether the [trial] court below erroneously concluded that
       [Appellant’s] [c]ivil [c]omplaint seeks the [rescission] of a will
       and trust?

       II.    Whether the [t]rial [d]ivision has unlimited and exclusive
       jurisdiction to adjudicate the civil claim of tortious interference
       with testamentary expectation that is raised in the [c]omplaint?

       III. Whether the [c]omplaint is properly venued in Philadelphia
       County?

(Appellant’s Brief, at 3).

       It is well-settled that:

             In reviewing a trial court's grant of preliminary objections,
       the standard of review is de novo and the scope of review is
       plenary. The salient facts are derived solely from the complaint
       and pursuant to that standard of review, the court accepts all
       well-pleaded material facts in the complaint, and all inferences
       reasonably deduced therefrom must be accepted as true.



____________________________________________


2
 We note that Appellant has failed to attach a copy of the Trial Court
Opinion to his brief as required by Rule 2111(b). See Pa.R.A.P. 2111(b).
3
 The trial court did not order a statement of errors. See Pa.R.A.P. 1925(b).
The court issued an opinion on June 12, 2014. See Pa.R.A.P. 1925(a).



                                           -3-
J-A30031-14



Martin v. Rite Aid of Pa., Inc., 80 A.3d 813, 814 (Pa. Super. 2013)

(citation omitted).

      In his first issue, Appellant claims that the trial court erred as a matter

of law and abused its discretion in concluding that he seeks rescission of a

will and trust. (See Appellant’s Brief, at 9). Specifically, he argues that he

“seeks damages as a result of [Appellees’] tortious interference with [his]

testamentary expectation. . . . [and] does not seek to have the civil trial

court attack any will, trust, decision, or proceeding of any Register of Wills

or of any Orphans’ Court.”     (Id.) (record citation omitted).    This issue is

waived.

            The argument portion of an appellate brief must include a
      pertinent discussion of the particular point raised along with
      discussion and citation of pertinent authorities. This Court will
      not consider the merits of an argument which fails to cite
      relevant case or statutory authority. Failure to cite relevant
      legal authority constitutes waiver of the claim on appeal.

In re Estate of Whitley, 50 A.3d 203, 209-10 (Pa. Super. 2012), appeal

denied, 69 A.3d 603 (Pa. 2013) (citations and quotation marks omitted);

see also Pa.R.A.P. 2119(a)-(b).

      Here, Appellant has failed to cite to any legal authority to support his

argument. (See Appellant’s Brief, at 9). Accordingly, this issue is waived.

See In re Estate of Whitley, supra at 209-10; see also Pa.R.A.P.

2119(a)-(b).

      In his second issue, Appellant claims that “the Philadelphia County

Civil Division has unlimited and exclusive jurisdiction of these claims.”


                                      -4-
J-A30031-14



(Appellant’s Brief, at 10) (internal quotation marks omitted). Specifically, he

asserts that “[n]o in personam claims have been raised against any

individuals in the Orphans’ Court and, therefore, [the Philadelphia County

c]ivil [d]ivision has exclusive jurisdiction over the in personam claims raised

in this civil action.” (Id. at 11). We disagree.

             . . . [T]he question of subject matter jurisdiction may be
      raised at any time, by any party, or by the court sua sponte.
      Our standard of review is de novo, and our scope of review is
      plenary. Generally, subject matter jurisdiction has been defined
      as the court's power to hear cases of the class to which the case
      at issue belongs.

In re Estate of Ciuccarelli, 81 A.3d 953, 958 (Pa. Super. 2013) (citations

and quotation marks omitted).

      In this case, in support of his argument, Appellant relies on federal

case law and looks to Golden v. Golden, 382 F.3d 348 (3d. Cir. 2004) and

its finding that “Pennsylvania law permits actions for tortious interference

with inheritance in the courts of general jurisdiction . . . .”     (Appellant’s

Brief, at 10) (citation omitted). We are not persuaded by this argument.

      “[I]t is well-settled that this Court is not bound by the decisions of

federal courts, other than the United States Supreme Court . . . however, we

may use them for guidance to the degree we find them useful and not

incompatible   with   Pennsylvania   law.”    Eckman    v.   Erie   Insurance

Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011) (citations omitted).




                                     -5-
J-A30031-14



     Although it is technically correct that a court of common pleas civil

division has jurisdiction over a claim for tortious interference, Golden

concedes that:

            . . . [A]ny cause of action for tortious interference of
     inheritance brought in Pennsylvania implicitly concedes that the
     testator’s intent was, at some point in time, something other
     than what the Orphans’ Court found it to be at the testator’s
     death. . . . The tort claim, therefore, does posit that the
     distributive scheme that the Orphans’ Court found to be in place
     at the time of the testator’s death is different from the one the
     testator at some point intended.

           . . . The theory of the tort is that the will actually probated
     was valid and enforceable because it reflected testamentary
     intent at the time it was made, but that the alleged tortfeasor
     wrongly induced the testator to maintain that will.

Golden, supra at 364-65 (emphasis omitted).

     Here, unlike in Golden, the record reflects that Appellant has initiated

two challenges to the Decedent’s November 15, 2007 will and living trust,

which are pending in Montgomery County Orphans’ Court. (See Preliminary

Objections, 1/21/14, at Exhibits A and B; see also Appellant’s Brief, at 5

(admitting pending challenge to testamentary documents)). Therefore, the

court has not determined the Decedent’s distributive scheme. See Golden,

supra at 365.

     Furthermore, “[p]ursuant to statute, the Orphans’ Court Division has

mandatory     and   exclusive   jurisdiction   over   [t]he   administration   and

distribution of the real and personal property of decedents’ estates[,]”

Ciuccarelli, supra at 958 (citing 20 Pa.C.S.A. § 711(1)), and non-



                                      -6-
J-A30031-14



mandatory jurisdiction over “[t]he disposition of any case where there are

substantial questions concerning matters enumerated in section 711[,]” 20

Pa.C.S.A. § 712(3).

      Here, Appellant’s complaint alleges that Appellees have tortuously

interfered with his inheritance and seeks damages in the amount he would

have received prior to their alleged conduct. (See Complaint, 12/30/13, at

29-35).   Therefore, Appellant has raised substantial questions concerning

matters that are pending in Orphans’ Court.    See 20 Pa.C.S.A. § 712(3).

Accordingly, the trial court did not err in transferring the matter to the

Orphans’ Court Division of Montgomery County. See Ciuccarelli, supra at

958. Thus, Appellant’s claim lacks merit.

      In his final issue, Appellant claims that “venue is proper and

appropriate in Philadelphia County.” (Appellant’s Brief, at 13). However, as

discussed above, in light of our conclusion that jurisdiction is proper in

Montgomery County, our analysis need proceed no further.

      Accordingly, for the reasons discussed above, we affirm the trial

court’s granting of Appellees’ preliminary objections as to subject matter

jurisdiction and venue.

      Order affirmed.




                                    -7-
J-A30031-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




                          -8-
