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                              2017 PA Super 198



ESTATE OF: SIDNEY ROTHBERG,              :     IN THE SUPERIOR COURT OF
DECEASED                                 :           PENNSYLVANIA
                                         :
APPEAL OF:                               :          No. 1428 EDA 2016
LYNN ROTHBERG KEARNEY                    :


                   Appeal from the Order, April 15, 2016,
            in the Court of Common Pleas of Philadelphia County
                Orphans’ Court Division at No. 673AP of 2009


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


OPINION BY FORD ELLIOTT, P.J.E.:                       FILED JUNE 23, 2017

      Lynn Rothberg Kearney appeals pro se the order of the Court of

Common Pleas of Philadelphia County that sustained the preliminary

objections of Saranne Rothberg-Marger (“Rothberg-Marger”), the executrix

of the Estate of Sydney Rothberg, Deceased (“Estate”), and dismissed

appellant’s petition for a declaratory judgment.     After careful review, we

affirm.

      The trial court set forth the following factual and procedural history:

                   In brief summary, [Appellant] was born on
            January 6, 1953. Appellant always thought that her
            father Sydney Rothberg had died in the late 1950s
            as a result of a car accident. However, in 2004,
            Appellant learned that Sydney Rothberg was alive
            and she searched for him. In response to Appellant’s
            inquiries, on June 10, 2004, Saranne Rothberg-
            Marger indicated that after speaking with Decedent,
            he stated that Appellant was in “no way” related to
            him. By that point, Decedent Sidney Rothberg’s Will
            had been executed on January 21, 2002 and did not
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            provide for Appellant but instead provided for
            Saranne     Rothberg,   Michael    Rothberg,    and
            Nellie Ingram. Decedent died on May 13, 2008 and
            the January 21, 2002 Will was admitted to probate.

                  On August 14, 2014, Lynn Kearney filed a
            Notice of Appeal regarding the July 18, 2014
            Findings of Fact, Discussion and Conclusions of Law
            issued by the Honorable Joseph D. O’Keefe denying
            her challenge to the Will of Sidney Rothberg. On
            June 26, 2015, the Superior Court of Pennsylvania
            affirmed the Court’s July 18, 2014 Decree.

                   On March 14, 2016, Appellant filed a Petition
            for Declaratory Judgment stating that she should be
            considered an omitted heir under Section 2507 of
            the Probate, Estates and Fiduciaries (“PEF” Code).
            On April 4, 2016, Saranne Rothberg-Marger filed
            Preliminary Objections stating that Section 2507
            does not apply to the instant case because Appellant
            was born before the Will was executed by Decedent
            on January 21, 2002. On April 18, 2016, Appellant
            filed an Answer again averring that she is entitled to
            relief under Section 2507.

                  On April 15, 2016, the Honorable George W.
            Overton issued a Decree sustaining the Preliminary
            Objections   and   dismissing   the   Petition for
            Declaratory Judgment without prejudice.

                  On May 2, 2016, Appellant filed a timely Notice
            of Appeal. Statements of Matters Complained of on
            Appeal were requested and properly tendered on
            June 2, 2016.

Trial court opinion, 9/8/16 at 1-2 (citations omitted).

      On appeal, appellant raises the following issues for our review:

            1.    Whether the Orphans’ Court erred as a matter
                  of law or abused its discretion by overlooking
                  or ignoring that the Estate is the proper party
                  addressed by the Petition[?]        Neither the
                  Estate nor two of three beneficiaries responded


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                 to the Petition from their perspectives and thus
                 defaulted     and   approved     granting    the
                 declaratory judgment requested?

           2.    Whether the elements of demurrer were not
                 proven; therefore, whether Orphans’ Court
                 erred as a matter of law and abused its
                 discretion by improperly sustaining Preliminary
                 Objection in the Nature of a Demurrer to
                 Petition of Lynn Kearney for Declaratory
                 Judgment (“Preliminary Objection”), when the
                 Author failed to prove the statutory elements
                 for demurrer?

           3.    Whether the Orphans’ Court erred and abused
                 discretion by granting the request that the
                 Petition is a second attempt to claim an
                 interest in Decedent’s Estate?

           4.    Whether the Orphans’ Court erred and abused
                 discretion by failing to consider whether
                 [42 Pa.C.S.A. § 2507] encompasses children
                 unknown but born before a will is executed?

           5.    Whether the Orphans’ Court erred as a matter
                 of law and abused discretion by failing to
                 properly consider the plain meaning of the
                 Statute?

           6.    Whether the Orphans’ Court erred and abused
                 discretion by failing to properly consider public
                 policy?

           7.    Whether the Orphans’ Court erred and abused
                 discretion by failing to properly consider that
                 inheritance is favored among all children when
                 a will is silent?

           8.    Whether the Orphans’ Court erred and abused
                 discretion by agreeing with an endless
                 litigation argument that is not valid?

Appellant’s brief at 2-5 (emphasis omitted).



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          Our standard of review for a court’s order sustaining
          preliminary objections in the nature of a demurrer is
          well-settled:

          A preliminary objection in the nature of a demurrer
          is properly granted where the contested pleading is
          legally insufficient. Preliminary objections in the
          nature of a demurrer require the court to resolve the
          issues solely on the basis of the pleadings; no
          testimony or other evidence outside of the complaint
          may be considered to dispose of the legal issues
          presented by the demurrer. All material facts set
          forth in the pleading and all inferences reasonably
          deducible therefrom must be admitted as true.

          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. The impetus of our inquiry is to
          determine the legal sufficiency of the complaint and
          whether the pleading would permit recovery if
          ultimately proven. This Court will reverse the trial
          court’s decision regarding preliminary objections only
          where there has been an error of law or abuse of
          discretion. 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.

          Thus, the question presented by the demurrer is
          whether, on the facts averred, the law says with
          certainty that no recovery is possible. Where a
          doubt exists as to whether a demurrer should be
          sustained, this doubt should be resolved in favor of
          overruling it.

          Where the complaint fails to set forth a valid cause
          of action, a preliminary objection in the nature of a
          demurrer is properly sustained. The complaint need
          not identify specific legal theories, but it must
          provide essential facts to support the claim.
          Assertions of legal rights and obligations in a


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            complaint may be construed as conclusions of law,
            which have no place in a pleading.

412 North Front Street Assoc, LP. v. Spector Gadon & Rosen, P.C.,

151 A.3d 646, 656 (Pa.Super. 2016) (citations and quotation marks

omitted).

      Initially, appellant contends the trial court erred and abused its

discretion when it overlooked or ignored that the Estate is the proper party

listed in appellant’s declaratory judgment petition but neither the Estate nor

two of three beneficiaries responded to the petition. Appellant argues that

there was a default, and the trial court erred by failing to grant the

declaratory judgment. Appellant argues that the petition should have been

answered by the executrix of the Estate, Rothberg-Marger, but was not.

Apparently, appellant refers to the preliminary objections filed in response to

the   petition   for   declaratory   judgment.     Appellant   concedes   that

Rothberg-Marger answered the petition but argues that she did so in her

individual capacity and not as executrix.

      A review of the preliminary objections reveals that Rothberg-Marger

filed the preliminary objections in response to appellant’s petition for

declaratory judgment.      In the introduction to the preliminary objections,

Rothberg-Marger does not state that she is filing the preliminary objections

in her capacity as executrix of the Estate.      However, paragraph 2 of the

preliminary objections states, “Your Respondent is Saranne Rothberg-Marger

(“Saranne”).     Saranne is Decedent’s daughter and the named Executrix of


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Decedent’s Will.”   (Preliminary Objections in the Nature of a Demurrer to

Petition of Lynn Kearney for Declaratory Judgment, 4/4/16 at 1, Paragraph

No. 2.)

      The trial court found this claim by appellant to be without merit:

             Upon this assertion [the assertion set forth in
             Paragraph 2 of the Preliminary Objections] the Court
             finds any response made by Saranne Rothberg-
             Marger to be both in her capacity as Executrix
             representing the Estate and her individual capacity
             as a beneficiary of the Estate. Furthermore, under
             the      Pennsylvania    Orphans’     Court    Rules,
             “[p]reliminary objections may be filed to any petition
             by any interested party or the interested party’s
             representative.” Pa.O.C. Rule 3.9(a). Therefore,
             this claim is without merit.

Trial court opinion, 9/9/16 at 4.

      This court agrees with the trial court’s reasoning.    Rothberg-Marger

filed a timely response to the petition for a declaratory judgment and

indicated that she was responding because she was the executrix. As she

responded in this capacity, there is also no merit to appellant’s claim that

the other two beneficiaries of the Estate defaulted by not filing a response of

their own.

      Appellant next contends that the trial court erred as a matter of law

and abused its discretion when it sustained the preliminary objections

because the Estate failed to prove the elements necessary for a demurrer.1



1
 Issues 4 and 5 are essentially contained in this argument as well and will
not be addressed separately.


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Specifically, appellant asserts that she alleged in the petition that she was a

child of Sydney Rothberg (“Decedent”), she was not named in Decedent’s

will, and Decedent did not know of appellant’s existence at the time he

executed the will. The only issue before the trial court was whether Section

2507 of the Probate, Estates, and Fiduciaries Code, 20 Pa.C.S.A. § 2507,

permits a recovery for appellant.

      Appellant is correct that she asserted in the petition that she was

Decedent’s daughter, Decedent did not know of her existence at the time he

executed the will, and he did not name appellant in his will.

      The key question then is whether Section 2507 permits recovery for a

child not named in a will of a parent when the parent did not know of the

child’s existence at the time of the execution of the will.

      Section 2507 provides in pertinent part:

            Wills shall be modified upon the occurrence of any of
            the following circumstances, among others:

            ....

            (4)    Birth or adoption.--If the testator fails
                   to provide in his will for his child born or
                   adopted after making his will, unless it
                   appears from the will that the failure was
                   intentional, such child shall receive out of
                   the testator’s property not passing to a
                   surviving spouse, such share as he would
                   have received if the testator had died
                   unmarried and intestate owning only that
                   portion of his estate not passing to a
                   surviving spouse.

20 Pa.C.S.A. § 2507(4).


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      Appellant argues that the phrase, “among others” in the beginning of

Section 2507 contemplates situations that are not spelled out in the statute

but are similar circumstances and by equity should apply. She argues that a

child who is unknown to a testator is in a similar situation to a child who is

born after the testator executes his will and that equity demands that the

unknown child should be entitled to receive a share of the parent’s estate.

      The trial court explained the basis for its decision:

                   Appellant asserts that the “among others”
            language of Section 2507 indicates that the Court
            may assume that “the reason for the statute is the
            ignorance of the parent of the child’s existence” and
            that the statute should also apply to children born
            before the execution of the will. Appellant cites
            Appeal of McCulloch[, 6 A. 253 (Pa. 1886),] to
            support her contention that the purpose of this
            statute is “undoubtedly to include children
            inadvertently not provided for due to the will not
            being later changed.” However, McCulloch supports
            the exact opposite contention that children born
            before the execution of a will do not fall under
            to [sic] this statute. Appeal of McCulloch, 6 A.
            253, 255 (Pa. 1886).

                    Appeal of McCulloch analyzed whether an
            illegitimate child should be considered an omitted
            heir when she was born four months before the will
            was executed. Id. at 254-55. In McCulloch, the
            child in question was born in April 1883, four months
            before her parents were married in August 1883.
            Id. at 254. Two days before the wedding, the will
            was executed leaving $1,000 to the child’s mother
            and the residue to the decedent’s son, grandchildren,
            and sister, without any mention of the daughter born
            four months before.         Id.      McCulloch then
            contemplated whether the child should be considered
            an after-born child if she was “legitimized” after the
            execution of the will when her parents got married.


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           Id. at 255. The McCulloch court unequivocally
           stated that “upon no reasonable construction of this
           act can it be held that appellee’s ward was born after
           testator’s will was executed. The conceded fact is,
           she was born four months before, and therefore, in
           no proper sense of the term, can she be regarded as
           an after-born child within the purview of the act.”
           Id.

                  Similarly, in the instant case, Appellant admits
           that she was born on January 6, 1953. Appellant
           was clearly born forty-nine years before the
           execution of the will on January 21, 2002. Just as in
           McCulloch, it is conceded that Appellant was born
           before the execution of the Will, so this Court simply
           cannot find that she is properly regarded in the same
           vein as an after-born child under Section 2507.
           Furthermore, Appellant does not attempt to explain
           why Decedent himself did not amend the January 21,
           2002 Will to include her if he learned of her
           existence in 2004 and did not pass until 2008. This
           Court is unwilling and unable to assume that
           Decedent did actually intend for her to take as an
           heir to his estate without any evidence to support
           that intention.

                 The Court did not contemplate the “among
           others” language because Section 2507(4) is
           unambiguous and squarely on point, making it
           dispositive of the statutory construction argument
           put forth by Appellant. Appellant admitted that she
           was born before the Will, so upon consideration of
           the facts stated in the Petition for Declaratory
           Judgment and Section 2507, the Court finds that
           Appellant is not an omitted heir under Section 2507
           and is not entitled to relief as a matter of law.

Trial court opinion, 9/9/16 at 5-7 (citations to record and petition omitted;

footnote omitted; emphasis omitted).

     This court determines that the trial court did not commit an error of

law when it sustained the preliminary objections and dismissed the petition


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for   declaratory   judgment.      As   the   trial   court   correctly   states,

Section 2507(4) specifically deals with birth or adoption in the context of a

will by a parent. The plain language of Section 2507(4) states that a child

born or adopted after the testator/parent makes a will shall receive a share

of the proceeds of the estate unless it is clear that the failure was

intentional. Section 2507(4) does not mention the situation here where the

child was born before the execution of the will.          Although McCulloch

addresses a predecessor statute to the Probate, Estates, and Fiduciaries

Code, it does address the situation of a child born prior to the execution of

the will by the parent who is not included in the will and determined that the

child was not eligible to receive anything from the parent’s estate. Here, as

appellant states, she was born 49 years before the execution of the will, not

after the execution of the will as contemplated by Section 2507(4).

      This court further determines that the trial court did not err when it did

not look to the language, “among others” at the beginning of Section 2507

to include the situation faced by appellant as Section 2507(4).       First, the

plain language of Section 2507(4) leads to the conclusion that the General

Assembly intended for situations involving children of a testator to be

included within that section. Second, under Section 1933 of the Statutory

Construction Act, 1 Pa.C.S.A. § 1933, if there is a conflict between a specific

provision in a statute and a general provision, the specific provision should

prevail. Here, there is one section, 2507(4), that specifically deals with wills



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and the birth or adoption of a child versus the general introduction to

Section 2507 with the ambiguous phrase, “among others.” Third, this court

does not agree with appellant’s interpretation of Section 2507 that the

phrase, “among others” creates a new area of substantive law upon which

she can make a claim against the Estate.           The Probate Estates and

Fiduciaries Code evolved from the Wills Act of 1947 which modified the Wills

Act of 1917. The Joint State Government Committee Comment from 1947

states that it was “logical and convenient” to group together several will

modification provisions in one section which was not the case in the

1917 Act.    However, the comment acknowledges that certain types of will

modifications are not included in Section 2507. It stands to reason that the

phrase “among others” refers to these circumstances. Fourth, the trial court

does not have the authority to exceed the scope of the General Assembly’s

intent.     The intent of the General Assembly is the key to statutory

interpretation.   Pa. Dep’t of Transp., Bureau of Driver Licensing v.

Weaver, 912 A.2d 259, 264 (Pa. 2006).          The General Assembly did not

insert a clause or paragraph into the Code that gave trial courts the

authority to subvert the intention of a testator in the interest of equity.

Section 2507 clearly refers to children born after the execution of the

parent/testator’s will as having a right to a share of the parent/testator’s

estate. The General Assembly did not insert a similar provision for children

born before the execution of the parent/testator’s will.



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      Appellant next contends that the trial court erred as a matter of law

and abused its discretion when it granted the request that the petition is a

second attempt to claim an interest in the Estate.      Appellant argues that

Rothberg-Marger characterized the petition as the second attempt in

paragraph 4 of the preliminary objections which is false.

      Paragraph 3 of the preliminary objections does state that the petition

is appellant’s second attempt in seven years to claim an interest in the

Estate.   Paragraph 4 of the preliminary objections explains that appellant

contested Decedent’s domicile and that the will was the product of undue

influence, lack of testamentary capacity, fraud, insane delusion, or forgery.

      Appellant claims that the first proceeding was a “will contest” to

determine whether Decedent died with or without a valid will. If a prior will

or wills had been declared invalid, appellant alleges that she would have

received an intestate share of the Estate. While she does not characterize

that as an effort to claim an interest in the Estate, it appears that was the

point of the proceeding. However, it is unclear what, if any, relevance this

minor point of difference has on the central issue at hand: whether the trial

court erred when it sustained the preliminary objections.

      Appellant next contends that the trial court erred as a matter of law

and abused its discretion when it failed to properly consider public policy.

Appellant asserts that public policy and equity should favor and benefit




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children and not wayward fathers, when children are unknown or believed

dead at the time of the making of a will.

      The trial court did consider public policy when it rendered its decision:

                   The Court notes that public policy supports the
            reason why children born before a will are not
            included under Section 2507. “It has always been
            the law of Pennsylvania that a parent does not have
            to leave any of his property to any of his children.”
            In re Sommerville’s Estate, [177] A.2d 496, 499
            (Pa. 1962). As such, “a testator with children can
            disinherit some or all of them for any reason
            whatsoever.” In re Agostini’s Estate, 457 A.2d
            861, 865 (Pa. Super. [] 1983). The public policy of
            Pennsylvania in regard to disinheritance of relatives
            is guided by the law which states “the only person
            who cannot be disinherited is the surviving spouse.”
            In re Houston’s Estate, 89 A.2d 525, 526 (Pa.
            1952). Therefore, under the facts submitted in the
            Petition for Declaratory Judgment as well as the laws
            and public policy of Pennsylvania, the Preliminary
            Objections in the Nature of a Demurrer were
            properly sustained by the Court because Appellant is
            not entitled to relief as a matter of law.

Trial court opinion, 9/9/16 at 7.

      This court finds no error on the part of the trial court in its analysis of

any public policy concerns with respect to its decision.

      Appellant next contends that the trial court erred as a matter of law

and abused its discretion when it failed to properly consider that inheritance

is favored among all children when a will is silent. Appellant argues that a

child should not be disinherited when the parent does not know of the true

relationship at the time of the making of the will such that a policy should be

to benefit and favor children who have been unintentionally disinherited.


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Once again, the General Assembly provided a means for children born after

the execution of a parent’s will to take a share of that parent’s estate. The

General Assembly did not provide the same avenue of recovery for a child

born prior to the execution of the parent’s will, whether known or unknown.

It is not the function of the trial court, or this court for that matter, to

enunciate new precepts of law or to expand existing legal doctrines.       See

Peters v. Nat’l Interstate Ins. Co., 108 A.3d 38, 47 n.12 (Pa.Super.

2014). The trial court did not commit an error of law when it sustained the

preliminary objections while it rejected any public policy argument made by

appellant.2

      Order affirmed.3


2
  Finally, appellant argues that the trial court erred and abused its discretion
when it agreed with Rothberg-Marger that following appellant’s reasoning
would lead to endless litigation. In her brief, Rothberg-Marger states that
appellant’s claimed new circumstance as an unknown child would invite
endless litigation because any person could claim that he was an unknown
child of a person who died in order to claim a share of an estate. Although
appellant states that the trial court agreed with Rothberg-Marger, she then
states that the trial court did not consider this point. As we have already
determined that the trial court did not err when it sustained the preliminary
objections based on the statutory language, the scope of its authority, and
established public policy, we need not address this issue.
3
  Rothberg-Marger moves to strike Exhibits A-1 through A-10 and Exhibit B
of appellant’s reply brief because these documents are not in the certified
record. The exhibits are orders of the trial court from the earlier proceeding
regarding appellant’s petition for exhumation of Decedent in order to
determine proof of paternity, and the Rothberg-Marger’s praecipe to
withdraw preliminary objections to appellant’s amended petition for Citation
Sur Appeal from Probate. Most of the orders state that appellant shall be
deemed to be a child of Decedent in all matters involving the Estate of
Sidney Rothberg. Rotherberg-Marger is correct that these documents are


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2017




not in the certified record for the present case. As a result, this court grants
the motion to strike these documents.

       In the motion to strike, Rothberg-Marger also moves to strike a
paragraph on pages 5-6 of appellant’s reply brief in which appellant refers to
the earlier proceeding and states that the Estate has no objection to
appellant’s status as a child of Decedent and that the trial court confirmed
appellant’s status as a child. This paragraph really has no relevance to the
determination of the present case, as this court and the trial court treated
appellant as a child of Decedent for the purpose of resolving this case. As a
result, this court denies the motion to strike this paragraph. The motion to
strike is granted in part and denied in part.


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