J-S29016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  PHILIP J. BERG                               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
  EDWIN R. RUBIN                               :   No. 1456 EDA 2017
            v.                                 :
                                               :
                                               :
  AND BONNIE OSTROFSKY                         :

                    Appeal from the Order March 24, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): November Term, 2015


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 18, 2018

       Philip J. Berg (Appellant) appeals from the trial court’s orders granting

judgment on the pleadings in favor of Appellees, Edwin R. Rubin (Rubin) and

Bonnie Ostrofsky (Ostrofsky). We affirm.

       Appellant and his two siblings, Judith Morris (Judith) and Joan Rubin

(Joan), were the beneficiaries under the will of their mother, Rebecca

Nissenbaum (Decedent). The will named Appellant and Judith as co-executors

of the estate (Estate), and was admitted to probate on August 29, 2013. The

same day, however, the three siblings executed an agreement (2013

____________________________________________


* Former Justice specially assigned to the Superior Court.
J-S29016-18


Agreement), under which Judith became the sole executrix and Appellant

relinquished his role as co-executor in exchange for the Estate forgiving

Appellant’s debt to Decedent of more than $350,000. The 2013 Agreement

also set forth procedures for the administration of the Estate and distribution

of Decedent’s personal property, and stated that the parties would not take

any legal action against Judith as executrix or against Joan as bookkeeper for

the Estate, so long as Judith and Joan exercised their fiduciary duties to the

best of their ability. At this juncture, we note that Joan is married to Rubin,

an attorney whose license was suspended by the Pennsylvania Supreme

Court,1 and Ostrofsky is an attorney who provided legal services to the Estate

from November 2013 to May 2014.

       On December 4, 2013, Appellant filed a lis pendens and a creditor’s

claim of $7,050 against the Estate. On April 4, 2014, Appellant also objected

to the accounting, filed an $87,500 beneficiary’s claim, and requested that the

trial court charge attorney’s fees, costs, and statutory sanctions against the

executrix, Judith, for her alleged breach of the 2013 Agreement. On April 25,

2014, Appellant filed a bankruptcy petition in federal court. Upon application

by the Estate, the bankruptcy court partially lifted the automatic stay so that

the Estate litigation could resume. The Estate litigation spanned two years.


____________________________________________


1 The record indicates that Appellant was also suspended from the practice of
law. Email from Rubin to Appellant, 8/22/13, Exhibit 9 to Appellant’s Amended
Complaint, 3/8/16.


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      On November 5, 2015, Appellant, Judith, and Joan executed a

settlement agreement (2015 Agreement). The 2015 Agreement stated that

the parties’ intent was “to fully resolve all issues and disputes arising . . . from

the Estate’s administration . . . and to forego continued litigation of the same.”

Family Settlement Agreement, 11/5/15, at 2.           The 2015 Agreement also

included the following release clause:

      The Parties, for themselves and for their heirs, issue, spouses,
      executors, administrators, successors, and assigns, hereby
      mutually and irrevocably remise, release and forever discharge
      each other, individually and in any fiduciary capacity whatsoever
      (including, but not limited to, Judith in her capacity as Executrix
      of the Estate), their heirs, issue, executors, administrators,
      attorneys, successors and assigns of and from any and all
      damages, actions, suits, demands, costs, expenses, judgments,
      claims, causes of action, liabilities and indebtedness of any kind
      or nature whatsoever, whether at law or in equity, individual or
      derivative, known or unknown, asserted or unasserted, liquidated
      or unliquidated, foreseeable or unforeseeable, matured or
      unmatured, that each Party or person or entity claiming by,
      through or under these Parties ever had, now have or in the future
      may have or claim to have against each other or the Estate by
      reason of, or arising out of any cause, matter, thing or event from
      the beginning of the world to the end of time related to the
      Estate’s administration, including without limitation all matters or
      claims which have been raised or could have been raised by the
      Parties, individually or collectively, or any third party, whether an
      individual or any kind or nature of an entity, during the Estate
      administration or arising out of any act or omission of the
      Executrix in her administration of the Estate, whether due to
      negligence or otherwise, or in connection with the 2013
      Agreement, the Property, [Appellant’s] Creditor’s, Beneficiary’s
      and Surcharge Claims in the Orphans’ Court, and disputes arising
      in [Appellant’s] Bankruptcy, including the Estate’s [proof of claim]
      and [Appellant’s] Sanctions Motion.

Id. at 4-5 (emphasis added). Pertinently, the 2015 Agreement did not define

the term “attorney,” and although the agreement referred to the executrix’s

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“[prior] lawyer [sic],” the only attorneys identified by name were the Estate’s

attorney, “Ryan D. Harmon, Esquire, then of the law firm Zarwin, Baum,

DeVito, Kaplan, Schaer & Toddy, P.C.” and Appellant’s counsel, James F.

Casquale, Esquire. Id. at 1-3.

      Less than one month later, on December 3, 2015, Appellant commenced

the   instant action   against Rubin and Ostrofsky, averring          that they

“misinterpreted the [2015 Agreement] to advise the Executrix in a course of

action to exhaust the Estate’s assets such that [Appellant] . . . received none

of his intended benefits.”    Appellant’s Amended Complaint, 3/8/16, at 1.

Specifically, Appellant presented a third-party beneficiary claim for breach of

contract against Rubin and Ostrofsky, averring that they failed to counsel

Judith, as the executrix, “against adopting positions contrary to the” 2013

Agreement, and thus deprived Appellant of his beneficiary and creditor’s

interests in the Estate. Appellant’s Amended Complaint at 8.

      Rubin and Ostrofsky each filed preliminary objections, which were

overruled by the trial court. They then each filed an answer and new matter,

raising, inter alia, the defense of release; Rubin also denied that he ever acted

as attorney to the Estate, the executrix, or any beneficiary. Subsequently,

Rubin and Ostrofsky each filed a motion for judgment on the pleadings,

reiterating that Appellant’s claims were barred by the release clause in the

2015 Agreement. Appellant filed a response, arguing that the release clause

only discharged from liability the named signatories — himself, Judith, and


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Joan — and any individuals specifically identified in the 2015 Agreement.

Thus, according to Appellant, the only “released” attorneys were those named

in the agreement.

        The trial court agreed with Rubin and Ostrofsky that the release clause

barred Appellant’s claims, and on March 24, 2017, granted their motions for

judgment on the pleadings, and dismissed Appellant’s complaint with

prejudice.     Appellant filed a motion for reconsideration, which the court

denied. Appellant took this timely appeal.2

        Appellant presents the following issues for our review:

        1. Did the trial court err when granting judgment on the pleadings
        by not considering [Appellant’s] allegation concerning the
        meaning of the undefined term ‘attorneys’ in a release clause
        contrary to the . . . Supreme Court’s instruction in Insurance
        Adjustment Bur., Inc. v. Allstate Ins. Co., [905 A.2d 462 (Pa.
        2006)] (Complaint’s allegation as to agreement’s meaning is an
        averment of fact to be accepted as true)?

        2. Did the trial court re-write a release cause by relying upon
        selective language and without considering either the entirety of
        the clause or the Agreement as a whole document and contrary
        to the established law governing interpretation of releases?

        3. Did the trial court err by determining the undefined term ‘prior
        lawyer’ — stated in the singular — extends to both Ostrofsky and
        Rubin and thereby resolving a disputed factual issue raised in the
        pleadings?

        4. Did the trial court err by accepting procedurally improper
        Motions for Judgment on the Pleadings which do not accept as true
        all factual averments of the Amended Complaint or which proceed
        from Rubin’s lately-raised factual claim to be the Executrix’ ‘prior
        attorney’ in contradiction of his pleadings where he repeatedly
____________________________________________


2   The trial court did not order Appellant’s compliance with Pa.R.A.P. 1925(b).

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      denied ever being attorney to the Executrix and the Estate?

Appellant’s Brief at 5.

      We address Appellant’s interrelated issues together.     The essence of

Appellant’s claims is that the trial court erred in granting judgment on the

pleadings because the parties’ competing pleadings presented a question of

fact: the meaning of the term “attorneys” in the release clause of the 2015

Agreement. Appellant maintains that ¶50 of his amended complaint averred

that the term meant the “then current attorneys specifically named earlier in

the [2015 Agreement] and not any lawyer unidentified and unnamed

anywhere in the [2015 Agreement].” Id. at 13-14. According to Appellant,

the trial court disregarded this factual averment and improperly accepted the

argument of Rubin and Ostrofsky that the term “attorney” included all

attorneys, including prior attorneys, Rubin and Ostrofsky.       Furthermore,

Appellant asserts that the trial court’s determination that the release clause

was a “broad release,” cannot be reconciled with the paragraphs of the 2015

Agreement that specifically identified attorneys by name.

      We first note the relevant standard of review:

         A trial court may grant a motion for Judgment on the Pleadings
      only in those cases which are so free from doubt that a trial would
      be a fruitless waste of resources. This may often be the case when
      the dispute will turn on the construction of a written agreement.
      Upon review, the appellate court must affirm only in those cases
      which are clear and free from doubt. We must reverse if the action
      was based on a clear error of law or if there were facts disclosed
      by the pleadings which should be resolved by the jury.

Flatley by Flatley v. Penman, 632 A.2d 1342, 1343 (Pa. Super. 1993)

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(citations omitted).

      With respect to release agreements, this Court has stated:

      “The courts of Pennsylvania have traditionally determined the
      effect of a release using the ordinary meaning of its language and
      interpreted the release as covering ‘only such matters as can fairly
      be said to have been within the contemplation of the parties when
      the release was given.’”

                                  *    *    *

      [O]ur Supreme Court held that a release given to a particular
      individual and “any and all other persons . . . whether herein
      named or not” was applicable to all tort-feasors despite the fact
      that they were not specifically identified in the release. The Court
      reasoned:

         If such a release can be nullified or circumvented, then
         every written release and every written contract or
         agreement of any kind no matter how clear and pertinent
         and all-inclusive, can be set aside whenever one of the
         parties has a change of mind or whenever there
         subsequently occurs a change of circumstances which were
         unforeseen, or there were after-discovered injuries, or the
         magnitude of a releasor’s injuries was unexpectedly
         increased, or plaintiff made an inadequate settlement. It
         would make a mockery of the English language and of the
         law to permit this release to be circumvented or held to be
         nugatory.

Fortney v. Callenberger, 801 A.2d 594, 598 (Pa. Super. 2002) (citations

omitted). “There is no requirement that a release specifically name all of the

parties to be released if the terms of the release clearly extend to them.” In

re Estate of Bodnar, 372 A.2d 746, 748 (Pa. 1977) (mortgagee bank’s

release — which precluded it from pursuing any claim against “any and all

other person . . . which might be claimed as liable to [Reicher] on account of

any and all knowns claims . . . arising out of payments to Reicher” — precluded

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bank from asserting claim, which was related to Reicher, against person not

named in release). With respect to contract interpretation generally, we have

stated:

      When construing agreements involving clear and unambiguous
      terms, this Court need only examine the writing itself to give effect
      to the parties understanding. The court must construe the
      contract only as written and may not modify the plain meaning of
      the words under the guise of interpretation. When the terms of a
      written contract are clear, this Court will not re-write it or give it
      a construction in conflict with the accepted and plain meaning of
      the language used.

Habjan v. Habjan, 73 A.3d 630, 640 (Pa. Super. 2013) (citations omitted).

      Upon review, it was proper for the trial court to resolve the parties’

dispute in this case as to “the construction of a written agreement.”          See

Flatley, 632 A.2d at 1343, 1344 (“This case does not involve a dispute over

the law of this state regarding the effect of releases or the general rules of

contract construction. Instead, the parties disagree as to how . . . clauses in

the document . . . should be read in light of the generally accepted rules of

contract interpretation.”).

      Here, the trial court examined the release clause and concluded:

      The ordinary meaning of the language of this broad release clearly
      bars [Appellant’s] instant action and, as such, there are no
      disputed issues of fact and [Rubin and Ostrofsky] are entitled to
      judgment as a matter of law.

Trial Court Opinion, 10/31/17, at 5. We agree.

      While we have quoted the release clause in full above, the pertinent

language is:


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      The Parties . . . hereby mutually and irrevocably remise, release
      and forever discharge each other [and] their . . . attorneys . . .
      of and from any and all damages, actions, suits, demands, costs,
      expenses, judgments, claims, causes of action, liabilities and
      indebtedness of any kind or nature whatsoever . . . arising out of
      any cause, matter, thing or event from the beginning of the world
      to the end of time related to the Estate’s administration, including
      without limitation all matters or claims which . . . could have been
      raised by the Parties . . . during the Estate administration . . . .

Family Settlement Agreement at 4-5 (emphasis added). The plain language

of the clause is clear: Appellant unequivocally agreed to release Judith, Joan,

and their attorneys (as well as heirs, issue, executors, administrators,

successors and assigns) from any claim related to the administration of the

estate.   Appellant’s argument, that the term “attorneys” meant only the

attorneys who were specifically named in the 2015 Agreement, is not

supported by the plain language of the contract, which imposed no such

definition or restriction on the term “attorneys.” See Habjan, 73 A.3d at 640.

Accordingly, the trial court did not err in holding that Appellant’s claims against

Rubin and Ostrofsky were barred by the 2015 Agreement. We thus affirm the

orders granting their motions for judgment on the pleadings and dismissing

Appellant’s complaint with prejudice.

      Orders affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/18




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