J-A29021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF DONNA                           IN THE SUPERIOR COURT OF
SWACKHAMMER                                            PENNSYLVANIA




APPEAL OF: RANDY L. SWACKHAMMER,
M.D.

                                                      No. 323 WDA 2016


                   Appeal from the Order January 29, 2016
           In the Court of Common Pleas of Westmoreland County
                     Orphans' Court at No(s): 65-15-241


BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED FEBRUARY 22, 2017

      Randy L. Swackhammer, M.D., appeals from the January 29, 2016

order entered in the Westmoreland County Court of Common Pleas granting

the preliminary objections filed by Donna Swackhammer’s Estate.                 We

affirm.

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

          Donna Swackhammer, hereinafter referred to as
          “Decedent,” passed away on January 26, 2015.           She
          executed a will dated June 19, 2014 and a codicil dated
          January 19, 2015. Addison Swackhammer, hereinafter
          referred to as “Minor Child,” is the daughter of the
          decedent and the sole beneficiary of the Decedent’s estate.
          The June 19, 2014 will named Meghan Smith, daughter of
          Decedent, as the guardian of the Minor Child and the
          guardian of her estate. The codicil dated January 19, 2015
          changed the guardian to Decedent’s other daughter,
          Brienne Marco.1 On February 9, 2015, the Register of Wills
          granted Letters Testamentary to Brienne Marco as
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       executrix of the Decedent’s estate and admitted both the
       will and the codicil to probate.
          1
            In a separate pending custody action at docket
          number 158 of 2015-D, Brienne Marco was granted
          in loco parentis status and obtained temporary
          custody of the Minor Child by Order of Court dated
          February 3, 2015. This status was continued by
          Order of Court dated May 21, 2015.

       [Swackhammer] is the ex-husband of Decedent and the
       biological father of the Minor Child.2 [Swackhammer] filed
       a Notice of Appeal from the February 9, 2015 decree of the
       Register of Wills. He filed a petition titled “Petition for
       Citation and Rule to Show Cause Why this Appeal Should
       Not Have Been Sustained and the February 9, 2015 Decree
       of the Register of Wills Admitting Codicil Number One of
       the Last Will Be Set Aside” and a petition titled “Petition for
       Appointment of a Guardian Ad Litem.” The Estate filed
       preliminary objections to both petitions, alleging that
       [Swackhammer] was not a beneficiary under the will
       pursuant to a consent agreement incorporated into his and
       the Decedent’s divorce decree on January 29, 2003, where
       he relinquished all right or interest to the estate of Donna
       Swackhammer.          Therefore, the Estate argued that
       [Swackhammer] lacked standing to seek the requested
       relief.
          2
            [Swackhammer] did not have an active parental
          relationship with the Minor Child as of the filing of
          the appeal. A custody action is currently pending at
          a separate docket number.

       Oral Argument was initially scheduled for October 16,
       2015. At that time, the Honorable Judge Regoli ordered
       both parties to submit a Memorandum of Law supporting
       their position and scheduled a second oral argument on
       January 19, 2016. After the second oral argument was
       held, both parties were again provided with an opportunity
       to submit any legal authority that supported their position.

       After a review of the arguments presented, along with the
       Memorandums of Law submitted, this Court entered an
       Order on January 27, 2016 sustaining the Estate’s
       preliminary objections for lack of standing. In accordance
       with the Rules of Appellate Procedure, [Swackhammer]

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           filed a Notice of Appeal and delivered it to this Court on
           March 1, 2016.

Opinion, 4/18/16, at 1-3 (“1925(a) Op.”).

       Swackhammer raises the following issues on appeal:

           I. The court below failed to apply the proper test where
           Preliminary Objections Resulted in the Dismissal of
           [Swackhammer’s] Petitions.

           II. The court [below] erred in not appointing a Guardian Ad
           Litem on its own motion (Pa. O. C. Rule 12.4 (a)[)].

           III. The Order appealed from relies on a statute that does
           not exist, specifically 20 Pa. C. S. A. §101(a). The
           appellant cannot readily discern the basis for the judge's
           decision (231 Pa. Code Rule 1925(b) (4) (vi)).[1]

Swackhammer’s Br. at 4.2

       An “Orphans’ [C]ourt decision will not be reversed unless there has

been an abuse of discretion or a fundamental error in applying the correct

principles of law.”       In re Estate of Whitley, 50 A.3d 203, 206–07




____________________________________________


       1
        Swackhammer has abandoned his third issue by stating in the
argument section of his brief that the “issue was cured in the Court’s
Opinion, therefore it will not be argued.” Swackhammer’s Br. at 17.
       2
        The Estate argues that Swackhammer failed to properly file with the
trial court the petition for citation, the petition for the appointment of a
guardian ad litem, and the Pennsylvania Rule of Appellate Procedure 1925(b)
concise statement of errors complained of on appeal. On October 7, 2016,
Swackhammer filed in the trial court an Application for Correction or
Modification of Record. That same day, the trial court granted the motion
and ordered that the trial court clerk include in a supplemental record to this
Court the petitions and the 1925(b) statement.




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(Pa.Super. 2012) (quoting In re Estate of Luongo, 823 A.2d 942, 951

(Pa.Super. 2003)) (alteration in original). Further,

           On an appeal from an order sustaining preliminary
           objections, we accept as true all well-pleaded material
           facts set forth in the appellant’s complaint and all
           reasonable inferences which may be drawn from those
           facts. Preliminary objections seeking the dismissal of a
           cause of action should be sustained only in cases in which
           it is clear and free from doubt that the pleader will be
           unable to prove facts legally sufficient to establish the right
           to relief; if any doubt exists, it should be resolved in favor
           of overruling the objections.

Rellick-Smith v. Rellick, 147 A.3d 897, 901 (Pa.Super. 2016) (internal

citations and quotation marks omitted).

       Swackhammer first argues that the trial court erred in finding that he

lacked standing to challenge Decedent’s will without holding an evidentiary

hearing.3

       A preliminary objection alleging a pleading is legally insufficient

because the plaintiff lacks standing “require[s] 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

____________________________________________


       3
        The trial court found that Swackhammer lacked standing to bring his
“Petition for Citation and Rule to Show Cause Why this Appeal Should Not
Have Been Sustained and the February 9, 2015 Decree of the Register of
Wills Admitting Codicil Number One of the Last Will Be Set Aside.” The
petition involved an appeal to the probate of Decedent’s will and codicil,
alleging Decedent lacked testamentary capacity or, in the alternative, was
under undue influence.




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presented by the demurrer. All material facts set forth in the pleading and

all inferences reasonably deducible therefrom must be admitted as true.”

Hill v. Ofalt, 85 A.3d 540, 547 (Pa.Super. 2014).4           Accordingly, the trial

court did not err in addressing the preliminary objections without an

evidentiary hearing.




____________________________________________


       4
        Swackhammer maintains the preliminary objection was pursuant to
Pa.R.C.P. 2018(a)(5), for lack of capacity to sue, and therefore, the trial
court could not address the preliminary objection based on the facts of
record. Swackhammer’s Br. at 8-10. The preliminary objection for lack of
capacity, however, is inapplicable here, where the issue was standing. As
our Supreme Court stated:

           In a general sense, capacity to sue refers to the legal
           ability of a person to come into court, and “[w]ant of
           capacity to sue has reference to or involves only a general
           legal disability, ... such as infancy, lunacy, idiocy,
           coverture, want of authority, or a want of title in plaintiff in
           the character in which he or she sues.” 67A C.J.S. Parties
           § 11 . . . . The quintessential example of someone who
           lacks capacity to sue or be sued is a deceased person, as
           capacity only exists in living persons. Id. In substance, as
           well as in practice, however, the notion of capacity to sue
           is extremely amorphous. Indeed, this Court has previously
           referred to the blurry distinction between capacity to sue
           and standing as a “somewhat metaphysical question.”
           Witt[ v. Com, Dep’t of Banking], 425 A.2d [374,] 377 n.
           7 [(Pa. 1981)].

In re Estate of Sauers, 32 A.3d 1241, 1248-49 (Pa. 2011) (emphasis

omitted).




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      Swackhammer also contends that the trial court erred in finding he did

not have a substantial interest in the matter and erred in finding he lacked

standing.

      The Probate, Estates and Fiduciaries Code provides that:

         Any party in interest seeking to challenge the probate of a
         will or who is otherwise aggrieved by a decree of the
         register, or a fiduciary whose estate or trust is so
         aggrieved, may appeal therefrom to the court within one
         year of the decree:           Provided, That the executor
         designated in an instrument shall not by virtue of such
         designation be deemed a party in interest who may appeal
         from a decree refusing probate of it. The court, upon
         petition of a party in interest, may limit the time for appeal
         to three months.

20 Pa.C.S. § 908(a).    Accordingly, “a party has the requisite standing to

contest a will when that party is aggrieved by a judgment, decree or order of

the register, in the sense that some pecuniary interest of that party has

been ‘injuriously affected.’”   Luongo, 823 A.2d at 953 (quoting In re

Estate of Seasongood, 467 A.2d 857, 859 (Pa.Super. 1983)) (emphasis

omitted).

      Further, this Court has noted that “historically,” interest in the

outcome of the will contest “must be substantial, direct, and immediate to

confer standing.” In re Estate of Briskman, 808 A.2d 928, 933 (Pa.Super.

2002).   We have defined the substantial, direct, and immediate interest

needed to establish standing in a will contest as follows:

         A “substantial” interest is an interest in the outcome of the
         litigation which surpasses the common interest of all
         citizens in procuring obedience to the law. A “direct”


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        interest requires a showing that the matter complained of
        caused harm to the party’s interest.      An “immediate”
        interest involves the nature of the causal connection
        between the action complained of and the injury to the
        party challenging it, and is shown where the interest the
        party seeks to protect is within the zone of interests
        sought to be protected by the statute or constitutional
        guarantee in question.

Id. (quoting S. Whitehall Twp. Police Serv. v. S. Whitehall Twp., 555

A.2d 793, 795 (Pa. 1989)).

     The trial court found:

        [I]t is clearly evident that [Swackhammer] does not have
        standing to contest the Decedent’s will and codicil for lack
        of testamentary capacity or undue influence. In his own
        1925(b) statement, [Swackhammer] acknowledges that he
        does not claim to be a beneficiary of the Estate of Donna
        Swackhammer. It is evident that he does not have a
        direct or immediate pecuniary interest that has been
        negatively affected by the probate of the will or codicil.
        Therefore, [Swackhammer] is not a “party in interest” as
        outlined and required by 20 Pa.C.S.A. § 908(a) to contest
        probate. By applying the statutory definition for standing,
        and the applicable case law that interprets said application,
        this Court did not abuse its discretion or commit a
        fundamental error in applying the correct principles of law
        in entering the January 27, 2016 Order of Court granting
        the Estate’s preliminary objections.

1925(a) Op. at 5.

     The trial court also addressed Swackhammer’s claim that the minor

child had standing and he was acting on her behalf:

        [Swackhammer] appears to set forth an argument in his
        1925(b) statement that the Minor Child is a party in
        interest, that she is not in a position to challenge the will
        on her own due to her minority, and that therefore he is
        acting on her behalf. However, [Swackhammer] failed to
        set forth any case law or authority that permits a biological
        parent that lacks legal and physical custody of the child

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           pursuant to a separate custody action to challenge the
           probate of a will and codicil wherein the Minor Child is the
           sole beneficiary. He did not set forth any averments that
           the Minor Child requested his involvement, or that the
           Minor Child expressed concern over the handling of the
           estate funds.      He did not provide any examples of
           misconduct by Brienne Marco in performing her duties as
           the guardian of the Minor Child’s estate. [Swackhammer]
           also failed to establish how he would be in a better position
           to oversee the estate funds as a co-guardian when he has
           not had any contact with the Minor Child for a significant
           period of time. Therefore, [Swackhammer] failed to set
           forth any alternate legal authority that would permit him
           standing to pursue the interests of the Minor Child and this
           Court did not abuse its discretion in failing to accept said
           argument. In fact, accepting same would be in direct
           contradiction to applying the correct principles of law set
           forth in 20 Pa.C.S.A. § 908(a).

1925(a) Op. at 5-6. This determination was not an error of law or an abuse

of discretion.

       Swackhammer next challenges the trial court’s decision to not appoint

a guardian ad litem for the minor child.5

       Pennsylvania Orphans’ Court Rule 12.4, which was applicable at the

time Swackhammer filed his petition for appointment of guardian ad litem,

provided: “On petition of the accountant or any interested party, or upon its

own motion, the court may appoint (1) a guardian ad litem to represent a

____________________________________________


       5
        Before the trial court, Swackhammer argued the trial court should
either appoint him as guardian ad litem or appoint an attorney guardian ad-
litem and appoint Swackhammer as co-guardian ad litem. On appeal,
Swackhammer no longer argues that the trial court should have appointed
him as guardian, or co-guardian, ad litem. Rather, he argues the trial court
should have, on its own motion, appointed a guardian ad litem.




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minor or an incompetent not represented by a guardian . . . .” Pa.O.C.R.

12.4(a)(1) (rescinded Sept. 1, 2016).6

       Here, the trial court found:

           In this case, the estate is not large. Although it is a
           unique situation in which the guardian appointed under the
           codicil is also the custodian of the minor child through a
           separate custody action, there is no indication that the
           guardian, Brienne Marco, is failing to act in the best
           interests of the Minor Child.      Therefore, there is no
           indication that the expense of an appointed guardian is
           necessary to deplete the funds that should remain in the
           estate for the benefit of the Minor Child. Based on
           [Swackhammer’s] lack of standing, this Court did not
           abuse its discretion or commit a fundamental error in
           applying the correct principles of law in sustaining the
           Estate’s preliminary objections.
____________________________________________


       6
         Pursuant to a Supreme Court order, Rules 1.1 through 13.3 of the
Pennsylvania Orphans’ Court Rules were rescinded and replaced, effective
September 1, 2016. The rule governing the appointment of a guardian ad
litem is now Rule 5.5, which provides:

           On petition of the accountant or any interested party, or
           upon its own motion, the court may appoint one or both of
           the following if the court considers that the interests of the
           non-sui juris individuals are not adequately represented:

           (1) a guardian ad litem to represent a minor or a person
           believed to be incapacitated under the provisions of
           Chapter 55 of Title 20, but for whom no guardian of the
           estate is known to have been appointed by a Pennsylvania
           court or by the court of any other jurisdiction;

           (2) a trustee ad litem to represent an absentee, a
           presumed decedent, or unborn or unascertained persons
           not already represented by a fiduciary.

Pa.R.O.C. 5.5.



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1925(a) Op. at 8. This was not an abuse of discretion or error of law.7

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017




____________________________________________


       7
          In his brief, Swackhammer maintains that his counsel informed the
court that he would pay the Guardian ad litem’s expenses. However, the
certified record does not contain a transcript of the oral argument. It is the
appellant’s duty “to make sure that the record forwarded to an appellate
court contains those documents necessary to allow a complete and judicious
assessment of the issues raised on appeal.” Everett Cash Mut. Ins. Co. v.
T.H.E. Ins. Co., 804 A.2d 31, 34 (Pa.Super. 2002) (quoting Hrinkevich v.
Hrinkevich, 676 A.2d 237, 240 (Pa.Super. 1996)).



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