                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 10-3996
                                   _____________

                       MASSACHUSETTS MUTUAL LIFE
                          INSURANCE COMPANY

                                          v.

                            ELLIN KAISER CURLEY;
                   KAREN KLEIN KAISER, Individually and as
                  Administratrix of the Estate of Laurence J. Kaiser


                             KAREN KLEIN KAISER,
                                          Appellant
                                ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Civ. No. 07-cv-01560)
                  District Judge: Honorable Edmund V. Ludwig
                                 ______________

                              Argued October 27, 2011
                                 ______________

      Before: SLOVITER, GREENAWAY, JR., and ALDISERT, Circuit Judges.


                         (Opinion Filed: January 25, 2012)
                                ______________

Eva H. Posman (argued)
570 Lexington Avenue, Suite 1600
New York, NY 10022

Mark C. Cawley
Saul Ewing LLP
Centre Square West
1500 Market St., 39th Floor
Philadelphia, PA 19102
      Counsel for Appellant

Douglas J, Varga (argued)
Zeldes, Needle & Cooper P.C.
1000 Lafayette Boulevard, 5th Floor
Bridgeport, Connecticut 06604

Glenn A. Weiner
Klehr Harrison Harvey Branzburg LLP
1835 Market Street, Suite 1400
Philadelphia, PA 19103
      Counsel for Appellee, Ellin Kaiser Curley
                                   ______________

                                        OPINION
                                     ______________


GREENAWAY, JR., Circuit Judge.

       Massachusetts Mutual Life Insurance Company (―Mass Mutual‖) brought this

interpleader action against Ellin Curley and Karen Kaiser, individually and as the

administratrix of the Estate of Laurence Kaiser, her deceased husband. Mr. Kaiser had

previously been married to Ms. Curley. Mass Mutual paid the $1,210,231.35 proceeds of

the life insurance policy on Mr. Kaiser‘s life into the Court Registry and was thereafter

dismissed from the action with prejudice.

       On October 26, 2007, Ms. Curley and Ms. Kaiser filed cross-motions for summary

judgment. The District Court granted summary judgment in favor of Ms. Curley on one

issue, denied it on two others, and anticipated further summary judgment briefing at the

                                             2
close of discovery. Nearly two years later, Ms. Curley and Ms. Kaiser once again filed

cross-motions for summary judgment, and the District Court granted summary judgment

in Ms. Curley‘s favor as to all issues. Ms. Kaiser timely appealed both summary

judgment orders.

       Ms. Kaiser raises multiple issues on appeal concerning her legal entitlement to the

proceeds of the life insurance policy. Ms. Kaiser also claims on appeal that, even if Ms.

Curley is legally entitled to the proceeds, a constructive trust should be imposed in Ms.

Kaiser‘s favor in order to prevent the unjust enrichment of Ms. Curley.

       None of Ms. Kaiser‘s legal arguments succeeds and she did not properly plead a

claim for unjust enrichment. Accordingly, we will affirm.

                                   I. BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts.

       Mr. Kaiser was married to Ms. Curley from 1974 until March 19, 2001, when a

judge of the Connecticut Superior Court entered a judgment of dissolution of marriage.

They had two children together. On July 30, 2001, Mr. Kaiser married Ms. Kaiser, and in

June, 2002, they had a daughter. Three years later, on November 24, 2005, Mr. Kaiser

died suddenly from heart failure. At the time of his death, Mr. Kaiser was a resident of

Pennsylvania. Ms. Kaiser became the administratrix of his Estate and received 50% of

the Estate. The remaining half was divided evenly among his three children, who each

received 16.67% of the Estate.

                                             3
       In 1991, as a partner in the New York law firm of Lord Day & Lord Barrett Smith

(―Lord Day‖), Mr. Kaiser had applied to the Connecticut Mutual Life Insurance

Company (later succeeded by Mass Mutual) for a certificate of insurance to be issued in

conjunction with the group life insurance plan owned by Lord Day. On this application,

Mr. Kaiser‘s beneficiary designation read ―Ellin Kaiser – wife.‖ Mr. Kaiser‘s coverage

began on August 1, 1991, with ―Ellin Kaiser, wife of the Insured‖ listed as beneficiary for

the $1,000,000 death benefit. Lord Day paid the premiums for the policy. When, in

1994, Lord Day dissolved and discontinued the group policy, Mr. Kaiser opted to

continue his coverage by converting his share of the group policy into an individual

policy, for which he would pay the premiums. It is the proceeds of this policy (―the

Policy‖) that have been interpleaded with the court.

       Mr. Kaiser also owned three other life insurance contracts at the time of his death.

He had a policy with Travelers Insurance Company with a $1,000,000 death benefit and a

policy with Prudential Insurance Company with a $1,000,000 death benefit. Ms. Kaiser

was the beneficiary of both these policies. The Prudential policy had been purchased

shortly before Mr. Kaiser‘s death and was intended to replace the Policy, which would

have lapsed shortly after the date of Mr. Kaiser‘s death. Mr. Kaiser also had a second

policy with Mass Mutual with a $5,000 death benefit.

       On January 24, 2002, Mr. Kaiser called Mass Mutual and requested a change of

beneficiary designation form for the $5,000 policy. During this conversation, he also

discussed the mechanics of changing the beneficiary on the much larger policy. While he

                                             4
completed and returned the form to change the $5,000 policy‘s beneficiary, and Mass

Mutual recorded this change, he never submitted a change of beneficiary form for the

Policy. The form that he did return referred to the $5,000 policy by number and not by

amount of benefit. Mr. Kaiser also told his financial advisor, for purposes of estate

planning, that his wife stood to collect $2 million in life insurance when he died.

       After Mr. Kaiser‘s death, Mass Mutual established a claim for payment of

benefits. The claims examiner searched for a change of beneficiary on the Policy, but

found none. Mass Mutual did not immediately pay the proceeds of the Policy to Ms.

Curley, in part because Ms. Kaiser had made an adverse claim to the proceeds. Mass

Mutual therefore filed an interpleader action in the Eastern District of Pennsylvania,

naming Ms. Kaiser and Ms. Curley as defendants. After it paid the proceeds of the

Policy into the Court Registry, the Court entered an Order dismissing Mass Mutual with

prejudice.

       Ms. Kaiser and Ms. Curley each filed an initial set of cross-motions for summary

judgment. The parties focused on: (1) whether Mr. Kaiser had, in fact, changed the

beneficiary on the Policy; (2) whether Ms. Curley had waived her interest in the proceeds

of the Policy in the course of her divorce from Mr. Kaiser; and (3) whether a

Pennsylvania statute that would have made Ms. Kaiser the beneficiary applied. The

District Court granted summary judgment in favor of Ms. Curley on the second issue and

denied summary judgment to both parties on the other two issues. Ms. Kaiser sought



                                             5
reconsideration of the ruling and certification of an interlocutory appeal pursuant to 28

U.S.C. § 1292. The Court denied those requests.

       Ms. Curley and Ms. Kaiser filed a second set of cross-motions for summary

judgment at the end of discovery. The District Court granted summary judgment in favor

of Ms. Curley on the remaining issues. Ms. Kaiser filed a timely notice of appeal,

challenging both of the District Court‘s summary judgment orders.

                II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction over this interpleader action brought in

diversity, pursuant to 28 U.S.C. § 1335. We have jurisdiction over the appeal from two

summary judgment orders, pursuant to 28 U.S.C. § 1291. Busch v. Marple Newtown Sch.

Dist., 567 F.3d 89, 95 n.7 (3d Cir. 2009). We review the District Court‘s order granting

summary judgment de novo. Azur v. Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212, 216

(3d Cir. 2010). ―To that end, we are required to apply the same test the district court

should have utilized initially.‖ Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of

Educ., 587 F.3d 176, 181 (3d Cir. 2009) (internal quotation marks omitted).

       Summary judgment is appropriate ―where the pleadings, depositions, answers to

interrogatories, admissions, and affidavits show there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.‖ Azur, 601 F.3d at

216 (quoting Nicini v. Morra, 212 F.3d 798, 805-06 (3d Cir. 2000) (en banc) (citing Fed.




                                             6
R. Civ. P. 56(c))).1 ―[A]n inference based upon a speculation or conjecture does not

create a material factual dispute sufficient to defeat entry of summary judgment.‖

Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).

                                    III. ANALYSIS

       Appellant raises four arguments as to why the District Court erred in granting

summary judgment to Ms. Curley. Appellant contends that: (1) Ms. Curley waived her

rights to proceeds of Mr. Kaiser‘s life insurance through the separation agreement

executed as part of their divorce; (2) payment of the proceeds is governed by 20 Pa.

Cons. Stat. § 6111.2, which makes Ms. Kaiser the beneficiary by operation of law; (3)

Mr. Kaiser made a substantial effort to designate Ms. Kaiser as the beneficiary, and

therefore she should legally be considered the beneficiary under Connecticut law; and (4)

Ms. Curley would be unjustly enriched by the proceeds of the Policy, and thus a

constructive trust should be imposed in Ms. Kaiser‘s favor. We will address these issues

in turn.

       A. Waiver by Agreement

       As part of their divorce, Mr. Kaiser and Ms. Curley signed a separation agreement

that the Connecticut Superior Court incorporated into its judgment of dissolution of



1
  Fed. R. Civ. P. 56 was revised in 2010. The standard previously set forth in subsection
(c) is now codified as subsection (a). The language of this subsection is unchanged,
except for ―one word — genuine ‗issue‘ bec[ame] genuine ‗dispute.‘‖ Fed. R. Civ. P. 56
advisory committee‘s note, 2010 amend.


                                            7
marriage. Ms. Kaiser argues that two of the provisions in this agreement waive any

rights to the proceeds of the Policy that Ms. Curley might have. First, the agreement

provides that ―the Wife,‖ ―[e]xcept as herein provided[,]‖ ―has no right, title or interest in

any of the bank accounts, money market accounts, deferred compensation (including, but

not limited to, pension, profit sharing, 401K or Keogh Plans, or Individual Retirement

Accounts), securities, bonds, and/or the like, now in the name of the Husband.‖ (App. at

933-34.) Second, in the ―Mutual Releases‖ section of the agreement, Mr. Kaiser and Ms.

Curley each ―release[] and discharge[] the other of and from all cause or causes of action,

claims, rights, contracts previously executed, or demands whatsoever, in law or in equity,

which either of the parties hereto ever had or now has. . . it being the intention of the

parties that subsequent to the execution of this Agreement there shall be, as between

them, only such rights and obligations as were specifically provided in this Agreement.‖

(App. at 941.)

       The District Court, relying on the decision of the Connecticut Superior Court in

Martineau v. Martineau, CV 9900622095, 200 Conn. Super. LEXIS 1616 (Conn. Super.

Ct., June 20, 2000), held that these release provisions were ―insufficient as a matter of

law to act as a waiver by Ms. Curley of the right to the proceeds.‖ (App. at 8.) The

Martineau court held that, since the waiver provision in the divorce agreement had not

specifically addressed life insurance beneficiary rights, the court would have to

inappropriately insert language into that agreement in order to find that the waiver

prevented life insurance proceeds from going to the ex-wife, who was the designated

                                              8
beneficiary. The District Court read Martineau to require that, as a matter of law, general

provisions in a property settlement cannot waive the right to life insurance proceeds.

       However, the language of the waiver in Martineau was different and narrower

than that in Ms. Curley and Mr. Kaiser‘s agreement. See id. at *1-*2 (―Each party shall

retain all assets now in his or her possession, including pensions, retirement plans, bank

accounts, and the like.‖) While Appellant points to another Connecticut Superior Court

case, Anderson v. Anderson, 2000 Conn. Super. LEXIS 1868 (Conn. Super. Ct. July 14,

2000), wherein the court determined that the waiver provision in the separation

agreement supported its decision to impose a constructive trust removing the life

insurance proceeds from the ex-wife, the language in that waiver provision was also

distinct from that at issue here. Id. at *9 (―[U]nder paragraph four (4) captioned Personal

Property she waived any claim she might have whether arising from the marital

relationship of the parties or otherwise.‖) Because neither of these cases concerns

identical waiver language, neither dictates the outcome in this case.

       The waiver language in the Kaiser-Curleys‘ separation agreement specifically

covers all rights and obligations between the two divorcing parties. The life insurance

contract, though, involves the obligation of a third party, Mass Mutual. Further, when the

agreement specifically enumerates all of the types of marital assets to which Ms. Curley

revokes her claim, life insurance is not listed among them. As a result, the waiver

language does not apply to the life insurance contract, and we find that Ms. Curley did

not waive her rights to the proceeds of the Policy by signing the separation agreement.

                                             9
       B. Operation of Law

       Effective December 16, 1992, the Pennsylvania Probate, Estates and Fiduciaries

Code was amended with the addition of a provision that automatically revokes the

designation of an ex-spouse as beneficiary of a life insurance policy, treating that ex-

spouse as if she had predeceased the decedent for purposes of settling the estate.

Parsonese v. Midland Nat. Ins. Co., 706 A.2d 814, 815 (Pa. 1998). The provision, 20 Pa.

Cons. Stat. § 6111.2 (―the Statute‖), forms the basis for Appellant‘s second argument that

Ms. Curley is not entitled to the proceeds, as Mr. Kaiser was a resident of Pennsylvania at

the time of his death.

       This argument must fail. Mr. Kaiser purchased the Policy in 1991, and the Statute

became effective the following year. In Paronese, the Pennsylvania Supreme Court held

that the Statute would violate the contracts clauses of the Pennsylvania and Federal

Constitutions, Pa. Const. art. I § 17; U.S. Const. art. I § 10, if it applied retroactively, to

contracts entered into before the effective date of the statute. Parsonese, 706 A.2d at

819. As a result it ―refuse[d] to apply the Statute retroactively despite the intention to

establish retroactivity expressed‖ in the text of the legislative act and limited the Statute

to ―prospective application.‖ Id.

        Appellant argues retroactive application is not necessary to find in her favor

because a new life insurance contract was formed on two occasions— both after the

effective date of the statute—when Lord Day dissolved, rendering the Policy an

individual policy and, later, when the Policy was reinstated after Mr. Kaiser briefly let his

                                               10
payments lapse. The District Court properly determined that neither of these scenarios

constituted the formation of a new contract. The contract in question was formed in

1991, before the statute went into effect, and the Statute does not apply retroactively. See

id. Accordingly, it cannot revoke the designation of Ms. Curley as beneficiary.

         C. Substantial Compliance

         Appellant‘s third argument on appeal is that Mr. Kaiser substantially complied

with the Policy‘s terms regarding changing the beneficiary, and that the beneficiary

designation has thus been legally changed although he did not strictly comply.

Connecticut law finds that the owner of a life insurance policy who has not changed the

beneficiary designation according to the policy‘s strict terms will nonetheless be deemed

to have done so if he (1) ―intended to change the beneficiary and to designate the new

beneficiary; and (2) […] has taken substantial affirmative action to effectuate the change

in the beneficiary.‖ Engelman v. Conn. Gen. Life Ins. Co., 690 A.2d 882, 888 (Conn.

1997).

         Pennsylvania‘s standard is slightly higher: it provides that a policyholder will be

found to have changed the beneficiary when ―the insured has made every reasonable

effort under the circumstances to comply‖ with the provisions of the policy governing

change of beneficiary. Cipriani v. Sun Life Ins. Co. of Am., 757 F.2d 78, 81 (3d Cir.

1985). Connecticut law makes explicit that a policyholder who has met this every-

reasonable-effort standard will be found to have met the substantial compliance standard.

Engelman, 690 A.2d at 888 n.11.

                                              11
       The District Court found that, regardless of which state‘s law it applied, Ms.

Kaiser‘s argument here failed. We agree. The District Court held that, although Ms.

Kaiser had arguably raised an issue of fact about Mr. Kaiser‘s intent to change the

beneficiary designation, she had not produced evidence that he took any affirmative

action to effectuate that change, as required by both Pennsylvania and Connecticut law.

The Policy‘s language made clear that the beneficiary could be changed during the life of

the owner with a request in writing, and Ms. Kaiser had presented no evidence that Mr.

Kaiser had tried to make such a request.

       It would be impossible for a court to find that the evidence Appellant has

presented shows a substantial affirmative action by Mr. Kaiser toward changing the

beneficiary designation without relying upon ―an inference based on speculation or

conjecture.‖ Robertson, 914 F.2d at 382 n.12. Ms. Kaiser‘s best pieces of evidence to

support the proposition that Mr. Kaiser did take such substantial affirmative actions are

(1) the notes of his conversation with a Mass Mutual representative, reflecting that he

brought up both policies when he inquired about changing the beneficiary (App. at 687-

88); (2) the change of beneficiary form he did submit, identifying the $5,000 policy by

policy number and not by amount (App. at 769); (3) the application form for the new

Prudential policy listing Karen Kaiser as the beneficiary of the Mass Mutual policy to be

replaced (App. at 757); and (4) the Merrill Lynch financial plan, drawn up by the

Kaisers‘ financial advisor, reflecting $2 million in life insurance passing to Ms. Kaiser

upon Mr. Kaiser‘s death (App. at 871.) However, we cannot find, based on this evidence,

                                             12
that Mr. Kaiser took a substantial affirmative action to effectuate the change of

beneficiary on the Policy, unless we speculate. Such speculation cannot ―create a

material factual dispute sufficient to defeat entry of summary judgment.‖ Id. As a result,

Appellant‘s argument based on substantial compliance must fail.

       D. Unjust Enrichment

       Appellant‘s final argument is that even if Ms. Kaiser is not legally entitled to the

proceeds of the Policy, this Court should award Ms. Kaiser the proceeds in equity,

through the imposition of a constructive trust. Under Pennsylvania law, a constructive

trust ―is an equitable remedy designed to prevent unjust enrichment.‖ Stauffer v. Stauffer,

351 A.2d 236, 241 (Pa. 1976). The elements of unjust enrichment are ―(1) a benefit

conferred on the defendant by the plaintiff; (2) appreciation of such benefit by the

defendant; and (3) acceptance and retention of such benefit under circumstances such that

it would be inequitable for the defendant to retain the benefit without payment to the

plaintiff.‖ EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 273 (3d Cir. 2010) (citing

AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 991 (Pa. Super. Ct. 2001)).

To prevail, ―a claimant must show that the party against whom recovery is sought has

received a benefit that ―would be unconscionable for her to retain.‖ Id. (quotations

omitted). There are several grounds from which unjust enrichment can result: breach of a

confidential relationship, fraud, duress, undue influence, or mistake. Denny v. Cavilieri,

443 A.2d 333 (Pa. Super. Ct. 1982).



                                             13
       At oral argument, when asked where in her pleading she had raised a claim of

unjust enrichment, Appellant‘s counsel asserted that her third cross-claim was the claim

for unjust enrichment. The third cross-claim alleges that Mr. Kaiser attempted to

designate Ms. Kaiser as the beneficiary and believed that he had done so. It also states

that ―the beneficiary of the Policy either was changed to Ms. Kaiser, or should be

changed by plaintiff or by order of this Court to Ms. Kaiser.‖ (App. at 69-70 (emphasis

added).) It does not employ the phrase ―unjust enrichment‖ or detail the elements or a

claim for unjust enrichment. Instead, Appellant‘s third cross-claim alleges the elements

of Appellant‘s claim of substantial compliance, as argued during both rounds of summary

judgment briefing and in this appeal. As such, no claim for unjust enrichment was pled,

and there is no claim for which a constructive trust could serve as a remedy. See Stauffer,

351 A.2d at 241 (―[T]he test [for determining whether a constructive trust should be

imposed] is whether or not unjust enrichment can thereby be avoided.‖)

       However, even if Appellant had pled a claim for unjust enrichment, that claim

would fail. Although Appellant could likely show that a benefit was received and

appreciated by Appellee, in order to prevail, Appellant would also need to demonstrate

that it would be inequitable for Appellee to retain the proceeds of the Policy. See EBC,

Inc., 618 F.3d at 273. ―One who seeks to construct a trust bears a heavy burden of proof;

the evidence must be clear, direct, precise and convincing.‖ Mooney v. Greater New

Castle Dev. Corp., 510 A.2d 344, 347 (Pa. 1986) (internal quotations omitted).



                                            14
       Appellant‘s argument that it would be inequitable for Appellee to retain the

proceeds rests on similar factual predicates as does her argument that she should prevail

under the substantial compliance doctrine. Appellant asks us to infer or speculate from

statements Mr. Kaiser made to his wife and to his financial advisor that Mr. Kaiser made

a mistake when he did not actually designate Appellant as beneficiary. As we discussed

above, such inference or speculation can never ―create a material factual dispute

sufficient to defeat entry of summary judgment,‖ Robertson, 914 F.2d at 382 n.12, and it

is not ―clear, direct, precise and convincing‖ evidence. Mooney, 510 A.2d at 347.

       Because Appellant cannot prevail on her claim for unjust enrichment, the remedy

of constructive trust is not available to her.

                                    IV. CONCLUSION

       For the reasons set forth above, we will affirm the order of the District Court.




                                                 15
SLOVITER, Circuit Judge, dissenting.

       The appeal before us starkly presents the difference between law and equity. The

Majority hews to a strict construction of law. I dissent because I believe all the

circumstances compel application of equity.

       Equity originated as a means of allowing judicial decision-making based on

fairness, compassion or flexibility where an adequate remedy at law was unavailable.

DAN B. DOBBS, DOBBS LAW OF REMEDIES § 2.1(3), at 63 (2d ed. 1993). It therefore

requires outcomes where “commonly accepted feelings of fairness demand more

flexibility than pure, straight-faced „law‟ would allow.” Id. For example, courts have

long recognized that “correct[ing] mistakes is one of the cardinal attributes of equity.”

Smith v. Capital Bank & Trust Co., 191 A. 124, 125 (Pa. 1937). A constructive trust,

moreover, “„is the formula through which the conscience of equity finds expression.‟”

Chambers v. Chambers, 176 A.2d 673, 675 (Pa. 1962) (quoting Beatty v. Guggenheim

Exploration Co., 122 N.E. 378, 380 (N.Y. 1919)).

       A constructive trust arises where “a person holding title to property is subject to an

equitable duty to convey it to another on the ground that he would be unjustly enriched if

he were permitted to retain it.” Denny v. Cavalieri, 443 A.2d 333, 335 (Pa. Super. Ct.

1982). There is no “rigid standard” for determining whether the facts of a particular case

require the imposition of a constructive trust. Stauffer v. Stauffer, 351 A.2d 236, 241 (Pa.

1976); see also Chambers, 176 A.2d at 675 (recognizing that a court is bound by “no

unyielding formula” in decreeing a constructive trust (citation omitted)). Instead, “the



                                              1
test is whether or not unjust enrichment can thereby be avoided.” Stauffer, 351 A.2d at

241.

       As the Majority acknowledges, unjust enrichment may result, inter alia, from

mistake, Denny, 443 A.2d at 335, and requires “clear, direct, precise and convincing”

evidence. Roberson v. Davis, 580 A.2d 39, 41 (Pa. Super. Ct. 1990) (citations omitted).

However, that standard does not—as the Majority seems to suggest—require conclusive

evidence, based on Mr. Kaiser‟s statements alone, that he mistakenly failed to designate

Mrs. Kaiser as the Policy beneficiary on the life insurance policy with Massachusetts

Mutual Insurance Co. (“Mass. Mutual”). Rather, we may impose a constructive trust if

the totality of the circumstances—proven by clear and convincing evidence—

demonstrates that a mistake occurred and unjust enrichment would thereby result. Cf.

Denny, 443 A.2d at 335 (concluding that a finding of fraud requiring the imposition of a

constructive trust may be inferred from the totality of the circumstances, including the

subsequent conduct of the transacting parties); Stauffer, 351 A.2d at 244 (same).

       The Majority determines that Mrs. Kaiser is not entitled to a constructive trust

because she neither pled the elements of an unjust enrichment claim nor employed the

phrase “unjust enrichment” in her cross-claim. See Majority Op. at Section III-D. A

constructive trust, however, is merely a form of equitable relief, see Makozy v. Makozy,

874 A.2d 1160, 1168 (Pa. Super. Ct. 2005), which Mrs. Kaiser specifically requested in

her third and fourth cross-claims. See App. at 69 (stating that “the beneficiary of the

Policy either was changed to Mrs. Kaiser, or should be changed . . . by order of th[e]

Court”). Moreover, this court has recognized that it may “award[] any relief appropriate

                                             2
under the circumstances . . . even [if] the complaint did not request [such] relief.” Kahan

v. Rosenstiel, 424 F.2d 161, 174 (3d Cir. 1970); see also Fed. R. Civ. Pro. 54(c) (“[A]

final judgment should grant the relief to which each party is entitled, even if the party has

not demanded that relief in its pleadings.”). Indeed, so long as a cause of action for

equitable relief is “in fact inherent in the [pleadings],” such relief may be granted.1

Kahan, 424 F.2d at 174.

       In her third cross-claim, Mrs. Kaiser sets forth sufficient facts to support the

court‟s imposition of a constructive trust. Specifically, she alleged that “[a]t all times

subsequent to his marriage to Mrs. Kaiser, Mr. Kaiser intended to provide financial

protection to his wife, especially after the birth of their daughter.” App. at 69.

Additionally, Mrs. Kaiser alleged that Mr. Kaiser attempted to change the Policy

beneficiary to Mrs. Kaiser, believed that he had done so, and even included the Policy in

a list of assets that would be available to Mrs. Kaiser after his death. Those allegations

sufficiently demonstrate that Mrs. Curley would be unjustly enriched by her receipt of the




       1
         At oral argument, counsel for Mrs. Curley emphasized that Mrs. Kaiser did not
specifically request the imposition of a constructive trust based on unjust enrichment until
the “second round” of summary judgment briefing and stated that counsel for Mrs.
Curley perceived the request as a “catch all,” essentially arguing that the court should
exercise its discretionary powers to grant relief despite a valid beneficiary designation.
Oral Arg. at 21:00. That understanding, however, was also supported by Mrs. Kaiser‟s
third and fourth cross-claim, asking the court to change the policy beneficiary
irrespective of the current designation. Therefore, there was no unfair surprise in this
case. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 499-500 n.1 (3d Cir. 1997) (stating
that “a complaint must provide a defendant with fair notice of what the plaintiff‟s claim is
and the grounds upon which it rests” (internal quotation marks and citation omitted)).
                                              3
Policy funds because she would realize a benefit originally intended for Mrs. Kaiser, and-

—given Mr. Kaiser‟s mistake—her retention of those benefits would be inequitable.2

       Beyond the sufficiency of the pleadings, we should impose a constructive trust in

Mrs. Kaiser‟s favor because the totality of the circumstances, including the relationships

between Mr. Kaiser, Mrs. Kaiser and Mrs. Curley, demonstrate that Mrs. Curley‟s receipt

of the Policy benefits would lead to unjust enrichment. At the time of his death, Mr.

Kaiser had been separated from his former wife, Mrs. Curley, for four years, and their

two children were legal adults. Not only was Mr. Kaiser remarried, but Mrs. Curley had

also remarried and inherited significant sums of money from the ex-couple‟s divorce

agreement and her parents. In fact, Mr. Kaiser was engaged in acrimonious litigation

with Mrs. Curley around the time of his death.

       On the other hand, the record shows that Mr. Kaiser maintained a close and

interdependent marital relationship with Mrs. Kaiser. Unlike his two children with Mrs.

Curley, who were in their twenties, Mr. Kaiser‟s child with his wife was only three years

old at the time of his death. Further, Mrs. Kaiser was unemployed and dependant on

financial support provided by the decedent.3


       2
         As the Majority notes, the central components of unjust enrichment are: “(1) a
benefit conferred on the defendant by the plaintiff; (2) appreciation of such benefit by the
defendant; and (3) acceptance and retention of such benefit under circumstances such that
it would be inequitable for the defendant to retain the benefit without payment to the
plaintiff.” Majority Op. at Section III-D (citing EBC, Inc. v. Clark Bldg. Sys., Inc., 618
F.3d 253, 273 (3d Cir. 2010)).
       3
        There is no basis to dispute whether these facts have been proven by clear and
convincing evidence, as they are established by Mrs. Kaiser‟s undisputed testimony. The
proper question is whether the facts, combined with other uncontroverted evidence in the
                                               4
       A finding of mistake is further bolstered by evidence demonstrating that Mr.

Kaiser thought that he had in fact changed the Policy beneficiary to Mrs. Kaiser. As the

Majority acknowledges, Mr. Kaiser filed a “Change of Beneficiary” form in favor of Mrs.

Kaiser on a $5,000 life insurance policy with Mass. Mutual. That form, however,

provided only a policy number and did not indicate the value of the underlying policy.

Demonstrating his belief that he actually changed the Policy beneficiary to Mrs. Kaiser,

Mr. Kaiser subsequently informed his financial advisor that Mrs. Kaiser would receive

$2,000,000 dollars in life insurance proceeds after his death.4 Mr. Kaiser likewise told

his wife that he had designated her as the Policy beneficiary.5 Thus, in applying for a

replacement policy with Prudential Insurance Co., Mr. Kaiser listed Mrs. Kaiser as the

beneficiary on the Mass. Mutual policy. Furthermore, despite knowing about the Policy




record, allow the court to infer that Mr. Kaiser‟s failure to designate Mrs. Kaiser as the
Policy beneficiary was a mistake.
       4
         At the time Mr. Kaiser consulted with his financial advisor, Mr. Kaiser owned
three life insurance policies: (1) the $5,000 Mass. Mutual insurance policy; (2) the
$1,000,000 Mass. Mutual insurance policy; and (3) a $1,000,000 policy with Travelers
Insurance Company. Thus, the proceeds he mentioned to his financial advisor
necessarily included the $1,000,000 Mass. Mutual insurance policy.
       5
         Appellee contends that this evidence constitutes inadmissible hearsay. However,
such out-of-court statements are admissible because Mrs. Kaiser is not offering them for
the truth of the matter asserted but as circumstantial proof of Mr. Kaiser‟s intent to
change the Policy beneficiary. See Ryder v. Westinghouse Elec. Corp., 128 F.3d 128,
134 (3d Cir. 1997).

                                              5
and Mr. Kaiser‟s death, Mrs. Curley did not make a claim to the Policy benefits until

Mass. Mutual informed her that she was still named as the beneficiary.6

       Finally and of significance, Pennsylvania policy supports application of equity

here. A Pennsylvania statute, 20 Pa. Const. Stat. Section 6111.2 (“Section 6111.2”),

enacted in 1992 provides, in relevant part:

       [I]f an individual . . . designates [his or her] spouse as beneficiary of the
       individual‟s life insurance policy . . . and . . . at the time of the individual‟s
       death is divorced from the spouse[,] . . . [a]ny designation . . . in favor of
       the individual‟s . . . former spouse that was revocable by the individual at
       the individual‟s death shall become ineffective for all purposes and shall be
       construed as if the . . . former spouse had predeceased the individual, unless
       it appears the designation was intended to survive the divorce.

This legislation protects “divorced owners of life insurance policies, and of those, only

ones who inadvertently neglect to revoke pre-divorce designations of their spouses as

beneficiaries.” Parsonese v. Midland Nat’l Ins. Co., 706 A.2d 814, 818 (Pa. 1998). Mrs.

Curley has offered no evidence that suggests Mr. Kaiser intentionally retained his former

(pre-divorce) designation of Mrs. Curley as the beneficiary of the policy. Because the

totality of the circumstances demonstrates that Mr. Kaiser, by his inattention, mistakenly

failed to designate his wife as the policy beneficiary, Mrs. Kaiser is precisely the type of

individual the Pennsylvania Legislature has set out to protect. Moreover, “the generally

understood purpose of life insurance” is to compensate for “loss to a party having an

expectation of pecuniary or personal benefit in the continued life of the deceased,”

       6
         The record also shows that Mr. Kaiser experienced significant disruption during
his final years, including his divorce, litigation with his ex-wife, the formation and failure
of a new law firm, and the death of his mother. Such upheaval lends further support to
the conclusion that Mr. Kaiser—through inattentiveness—mistakenly failed to designate
Mrs. Kaiser as the Policy beneficiary.
                                               6
Spinner v. Fulton, 777 F. Supp. 398, 404 (M.D. Pa. 1991), aff’d sub nom., Spinner v.

Hartford Accident & Indem. Co., 947 F.2d 937 (3d Cir. 1991), a position held by Mrs.

Kaiser rather than Mrs. Curley. Overall, equitable considerations support this court‟s

imposition of a constructive trust in favor of Mrs. Kaiser.

       For the foregoing reasons, I respectfully dissent.




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