          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott T. Young,                               :
                             Appellant        :
                                              :
               v.                             :   No. 658 C.D. 2015
                                              :   Submitted: February 19, 2016
The Estate of Frank J. Young                  :
and Norma Young                               :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION
BY JUDGE SIMPSON                              FILED: April 12, 2016

               Scott T. Young (Plaintiff), representing himself, appeals from a March
13, 2015 order of the Court of Common Pleas of Monroe County1 (trial court)
denying Young’s motion for reconsideration of its March 4, 2015 order sustaining
preliminary objections to Young’s complaint seeking compensatory damages from
the estates of his late aunt and uncle (Defendants or Estates).            Essentially,
Plaintiff’s complaint alleged that certain unnamed individuals mistreated Plaintiff’s
aunt and uncle in their last days. The individuals also interfered with Plaintiff’s
relationship with his aunt and uncle by denying him visitation.           Because we
consider Plaintiff’s uncounseled appeal to be a timely appeal of the trial court’s
order sustaining Defendants’ preliminary objections, we address the merits of
Plaintiff’s appeal. For the reasons that follow, we affirm.



      1
          The Honorable David J. Williamson presided.
                                      I. Background
                                       A. Generally
                Plaintiff is a nephew of the late Frank J. Young and his wife, Norma
Young. They were married for 50 years. In June 2014, Norma Young died testate;
her will left her entire estate to her husband. In August 2014, Frank Young died
testate.   He willed the bulk of his assets to nine charitable organizations
(Charities).2


                Following the probate of Frank Young’s will, John A. Young, another
nephew, filed an informal caveat. However, he failed to file a bond, and the caveat
was deemed withdrawn. In September 2014, letters testamentary were issued to
the executor named in the will, Attorney Richard E. Deetz (Executor).


                                  B. Writ of Summons
                In October 2014, Plaintiff initiated the underlying action in this case
by filing a writ of summons naming “The Estate of Frank and Norma Young” as
defendants.      See Certified Record (C.R.), Writ of Summons, filed 10/31/15.
Thereafter, the trial court issued a rule against Plaintiff to file a complaint within
20 days. In response, Plaintiff filed a motion seeking a stay of the filing period for



       2
        The charitable beneficiaries of Frank Young’s Estate included the: Alzheimer’s Disease
and Related Disorders Association, American Cancer Society, Inc., American Heart Association,
Christ Hamilton United Lutheran Church, Shriners Hospitals for Children, Animal Welfare
Society of Monroe, Diakon Lutheran Social Ministries (d/b/a Lutheran Home at Topton),
Masonic Villages of the Grand Lodge of Pennsylvania, and Salvation Army.




                                              2
the complaint in order to conduct pre-complaint discovery. The trial court denied
Plaintiff’s motion. Tr. Ct. Order, 1/15/15.


                                   C. Complaint
             On January 22, 2015, Plaintiff filed a complaint against Defendants
alleging “loss of consortium and the los[s] of support, cooperation, aid,
companionship and loving interactive relationship critical in the last days of [his
aunt’s and uncle’s] life.” Compl., 1/22/15 at ¶1. Plaintiff’s complaint sets forth
the following allegations. An attorney for the “Estate of Frank and Norma Young”
issued a letter that was posted on his aunt and uncle’s residence directing him not
to trespass or contact his aunt or uncle. Compl. at ¶1. When Plaintiff attempted to
visit his aunt and uncle, a stranger, while behind closed doors, repeatedly met him
and told him to leave the property in accord with instructions posted by Valerie
Glassford (Glassford). Compl. at ¶2. Plaintiff contacted Glassford, who denied
knowledge of such instructions.       Compl. at ¶3.     Thereafter, Plaintiff again
confronted the stranger at the residence, who then claimed her directions to deny
Plaintiff visitation came from a personal care provider named Sanki. Id.


             On another occasion, Sanki refused to open the door or permit
Plaintiff to visit his aunt and uncle. Compl. at ¶4. Plaintiff’s aunt appeared behind
Sanki and demanded to speak with him. Id. Sanki physically blocked Plaintiff’s
aunt and closed the draperies. Id. Plaintiff’s aunt then appeared at the kitchen
window and shouted something to Plaintiff. Id. Plaintiff’s aunt was then removed
from the window and not seen again. Id.




                                          3
             On yet another occasion, Plaintiff’s uncle, in the presence of women
Plaintiff believed to be nurse’s aides, invited him into the home. Compl. at ¶5.
Plaintiff’s aunt then joined them. Id. She appeared ragged and unkempt. Id.
Plaintiff’s aunt then asked the other women why they opened the screen door for
Plaintiff. Id. They replied that Plaintiff’s uncle wanted him to come inside. Id.
Plaintiff’s aunt then stated she wished Plaintiff could come anytime. Id. However,
Plaintiff’s aunt also told Plaintiff not to come when “the others” were around
because they will put her on the sixth floor if she “doesn’t play along.”       Id.
Thereafter, “[a] lengthy visit followed without interruption, enjoying conversation
of health, family, inheritance and business.” Id.


             In paragraph 6, Plaintiff alleged (with emphasis added):

             persons obtained, hired, paid and or managed by or with
             the knowledge of the attorney for, and estate
             administrator of Frank J. Young and Norma Young, did
             mentally confuse, emotionally abuse and otherwise
             impose undue influence, wrongfully interfering with
             [Plaintiff’s] rights and relationships with Frank J. Young
             and Norma Young, Plaintiff Uncle and Aunt respectively
             (now deceased) and all benefits thereof.

Compl. at ¶6.


             Plaintiff further alleged his uncle denied any knowledge of a letter
prohibiting Plaintiff’s trespass. Compl. at ¶7. However, Plaintiff’s uncle did
recognize his signature on the bottom of the letter. Id.




                                          4
             In his prayer for relief, Plaintiff alleged that “[whereas] these
wrongful acts had a debilitating affect upon [Plaintiff and his aunt and uncle]
together and individually and upon the beneficial relationship of the parties,
[Plaintiff] seeks compensatory award of the Estate.” Compl. at ¶2.


                        D. Charities’ Petition to Intervene
             In response to Plaintiff’s complaint, Charities filed a petition to
intervene. See C.R., Petition to Intervene, 1/22/15. Charities averred that the
determination of Plaintiff’s action would affect their legally enforceable interest in
the remainder of Frank J. Young’s Estate.          Id.   Further, Charities asserted
Plaintiff’s action was improper because it constituted a will contest and should
have been filed as either a caveat to or appeal from probate. Id.


             In February 2015, after Plaintiff failed to timely file an answer or
respond to a rule to show cause, the trial court entered an order making the rule
absolute and granting Charities leave to intervene in the action. Tr. Ct. Order,
2/18/15. The same day, the trial court also entered an order denying as untimely
Plaintiff’s motion for argument on the rule to show cause.


                            E. Preliminary Objections
             Meanwhile, on January 30, 2015, Defendants, through their personal
representative, Attorney Janet Marsh Catina (Estate Representative), filed
preliminary objections to Plaintiff’s complaint in the nature of a demurrer. First,
Defendants asserted Plaintiff’s complaint was legally insufficient because
Pennsylvania law does not recognize a cause of action for “loss of support,



                                          5
cooperation, aid, companionship or loving interaction.”       Prelim. Objs. at ¶1a.
Second, Pennsylvania law does not recognize a cause of action for loss of
consortium between a nephew and his aunt or uncle. Prelim. Objs. at ¶1b. Third,
Plaintiff’s complaint lacked any allegation that either Frank J. Young or Norma
Young committed any of the acts specified. Prelim. Objs. at ¶1c. Fourth, although
Plaintiff’s complaint alleged undue influence, it did not name an alleged
perpetrator. Prelim. Objs. at ¶1d. Fifth, Plaintiff’s complaint failed to aver in what
manner Plaintiff suffered economic harm as a result of the conduct alleged.
Prelim. Objs. at ¶1e. Therefore, Plaintiff lacked standing to bring any cause of
action based on that conduct. Id.


             Defendants further asserted Plaintiff’s complaint failed to conform to
law or rule of court for a number of reasons. See Prelim. Objs. at ¶2(a) – (i).
Chiefly, Defendants alleged, even assuming Plaintiff’s complaint is an attempt to
lodge a will contest, Plaintiff’s action is improper. Prelim. Objs. at ¶2(a). Rather,
the correct action would be the filing of a caveat or an appeal from probate. Id.
Such actions fall within the mandatory jurisdiction of the Orphans Court Division.
Id. To that end, Plaintiff’s complaint, which would affect the interests of the nine
charitable beneficiaries named in Frank J. Young’s will, failed to provide notice to
the Attorney General as required by Pa. O.C.R. 5.5. Prelim. Objs. at ¶2(i).


             Defendants also alleged Plaintiff’s complaint: contained scandalous
and impertinent matter, lacked sufficient specificity to determine what cognizable
cause of action was alleged, and purported to sue “The Estate of Frank J. Young
and Norma Young,” a legal entity that does not exist. Prelim. Objs. at ¶¶3, 4, 5.



                                          6
             Because this case may affect the rights of charitable beneficiaries, the
Attorney General entered an appearance as parens patriae (public guardian), and
joined in Defendants’ preliminary objections.         The Attorney General is an
indispensable party in every proceeding which affects a charitable trust. In re
Voegtly’s Estate, 151 A.2d 593 (Pa. 1959); In re Milton Hershey Sch. Trust, 807
A.2d 324 (Pa. Cmwlth. 2002) (en banc).


             The same day, Plaintiff filed a one-page response to Defendants’
preliminary objections.


                               F. Trial Court Orders
             On March 2, 2015, the trial court held oral argument on Defendants’
preliminary objections. Plaintiff failed to either appear or submit a brief. Two
days later, the trial court issued an order sustaining Defendants’ preliminary
objections and dismissing Plaintiff’s complaint. In its order, the court stated

             1. Defendants’ first preliminary objection in the nature of
             a demurrer is GRANTED. The allegations in Plaintiff’s
             Complaint are legally insufficient as Pennsylvania Law
             does not support the causes of action(s) raised therein,
             nor does the Plaintiff set forth facts sufficient to plead a
             cognizable cause of action.          As such, Plaintiff’s
             Complaint is DISMISSED.

             2. The other preliminary objections raised by Defendants
             are DISMISSED as moot since the Plaintiff’s Complaint
             is being dismissed, as set forth above.

Tr. Ct. Order, 3/4/15.




                                          7
             In response, Plaintiff filed a motion for reconsideration and a request
to file an amended complaint. On March 13, 2015, the trial court issued an order
denying Plaintiff’s motion for reconsideration. Plaintiff appealed.


                                   II. Discussion
                                   A. Argument
             Plaintiff raises the following issues in his Statement of Questions:

             Was it proper for the Court to dismiss Plaintiff[’s]
             complaint without:

                   a. affording [Plaintiff an] opportunity to repair
                   pleadings.

                   b. Plaintiff [an] opportunity to oppose [Charities’]
                   petition to intervene.

                   c. Notice to Plaintiff of instruction of local rules of
                   procedure advising Plaintiff of a prerequisite
                   briefing schedule before the preliminary objection
                   hearing.

                   d. Certifying or guaranteeing delivery of notice of
                   a hearing schedule to argue against Defendants[’]
                   Preliminary Objections which prejudicial [sic] pro
                   se Plaintiff Young who received rural mail notice 7
                   days after hearing was already held.

                   e. Allowing opportunity to amend [the] complaint
                   and to provide pro se litigant instruction therein[.]

Appellant’s Br. at 6.


             Essentially, Plaintiff argues he suffered “mental, emotional pain,
anguish and loss of economic support, cooperation, aid and companionship thru


                                          8
[sic] damaging interference in his relationship with his aunt and uncle.”
Appellant’s Br. at 8 (Summary of Argument).          Plaintiff asserts these injuries
“resulted from the action of the person or parties responsible for directing the
administration” of his aunt’s and uncle’s estates. Id. However, without pre-
complaint discovery, Plaintiff cannot name the parties responsible. Nevertheless
he asserts they include: “(estate administrator, legal council [sic], health care
providers, etc.)” Id. However, Plaintiff believes he can obtain the necessary
information regarding the “persons/parties accountable … via application of
discovery subpoenas ….” Id.


             Plaintiff further asserts the trial court improperly denied him an
opportunity to argue against Charities’ petition to intervene. Appellant’s Br. at 8
(Summary of Argument). In addition, Plaintiff argues he did not receive timely
notice of oral argument on the preliminary objections and certain filing
requirements, including the need to file an answer and a brief. Id.


             Consequently, Plaintiff requests that we “find in favor of [his] timely
answer” to Charities’ petition to intervene. Appellant’s Br. at 15. Plaintiff also
seeks a remand with directions to the trial court to instruct him on the “repair of
pleadings previously denied” and provide him with time to “repair pleadings
accordingly.” Appellant’s Br. at 15. Plaintiff requests that we direct the trial court
on remand to allow discovery deemed necessary to repair of Plaintiff’s complaint.
Id. Plaintiff asserts this would include:

             1. subpoena of Youngs[’] financial records of years 2012
             thru [sic] 2015



                                            9
             2. subpoena[s] of [Executor’s]/estate administrator
             records of Youngs[’] health and fiscal care without
             regard to Attorney/Client privilege 2012 thru [sic] 2015.

             3. subpoena of information of health care providers and
             medical records.

Appellant’s Br. at 15. Ultimately, Plaintiff requests that we instruct the trial court
to permit him to file an amended complaint.


                                    B. Analysis
                           1. Denial of Reconsideration
             Plaintiff’s notice of appeal states that he appealed from the trial
court’s March 13, 2015 order denying his motion for reconsideration of the trial
court’s earlier order granting Defendants’ preliminary objections and dismissing
his complaint. However, an order denying reconsideration of a final order is not an
appealable order. Edwards v. Bd. of Pardons, 970 A.2d 425 (Pa. 2008); Estate of
Merrick, 247 A.2d 786 (Pa. 1968).


             Nonetheless, Plaintiff filed his notice of appeal on March 24, 2015,
less than 30 days after the trial court’s March 4, 2015 order sustaining Defendants’
preliminary objections. In addition, the trial court, in an opinion in support of its
order, and the parties, in their appellate briefs, address the merits of the order
sustaining preliminary objections. As such, we will review the merits of the trial
court’s order.




                                         10
                                2. Appellate Review
             When reviewing a trial court’s order sustaining preliminary objections
in the nature of a demurrer, our standard of review is de novo and our scope of
review is plenary.        Seeton v. Adams, 50 A.3d 268 (Pa. Cmwlth. 2012).
Preliminary objections may be sustained when, based on the facts pled, it is clear
that the plaintiff will be unable to establish a right to relief. Id. All well-pled
material facts alleged in the complaint, and the inferences fairly deducible
therefrom, must be accepted as true.         Id.   However, conclusions of law,
argumentative allegations, expressions of opinion and unwarranted inferences need
not be accepted. Id.


                       3. Failure to State a Cognizable Claim
             Plaintiff’s complaint alleges a cause of action against Defendants for
“loss of consortium and the los[s] of support, cooperation, aid, companionship and
loving interactive relationship critical in the last days of Frank and Normas [sic]
life.” Compl. at ¶1. More specifically, Plaintiff, as a concerned nephew, seeks a
monetary award from his aunt’s and uncle’s estates to compensate him for the loss
of support and companionship that resulted from mistreatment of his aunt and
uncle by third parties.


             As we noted in Battisti v. Tax Claim Bureau of Beaver County, 76
A.3d 111, 115 (Pa. Cmwlth. 2013), there are three types of civil actions governed
by the Pennsylvania Rules of Civil Procedure: (1) an assumpsit or contract action;
(2) a trespass or tort action; and, (3) an equity action. Pa. R.C.P. No. 1001(b).
Because Plaintiff seeks monetary damages, his action is not one in equity. Because



                                        11
Plaintiff does not assert or imply a contractual relationship with his aunt or uncle
or their respective estates, his action does not sound in contract. Rather, Plaintiff’s
claim for loss of support and companionship must be considered a tort action for
loss of consortium.


             In Steiner by Steiner v. Bell Telephone Co. of Pennsylvania, 517 A.2d
1348 (Pa. Super. 1986), the Superior Court declined to recognize a cause of action
on behalf of children for loss of parental consortium based on negligently inflicted
injuries to a parent. The Court recognized “that parental consortium included love,
companionship, affection, society, comfort, services and solace.”         Id. at 1350
(citing Hay v. Med. Ctr. Hosp. of Vermont, 496 A.2d 939 (Vt. 1985)).


             Nonetheless, Pennsylvania law does traditionally recognize a cause of
action for a spouse’s loss of consortium. Tucker v. Phila. Daily News, 848 A.2d
113, 127 (Pa. 2004) (citation omitted) (consortium defined as “the legal right of
one spouse to the company, affection, and assistance of and to sexual relations with
the other”). However, in Steiner, the Superior Court recognized that although
some of the same labels may be applied to elements of both the spousal and
parent/child relationships, the relationships are substantively different and are not
comparable. Id.


             Ultimately, the Steiner Court reasoned, the establishment of a
parent/child cause of action for consortium is a policy determination for the
legislature. Id. Thus, the Superior Court concluded, “we do not recognize a
child’s cause of action for loss of parental consortium due to tortious interference



                                          12
of a third party.” Steiner, 517 A.2d at 1357 (emphasis added); see also Schroeder
v. Ear Nose & Throat Assocs. of Lehigh Valley, Inc., 557 A.2d 21 (Pa. Super.
1989) (parents cannot recover for loss of society and companionship of unborn
child; claims for loss of consortium limited to spouses).


             In accord with Schroeder and Steiner, no cause of action exists for a
nephew’s loss of his aunt’s or uncle’s consortium based on their alleged
mistreatment by third parties.      Therefore, because there is no legal authority
supporting Plaintiff’s claim in the present case for loss of his aunt’s and uncle’s
consortium, we observe no error or abuse of discretion in the trial court’s order
sustaining Defendants’ preliminary objections on the basis that Plaintiff’s
complaint failed to set forth facts sufficient to plead a cognizable cause of action.


                        4. Plaintiff’s Remaining Challenges
                            a. Pre-Complaint Discovery
             Plaintiff argues the trial court erred in denying his motion for pre-
complaint discovery.


             A trial court’s decision to grant or deny pre-trial discovery falls within
the trial court’s discretion. McNeil v. Jordan, 894 A.2d 1290 (Pa. 2006). In
exercising its discretion, a trial court must assess whether the plaintiff can establish
probable cause showing his requested discovery will materially advance a legally
sufficient pleading. Id. As discussed above, there is no legal authority supporting
a nephew’s cause of action for monetary damages for the loss of his aunt and
uncle’s consortium, companionship, or support based on the tortious acts of third



                                          13
parties.   Schroeder; Steiner.    Therefore, Plaintiff’s request for pre-complaint
discovery would not have aided him in establishing a cause of action for loss of
consortium. Id. Thus, we discern no abuse of discretion in the trial court’s denial
of his motion for pre-trial discovery. McNeil.


                                   b. Intervention
             Plaintiff also argues the trial court erred in granting Charities’ petition
to intervene without affording him an opportunity to present argument.


             A trial court enjoys broad discretion in determining whether to grant a
petition to intervene. Twp. of Radnor v. Radnor Recreational, LLC, 859 A.2d 1
(Pa. Cmwlth. 2004). As discussed above, the Attorney General, acting as parens
patriae (public guardian), is an indispensable party in every proceeding that affects
a charitable trust. Because Charities were named as the beneficiaries of the bulk of
Frank J. Young’s Estate, they clearly had a direct and substantial interest in
Plaintiff’s action seeking a monetary award against Defendants. Voegtly’s Estate.
As such, we discern no abuse of discretion in the trial’s court’s order granting them
leave to intervene. Radnor Twp.


             Nevertheless, Plaintiff argues the trial court erred in finding untimely
his response to the trial court’s rule returnable requiring that he file an answer by
February 13, 2015. Plaintiff asserts he obtained a U.S. Postal Service form 3817
indicating he mailed his response that day. R.R. at 5a.




                                          14
              Plaintiff’s timeliness argument does not compel reversal. The trial
court’s order required that Plaintiff’s answer be received by the court’s
prothonotary by 4:30 p.m. on February 13, 2015. See Tr. Ct. Order, 1/23/15; C.R.
at Item No. 18.      Plaintiff’s response was not stamped as received by the
prothonotary until March 3, 2015. R.R. at 4a. Moreover, regardless of the timing
of Plaintiff’s response, Charities had a direct and substantial interest in Plaintiff’s
action against Defendants. Such an interest permits intervention. Consequently,
the trial court did not abuse its discretion in granting Charities leave to intervene.
Radnor Twp.


                  c. Oral Argument on Preliminary Objections
              Plaintiff asserts he did not receive notice of the scheduled oral
argument on the preliminary objections until seven days after the argument.
Plaintiff therefore argues the trial court improperly dismissed his complaint
without certifying or guaranteeing notice of argument on the preliminary
objections.


              Any interested party may request oral argument on a motion. Pa.
R.C.P. No. 211. However, the right to argument under Rule 211 is a qualified right
subject to judicial discretion. Gerace v. Holmes Prot. of Phila., 516 A.2d 354 (Pa.
Super. 1986); City of Phila. v. Kenny, 369 A.2d 1343 (Pa. Cmwlth. 1977). In a
given case, the trial court may dispense with oral argument if it so desires and
dispose of the case on the record or on the briefs. Gerace (citing Kenny).




                                          15
             Here, the trial court observed, Plaintiff’s presence at oral argument
would not have corrected the deficiencies in his complaint. See Tr. Ct.’s Pa. R.A.P
1925(a) Op., 4/28/15, at 5; C.R. at Item No. 8. The trial court noted Defendants
served Plaintiff with a praecipe for argument, dated January 30, 2015, requesting
that the preliminary objections be placed on the March 2015 argument list. See
C.R. at Items No. 20, 21. Therefore, the trial court reasoned Plaintiff, although
uncounseled, had an obligation to check the trial court’s March 2015 calendar
schedule, which is available to the public.


             However, despite being served in mid-February with Defendants’
preliminary objections, supporting brief, and praecipe for argument, Plaintiff failed
to appear or file a responsive brief as required by Monroe County Rules of Civil
Procedure Nos. 1028(c)(2) (briefs required for preliminary objections) and 210
(form and filing of briefs).


             Even assuming the trial court or prothonotary should have notified
Plaintiff that Defendants’ preliminary objections were placed on the March 2015
argument list as requested, we do not believe Plaintiff’s presence at oral argument
would have resulted in a different outcome. As discussed above, there is simply no
legal authority supporting Plaintiff’s claim for loss of his aunt’s and uncle’s
consortium or support.         Schroeder; Steiner.     Given the totality of the
circumstances, including Plaintiff’s failure to file written argument with the trial
court, we discern no prejudicial error in the trial court’s order sustaining
Defendants’ preliminary objections regardless of Plaintiff’s lack of participation in
oral argument. Gerace; Kenny.



                                         16
                                   5. Pro Se Status
             Finally, Plaintiff consistently asserts in his brief that as a pro se or
uncounseled litigant, he is entitled to instruction by the trial court as to how file to
a complaint that will survive preliminary objections and state a legally cognizable
claim. The trial court, however, bears no such responsibility. Although pleadings
filed by uncounseled or unrepresented litigants are to be construed liberally, “an
[uncounseled] litigant is not to be given any particular advantage because of his
lack of knowledge of the law.” Mueller v. Pa. State Police Headquarters, 532 A.2d
900, 902 (Pa. Cmwlth. 1987). In short, an uncounseled litigant cannot expect the
court to act as his attorney. Smathers v. Smathers, 670 A.2d 1159 (Pa. Super.
1996).


             Regardless, there is no legal authority supporting Plaintiff’s claim for
loss of his aunt’s and uncle’s consortium or support.             Schroeder; Steiner.
Consequently, Plaintiff’s complaint could not be amended to state a cognizable
consortium claim. Id.


                                   III. Conclusion
             Discerning no error or abuse of discretion in the trial court’s order
sustaining Defendants’ preliminary objections, we affirm.




                                        ROBERT SIMPSON, Judge




                                          17
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott T. Young,                        :
                        Appellant      :
                                       :
            v.                         :   No. 658 C.D. 2015
                                       :
The Estate of Frank J. Young           :
and Norma Young                        :


                                    ORDER

            AND NOW, this 12th day of April, 2016, for the reasons stated in the
foregoing opinion, the order of the Court of Common Pleas of Monroe County is
AFFIRMED.




                                     ROBERT SIMPSON, Judge
