J-A03013-20

                                2020 PA Super 83


 E. O'REAN FIEDLER                        :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 PATTI S. SPENCER                         :   No. 859 MDA 2019

               Appeal from the Order Entered May 21, 2019
     In the Court of Common Pleas of Lancaster County Civil Division at
                          No(s): CI-10-00775


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

OPINION BY LAZARUS, J.:                   FILED: APRIL 2, 2020

      E. O’Rean Fiedler appeals from the order, entered in the Court of

Common Pleas of Lancaster County, granting the preliminary objections of

Appellee, Patti S. Spencer (“Attorney Spencer”), and dismissing, with

prejudice, Fiedler’s third amended complaint. Upon careful review, we affirm.

      The trial court set forth the pertinent factual and procedural history of

this matter as follows:

      [Fiedler’s] third amended complaint alleges that following her
      father’s death in 2004, [Fiedler] took her mother, Betty J. Fiedler
      (“Betty”), to [Attorney Spencer] to have a Will and general Power
      of Attorney prepared. [Attorney] Spencer prepared the Will and
      Power of Attorney naming Betty’s daughters, [] Fiedler and
      Latisha Bitts ([“Bitts”]), as co-executrices and equal co-
      beneficiaries of her estate, and co-agents under her Power of
      Attorney.     Over the next two (2) years, as Betty’s health
      deteriorated, the Power of Attorney was activated and [] Fiedler
      and [] Bitts began to manage Betty’s financial affairs, as Betty had
      to move from her house to eventual placement in a skilled nursing
      unit. With Betty’s consent, [] Fiedler and [] Bitts sold Betty’s
      house and personal property. During 2006, Betty [] made gifts in
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     the form of checks to [] Fiedler, [] Bitts, and [] Bitts’ son, Adam
     Buckius ([“Buckius”]). Plaintiff alleges that [] Bitts and [] Spencer
     pressured Betty to make these inter vivos gifts.

     In the Fall of 2006, Betty executed a new Will and Power of
     Attorney naming [] Bitts as sole executrix and agent, and []
     Buckius as Successor Executor under the Will, which [] Fiedler
     learned through a letter from [Attorney] Spencer. [] Fiedler
     alleges that “the foregoing actions were the result of a scheme of
     [Spencer and Bitts] to remove [Fiedler] from any position of
     authority with respect to her mother’s financial affairs so that Bitts
     could deplete Betty’s estate prior to Betty’s death and eviscerate
     Betty’s testamentary intention to have her estate divided evenly
     between Plaintiff and Bitts.” [Fiedler] alleges that over the next
     three (3) years until Betty’s death in September 2009, gifts made
     on behalf of Betty and signed by [] Bitts included a $330,000.00
     check to [] Buckius to buy a house and additional checks totaling
     $150,515.00, almost exclusively to [] Bitts, [] Buckius and his
     wife, and [] Bitts’ stepson and his wife. In a companion case, the
     $330,000.00 gift to [] Buckius was later found by the Pennsylvania
     Superior Court to be unlawful under the language in Betty’s Power
     of Attorney. [Fiedler] alleges that “[Attorney Spencer’s] actions
     were fraudulent in that she advised Bitts that she could make the
     gift in furtherance of Bitt’s [sic] scheme to deplete Betty’s assets”
     and violate Betty’s testamentary intent.

     [] Fiedler initiated this action by filing a complaint on January 25,
     2010, against [Attorney] Spencer, along with [] Bitts, [] Buckius,
     and [Buckius’ wife,] Kimberly S. Buckius. [Attorney] Spencer filed
     preliminary objections to [] Fiedler’s complaint, and [] Fiedler filed
     an amended complaint on April 9, 2010. [Attorney] Spencer filed
     preliminary objections to [] Fiedler’s amended complaint, and []
     Fiedler filed a second amended complaint on May 13, 2010.
     [Attorney] Spencer filed preliminary objections to the second
     amended complaint on June 3, 2010, and [] Fiedler filed her
     response and brief in opposition on June 16, 2010. The matter
     was stayed pending the full and final resolution of the related
     estate [] and Power of Attorney matter[s] before the Orphans’
     Court by order dated July 13, 2010. This court lifted the stay and
     discontinued [] Fiedler’s action with prejudice as against [] Bitts,
     Adam Buckius, and Kimberly S. Buckius, by order dated
     September 13, 2018.

     By order dated December 3, 2018, this court sustained [Attorney]
     Spencer’s preliminary objections to [] Fiedler’s second amended

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       complaint and granted [] Fiedler leave to amend her complaint.
       [] Fiedler filed a third amended complaint on December 17, 2018,
       to which [Attorney] Spencer filed preliminary objections on
       January 10, 2019. Because [] Fiedler’s third amended complaint
       failed to add factual allegations to correct the legal insufficiencies
       for which the claims in her second amended complaint were
       dismissed and it was clear that the facts did not support her
       claims, this court dismissed [] Fiedler’s claims with prejudice by
       order dated May 9, 2019. [] Fiedler filed a notice of appeal to the
       Superior Court of Pennsylvania on May 24, 2019, and filed her
       statement of errors on June 17, 2019.

Trial Court Opinion, 7/3/19, at 1-3.

       On appeal, Fiedler raises the following claims for our review:1

       1. Whether the [trial] court erred as a matter of law and abused
       its discretion in ruling that existing legal precedent prohibits the
       recognition of [] Fiedler’s tortious interference with inheritance
       claim, or, alternatively, for not extending existing legal precedent
       to the facts of this case, assuming arguendo, existing precedent
       does not permit [] Fiedler’s cause of action under the facts and
       inferences from those facts set forth in the pleadings?

       2. Whether the [trial] court erred as a matter of law and abused
       its discretion in failing to find that for purposes of pleading []
       Fiedler did not establish legal grounds to proceed on her civil
       conspiracy claim since the well-pleaded facts and reasonable
       inferences from those facts establish that Patti Spencer and
       Latisha Bitts maliciously combined with a common purpose to do
       overt, unlawful acts to deprive [] Fiedler of her rightfully expected
       inheritance?

       3. Whether the [trial] court erred as a matter of law and abused
       its discretion in failing to find that for purposes of pleading []
       Fiedler did not establish legal grounds to recover punitive
       damages since the well-pleaded facts and reasonable inferences
       from those facts establish that Patti Spencer acted willfully and

____________________________________________


1 Although Fiedler listed four claims in her statement of issues presented, her
first claim merely combined and restated her other three claims. Accordingly,
we have omitted that claim and will address only the remaining three specific
issues.

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      maliciously, or, alternatively, so carelessly as to indicate wanton
      disregard of the rights of [] Fiedler?

Brief of Appellant, at 3-4.

      We begin by noting our scope and standard of review of an order

sustaining preliminary objections:

      Our standard of review of an order of the trial court overruling or
      [sustaining] preliminary objections is to determine whether the
      trial court committed an error of law. When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint.       When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.       Preliminary objections which seek 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 as to whether a demurrer should be sustained, it
      should be resolved in favor of overruling the preliminary
      objections.

Adams v. Hellings Builders, Inc., 146 A.3d 795, 798 (Pa. Super. 2016),

quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (internal

citation omitted).

      Fiedler’s first issue involves the trial court’s conclusion that her claim for

tortious interference with an inheritance was insufficient as a matter of law.

Fiedler alleges that, contrary to the court’s finding, she “adequately pled facts

and reasonable inferences drawn from the facts to establish her right to relief.”

Brief of Appellant, at 13.    She further argues that the court’s reliance on

Hollywood v. First Nat. Bank of Palmerton, 859 A.2d 472 (Pa. Super.


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J-A03013-20



2004), was improper, alleging that “until Hollywood there was no binding

precedent involving extension of the interference with expected inheritance

doctrine to those situations beyond demonstrable interference with the

testamentary scheme enshrined in a decedent’s will.” Brief of Appellant, at

19. Fiedler suggests that:     (1) because no court prior to Hollywood had

addressed the doctrine in the context of inter vivos gifts, and (2) because the

Hollywood court’s decision was “specifically based on its fact-specific finding

that there was ‘no discussion of intentional conduct . . . related to fraud,

duress or other tortious means intentionally prevent[ing] another from

receiving from a third person an inheritance or gift,” Brief of Appellant, at 20,

“Hollywood and its progenitors can only be read [to mean] that Pennsylvania

has not extended the doctrine where such intentional tortious conduct or

undue influence has not been adequately pled.” Id. Thus, Fiedler argues that

this is a case of first impression and we are not bound by “any controlling

precedent at all.”   Id.   Fiedler urges us to extend the doctrine to matters

involving inter vivos transfers alleged to diminish an eventual bequest as

contemplated by section 774B of the Restatement of Torts (Second).

      In response, Attorney Spencer argues that, contrary to Fiedler’s

assertions, the law in Pennsylvania is clear that a claim alleging intentional

interference with inheritance “cannot be premised upon inter vivos transfers

alleged to have diminished the plaintiff’s eventual inheritance.”       Brief of

Appellee, at 14.     Rather, “to establish a cause of action, a plaintiff must

demonstrate the decedent has sought to make changes in his will to the

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plaintiff’s benefit and was prevented from doing so.”       Id.   Thus, Attorney

Spencer argues, even if the allegations set forth in Fiedler’s third amended

complaint are accepted as true, they provide no basis for recovery. Further,

Attorney Spencer argues that this Court is bound by precedent and that

Hollywood was not “specifically based on its fact-specific finding,” but simply

applied established law.     She asserts that any mention in that case of

intentional conduct as it relates to section 744B of the Restatement is non-

binding dicta and, even if it were not, Fiedler did not adequately allege any

fraud or other intentional conduct on Attorney Spencer’s part.

      Our Supreme Court first recognized a cause of action for interference

with expected inheritance in Marshall v. DeHaven, 58 A. 141 (Pa. 1904).

The elements of the tort are as follows: (1) the testator indicated an intent

to change her will to provide a described benefit to the plaintiff; (2) the

defendant used fraud, misrepresentation, or undue influence to prevent

execution of the intended will; (3) the defendant was successful in preventing

the execution of a new will; and (4) but for the defendant’s conduct, the

testator would have changed her will. Cardenas v. Schober, 783 A.2d 317,

326 (Pa. Super. 2001), citing Marshall, supra.

      Subsequently, the Restatement (Second) of Torts defined a cause of

action for intentional interference with an inheritance or gift as follows:

      One who by fraud, duress or other tortious means intentionally
      prevents another from receiving from a third person an
      inheritance or gift that he would otherwise have received is
      subject to liability to the other for loss of the inheritance or gift.


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Restatement of Torts (Second), § 774B. Although several states have adopted

this cause of action,2 Pennsylvania has not expanded the doctrine to include

inter vivos transfers as contemplated by the Restatement. “Thus, our law

requires that to establish ground[s] for recovery under this cause of action, a

plaintiff must demonstrate the decedent had sought to make changes in [her]

will to plaintiff’s benefit, and that the defendant, through means of fraud,

misrepresentation, or undue influence thwarted the decedent’s intent.”

Hollywood, 859 A.2d at 478.

       In Hollywood, this Court for the first time considered a claim for

tortious interference with an inheritance in the context of inter vivos depletion

of a decedent’s estate. There, the decedent’s daughter forged checks and

made unauthorized withdrawals from the decedent’s bank accounts during the

decedent’s lifetime. The plaintiff, a son of the decedent and the administrator

of his estate, commenced suit against the banks from which those improper

withdrawals had been made, alleging, inter alia, tortious interference with an

inheritance. The banks filed preliminary objections in the form of a demurrer,

which the trial court sustained.



____________________________________________


2 See, e.g., DeWitt v. Duce, 408 S.2d 216 (Fla. 1981); Nemeth v.
Banhalmi, 425 N.E.2d 1187 (Ill. App. 1981); Minton v. Sackett, 671 N.E.2d
160 (Ind. App.1996); Huffey v. Lea, 491 N.W.2d 518 (Iowa 1992);
Plimpton v. Gerrard, 668 A.2d 882 (Me. 1995); Hammons v. Eisert, 745
S.W.2d 253 (Mo. App. 1988); Doughty v. Morris, 871 P.2d 380 (N.M. App.
1994); Firestone v. Galbreath, 616 N.E.2d 202 (Ohio 1993); Harris v.
Kritzik, 480 N.W.2d 514 (Wis. App. 1992).

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       On appeal,Son did not argue that the trial court had erred; rather, he

“suggest[ed] that various policy considerations counsel this Court to expand

the definition of the tort in Pennsylvania to encompass instances of dissipation

of a decedent’s estate during life as provided in the Restatement (Second) of

Torts.”   Id. at 476-77.      We concluded that, “[g]iven the relatively narrow

circumstances to which this cause of action may apply,” the trial court properly

granted the defendants’ demurrers. Id. at 478.

       We further noted that “even if we were to examine Son’s allegations in

light of the language of the Restatement, we would be compelled to reach the

same conclusion, as Son offers no discussion of intentional conduct ascribed

to the Banks that might satisfy the corresponding element under the

Restatement.” Id.

       We agree with Attorney Spencer that, even assuming as true the well-

pleaded facts of Fiedler’s third amended complaint and reasonable inferences

drawn therefrom, Fielder cannot sustain an action for intentional interference

with an inheritance under Pennsylvania law. Fiedler does not allege that Betty

expressed an intent to alter her will to benefit Fiedler,3 or that Attorney

Spencer prevented the execution of such a will. See id. Rather, at most, the

facts pleaded by Fiedler establish that Attorney Spencer:       (1) prepared a

power of attorney for Betty naming Bitts as sole agent and (2) erroneously

____________________________________________


3The decedent did execute a new will on October 11, 2006. However, Fiedler’s
beneficial interest in that will remained the same as it was in decedent’s prior
will—she was entitled to one-half of the estate.

                                           -8-
J-A03013-20



advised Bitts as to the propriety of certain inter vivos transfers that, when

made by Bitts, resulted in a reduction in the value of Betty’s probate estate.

Accordingly, Fiedler is unable to satisfy the elements required to prove

intentional   interference   with   an   inheritance   under   the   law   of   this

Commonwealth.

      Moreover, we decline Fiedler’s invitation to adopt the cause of action set

forth in section 744B of the Restatement (Second) of Torts, as any such

change in the law is beyond the mandate of this Court. “This Court is of course

bound by existing precedent under the doctrine of stare decisis.” Eckman v.

Erie Ins. Exch., 21 A.3d 1203, 1209 (Pa. Super. 2011), quoting Dixon v.

GEICO, 1 A.3d 921, 925–26 (Pa. Super. 2010) (citation omitted); see also

Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (this

Court continues to follow controlling precedent as long as decision has not

been overturned by our Supreme Court). To the extent that dicta from our

opinion in Hollywood could be read to suggest a willingness on the part of

this Court to consider adopting the cause of action prescribed in the

Restatement where intentional tortious conduct is alleged, see id. at 478, we

are neither obligated nor inclined to do so here. See Maloney v. Valley Med.

Facilities, Inc., 984 A.2d 478, 490 (Pa. 2009), quoting Northwestern Nat'l

Ins. Co. v. Maggio, 976 F.2d 320, 323 (7th Cir.1992) (“No court . . . is

obliged to treat a dictum of another court (or, for that matter, its own dicta)

as binding precedent.”). In any event, Fiedler has not adequately alleged any

fraud, duress, undue influence, or other tortious conduct on the part of

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Attorney Spencer that could arguably bring this case within the ambit of the

Restatement cause of action.

      In light of the foregoing, the trial court properly sustained Attorney

Spencer’s preliminary objections and dismissed, with prejudice, Fiedler’s claim

for tortious interference with inheritance.

      Next, Fiedler asserts that the trial court erred in dismissing her claim for

civil conspiracy to interfere with an inheritance. Specifically, Fiedler alleges

that Attorney Spencer acted in concert with Bitts “to actively with malice

aforethought deprive [Fiedler] of her rightful and expected share of Betty’s

estate with respect to the . . . gifts held unlawful by the Pennsylvanian [sic]

Superior Court[.]” Third Amended Complaint, 12/17/18, at ¶ 58. Fiedler is

entitled to no relief.

      In order to state a civil action for conspiracy, a complaint must
      allege: 1) a combination of two or more persons acting with a
      common purpose to do an unlawful act or to do a lawful act by
      unlawful means or for an unlawful purpose; 2) an overt act done
      in pursuance of the common purpose; and 3) actual legal damage.
      Additionally, absent a civil cause of action for a particular act,
      there can be no cause of action for civil conspiracy to commit that
      act. Proof of malice is an essential part of a cause of action for
      conspiracy. The mere fact that two or more persons, each with
      the right to do a thing, happen to do that thing at the same time
      is not by itself an actionable conspiracy.

Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. 2004)

(citations and quotation marks omitted) (emphasis added).

      Here, we have already determined that Fiedler failed to state a claim for

tortious interference with an inheritance. Accordingly, she is unable to sustain


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a cause of action for conspiracy to commit that act. See id. (“[A]bsent a civil

cause of action for a particular act, there can be no cause of action for civil

conspiracy to commit that act.”).      Therefore, we find that the trial court

properly sustained Attorney Spencer’s preliminary objections and dismissed,

with prejudice, Fiedler’s claim for civil conspiracy.

      Finally, Fiedler asserts that the trial court erred in dismissing her claim

for punitive damages because the facts alleged in the third amended complaint

“show both outrageous conduct and reckless indifference to the rights of []

Fiedler committed by [Attorney] Spencer.” Brief of Appellant, at 24. Fiedler

is entitled to no relief.

      “Punitive damages are awarded, in addition to a plaintiff’s actual

damages, to punish a defendant for outrageous acts and to deter him or others

from engaging in similar conduct.” DiGregorio v. Keystone Health Plan E.,

840 A.2d 361, 369 (Pa. Super. 2003). However, “[i]f no cause of action exists,

then no independent action exists for a claim of punitive damage[s] since

punitive damages is only an element of damages.”          Kirkbride v. Lisbon

Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989).

      Here, Fiedler failed to plead a viable cause of action for either tortious

interference with inheritance or civil conspiracy to commit that act. As one

cannot recover punitive damages independent of an underlying cause of

action, the trial court properly dismissed Fiedler’s claim for punitive damages.

See id.

      Order affirmed.

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J-A03013-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/02/2020




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