J-A21005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BEVERLY E. BROWN                          :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 CATHY S. BOYER, ESQUIRE AND               :    No. 206 WDA 2017
 BOYER, PAULISICK & EBERLE                 :

                  Appeal from the Order January 12, 2017
   In the Court of Common Pleas of Butler County Civil Division at No(s):
                               2014-10798


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

CONCURRING STATEMENT BY OLSON, J.:                        FILED MAY 18, 2018

     I agree with the learned Majority that the trial court erred in sustaining

Appellees’ preliminary objections in the nature of a demurrer.             I write

separately to explain why I believe that the dismissal of Appellant’s second

amended complaint was not warranted.

     As the Majority correctly notes:

     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 objection.

Majority Memorandum, at 3, quoting Adams v. Hellings Builders, Inc., 146

A.3d 795, 798 (Pa. Super. 2016).     In this case, the trial court concluded that

Appellant’s claim for damages was too speculative because “no action or
J-A21005-17


inaction of [Appellant’s] counsel would have resulted in [Appellant’s] ability to

receive her ex-husband’s [p]ension in any form” and “no change in negotiation

tactic[s] would have provided [Appellant] with a separate annuity”. Trial Court

Opinion, 1/12/17, at 5. It is true that Appellant’s ex-husband’s pension plan

was not a qualified ERISA1 plan; therefore, Appellant was not able to receive

the agreed-upon annuity. However, had Appellant known that she was unable

to receive a separate annuity, she may have been able to negotiate other

terms that would have provided her with the financial security that she sought.

The trial court concluded that, “even if armed with the knowledge that her ex-

husband’s [p]ension [p]lan did not provide her with a separate annuity . . .

there is no way to know exactly what [Appellant] would or would not have

foregone, or received in further negotiations with her ex-husband prior to the

January 24, 2012 [] QDRO”.            Id.      However, Appellant’s second amended

complaint asserts

        . . . if [Appellant] had known that the Slippery Rock Borough Police
        Pension Plan was not a qualified plan, and that she would not be
        entitled to a separate annuity payable on her ex-husband’s
        earliest retirement date, which would survive his death, then she
        would have been in a position to bargain for a more favorable
        distribution of marital assets based on that knowledge.

Second Amended Complaint, 5/2/16, at ¶ 24. As this case is at the preliminary

objection stage, all material facts set forth in the second amended complaint

are admitted as true, as well as all reasonable inferences deducible therefrom.


____________________________________________


1   Employee Retirement Income Security Act, 29 U.S.C.A. § 1001, et seq.

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J-A21005-17


Adams, supra.         As such, we must assume that Appellant would have

negotiated other more favorable terms had she known that she would not

receive the pension annuity.         At this stage, we must permit Appellant an

opportunity to establish, if she can, what she would have done differently had

she known of her counsel’s improper advice.2        I again emphasis that we are

at the preliminary objection stage and that dismissal of a complaint should be

sustained only in cases which are clear and free from doubt that the plaintiff

will be unable to prove facts legally sufficient to establish the right to relief. I

do not believe that this is one of those cases.

       Judge Stabile joins this concurring statement.




____________________________________________


2 The trial court noted that, after counsel’s mistake was uncovered, Appellant
did have the opportunity to continue negotiations with her former husband
and enter into a new domestic relations order. Trial Court Opinion, 1/12/17,
at 5. The trial court goes on to conclude “[w]hile [the new order] may not
reflect everything that [Appellant] desired to receive in the divorce
proceedings, it does represent to [the trial court] that some measure of
correction was undertaken.” Id. I do not believe that the fact that a new
order was negotiated after the pension mistake was known prevents Appellant
from establishing, if possible, that she would have received even better terms
at the outset of the negotiations if she had known that she would be precluded
from obtaining an annuity from her former husband’s pension plan.

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