                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-2005

Arena v. McShane
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3729




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3729


                       PAULA ARENA; MICHAEL LUONGO,

                                                      Appellants

                                           v.

             J. PATRICK MCSHANE; THE LAW OFFICES OF FORKIN,
                       MCSHANE, MANOS & ROTZ, P.A.



                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 03-cv-07639)
                       District Judge: Honorable Juan R. Sanchez


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 27, 2005

                Before: ALITO, AMBRO, and LOURIE,* Circuit Judges

                            (Opinion filed October 14, 2005)




                                       OPINION




        * Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.
AMBRO, Circuit Judge

       Appellants Paula Arena and Michael Luongo claim that J. Patrick McShane, their

father’s lawyer, intentionally interfered with their inheritance. Appellants’ intentional

interference claim required them to show undue influence, which in turn required them to

show their father’s weakened intellect. Appellants already made an undue influence

claim against their father’s friend in the Superior Court of Pennsylvania, and this claim

was dismissed on demurrer. Issue preclusion applies when an issue has been fully and

fairly litigated in another court. Was the question of Appellants’ father’s weakened

intellect fully and fairly litigated in the Superior Court’s decision on demurrer? We

answer yes and therefore affirm.

                      I. Factual Background and Procedural History

       Because we write solely for the parties, we set forth only those facts relevant to our

decision. Most of these facts have been detailed in Estate of Luongo, 823 A.2d 942 (Pa.

Super. Ct. 2003). Dr. Romeo Luongo divorced his wife in 1978 and became estranged

from his ex-wife and their children until 1984, when meaningful family communication

resumed. In a series of wills, he made no provision for his children, until 1995, when he

left $10,000 to each of his children and grandchildren in another will. The balance of his

estate he left to Jacqueline Fletchner, his long-time friend and companion. The 1995 will

was drafted by McShane, of the Law Offices of Forkin, McShane, Manos & Rotz. After

Dr. Luongo died in 1999, Fletchner probated the will, and Michael Luongo challenged the

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will on the grounds of, among other charges, undue influence. Various Pennsylvania

state courts denied Michael Luongo’s challenge to the will, but Luongo and his sister,

Paula Arena, brought this suit, charging McShane with intentionally interfering with their

inheritance by not following Dr. Luongo’s wishes in drafting the 1995 will.

                          II. Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction over this diversity action

pursuant to 28 U.S.C. § 1332(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291.

We exercise plenary review over the grant of a motion for summary judgment.

Nationwide Mut. Ins. Co. v. Riley, 352 F.3d 804, 806 n.3 (3d Cir. 2003). Summary

judgment is appropriate where “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). “We review the facts in the light most favorable to the party against whom

summary judgment was entered.” Coolspring Stone Supply, Inc. v. Am. States Life Ins.

Co., 10 F.3d 144, 146 (3d Cir. 1993).

                                        III. Discussion

       Appellants filed a claim against McShane alleging intentional interference with an

inheritance, a tort under Pennsylvania law. The tort has four elements, of which only the

second is at issue:1 “The defendant used fraud, misrepresentation or undue influence to



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        The other three elements are as follows: “(1) The testator indicated an intent to
change his will to provide a described benefit for plaintiff[;] . . . (3) The defendant was
successful in preventing the execution of a new will; and (4) But for the Defendant’s

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prevent execution of the intended will.” Cardenas v. Schober, 783 A.2d 317, 326 (Pa.

Super. Ct. 2001) (citing Marshall v. De Haven, 58 A. 141, 142 (Pa. 1904)). Appellants

did not sufficiently show fraud or misrepresentation, so they must show undue influence.

To do so, Appellants must prove, by clear and convincing evidence, that their father had a

weakened intellect. See Burns v. Kabboul, 595 A.2d 1153, 1162–63 (Pa. Super. Ct.

1991). The District Court found that their attempt to prove weakened intellect was

precluded by an earlier finding by the Superior Court of Pennsylvania.

       There Michael Luongo made a claim of undue influence against Fletchner. Though

Luongo asserted that his father’s intellect was weakened, and that Fletchner exercised

undue influence over him, the Superior Court found that Luongo failed in this effort.

Estate of Luongo, 823 A.2d 942, 967 (Pa. Super. Ct. 2003).

       Because McShane relies on the state court judgment to preclude the litigation of

undue influence before us, we look to Pennsylvania and its law on collateral estoppel to

determine the effect it would give the Superior Court’s judgment. Bailey v. Ness, 733

F.2d 279, 281 (3d Cir. 1984). Two of the four prongs of Pennsylvania’s collateral

estoppel doctrine are applicable here: (1) “[a]n issue decided in a prior action is identical

to one presented in a later action,” and (2) “[t]he party against whom collateral estoppel is




conduct, the testator would have changed his will.” Cardenas v. Schober, 783 A.2d 317,
326 (Pa. Super. Ct. 2001).

                                              4
asserted had a full and fair opportunity to litigate the issue in the prior action.” 2 Rue v. K-

Mart Corp., 713 A.2d 82, 84 (Pa. 1998).

       As for the first issue, though the two claims of undue influence were against two

different people—Fletchner in the state courts and McShane in this proceeding—the

elements are the same for both. And for both, proof of Dr. Luongo’s weakened intellect

is required for a prima facie case. It is his weakened intellect at the time he executed his

will that is at issue, Burns, 595 A.2d at 1162, and both claims involve the same will.

Thus, the issue presented before us is the same as the one decided by the Superior Court

of Pennsylvania.

       Second, we must determine whether Appellants had a “full and fair opportunity” to

litigate the undue influence issue in the Superior Court. But “[f]ew Pennsylvania cases

have analyzed the extent to which there was full litigation of matters that are disposed of

prior to trial.” Huntley v. City of Johnstown, No. CIV.A. 03-59J, 2004 WL 627157, at *8

(W.D. Pa. Mar. 12, 2004). Pennsylvania has, however, adopted section 27 of the

Restatement (Second) of Judgments. See Clark v. Troutman, 502 A.2d 137, 139 (Pa.

1985). Comment d to section 27 states that an issue can be actually litigated “on a motion

to dismiss for failure to state a claim, a motion for judgment on the pleadings, a motion




       2
         The other two prongs require that “[t]he prior action resulted in a final judgment
on the merits[, and t]he party against whom collateral estoppel is asserted was a party to
the prior action, or is in privity with a party to the prior action . . . .” Rue v. K-Mart
Corp., 713 A.2d 82, 84 (Pa. 1998).

                                               5
for summary judgment . . . , a motion for directed verdict, or their equivalents, as well as

on a judgment entered on a verdict.” Restatement (Second) of Judgments § 27 cmt. d

(1982) (emphasis added). The action in the Superior Court was “in the nature of a

demurrer.” Luongo, 823 A.2d at 968. A Pennsylvania demurrer is nearly identical to the

federal 12(b)(6) motion to dismiss for failure to state a claim. See, e.g., Huntley, 2004

WL 627157, at *8 (“[C]omment d of § 27 clearly provides that a matter is actually

litigated on motions to dismiss for failure to state a claim, which is in the nature of a

demurrer in state court.”); Luongo, 823 A.2d at 961 (“A demurrer is a preliminary

objection that the pleading fails to set forth a cause of action upon which relief can be

granted under any theory of law.” (internal quotation marks omitted)); Thomas v. Holtz,

707 A.2d 569, 570 (Pa. Commw. Ct. 1998) (calling a 12(b)(6) motion “[s]imilar to a

demurrer under Pennsylvania’s rules”).

       In this context, Michael Luongo missed no meaningful opportunity in the Superior

Court to litigate the issue of his father’s weakened intellect. As the Superior Court noted,

“Appellant was allowed to depose [Fletchner] and present a number of witnesses at the

caveat hearing before the Register of Wills. Thus, [he] has had ample opportunity to

develop and refine his claims before and after the Register of Wills’ dismissal of the

caveat.” Luongo, 823 A.2d at 969. The Court also noted that Luongo “had an

opportunity to amend his petition as of right, after the preliminary objections were filed[,

but he] failed to seize that opportunity . . . .” Id. (internal citation omitted). Also, “when



                                               6
the court asked [Luongo] for a proffer of additional evidence, [he] offered no other

substantive facts to support his claims.” Id.

                                      IV. Conclusion

       Because Appellants had a full and fair opportunity to litigate the issue of their

father’s weakened intellect in the Superior Court of Pennsylvania and lost, collateral

estoppel precludes their relitigation of that issue in our Court. When collateral estoppel is

shown, any determination we would make on the merits would be without effect. We

thus affirm the District Court’s granting of summary judgment for McShane.




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