J-A34020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DONALD BRYCHCZYNSKI                               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

SUSAN ROBBINS, PATRICK JANOSKO,
EILEEN JANOSKO, PATRICK J. BARRETT

APPEAL OF: PATRICK J. BARRETT

                                                      No. 306 MDA 2015


               Appeal from the Order Entered October 29, 2014
               In the Court of Common Pleas of Bradford County
                      Orphans' Court at No(s): 0813-0250


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 29, 2016

        Patrick J. Barrett brings this interlocutory appeal by permission 1 from

the order entered on October 29, 2014, in the Court of Common Pleas of

Bradford County, that sustained in part, and denied in part, Barrett’s
                                                                          2
preliminary objections to the complaint filed by Donald Brychczynski.         In
____________________________________________


1
    See 42 Pa.C.S. § 702(b); Pa.R.A.P. 1311(b).
2
  On November 12, 2014, Barrett filed a Motion for Partial Reconsideration of
the Court’s Order, dated October 21, 2014, and entered October 29, 2014.
Also on November 12, 2014, Barrett filed a Motion to Amend the October 21,
2014 Order to Certify for Purposes of Taking an Interlocutory Appeal.    The
trial court, on November 19, 2014, granted the motion for partial
reconsideration, scheduled argument for December 10, 2014, and ordered
that Barrett’s motion to amend was scheduled for argument, if required, at
the December 10, 2014, proceeding. On December 8, 2014, the trial court
(Footnote Continued Next Page)
J-A34020-15



this appeal, Barrett’s sole contention is that “the trial court committed an

error of law in failing to dismiss all claims against [Barrett], on grounds that

[Brychczynski], as a residual beneficiary of an inter vivos revocable trust,

lacks the requisite standing to pursue a professional liability action against

[Barrett].”3 Brief of Barrett at 5. Based upon the following, we reverse the

order of the trial court only insofar as it overruled Barrett’s preliminary
                       _______________________
(Footnote Continued)

entered an order re-scheduling the hearing on Barrett’s motion for
reconsideration for January 9, 2015. On December 12, 2014, the trial court
entered an order certifying its Order for purposes of taking an interlocutory
appeal. The trial court never issued an order or opinion regarding Barrett’s
Motion for Reconsideration. On January 9, 2015, Barrett submitted a
Petition for Permission to Appeal with this Court. On February 19, 2015, this
Court entered a Per Curiam Order granting Barrett permission to appeal
from the trial court’s order entered October 29, 2014.
3
   A “revocable trust” is defined in Pennsylvania’s Uniform Trust Act as
follows:

      "Revocable trust." --A trust is revocable to the extent the
      settlor, immediately before the time as of which the
      determination is made, had the power, acting without the
      consent of the trustee or any person holding an interest adverse
      to revocation, to prevent the transfer of the trust property at the
      settlor’s death by revocation or amendment of or withdrawal of
      property from the trust.

20 Pa.C.S. § 7703.

Here, the Trust provided, at Paragraph 5, that “The trust is revocable by
Edwin A. Bright. At any time during his lifetime Edwin A. Bright, may
withdraw, the assets placed in the trust and the income derived from
the trust, or change beneficiaries, terms or trustees.” Modification of the
Edwin A. Bright Trust of June 1, 2005, 2/22/2011, at ¶5 (emphasis added).




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J-A34020-15



objection alleging the count for breach of fiduciary duty should be dismissed

because Brychczynski has no standing, and we sustain Barrett’s preliminary

objection to that count; otherwise, we affirm.

      The trial court has aptly summarized the background of this case:

      Procedural History

      [Brychczynski] filed a complaint against original Defendants who
      included, at the time of filing, the above-named individuals and
      one Russell Bancroft who was released as a Defendant by court
      order on 20 August 2014. The complaint was filed in the
      Bradford County Court of Common Pleas on, or about, 24 March
      2014, and set out counts of Undue Influence, Tortious
      Interference with Expectation of Inheritance, Breach of Fiduciary
      Duty, Conversion, and Civil Conspiracy against Defendants either
      jointly or severally; the complaint also contained a demand for
      an equitable accounting by Defendants Barrett, Robbins, E.
      Janoski, and P. Janoski of certain funds allegedly received by
      them. Defendants filed preliminary objections to the counts
      identified in the complaint and the matter came on for hearing
      upon those preliminary objections on 20 August 2014 before the
      Honorable David E. Grine, Senior Judge, Specially Presiding. At
      the hearing of 20 August 2014, in addition to entertaining the
      objections advanced by Defendants, the Court considered
      motions entered by Defendants seeking transfer of the case to
      Orphan’s Court, compulsory arbitration, and an order compelling
      Plaintiff to file a certificate of merit for malpractice.

      Background

      Edwin A. Bright (hereinafter referred to as “the Decedent”), who
      died on 4 August 2013, created and funded a trust account
      bearing his name on 1 June 2005. The Bright Trust (referred to
      below as “the Trust”) was of the inter vivos variety with a
      transfer on death provision; the corpus of the trust, a Morgan
      Stanley brokerage account, was administered by original
      Defendant Bancroft, a Morgan Stanley employee but the Trust
      itself was under the direct control of the decedent. Named as
      residual beneficiaries of the Trust were [Brychczynski],
      Defendants Robbins (Decedent’s full-time caregiver), E. Janosko


                                    -3-
J-A34020-15


          (Decedent’s niece), and P. Janosko (Decedent’s nephew-in-law);
          or the survivor(s) of those persons. Defendant Barrett was the
          Decedent’s attorney for approximately eight years and served in
          that capacity during the lifetime of the Trust, i.e., from the time
          of its creation until the Decedent’s passing on, or about, 27 July
          2013.     Approximately eight days prior to the death of the
          Decedent, Defendants Robbins, E. Janosko, P. Janosko, and
          Barrett received gifts from Decedent, which gifts totaled
          $2,050,000.00, an amount representing approximately two
          thirds of the total value of the Trust Account. [Brychczynski]
          complaining that Defendants, by means of fraud, undue
          influence, misrepresentation, and/or breach of professional
          responsibility took advantage of the Decedent’s alleged ill health
          and alleged diminished mental capacity, and induced the
          Decedent to make these gifts, seeks to have the gifts set aside
          and the total amount of the gifts returned to the Trust Account.

Trial Court Opinion, 10/29/2014, at 1–2.

          The trial court, by order dated October 21, 2014, and entered October

29, 2014, dismissed the claims against Barrett, except for undue influence,

breach of fiduciary duty, and conversion.4 This appeal followed.

____________________________________________


4
    The trial court ordered:

     1.    The motion to transfer the case to the Orphans’ Court Division of the
           Bradford County Court of Common Pleas is granted.

     2.    The motion for Plaintiff to be directed to file a certificate of merit for
           malpractice against Defendant Barrett is granted.

     3.    The motion for dismissal of the count of Equitable Accounting is
           granted for all Defendants.

     4.    The motion for compulsory arbitration is denied.

     5.    The motion for Plaintiff to be directed to provide all of the Decedent's
           medical records is denied.

(Footnote Continued Next Page)


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J-A34020-15


        Our scope and standard of review is well settled:

        A preliminary objection in the nature of a demurrer is properly
        granted where the contested pleading is legally insufficient.
        Preliminary objections in the nature of a demurrer require the
        court to resolve the issues solely on the basis of the
        pleadings; no testimony or other evidence outside of the
        complaint may be considered to dispose of the legal issues
        presented by the demurrer. All material facts set forth in the
        pleading and all inferences reasonably deducible therefrom must
        be admitted as true.

        In determining whether the trial court properly sustained
        preliminary objections, the appellate court must examine the
        averments in the complaint, together with the documents and
        exhibits attached thereto, in order to evaluate the sufficiency of
        the facts averred. The impetus of our inquiry is to determine the
        legal sufficiency of the complaint and whether the pleading
        would permit recovery if ultimately proven. This Court will
                       _______________________
(Footnote Continued)

   6.    The Objection alleging that the Complaint lacks specificity is
         overruled.

   7.    The Objection alleging that the count of Tortious Interference with
         Expectation of inheritance is inapplicable to the instant case is
         sustained for all Defendants.

   8.    The Objection alleging that the count of Undue Influence is
         inapplicable to the instant case is overruled.

   9.    The Objection alleging that the count of Undue Influence lacks
         specificity is overruled.

   10. The-Objection. alleging that the count of Civil Conspiracy is legally
       insufficient is sustained for all Defendants.

   11. The Objection alleging that the count of Breach of Fiduciary Duty
       should be dismissed as to all Defendants because Plaintiff has no
       standing to bring it is overruled.

Order, dated 10/21/2014, entered 10/29/2014.




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J-A34020-15


       reverse the trial court’s decision regarding preliminary objections
       only where there has been an error of law or abuse of discretion.
       When sustaining the trial court's ruling will result in the denial of
       claim or a dismissal of suit, preliminary objections will be
       sustained only where the case i[s] free and clear of doubt.

       Thus, the question presented by the demurrer is whether, on the
       facts averred, the law says with certainty that no recovery is
       possible. Where a doubt exists as to whether a demurrer should
       be sustained, this doubt should be resolved in favor of overruling
       it.

Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 354 (Pa. Super.

2015) (citation omitted).

       Relevant to our review are the following counts of Brychczynski’s

Complaint:

                             COUNT I
              UNDUE INFLUENCE AGAINST ALL DEFENDANTS

                                         ****

       67. Defendant Barrett served as legal counsel to the Decedent for
       approximately eight (8) years preceding the Decedent’s death.

       68. The Decedent trusted Defendant Barrett and relied upon his
       professional advice and recommendations.

       69. As evidence of this trust, the Decedent asked Defendant
       Barrett to modify his Trust, and named Defendant Barrett as the
       Death Trustee[5] of the Decedent’s Trust.
____________________________________________


5
  There is no such term as “Death Trustee” in the Pennsylvania Probate,
Estates and Fiduciaries (PEF) Code, 20 Pa.C.S. §§ 101-8815, and
Pennsylvania’s Uniform Trust Act (UTA), 20 Pa.C.S. §§ 7701-7799.3. We
assume Brychczynski is using this terminology to mean that Barrett was the
alternate Trustee to serve upon the death of the Decedent, or if the
Decedent became incapacitated or unable to act. See Modification of the
Edwin A. Bright Trust of June 1, 2005, 2/22/2011, at ¶2 (“The Trustee of the
(Footnote Continued Next Page)


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J-A34020-15



      70. The Decedent also appointed Defendant Barrett as Executor
      of the Decedent’s estate.

                                          ****

      82. There existed a confidential relationship between each of
      the Defendants and the Decedent.

      83.     The Defendants abused their respective confidential
      relationship with the Decedent and coerced, influenced and/or
      engaged in other improper conduct in order to compel the
      Decedent to execute the transfer request on July 27, 2013, and
      to make the unlawful transfers to Defendant Robbins, the
      Defendants Janosko, and Defendant Barrett.

      84. The Plaintiff experienced actual financial damages as a result
      of the Defendants’ abuses of their confidential relationship with
      the Decedent and the undue influence which they exerted over
      the Decedent.

      WHEREFORE, the Plaintiff requests that this Honorable Court
      enter judgment in favor of Plaintiff and against Defendants and
      order that the distributions made from the Decedent’s Trust
      Account on or about July 27, 2013 be set aside and further order
      that the Defendants immediately return to Decedent’s Trust
      Account the full amount of said distributions, plus interest,
      attorneys’ fees and costs of suit. Plaintiff requests that this
      Court further enter any relief that it deems just and proper
      under the circumstances.

                                          ****

                             COUNT III
                    BREACH OF FIDUCIARY DUTY
         PLAINTIFF v. PATRICK BARRETT III, SUSAN ROBBINS,
             PATRICK JANOSKO and RUSSELL BANCROFT
                       _______________________
(Footnote Continued)

trust shall be Edwin A. Bright. Upon the death of Edwin A. Bright or if he
becomes incapacitated and is unable to act, the alternate trustee will be
Patrick J. Barrett III.”).




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J-A34020-15



     92.   The preceding paragraphs are hereby incorporated by
     reference as if set forth fully herein.

     93. As legal counsel for the Decedent, Defendant Barrett met
     with the Decedent frequently.

     94. As legal counsel for the Decedent, Defendant Barrett owed a
     duty of loyalty to the Decedent and was under a duty to act for
     and to give advice for the benefit of the Decedent upon legal,
     estate planning and financial matters within the scope of the
     attorney-client relationship.

     95. Defendant Barrett knew or should have known of the
     Decedent’s weakened and compromised mental capacity as of
     July 27, 2013.

     96. Defendant Barrett knew or should have known of the
     significant influence that Defendant Robbins and the Defendants
     Janosko exerted upon the Decedent.

     97. Defendant Barrett breached his fiduciary duty to the
     Decedent by abusing the attorney-client relationship that he had
     with the Decedent and by not protecting the Decedent’s interests
     at a time when the Decedent was unable to protect his interests
     himself.

                                 ****

     108. The Defendants further breached their respective fiduciary
     duties to the Decedent by exerting undue influence upon the
     Decedent and engaging in a conspiracy to deprive the Plaintiff of
     his interest in the Decedent’s Trust.

     109. The Plaintiff has experienced actual financial damages as a
     result of the Defendants’ breaches of their respective fiduciary
     duties.

     WHEREFORE, the Plaintiff requests that this Honorable Court
     enter judgment in favor of Plaintiff and against Defendants and
     order that the distributions made from the Decedent’s Trust
     Account on or about July 27, 2013 be set aside and further order
     that the Defendants immediately return to Decedent’s Trust
     Account the full amount of said distributions, plus interest,

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J-A34020-15


     attorneys’ fees and costs of suit. Plaintiff requests this Court
     further enter any relief that it deems just and proper under the
     circumstances.


                          COUNT IV
            CONVERSION AGAINST SUSAN ROBBINS,
      PATRICK & EILEEN JANOSKO and PATRICK BARRETT III

     110. The preceding paragraphs are hereby incorporated by
     reference as if set forth fully herein.

     111. The Defendants intentionally deprived the Plaintiff of his
     well-documented and well-defined right to receive one-third of
     the Decedent’s trust account.

     112. The Defendants intentionally interfered with the Plaintiff’s
     well-defined right to receive one-third of the Decedent’s trust
     account.

     113. The Defendants engaged in this intentional deprivation and
     interference without the consent of the Plaintiff and without
     lawful justification.

     114. The Defendants engaged in this intentional deprivation and
     interference by virtue of undue influence upon the Decedent at a
     time when the Decedent suffered from a weakened physical and
     mental state.

                                 ****

     117. Defendant Barrett currently exercises possession and/or
     control over the $50,000.00 that he wrongfully received from the
     Decedent’s Trust Account prior to the Decedent’s demise.

     WHEREFORE, the Plaintiff requests that this Honorable Court
     enter judgment in favor of Plaintiff and against Defendants and
     order that the distributions made from the Decedent’s Trust
     Account on or about July 27, 2013 be set aside and further order
     that the Defendants immediately return to Decedent’s Trust
     Account the full amount of said distributions, plus interest,
     attorneys’ fees and costs of suit. Plaintiff requests this Court
     further enter any relief that it deems just and proper under the
     circumstances.

                                   -9-
J-A34020-15



Complaint, 3/24/2014, at ¶¶67–70, 82–84, 92–97, 108–114, 117 (emphasis

supplied).

       In response to the Complaint, Barrett filed preliminary objections

seeking dismissal of all claims on the grounds, inter alia, that the claims

against him sound in professional liability and Brychczynski (1) had failed to

file a Certificate of Merit in compliance with Pa.R.C.P. 1042.3, and (2) had no

standing to pursue a negligence or breach of contract claim against him.6,      7



The trial court determined:

       Here, [Brychczynski], who has not, so far as the Court can
       determine, never [sic] been a client of Defendant Barrett,
       appears to be asserting a claim of professional liability on behalf
       of the Decedent. The Court, while making no determination as
       to Plaintiff’s actual standing to file a claim on behalf of Decedent,
       finds that Plaintiff must file a certificate of merit in order for his
       allegation of professional misconduct against Defendant Barrett
       to be considered.

                                         ****

____________________________________________


6
 A preliminary objection based on standing is proper pursuant to Pa.R.C.P.
1028(a)(5).
7
  Barrett’s preliminary objections included: (1) motion to strike for failing to
conform to the rules of court by filing a certificate of merit, (2) motion to
dismiss all claims against Barrett on grounds Brychczynski had no standing
to bring negligence or breach of contract claim against Barrett (demurrer),
(3) motion to strike Count V – Civil Conspiracy Claim (demurrer), (4) motion
to dismiss Count II – Tortious Interference with Expectation of Inheritance
(Demurrer), (5) motion to dismiss Count VI – Equitable Accounting
(Demurrer), and (6) Motion to dismiss Count I – Undue Influence against
Barrett based on insufficient specificity.        See Barrett’s Preliminary
Objections, 6/26/2014.



                                          - 10 -
J-A34020-15


      Also, although the Court believes that any professional
      misconduct by Defendant Barrett could sound in malpractice, it
      opines that breach of fiduciary duty might also be made out if it
      is shown that; (1) the Decedent sought Defendant Barrett’s
      advice or assistance; (2) any advice sought by Decedent was
      within Defendant Barrett’s professional competence; (3)
      Defendant Barrett expressly or impliedly agreed to render such
      assistance; and, (4) it was reasonable for Decedent to believe
      that Defendant Barrett was representing him. See Cost v.
      Cost, 450 Pa. Super. 685, 692, 677 A.2d 1250, 1254 (Pa.
      Super. 1996) (breach of fiduciary duty if attorney-client
      relationship is shown).

Trial Court Opinion, 10/29/2014, at 6, 13 (unnumbered). As stated above,

the trial court dismissed the claims against Barrett, except for undue

influence, breach of fiduciary duty, and conversion.

      Barrett argues that while the trial court did dismiss several claims

against him, Brychczynski lacks standing under Pennsylvania law to assert

the remaining causes of action, i.e., Count I (Undue Influence), Count III

(Breach of Fiduciary Duty), and Count IV (Conversion), because he has been

sued in his capacity as the attorney for Brychczynski’s uncle, the Decedent.

See Barrett’s Brief at 15.

      Barrett argues that Brychczynski has set forth a claim of legal

malpractice against him, yet Brychczynski was not a client of Barrett’s and

had no privity of contract with Barrett.      See id. at 17.   Barrett maintains

Pennsylvania law is clear that “in order to sufficiently state a cause of action

for legal malpractice, whether negligence or breach of contract, ‘a plaintiff

must show an attorney-client or analogous professional relationship with the

defendant-attorney.”   Barrett’s Brief at 18, citing Hess v. Fox Rothchild,

                                     - 11 -
J-A34020-15


925 A.2d 798, 806 (Pa. Super. 2007), appeal denied, 945 A.2d 171 (2008).

Barrett acknowledges that the Pennsylvania Supreme Court has recognized a

limited exception that permits a third party to have standing to bring a legal

malpractice action based on breach of contract as a third party intended

beneficiary of the contract between the testator and the testator’s attorney.

See Guy v. Liederbach, 459 A.2d 744 (Pa. 1983).               Barrett argues

Brychczynski did not assert a claim for breach of contract against him. See

Barrett’s Brief at 19–20.

      Barrett further asserts that even if Brychczynski did assert a claim for

breach of contract, such a claim could not survive. Barrett cites Golden v.

Cook, 293 F.Supp.2d 546, 557 (W.D. Pa. 2003), stating “the federal district

court applied the test set forth in Guy and determined that, under

Pennsylvania law, the named beneficiaries/plaintiffs under an inter vivos

trust did not have third part [sic] beneficiary standing to pursue a breach of

contract claim against an attorney.” Barrett’s Brief at 20.

      In response, Brychczynski asserts that not all of the claims asserted

against Barrett are professional liability claims. Brychczynski maintains the

claims are intentional torts, and are not based on any alleged professional

negligence. See Brychczynski’s Brief at 2, citing Krauss v. Claar, 879 A.2d

302 (Pa. Super. 2004) (finding allegations did not raise any claims

concerning defendant-attorney’s duties as a licensed professional attorney;

certificate of merit not required). Brychczynski argues:


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J-A34020-15


      [A]s in the Krauss case, the claims against Appellant Barrett do
      not assert that “a licensed professional deviated from an
      acceptable professional standard.” Id. [at 308].              This is
      significant because, as the Krauss Court points out, in
      Pennsylvania a claim against an attorney for legal malpractice
      (professional liability) must be asserted by the attorney’s actual
      client. Id. However, with respect to claims brought against an
      attorney that are not professional liability claims, the Plaintiff has
      standing even if he was not a client of the attorney.

Brychczynski’s Brief at 3-4.

      Brychczynski claims that the fact that the trial court’s order directed

him to file a certificate of merit “does not somehow automatically convert all

claims against Appellant Barrett into negligence claims,” and “cannot apply

to the intentional torts alleged against Appellant Barrett, as those claims are

not professional liability, or malpractice, claims.”   Id. at 4.

      Brychczynski further asserts that even if all claims against Barrett are

determined to be legal malpractice claims, the privity requirement does not

apply when dealing with intentional torts.       Brychczynski argues that that

“[w]hile the Trial Court chose to make no immediate determination as to

Plaintiff’s standing ‘to file a claim on behalf of Decedent’ (emphasis

added), it did tacitly acknowledge the Plaintiff’s standing to assert a claim on

his own behalf, which is what Plaintiff intended to do. Id. at 5.

      Based on our review of the Complaint, we agree with Barrett that

Brychczynski’s breach of fiduciary duty claim is a professional liability claim

that he is attempting to assert on behalf of the Decedent.          Brychczynski

asserts Barrett breached his fiduciary duty by “abusing the attorney-client


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J-A34020-15


relationship that he had with the Decedent.” Complaint, 3/24/2014, at ¶97.

However, there is no privity between Brychczynski and Barrett, and no third-

party beneficiary breach of contract claim is asserted herein.      See Guy,

supra. Therefore, we conclude the trial court erred in failing to dismiss the

breach of fiduciary duty claim as Brychczynski has no standing to maintain

this action against Barrett.8

____________________________________________


8
  Additionally, we note the facts as pleaded in the Complaint are that the
Decedent asked Barrett to modify the Trust, which was last modified in
2011, and that the Decedent appointed Barrett as the “Death Trustee” and
executor of his estate. See Complaint, 3/24/2014, at ¶¶8, 69–70. The
Decedent died on August 4, 2013. See id. at ¶6.

      The complained-of transactions took place on or about July 27, 2013,
and were facilitated by the Decedent’s investment advisor, Bancroft.       See
Complaint, supra, ¶¶ 17, 76–79. According to the Complaint, the Decedent
transferred sums totaling $2,050,000.00 from the Trust account to
Defendant Susan Robbins, the Defendants Patrick and Eileen Janosko, and
Barrett. See id. at ¶¶17, 88. There is no allegation that Barrett was even
present with the Decedent on July 27, 2013. The Complaint is completely
devoid of any allegations that Barrett participated in the transactions of July
27, 2013, complained of by Brychczynski.

      The assets transferred were the principal of an inter vivos revocable
Trust under which the Decedent was the sole Trustee. Although
Brychczynski alleges the Decedent lacked capacity, there was no court
determination that the Decedent was incapacitated or unable to act, and
therefore Barrett was not acting as Trustee on July 27, 2013.            See
Modification of the Edwin A. Bright Trust of June 1, 2005, 2/22/2011, at ¶2
(“The Trustee of the trust shall be Edwin A. Bright. Upon the death of Edwin
A. Bright or if he becomes incapacitated and is unable to act, the alternate
trustee will be Patrick J. Barrett III.”).

      The attorney-client relationship does not create an ongoing fiduciary
duty to monitor the actions of one’s client — unless requested to do so.
Here, there is no allegation that the Decedent retained Barrett to oversee
(Footnote Continued Next Page)


                                          - 14 -
J-A34020-15


      As to the Undue Influence Count, we conclude that, to the extent that

this claim supports Brychczynski’s claim for breach of fiduciary duty, this

claim likewise fails for lack of standing.9         However, to the extent that the

undue influence claim is to be read in conjunction with the conversion claim,

we find that Brychczynski does have standing to maintain these causes of

action. In this regard, we conclude that the undue influence and conversion

claims are not professional negligence claims asserted by Brychczynski on

behalf of the Decedent, but are asserted by Brychczynski on his own behalf,

as a trust beneficiary of the Decedent’s inter vivos revocable trust, against

Barrett, as recipient of a $50,000.00 transfer from the Decedent’s trust

account.10

                       _______________________
(Footnote Continued)

the Decedent’s own actions as Settlor and sole Trustee. As such, there could
be no breach of fiduciary duty.
9
  In the undue influence count, Brychczynski alleges that Barrett failed to
take action over concerns voiced to Barrett by the Decedent’s paramour,
Jean Johnson, and his niece, Ellen Bright, about the influence of the
Defendant Robbins and Defendants Janosko. See Complaint, supra, at
¶¶61–64. Had Barrett been attorney-in-fact for the Decedent or co-trustee,
he may have had a duty to take affirmative action; but he was not, and had
no such obligation. Therefore, the undue influence count cannot be used to
bolster the breach of fiduciary duty, as Barrett had no fiduciary duty to
prevent the Decedent from making the transfers from the trust of which the
Decedent was Settlor and sole Trustee.
10
   We note that the only issue raised in this appeal is whether the trial court
erred in failing to dismiss all claims against Barrett on the grounds that
Brychczynski lacked standing. As discussed, we conclude that Brychczynski
does have standing to assert his claims for undue influence and conversion
on his own behalf, as opposed to on the Decedent’s behalf. We recognize,
(Footnote Continued Next Page)


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J-A34020-15


      Accordingly, we reverse the order of the trial court only insofar as it

overruled Barrett’s objection alleging the count for breach of fiduciary duty

should be dismissed because Brychczynski has no standing, and we sustain

Barrett’s preliminary objections with regard to the count for breach of

fiduciary duty; otherwise, we affirm.

      Order reversed in part, affirmed in part. Case remanded. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




                       _______________________
(Footnote Continued)

however, that going forward in this litigation, Brychczynski has to defeat the
provision in the Trust that allows the Decedent to withdraw the assets placed
in the Trust. See Footnote 1, supra, and Modification of the Edwin A. Bright
Trust of June 1, 2005, 2/22/2011, at ¶5.



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