J-A22010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS D. BEGLEY JR., AS                             IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF                             PENNSYLVANIA
LESLIE SINON POWELL AND GERALD K.
MORRISON, AS EXECUTOR OF THE
ESTATE OF WILLIAM POWELL

                            Appellants

                       v.

RHOADS & SINON LLP, STANLEY SMITH
AND SHERILL MOYER

                            Appellees                     No. 155 MDA 2014


               Appeal from the Order Entered December 30, 2013
                In the Court of Common Pleas of Dauphin County
                      Civil Division at No(s): 2011 CV 3840


BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                FILED MARCH 09, 2015

        Appellants, Thomas D. Begley Jr. and Gerald K. Morrison, as

administrators of the Estate of Leslie Sinon Powell (“Wife’s Estate”) and the

Estate of William Powell (“Husband’s Estate”), respectively, appeal from the

order granting the preliminary objections of Appellees Rhoads & Sinon LLP,

Stanley Smith and Sherill Moyer.           After careful review, we affirm in part,

reverse in part, and remand for further proceedings.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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         The complaint filed by the Appellants describes the following factual

summary. Wife was the lifetime income beneficiary of a trust settled by her

mother and known as the “Leslie Sinon Powell Trust” (“LSP Trust”). Under

the LSP Trust, Wife also had the power to appoint the assets of the LSP

Trust by specific reference in her Will.1        In 2009, Wife executed a Will,

prepared by Appellees, bequeathing the residue of her estate, including a

general reference to powers of appointment, to Husband. However, this Will

did not specifically reference the power of appointment contained in the LSP

Trust.

         On February 19, 2010, Wife’s mother passed away. Appellees Smith

and Moyer, as Executors and Attorneys for the estate of Wife’s mother,

contacted Husband and Wife to discuss the estate. At the same time, Smith

and Moyer were retained by Husband and Wife for their own estate planning

purposes. On March 9, 2010, the parties met to discuss the distribution of

Wife’s mother’s estate. As alleged in the complaint, Smith and Moyer never

alerted Wife to the fact that her Will did not adequately exercise the power

of appointment contained in the LSP Trust.



____________________________________________


1
  Neither the LSP Trust nor Wife’s Will are part of the certified or reproduced
record on this appeal. As Appellees never objected the absence of these
documents, we are left to accept the allegations in the complaint concerning
these documents as true, pursuant to our standard of review, set forth
below.



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       On March 12, 2010, Husband contacted Appellees via e-mail,

requesting that Smith and Moyer prepare a codicil to Wife’s Will that

specifically exercised the power of appointment in Husband’s favor. Moyer

responded, indicating that a codicil would be drafted for Husband and Wife’s

approval.

       On March 17, 2010, Husband notified Appellees that Wife had been

diagnosed with cirrhosis of the liver, and requested that the codicil be

deemed an urgent matter.        Two days later, on Friday March 19, Moyer

responded, indicating that the codicil would be ready for Wife’s review by

“early next week.” Husband responded that same evening:

       The sooner the better. Leslie is in serious condition and will
       most likely be hospitalized tomorrow. I am seriously concerned
       about the foot dragging on the part of Rhoads & Sinon in this
       and other matters.

       On March 22, Moyer responded, indicating that the codicil was ready

for Wife’s review, and that Husband should provide a date for Wife to meet

with   Appellees   to   “privately   to    review   the   changes”   to   her   Will.

Unfortunately, Wife had already fallen into a coma from which she never

recovered.    As a result, the significant assets in the LSP Trust were not

appointed to Husband, and instead were distributed pursuant to the terms of

the LSP Trust.

       Husband and Wife’s Estate subsequently filed a Writ of Summons in

this matter. Before the Complaint was filed, Husband also passed away, and

the successor executors of the Estates were substituted as parties.             The

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Estates then filed a six count complaint, asserting the following claims: I –

Breach of Fiduciary Duty to Husband and Wife; II – Legal Malpractice On

Behalf of Both Husband and Wife; III – Intentional and Reckless Misconduct

of Smith and Moyer; IV – Negligent Supervision of Smith and Moyer by

Rhoads & Sinon; V – Breach of Contract with Wife, Asserted by Husband as

Intended Third Party Beneficiary; and VI – Breach of Contract with Husband.

Appellees filed preliminary objections to the Complaint, including an

objection asserting that neither Estate had standing to assert these claims.

The trial court sustained this objection, and this timely appeal ultimately

followed.

      On appeal, the Estates purport to raise seven issues for our review.

However, in contravention of Pa.R.A.P., Rule 2119(a), the argument section

of the Estates’ appellate brief is only divided into three parts. These parts

blend arguments for multiple issues, and in some instances, don’t fully

develop the relevant argument. In light of this, as well as the observation

that the trial court’s order was limited to a conclusion that neither Estate has

standing, and the fact that the standing issue is controlling, we will address

only the issue of standing.

      Our standard when reviewing a trial court’s decision to sustain

preliminary objections is as follows.

      The scope of review in determining whether a trial court erred in
      sustaining preliminary objections and dismissing a complaint is
      plenary.


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      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. 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 is free and clear
      of doubt, and this Court will reverse the trial court’s decision
      regarding preliminary objections only where there has been an
      error of law or an abuse of discretion.

Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa. Super. 2012)

(citation omitted).    When reviewing an order sustaining preliminary

objections, this court accepts as true all well-pleaded facts in the complaint

as well as reasonable inferences that can be drawn therefrom.         See Al

Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 190 (Pa. Super.

1994).

      At its heart, the complaint in this matter involves a claim that

Appellees failed in their duty to draft a Will for Wife that effectuated her

testamentary intent. As noted by the trial court, the Pennsylvania Supreme

Court has developed a stringent test for determining who has standing to

bring such a claim. The Supreme Court held that the estate of the testator

has no standing, as the estate suffers no harm. See Guy v. Liederbach,

459 A.2d 744, 749 (Pa. 1983). Thus, the trial court in the present case was

correct in granting the preliminary objections to any claims made by Wife’s

Estate.

      In contrast, the Court in Guy held that certain intended beneficiaries

of a Will have standing to raise such a claim against the drafter of a will.

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See id., at 751. A beneficiary has standing to raise the claim where he is a

named legatee, and where the circumstances of the relationship between the

testator and the attorney, as well the will itself, indicate the testator’s intent

to benefit the legatee. See id., at 751-752.

      Under the applicable standard of review, the first requirement from

Guy is met by paragraph 12 of the Complaint, which alleges that Wife

bequeathed the residue of her estate to Husband, including all property

subject to Wife’s powers of appointment.        Husband is therefore a named

legatee.

      The second requirement under Guy is less straightforward in its

application.   However, under the unique circumstances of this case, it is

reasonable to infer from the allegations in the Complaint that Wife intended

for Husband to receive the assets from the LSP Trust.          As noted above,

paragraph 12 indicates that Wife’s Will bequeathed all property subject to

Wife’s powers of appointment to Husband.           Furthermore, the Complaint

alleges that Wife was unaware that her Will was insufficiently specific to

legally exercise her power of appointment under the LSP Trust until Husband

noticed the issue on March 12, 2010. Finally, paragraph 17 of the Complaint

alleges that Wife expressed to Smith and Moyer her desire to leave all of her

assets, save a $25,000 specific bequest to a cousin, to Husband.           These

allegations, taken as true, are sufficient to establish that Wife intended to

appoint the assets of the LSP Trust in favor of Husband.


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      These    circumstances   are   distinguishable   from   Hess    v.   Fox

Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007). In Hess, a panel of this

Court addressed a scenario where the plaintiffs claimed that their legacy was

diminished, in contravention of the testator’s intent, by the actions of her

husband after her death.    Under the operative will, the testator’s husband

had the power to withdraw all of the principal from a marital trust after her

death.   The testator’s husband exercised this power after the testator’s

death by withdrawing a significant sum of money from the marital trust.

Upon the husband’s death, the residue of the marital trust was bequeathed

to the plaintiffs.   The plaintiffs sued the drafters of the testator’s will,

asserting that the will did not effectuate her testamentary intent.

      This Court held that the plaintiffs did not have standing, as they did

not “claim that they received a legacy less than that bequeathed to them

according to the text of [the testator’s] will.”   Id., at 808.   Rather, they

claimed “only that [the testator’s] true intent was to bequeath them a

greater legacy than that afforded by the will.” Id. (emphasis in original).

      In contrast, the complaint filed by the Estates in this case alleges that

Wife intended for her will to appoint the assets of the LSP Trust in favor of

Husband. The text of the will, as set forth in the complaint, supports this

interpretation. Pursuant to the complaint, the only reason Wife’s will did not

effectuate this testamentary intent is that Wife was unaware of the




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requirement of specificity in the LSP Trust.       Once she was made aware of

this requirement, she requested that Smith and Moyer rectify this oversight.

      We therefore conclude that the trial court erred in concluding that

Husband’s Estate lacks standing as an intended third party beneficiary of the

lawyer/client relationship between Wife and Appellees. As noted above, the

trial court did not err in concluding that Wife’s Estate lacks standing to bring

such claims.

      Order affirmed in part and reversed in part.         Case remanded for

further   proceedings   consistent   with   this   memorandum.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2015




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