J-A13036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BETTY J. RELLICK AND KIMBERLY K.                   IN THE SUPERIOR COURT OF
VASIL                                                    PENNSYLVANIA

              v.

SHARLEEN RELLICK-SMITH AND
ANNABELL MARCOALDI

APPEAL OF: KIMBERLY K. VASIL

                                                       No. 884 WDA 2015


                          Appeal from the Order May 21, 2015
                   in the Court of Common Pleas of Indiana County,
                          Civil Division at No. 11283 CD 2014

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

CONCURRING STATEMENT BY OLSON, J.:                   FILED AUGUST 22, 2016

         Although the learned Majority reaches the correct conclusion based

upon 112-year old precedent, I believe that the law has developed in a

manner that will lead our Supreme Court to recognize Kimberly K. Vasil’s

(“Vasil’s”) standing in this case. Therefore, I concur.

         In May 1904, our Supreme Court set forth the elements of the tort of

intentional interference with testamentary expectancy. See Marshall v. De

Haven, 58 A. 141, 142 (Pa. 1904). In Marshall, the decedent drafted a will

which left only $5.00 (of a $250,000.00 estate) to his niece. After drafting

the will, the decedent expressed a wish to leave more of his estate to his

niece.     One of the larger beneficiaries of the will then paid a third-party

$3,000.00 to convince the decedent not to change his will.           The decedent
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never changed his will and, after the decedent’s death, the niece sued the

beneficiary for intentional interference with testamentary           expectancy.

Ultimately, our Supreme Court in Marshall recognized the validity of the

tort but limited the tort to diminished expectancy under wills. 1      Marshall,

however, was decided three months prior to the Court of Appeals of New

York’s In re Totten, 71 N.E. 748 (N.Y. 1904) decision, the first case to

recognize a Totten trust2 such as the one at issue here, and 29 years prior to

our Supreme Court recognizing Totten trusts in Pennsylvania.          See In re

Scanlon’s Estate, 169 A. 106, 108–109 (Pa. 1933). Since that time, our

Supreme Court has only cited Marshall on three occasions.            In all three

instances, the citation to Marshall was tangential to the issue our Supreme

Court was considering. See McNeil v. Jordan, 894 A.2d 1260, 1265 (Pa.

2006) (whether pre-complaint discovery was appropriate); Cole v. Wells,

177 A.2d 77, 80 (Pa. 1962) (whether request for discovery must be brought

in Common Pleas or Orphans’ Court); Mangold v. Neuman, 91 A.2d 904,

907 (Pa. 1952) (whether complaint was a collateral attack on the probate of

a will).

       Since Marshall, the Restatement (Second) of Torts § 774B defined

the tort of intentional interference with inheritance or gift, which is similar to


1
  Although our Supreme Court recognized the validity of the tort, it found
that the niece failed to plead the requisite elements of the tort.
2
 A Totten trust is sometimes referred to as a “poor man’s will.” See In re
Novosielski, 992 A.2d 89, 106 n.22 (Pa. 2010) (citation omitted).


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the tort of intentional interference with testamentary expectancy set forth in

Marshall.    Our Supreme Court, however, has not adopted (or rejected)

section 774B, under which Vasil clearly has standing.                  Similarly, our

Supreme Court has not determined whether, in light of section 774B and/or

its   adoption    of   Totten   trusts   in   Scanlon’s   Estate,   the   intentional

interference with testamentary expectancy tort announced in Marshall

should be expanded to include situations like the one in the case at bar.

       It is nonsensical to find that Vasil has standing to argue that

defendants       exerted    undue   influence    to   diminish   her    testamentary

expectancy with respect to a will, but she lacks standing to argue that

defendants exerted undue influence to diminish her expectancy with respect

to a Totten trust.         In both situations, the decedent had every right to

diminish Vasil’s expectancy during her lifetime as long as it was done of her

own free will and volition.         Whether undue influence was exerted with

respect to a will or Totten trust should have no bearing on Vasil’s standing.

       In the end, however, this Court lacks the authority to expand causes

of action that our Supreme Court has previously defined. See In re Estate

of Stephano, 981 A.2d 138, 141–142 (Pa. 2009). That task is reserved for

our Supreme Court.         In Marshall, our Supreme Court defined the tort of

intentional interference with testamentary expectancy and limited that tort

to wills – not Totten trusts. I therefore respectfully concur.

       Judge Stabile and Judge Musmanno join this concurring statement.



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