J-A05024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 LINDA HART, INDIVIDUALLY AND AS         :   IN THE SUPERIOR COURT OF
 CO-TRUSTEE OF THE DELORES L.            :        PENNSYLVANIA
 PLOWCHALK AND RAYMOND B.                :
 PLOWCHALK LIVING TRUSTS                 :
                                         :
                     Appellant           :
                                         :
                                         :
              v.                         :   No. 1609 WDA 2017
                                         :
                                         :
 JANICE WOLFE AND CHRISTINA              :
 REED                                    :

                 Appeal from the Order October 12, 2017
   In the Court of Common Pleas of Allegheny County Orphans’ Court at
                           No(s): 02-16-01185


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 24, 2019

     Linda Hart (“Appellant”), individually and as co-trustee of the Delores L.

Plowchalk and Raymond B. Plowchalk living trusts, appeals from the October

12, 2017 order granting judgment on the pleadings in favor of Janice Wolfe

and her daughter, Christina Reed (collectively “Appellees”).     After careful

review, we affirm.

     The relevant facts and procedural history of this matter were set forth

by the orphans’ court as follows:

           Delores [(“Mother”)] and Raymond Plowchalk [(“Father”)]
     had a long marriage. It produced three children: [Appellant] Linda
     Hart, [Appellee] Janice Wolfe[,] and David Plowchalk. In August,
     2012, [Father] died. Fourteen months later, [Mother] died.
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            But, this story begins years before [Mother] and [Father’s]
     demise. In 2001, [Father] established a living trust naming
     [Mother] as a successor trustee upon his death. It also provided
     that upon [Mother’s] death, the assets would be distributed in
     equal shares to trusts for their 3 children. At the same time
     [Father’s] living trust was established, [Mother] established her
     own. [Mother] also executed a will that left all of her assets to her
     living trust. This estate plan was necessary as [Mother] and
     [Father] had accumulated assets in excess of a million dollars.1

           1 The estate size is inferentially confirmed by virtue of
           [Mother’s] inheritance tax return which showed assets
           of over a million dollars were transferred to Janice or
           [to Appellees, jointly] by virtue of payable on death
           designations or joint tenancy.

            The seeds of family discord were planted after [Father] died
     in 2012. In 2013, [Mother] executed a new will. This new
     document disinherited two of her children - David and [Appellant].
     It also left [Mother’s] entire estate to her daughter Janice.
     [Mother] also took action as her role as the successor trustee to
     [Father’s] Living Trust. She withdrew assets from the trust and
     invested them. Those investments were designated to be paid
     upon [Mother’s] death to her daughter, Janice or to [Appellees,
     jointly].

           On October 5, 2013, [Mother] died. [Appellant], the
     disinherited daughter, challenged the will. That action was
     ultimately dismissed in May, 2015.

          In January, 2016, the present action was filed by
     [Appellant]. [Appellant’s] Amended Complaint sets forth five
     causes of action against [Appellees]. The parties have filed the
     necessary pleadings to allow for dispositive motions to be filed.
     The motion presently before this Court is [Appellees’] Motion for
     Judgment on the Pleadings.

Orphans’ Court Opinion, 10/12/17, at 1-2.

     On October 12, 2017, the orphans’ court granted Appellees’ motion for

judgment on the pleadings. On October 31, 2017, Appellant filed a timely




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notice of appeal. Both the orphans’ court and Appellant have complied with

Pa.R.A.P. 1925.

      On appeal, Appellant presents the following issues for this Court’s

consideration:

      1. Whether [Appellant’s] Civil Action should have been transferred
      to the Orphan’s Court Division as the civil division properly had
      jurisdiction?

      2. Whether Counts 1 through 4 of [Appellant’s] Complaint,
      alleging, in general, conversion of assets, should have been
      dismissed as [Appellant] alleges a valid claim for conversion?

      3. Whether Count 5 of [Appellant’s] Complaint should have been
      dismissed as [Appellant] allege[d] a valid claim for Interference
      with Expected Inheritance?

Appellant’s Brief at 5.

      Our scope and standard of review in an appeal of an order granting a

motion for judgment on the pleadings is as follows:

      this Court applies the same standard as the trial court and
      confines its consideration to the pleadings and documents
      properly attached thereto. We must determine whether the trial
      court’s action respecting the motion for judgment on the pleadings
      was based on a clear error of law or whether there were facts
      disclosed by the pleadings which should properly go to the jury.
      We will affirm the grant of judgment on the pleadings only if the
      moving party’s right to succeed is certain and the case is so free
      from doubt that trial would clearly be a fruitless exercise.

DeSantis v. Prothero, 916 A.2d 671, 673 (Pa. Super. 2007) (internal

citations and quotation marks omitted).

      In her first issue, Appellant avers that the underlying matter was a civil

action; therefore, Appellant alleges that the trial court erred in transferring


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this matter from the civil division to the orphans’ court. Appellant’s Brief at

5, 15. We note that the question of subject matter jurisdiction may be raised

at any time, by any party, or by the court sua sponte.          In re Estate of

Ciuccarelli, 81 A.3d 953, 958 (Pa. Super. 2013) (citation omitted).            The

standard of review we apply is de novo, and our scope of review is plenary.

Id. (citation omitted).

      We point out that when a cause of action is initiated in an improper

division of the court of common pleas, the matter shall be transferred to the

proper division.   42 Pa.C.S. § 5103(c). Section 5103(c) provides as follows:

      (c) Interdivisional transfers.--If an appeal or other matter is
      taken to, brought in, or transferred to a division of a court to which
      such matter is not allocated by law, the court shall not quash such
      appeal or dismiss the matter, but shall transfer the record thereof
      to the proper division of the court, where the appeal or other
      matter shall be treated as if originally filed in the transferee
      division on the date first filed in a court or magisterial district.

42 Pa.C.S. § 5103(c). After review, we conclude that the civil division properly

transferred this matter to the orphans’ court division.

      [T]he jurisdiction of the court of common pleas over the following
      shall be exercised through its orphans’ court division:

                                      ***

            (17) Title to personal property.--The adjudication
            of the title to personal property in the possession of
            the personal representative, or registered in the name
            of the decedent or his nominee, or alleged by the
            personal representative to have been in the
            possession of the decedent at the time of his death.




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20 Pa.C.S. § 711(17).      Moreover, “where there are substantial questions

concerning matters enumerated in section 711 and also matters not

enumerated in that section[,]” jurisdiction is proper in the orphans’ court. 20

Pa.C.S. § 712(3).

      The focus of Appellant’s Amended Complaint was on personal property

owned by Mother at the time of Mother’s demise.            Appellant’s Amended

Complaint, 4/7/16, at ¶¶ 19, 20, 22, 24, and 25. Pursuant to 42 Pa.C.S. §

5103(c), we conclude that there was no error of law in the civil division

transferring this matter to the orphan’s court. Jurisdiction was mandatory as

to the claims regarding personal property owned by Mother at the time of her

death, 20 Pa.C.S. § 711(17), and these questions concerning Mother’s

personal property afforded the orphans’ court jurisdiction over the remaining

matters. 20 Pa.C.S. § 712(3).

      In her remaining two issues on appeal, Appellant avers that the orphans’

court erred in dismissing counts one through five of her Amended Complaint

in which she raised claims for conversion, civil conspiracy, and interference

with an expected inheritance. Appellant’s Brief at 5, 18-23. After review, we

conclude that no relief is due.

      The orphans’ court addressed Appellant’s claims of error as follows:

              [Appellees] initial attack on the Amended Complaint focuses
      our attention on the first four claims of wrongdoing. [Appellees]
      take a two-pronged approach. First, they claim [Appellant] does
      not have standing to pursue counts one through four. A secondary
      argument is that, if standing is present, the Amended Complaint
      fails to allege sufficient facts to support the conversion claims. The

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     Court will assume that standing is present and will then grant
     judgment on the pleadings as to counts 1, 2, 3 and 4 for the
     reasons that follow.

          The common denominator of Counts 1 through 4 is that
     [Appellees] converted [Mother’s] assets to themselves.2 Our
     Supreme Court has referenced []the following ways in which a
     conversion can be committed:

           (a) Acquiring possession of the goods, with an intent
           to assert a right to them which is in fact adverse to
           that of the owner;

           (b) Transferring the goods in a manner which deprives
           the owner of control;

           (c) Unreasonably withholding possession from one
           who has the right to it;

           (d) Seriously damaging or misusing the chattel in
           defiance of the owner’s rights.

     Norriton East Reality Corp. v. Central-Penn National Bank, 254
     A.2d 637, 638 (Pa. 1969). As both parties recognized in their
     competing papers, conversion is a tort []by which the defendant
     deprives the plaintiff of his right to a chattel or interferes with the
     plaintiff’s use or possession of a chattel without the plaintiff’s
     consent and without lawful justification. Chrysler Credit
     Corporation v. Smith, 643 A.2d 1098, 1100 (Pa. Super. 1994),
     appeal denied, 652 A.2d 834 (1994). Important for our purposes,
     is that the plaintiff in a conversion action is the person whose
     property has been taken or interfered with. “A plaintiff has a cause
     of action in conversion if ... she had actual or constructive
     possession of a chattel at the time of the alleged conversion.” Id.
     A third basis is if the plaintiff has an “immediate right to
     possession of the chattel at the time of the conversion.”
     Eisenhauer v. Clock Towers Assocs., 582 A.2d 33, 36 (Pa. Super.
     1990); Bank of Landisburg v. Burruss, 524 A.2d 896, 898 (Pa.
     Super. 1987) (noting “plaintiff may bring suit for conversion if he
     had an immediate right to possession of the chattel at the time it
     was converted”).

           2 A civil conspiracy assertion needs an underlying
           claim to sustain itself. []Under ... Pennsylvania law, a

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              conspiracy claim will not lie without a valid underlying
              civil claim. See Kuroda v. SPJS Holdings, L.L.C., 971
              A.2d 872, 892 (Del.Ch.2009) (“Civil conspiracy is not
              an independent cause of action; it must be predicated
              on an underlying wrong.”); Goldstein v. Phillip Morris,
              Inc., 854 A.2d 585, 590 (Pa.Super.2004) (“Absent a
              civil cause of action for a particular act, there can be
              no cause of action for civil conspiracy to commit that
              act.”). Rock v. Rangos, 61 A.3d 239, 249 (Pa. Super.
              2013). Given the Court’s ruling on the true conversion
              counts, this claim for civil conspiracy suffers the same
              fate.

              [Appellant] did not have actual possession of the property.
       Likewise, she has not demonstrated that she had the “immediate
       right” to possession of the chattel at the time it was supposedly
       converted. According to [Appellant], she had constructive
       possession. Constructive possession is an appropriate basis upon
       which to push forward with a conversion action. Chrysler Credit
       Corp., 643 A.2d at 1100. However, the theory of constructive
       possession [Appellant] relies upon here is that she had a
       “legitimate expectancy[1] that the assets that were in [Father’s]
       Living Trust and that were intended to go into [Mother’s] Living
       Trust would have ultimately been distributed to her as a
       beneficiary and co-trustee of the Trusts.” Brief in Opposition to
       Motion for Judgment on the Pleadings ([Appellant]), pg. 3.

             In shortened form, the issue is whether an “expectancy”
       equates with constructive possession. [Appellant] has not directed
       us to any law that definitively answers the question in her favor.
       Instead, she references Chrysler Credit Corp., supra, as being
       “similar” to her “situation”. Brief in Opposition to Motion for
       Judgment on the Pleadings ([Appellant]), pg. 3. The Court does
       not see the similarity especially when reviewing the definition of
       “constructive possession”.3 Constructive possession has been
____________________________________________


1 An “expectancy” is “a bare hope of succession to the property of another
such as may be entertained by an heir apparent. Such a hope is inchoate, it
has no attribute of property, is without appreciable value, and the interest to
which it relates is non-existent and may never exist.” Hutnik v. Hutnik, 535
A.2d 151, 155 (Pa. Super. 1987) (internal quotation marks and citations
omitted).


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       defined as “conscious dominion” which requires the power to
       control the item and the intent to exert such control.
       Commonwealth v. Carroll, 507 A.2d 819, 820-21 (Pa. 1986).
       [Appellant] simply did not have the power to control the items
       which are at the core of her accusation of conversion. As such,
       she did not have constructive possession.

              3 The Court is quite familiar with that phrase having
              spent over 8 years in the criminal division of this
              Court.[2]

             Consistent with the order which accompanies this opinion,
       [Appellees’] Motion for Judgment on the Pleadings as to Counts 1,
       2, 3 and 4 will be granted.

             [Appellees] also take exception to the 5th count of the
       Amended Complaint. [Appellant] advances a claim for interference
       with an expected inheritance. But, in a divergence from
       established Pennsylvania law, she asserts that her claim has
       nothing “to do with the will.” Brief in Opposition to Motion for
       Judgment on the Pleadings ([Appellant]), pg. 6. Instead, her claim
       is that [Appellees] “interfered with the testamentary scheme” of
       [Father and Mother] “isolating [Mother]” from the rest of the
       family after [Father’s] death which then lead to all of [Mother’s]
       assets going to [Appellees]. Id.

             Unfortunately for [Appellant], Pennsylvania law does not
       recognize the nuance that she proposes. The cause of action for
       wrongful interference with testamentary expectancies has been
       part of Pennsylvania’s legal fabric for 113 years. It was in Marshall
       v. DeHaven, 58 A. 141 (Pa. 1904), where our Supreme Court
       discussed the elements of this claim. From this rather short
       opinion, a few cases in our history have identified the precise
       elements to this cause of action. Those elements are:
____________________________________________


2  Although the orphans’ court references the criminal division in its
understanding of the term “constructive possession,” we note that
“constructive possession” is a term of art in civil proceedings as well. See
Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 581 (Pa. Super. 2003) (“A
plaintiff has a cause of action in conversion if he or she had actual or
constructive possession of a chattel at the time of the alleged conversion.”).
We agree with the orphans’ court that an expectancy does not equate to
possession, constructive or actual.

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            (1) The testator indicated an intent to change his will
            to provide a described benefit for plaintiff;

            (2) The defendant used fraud, misrepresentation or
            undue influence to prevent execution of the intended
            will;

            (3) The defendant was successful in preventing the
            execution of a new will; and,

            (4) But for the defendant’s conduct, the testator
            would have changed his will[.]

      Cardenas v. Schober, 783 A.2d 317, 326 (Pa. Super. 2001);
      Hollywood v. First National Bank of Palmerton, 859 A.2d 472, 477-
      78 (Pa. Super. 2004).

            By her own admission, [Appellant] admits that her facts do
      “not match the elements” for this claim. Brief in Opposition to
      Motion for Judgment on the Pleadings ([Appellant]), pg. 6.
      Instead, she urges this Court to venture where no other
      Pennsylvania jurist has gone. That is open the umbrella of civil
      wrongs and allow her facts to rest underneath its protective shield.
      This Court will not take such action. As reflected in the order
      accompanying this opinion, judgment on the pleadings will be
      granted on Count Five of the Amended Complaint as recovery is
      simply not possible.

Orphans’ Court Opinion, 10/12/17, at 2-6.

      After review, we agree with the orphan’ court’s analysis. Appellant was

never in possession of the assets she alleged were wrongfully transferred, and

therefore, there can be no claim for conversion.      See Mariner Chestnut

Partners, L.P. v. Lenfest, 152 A.3d 265, 275 (Pa. Super. 2016) (a plaintiff

has a cause of action in conversion if she had actual or constructive possession

of a chattel at the time of alleged conversion).     Appellant had merely an

expectancy in Mother’s property, and we conclude that an expectancy does

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not suffice to establish constructive possession. See Hutnik, 535 A.2d at 155

(defining an expectancy as an inchoate hope to obtain the property of another

having no attribute of property, no appreciable value, and the interest to which

it relates is non-existent and may never exist). Moreover, because we agree

that Appellant cannot establish conversion, there can be no civil conspiracy.

See Rock v. Rangos, 61 A.3d 239, 249 (Pa. Super. 2013) (“Civil conspiracy

is not an independent cause of action; it must be predicated on an underlying

wrong.”) (citation omitted).

      Finally, Appellant failed to establish the elements of intentional

interference with an inheritance as set forth in Cardenas v. Schober, 783

A.2d 317, 326 (Pa. Super. 2001). We decline Appellant’s invitation to adopt

a different rule because we are bound by the prior decisions of this Court.

Lower Paxton Tp. v. U.S. Fidelity and Guar. Co., 557 A.2d 393, 401 (Pa.

Super. 1989); see also Eckman v. Erie Ins. Exchange, 21 A.3d 1203, 1209

(Pa. Super. 2011) (“Any … change in the law is beyond the mandate of this

Court. This Court is … bound by existing precedent under the doctrine of stare

decisis.”) (internal citation and quotation marks omitted).

      For the reasons set forth above, we conclude that Appellant is due no

relief. Accordingly, we affirm the October 12, 2017 order granting judgment

on the pleadings in favor of Appellees.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




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