J-A30043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    GERALD K. MORRISON, AS                          :        IN THE SUPERIOR COURT OF
    EXECUTOR OF THE ESTATE OF                       :             PENNSYLVANIA
    WILLIAM POWELL                                  :
                                                    :
                        Appellant                   :
                                                    :
                                                    :
                v.                                  :
                                                    :        No. 894 MDA 2019
                                                    :
    RHOADS & SINON, LLP, STANLEY                    :
    SMITH AND SHERILL MOYER                         :

                  Appeal from the Order Entered May 3, 2019
    In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                                2011-CV-3840


BEFORE:       DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                      FILED FEBRUARY 26, 2020

        Appellant,     Gerald   K.    Morrison,         as    executor   of     the   estate   of

William Powell, appeals from the order granting summary judgment as to all

counts in favor of Appellees, Rhoads & Sinon, LLP (“Rhoads & Sinon”),

Stanley Smith, and Sherill Moyer, and dismissing Appellant’s amended

complaint with prejudice. We affirm in part and reverse in part.

        The   family    at   the     center    of   this      estate   action    consisted     of:

Frank A. Sinon, Esquire (“Mr. Sinon”), a founding partner of Appellee law firm

Rhoads & Sinon; his wife, Dorothy James Sinon (“Mrs. Sinon”); their daughter,




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A30043-19



Leslie Sinon Powell (“Wife”); and her husband, William Powell (“Husband”).

Mr. Sinon, Mrs. Sinon, Wife, and Husband are all now deceased.

     The complaint filed by [Appellant and Wife’s Estate] describes the
     following factual summary.       Wife was the lifetime income
     beneficiary of a trust settled by [Mrs. Sinon] 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.
        1  Neither the LSP Trust nor Wife’s Will are part of the
        certified or reproduced record on this appeal. As Appellees
        never objected [to] 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
        ...

     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.

     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:


                                   -2-
J-A30043-19


          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. [She died on April 4, 2010.] 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 [in May 2011], and the successor executors of the
       Estates were substituted as parties. The 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.

Begley v. Rhoads & Sinon LLP, No. 155 MDA 2014, unpublished

memorandum at 2-4 (Pa. Super. filed March 9, 2015).1              The complaint

included the following averments:

       6.    At all times relevant herein [Appellee] Rhoads & Sinon,
       acting through its agents, servants and employees, including
       [Appellees] Smith and Moyer, represented decedents, [Wife] and
       [Husband] in connection with the drafting of their respective Wills
       and estate planning. . . .

       9.    [Appellees] were also counsel for [Mr.] Sinon and
       [Mrs. Sinon] and had prepared their respective Wills and Trust
____________________________________________


1Thomas D. Begley, Jr., was the administrator of Wife’s Estate. Begley, No.
155 MDA 2014, at 1.

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J-A30043-19


     documents. In fact, [Appellees] Smith and Moyer were the
     Executors under the Last Will and Testament of [Mrs. Sinon] and
     were the Trustees of The Dorothy James Sinon Revocable
     Agreement of Trust (“Agreement of Trust”) dated August 8, 2003
     as amended and last amended on April 22, 2008. . . .

     12. On or about March 20, 2009, [Wife] executed her Last Will
     and Testament drafted and prepared by [Appellees] and in which
     [Appellee] Moyer was named successor Co-Executor of her Estate
     in the event her husband was unable to serve as Executor.
     Paragraph 3 of [Wife]’s Will provided:

        I give, devise and bequeath all of the rest, residue and
        remainder of my property, real, personal and mixed, not
        disposed of in the preceding portions of this Will, including
        all  property     over   which    I   hold   a    power     of
        appointment[](which powers of appointment I hereby
        exercise in favor of my estate), to My Spouse, if My Spouse
        survives me.

     13. At the time her Will was executed, [Wife] was unaware of the
     provisions of her mother’s Will and Trust. . . .

     17. As expressed to [Appellees] Smith and Moyer, [Wife]’s
     desire, as specifically reflected in her Will and in an earlier email
     communication to [Appellee] Smith, was to leave her assets with
     the exception of a $25,000 specific bequest to her cousin) outright
     to [Husband]. . . .

     24. On March 12, 2010, [Husband], after having read
     [Mrs. Sinon]’s Will and Agreement of Trust, recognized the need
     for [Wife] to either revise her Will or have a Codicil to her Will
     prepared by which she would exercise the power of appointment
     by specific reference in order to appoint the trust principal to him
     upon her death. After discussing the issues with [Wife] and in
     accordance with her direction, [Husband] sent an email to
     [Appellees] explaining that [Wife] wanted to, among other things,
     have [Appellees] prepare a Codicil by which she would specifically
     exercise the power of appointment in favor of [Husband] outright
     (the “Codicil”). Attached hereto, incorporated herein by reference
     and marked Exhibit “B” is a true and correct copy of [Husband]’s
     email to [Appellee] Moyer.




                                     -4-
J-A30043-19



Complaint, 4/26/2013, at 2-4, 6 ¶¶ 6, 9, 12-13, 17, 24. Pursuant to Count I,

breach of fiduciary duty, the complaint made the following additional

averments:

        48. Rather than perform duties owing to both [Wife] and
        [Husband], [Appellees] chose to ignore those duties and to
        instead improperly speculate as to what [Mrs. Sinon]’s wishes
        might have been had she still been alive.

        49. As [Appellee] Smith has admitted, he looked for ways to
        have his client [Wife] exercise the power without making an
        outright appointment to [Husband], who was also his client, all to
        [Husband]’s ultimate detriment and loss. . . .

        52. . . . [Appellees] owed them the duty to: . . .

           (c) protect [Husband]’s interest when [Wife] became ill and
           her potential ability to exercise the power of appointment
           was in jeopardy;

Id. at 10-11 ¶¶ 48-49, 52(c).

        “Appellees filed preliminary objections to the Complaint, including an

objection asserting that neither Estate had standing[2] to assert these claims.

The trial court sustained this objection [in 2013], and [a] timely appeal

ultimately followed.” Begley, No. 155 MDA 2014, at 4.

____________________________________________


2   The Supreme Court has explained “standing” as follows:

        Standing requires that an aggrieved party have an interest which
        is substantial, direct, and immediate. That is, the interest must
        have substance — there must be some discernible adverse effect
        to some interest other than the abstract interest of all citizens in
        having others comply with the law. That an interest be direct
        requires that an aggrieved party must show causation of the harm
        to his interest by the matter of which he complains.

In re Francis Edward McGillick Foundation, 642 A.2d 467, 469 (Pa. 1994)
(citations and internal quotation marks omitted).

                                           -5-
J-A30043-19



     On appeal, this Court stated:

     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. . . . 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. 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, [in paragraphs 13 and 24 of] the
     Complaint allege[] 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. . . .

     Pursuant to the complaint, the only reason Wife’s will did not
     effectuate this testamentary intent is that Wife was unaware of


                                     -6-
J-A30043-19


       the requirement of specificity in the LSP Trust. Once she was
       made aware of this requirement, she requested that Smith and
       Moyer rectify this oversight.

Id. at 5-8. This Court ultimately held that “the trial court erred in concluding

that Husband’s Estate lack[ed] standing as an intended third party beneficiary

of the lawyer/client relationship between Wife and Appellees. . . . [T]he trial

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

claims.” Id. at 8.3 This Court thereby affirmed in part, reversed in part, and

remanded for further proceedings consistent with its decision. Id. at 1, 8.

       Appellees filed an application for re-argument with this Court, which was

denied on May 19, 2015. Appellees then filed a petition for allowance of appeal

with the Supreme Court of Pennsylvania, which was denied on October 29,

2015. Begley v. Rhoads & Sinon LLP, 126 A.3d 1281 (Pa. 2015).

       On remand [to the trial court], all the claims brought by Husband’s
       estate remained before the trial court. Therefore, the trial court
       addressed [Appellees’] remaining preliminary objections and
       directed that an Amended Complaint be filed to plead damages
       with the requisite specificity.1 An Amended Complaint was filed
       which mirrored the original Complaint except for the dismissed
       Count [VI] and more specific damages.
          1   The parties agreed to dismiss Count VI.

Trial Court Opinion, filed May 3, 2019, at 2-3. Paragraphs 6, 9, 12, 13, 17,

24, 48, and 52(c) of the original complaint remained the same in the amended

complaint, except for being renumbered as paragraphs 5, 8, 11, 12, 16, 23,

49, and 53(c), respectively. The penultimate paragraph of Count I added the

____________________________________________


3 Begley was therefore dropped as a party from this action, and Morrison
became lead plaintiff.

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J-A30043-19



following: “As a direct and proximate result of [Appellees’] breach of fiduciary

duty to [Husband], [Husband] and his Estate were deprived of the principal

balance of $3,000,000 in the LSP Trust . . .” Amended Complaint, 11/7/2016,

at 12 ¶ 55.

      [Appellees] filed a Motion for Summary Judgment asserting that:
      (1) based upon “new law” established in [Estate of
      Robert H.] Agnew [v. Ross, 152 A.3d 247 (Pa. 2017)], Husband
      does not have standing as a third-party beneficiary based upon
      the unexecuted codicil; (2) no other claim against a testator’s
      attorney is allowed; (3) Husband’s causes of action require proof
      that the testator intended to exercise the special power of
      appointment in his favor; and (4) Pennsylvania does not recognize
      a claim for Intentional and Reckless Misconduct.

Trial Court Opinion, filed May 3, 2019, at 3. Appellees alleged no new facts in

their motion for summary judgment for Count V, distinct from what was

presented in their preliminary objections; they only offered the “new law” of

Estate of Robert H. Agnew v. Ross, 152 A.3d 247 (Pa. 2017). Appellees’

Motion for Summary Judgment, 5/17/2018, at 8-10 ¶¶ 39-57.

      In his response to Appellees’ motion for summary judgment, Appellant

asserted that Count III, labelled as a claim for “Intentional and Reckless

Misconduct of Smith and Moyer” in both the complaint and amended

complaint, “was intended to be a claim for interference with an inheritance[.]”

Appellant’s   Response   to   Appellees’    Motion   for   Summary    Judgment,

6/15/2018, at 21 ¶ 58. Appellant’s response also averred the following facts:

      [Appellees] did not consider informing [Wife] or [Husband] that
      there was any conflict of interest in their representation of each of
      the members of the Sinon/Powell family. (Exhibit “3”, [Deposition



                                      -8-
J-A30043-19


        Transcript of Moyer, 10/12/2017, at] 70-72, 154-156[4];
        Exhibit “4”, [Deposition Transcript of Smith, 10/5/2017, at] 88-
        101[5]) . . .

        [A]fter the “foot dragging” comment on March 19, 2010, Attorney
        Moyer wrote a memo to the file in which he summarized how he
        informed [Husband] that, if [Wife] never signed the codicil, he
        could argue that [Wife] intended to exercise the power of
        appointment. (Exhibit “3” [at] 224- 225,[6] Exhibit “18”)

____________________________________________


4   During Moyer’s deposition, the following exchange occurred:

        [Q] Did you believe as Rhoads [&] Sinon being the attorney for
        the Estate of [Mrs.] Sinon, that you had a conflict with
        representing [Husband] and [Wife] in connection with any of their
        rights to the Estate? . . .

        A     I don’t know that I perceived that as a conflict at that time.

Appellant’s Response to Appellees’               Motion   for   Summary   Judgment,
6/15/2018, Exhibit “3” at 70-71.
5   During his deposition, Smith was asked about potential conflicts of interest:

        Q.    Did you, sir, believe you had a conflict in any form if you
        were to tell [Wife] any portion or aspects of her mother’s estate
        planning? . . .

        THE WITNESS: I don’t believe I had a conflict, necessarily.
        I had a duty of confidentiality, which was maintained.

Id., Exhibit “4” at 89.

6   Specifically, the following exchange occurred during Moyer’s deposition:

        Q.     You then said to [Husband] after he is so upset, Told him
        [Wife] will exercise and her General Power of Appointment, some
        legal issues on timing; but he would have an argument that [Wife]
        intended to exercise and would have done so if she dies.

        A.    And that is what I said to him in there in response to what
        he said to me.

Id., Exhibit “3” at 224-25.



                                           -9-
J-A30043-19



Id. at 7, 9 ¶¶ 17, 19.

       On December 31, 2018, the trial court entered an order granting

Appellees’ motion for summary judgment as to Counts I, II, and V. Order,

12/31/2018, at 1-2.         In explaining its reasoning for granting summary

judgment for Count V, the trial court stated:        “as a matter of law, that

[Appellant] lacks standing to assert a breach of fiduciary duty owed to [W]ife

and breach of contractual obligation to his wife in the preparation and

execution of a codicil.” Id. at 1 (citing Estate of Robert H. Agnew v. Ross,

152 A.3d 247 (Pa. 2017); Guy v. Liederbach, 459 A.2d 744, 750 (Pa. 1983)).

       Summary judgment was denied as to Count III (Intentional and
       Reckless Misconduct) as was the negligent supervision claims only
       as associated with Count III. Summary judgment was granted as
       to the negligent supervision claims with respect to Counts I, II and
       V.[7]

       On January 11, 2019, Appellant filed a Motion for Reconsideration
       or alternatively, to certify the matter for immediate appeal. On
       January 29, 2019, Defendants/Appellees also filed a Motion for
       Reconsideration, or in the alternative, to certify the matter for
       appeal. On January 31, 2019, th[e trial c]ourt granted both
       parties’ motions for reconsideration and issued a briefing
       schedule. Oral argument was entertained on March 18, 2019.

       On May 3, 2019, after careful reconsideration, th[e trial c]ourt
       dismissed the Amended Complaint in its entirety for the reasons
       set    forth   in     th[e   trial   c]ourt’s   [accompanying]
       Memorandum[]Opinion . . . Appellant filed a Notice of Appeal to
       the Superior Court of Pennsylvania on May 31, 2019. On June 3,
       2019, th[e trial c]ourt ordered Appellant to file a 1925(b)

____________________________________________


7 The trial court originally granted Appellees’ motion for summary judgment
as to Count I, because it determined that Appellant lacked standing. Upon
reconsideration, the trial court reversed its ruling but nonetheless still granted
summary judgment, without further explanation.

                                          - 10 -
J-A30043-19


      Statement of Issues Complained of On Appeal (“Statement”).
      Appellant filed his Statement on June 10, 2019[.]

Trial Court Opinion, filed July 9, 2019, at 1-2.

      Now -- almost a decade after Wife’s death -- we consider the following

issues presented by Appellant for our review:

      1.   Whether the trial court erred in granting summary judgment
      as to Count V by determining that it had the authority to
      reconsider the same evidence that the Superior Court reviewed
      and reach a different legal conclusion thus holding that the
      Superior Court erred in relying upon the executed Will as the
      operative document to confer standing.

      2.    Whether the law of the case doctrine should have prevented
      the trial court from contradicting the earlier trial judge’s ruling
      that the executed Will conferred standing upon [Appellant]’s
      decedent with respect to Count V, where there was no intervening
      change in the controlling law, no change in the facts or evidence,
      or where the prior holding was not clearly erroneous.

      3.    Whether the trial court erred in dismissing Count I of
      [Appellant]’s Amended Complaint where in its Memorandum
      Opinion the court opines that as to Count I summary judgment
      should not have been granted as a matter of law, but granted it
      because of the lack of admissible evidence to establish Wife’s
      specific intent.

      4.    Whether the trial court erred in reversing its prior denial of
      summary judgment as to Count [III], Intentional Interference,
      and associated Negligent Supervision claim set forth in Count IV,
      by erroneously determining that the evidence presented to
      establish such claim was inadmissible hearsay.

Appellant’s Brief at 3-4 (suggested answers omitted).

   Count V - Breach of Contract with Wife, Asserted by Husband as
                  Intended Third Party Beneficiary

      Appellant’s first two appellate challenges concern the law of the case

doctrine:

      The law of the case doctrine is comprised of three rules:

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J-A30043-19


         (1) upon remand for further proceedings, a trial court
         may not alter the resolution of a legal question
         previously decided by the appellate court in the
         matter; (2) upon a second appeal, an appellate court may
         not alter the resolution of a legal question previously
         decided by the same appellate court; and (3) upon transfer
         of a matter between trial judges of coordinate jurisdiction,
         the transferee trial court may not alter the resolution of a
         legal question previously decided by the transferor trial
         court.

      Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331
      (1995); accord Zane v. Friends Hosp., 575 Pa. 236, 836 A.2d
      25, 29 (2003). Within this doctrine lies the directive that “judges
      sitting on the same court in the same case should not overrule
      each other’s decisions,” otherwise known as the “coordinate
      jurisdiction rule.” Commonwealth v. Daniels, 628 Pa. 193, 104
      A.3d 267, 278 (2014). . . . Only in exceptional circumstances,
      such as an intervening change in the controlling law, a
      substantial change in the facts or evidence giving rise to the
      dispute in the matter, or where the prior holding was clearly
      erroneous and would create a manifest injustice if followed, may
      the doctrine be disregarded. To determine whether the law of the
      case doctrine applies, a court must examine the rulings at issue
      in the context of the procedural posture of the case.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 282-83 (Pa.

Super. 2016) (emphasis added) (some internal citations and quotation marks

omitted).

      Appellant first challenges the trial court’s decision –

      granting Summary Judgment as to Count V by determining that it
      had the authority to reconsider the same evidence that the
      Superior Court reviewed and reaching a different legal conclusion
      than the Superior Court by relying upon the codicil rather than the
      executed Will as the operative document to confer standing.

Appellant’s Brief at 21. Appellant continues that “[t]he trial court was bound

by the Superior Court’s finding that the Will confers standing” and that this

Court “did not err” in reaching that conclusion. Id. at 22, 24.

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J-A30043-19


       Appellees answer that “the trial court properly granted summary

judgment to [them] for [Appellant]’s brief of contract claim because

[Appellant] lacked standing to prosecute a breach of contract action against

[Appellees,]” relying upon Agnew, 152 A.3d 247, which was decided

subsequent to this Court’s prior decision in Begley, No. 155 MDA 2014 (filed

March 9, 2015).         Appellees’ Brief at 15-17 (unnecessary capitalization

omitted).8

       In the current case, when deciding Appellees’ motion for summary

judgment, the trial court stated:          “In this instance, we granted summary

judgment in favor of [Appellees] as to the Breach of Contract claim on the

grounds that the appellate court erroneously relied upon the executed

Will as the operative document to confer standing rather than the unexecuted

codicil.” Trial Court Opinion, filed May 3, 2019, at 7 (emphasis added).

       “Threshold issues of standing are questions of law; thus, our standard

of review is de novo and our scope of review is plenary.”                 In re




____________________________________________


8 Appellees do not contend that any new evidence related to Husband’s
standing to bring Count V has come to light between this Court’s
memorandum reversing the trial court’s decision to sustain their preliminary
objection to Count V and the Appellees’ motion for summary judgment. See
Appellees’ Brief at 15-20; Appellees’ Motion for Summary Judgment,
5/17/2018, at 8-10 ¶¶ 39-57. Thus, the exception to the law of the case
doctrine for “a substantial change in the facts or evidence giving rise to the
dispute in the matter, or where the prior holding was clearly erroneous and
would create a manifest injustice if followed” does not apply. Mariner
Chestnut, 152 A.3d at 282.

                                          - 13 -
J-A30043-19


Rosemary C. Ford Inter Vivos QTIP Trust, 176 A.3d 992, 999 (Pa. Super.

2017).

       As noted above, “upon remand for further proceedings, a trial court may

not alter the resolution of a legal question previously decided by the appellate

court in the matter[.]” Mariner Chestnut, 152 A.3d at 282.

       As issues of standing are questions of law and as a trial court may not

alter the resolution of a legal question previously decided by an appellate

court, a trial court may not alter the resolution of an issue of standing

previously decided by an appellate court.          See Ford, 176 A.3d at 999;

Mariner Chestnut, 152 A.3d at 282. Accordingly, in the current action, the

trial court was not permitted to alter this Court’s prior resolution of Husband’s

Estate’s standing to bring Count V.

       As for Appellee’s argument that there was “an intervening change in the

controlling law,” Mariner Chestnut, 152 A.3d at 282, with the Supreme Court

of Pennsylvania’s holding in Agnew, we note that Agnew did not change the

law but, instead, reaffirmed the holding of Guy v. Liederbach, 459 A.2d 744

(Pa. 1983),9 upon which this Court had relied in Begley, No. 155 MDA 2014,

____________________________________________


9 The only arguable “intervening change in the controlling law,” Mariner
Chestnut, 152 A.3d at 282, is that Agnew clarified the term “non-named
beneficiaries” as used in Guy, 459 A.2d at 752 n.8, as “refer[ring] to persons
who are given a bequest but are generally identified in a manner other than
by name, such as ‘my children’ or ‘my heirs’ or persons or entities to be
identified after the testator’s death[.]”     Agnew, 152 A.3d at 260.
Nonetheless, this explanation did not overrule or otherwise alter the law of



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J-A30043-19


at 5-6. See Agnew, 152 A.3d at 252-53, 259 (citing Guy, 459 A.2d at 747,

751, 757 (citing Restatement (Second) of Contracts § 302)).10 A new case

does not necessarily mean new law, if it stands for a principle known and

considered     by    the    appellate    court     previously.   For   example,   in

Commonwealth v. Santiago, 822 A.2d 716, 730-31 (Pa. Super. 2003), after

this Court remanded the case for a new trial, the trial court relied upon a new

United States Supreme Court case, Kyles v. Whitley, 514 U.S. 419 (1995),

to make a ruling contrary to what this Court had decided about the appellant’s

claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Kyles “held that

in order to determine whether evidence is material to establish a Brady

violation, the evidence must be considered collectively.” Santiago, 822 A.2d

at 731. However, this Court noted that, when it considered the appellant’s

Brady allegations, it was “well aware of [the] obligation to look at the

evidence in whole” and “was perfectly cognizant of its obligation to consider

whether the cumulative effect of the nondisclosures would have required a

reversal.” Id. Thus, although Kyles was a new case, it was not “new law,”

because it “did not announce an intervening change of law that would create

an exception to the law of the case doctrine and allow the trial court to



____________________________________________


Guy, and the phrase “non-named beneficiaries” is of no moment in the current
appeal.
10In their brief to this Court, Appellees appear to concede that “Agnew
confirmed . . . its holding Guy[.]” Appellees’ Brief at 16.

                                          - 15 -
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disregard this Court’s conclusions.” Id. Analogously, although Agnew was a

new case, it was not “new law” announcing an intervening change of law that

would create an exception to the law of the case doctrine and allow the trial

court to disregard this Court’s prior holding in Begley.

      For Appellant’s second appellate issue, the trial court would generally

be correct that “[t]he coordinate jurisdiction rule does not apply in this matter

because the procedural posture of the earlier court’s decision was at the

preliminary objection stage, whereas [Appellees’] present challenge is on a

motion for summary judgment.” Trial Court Opinion, filed May 3, 2019, at 8;

see also Riccio v. American Republic Insurance Co., 705 A.2d 422, 425

(Pa. 1997) (“Where the motions differ in kind, as preliminary objections differ

from motions for judgment on the pleadings, which differ from motions for

summary judgment, a judge ruling on a later motion is not precluded from

granting relief although another judge has denied an earlier motion.”).

However, issues of standing are a special case. Lack of capacity to sue and

standing are waived if not objected to at the earliest possible time. See Hall

v. Episcopal Long Term Care, 54 A.3d 381, 399 (Pa. Super. 2012) (standing

and lack of capacity to sue are related concepts and must be raised at earliest

possible opportunity); see also Kuwait & Gulf Link Transport Co. v. Doe,

92 A.3d 41, 45 (Pa. Super. 2014) (an issue of standing is waived if not raised

at first opportunity). In Huddleston v. Infertility Center of America, Inc.,

700 A.2d 453, 457 (Pa. Super. 1997), we held that a defendant waived the


                                     - 16 -
J-A30043-19


issue of standing when she did not raise it in preliminary objections.        See

Pa.R.C.P. 1028(a)(5) (“Preliminary objections may be filed by any party to

any pleading and are limited to the following grounds: . . . lack of capacity to

sue”). Ergo, issues of standing could not have been raised and decided anew

at the summary judgment stage. Hence, the trial court was precluded from

ruling on the issue of standing pursuant to Appellees’ motion for summary

judgment, and Appellant’s second appellate issue is likewise meritorious.11

       For the reasons set forth above, we reverse the trial court’s grant of

summary judgment as to Count V of the amended complaint. 12 As Count IV,

____________________________________________


11Assuming arguendo that Appellees’ motion for summary judgment was their
earlier possible opportunity to raise an argument pursuant to Agnew, said
case is inapplicable for all of the reasons discussed above.
12We note that the sole issue before us pertaining to Count V was whether
Husband and, in turn, his estate had standing to pursue a cause of action for
breach of contract with Wife. We make no finding as to the admissibility or
sufficiency of the evidence to support such a claim. For future reference, we
merely remind the parties of the three elements that are necessary --

       to plead a cause of action for breach of contract: (1) the existence
       of a contract, including its essential terms, (2) a breach of the
       contract; and, (3) resultant damages. Additionally, it is axiomatic
       that a contract may be manifest orally, in writing, or as an
       inference from the acts and conduct of the parties.

Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of
Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016) (citations and
internal quotation marks omitted). Additionally,

       Before a contract can be found, all of the essential elements of the
       contract must exist.     Therefore, in determining whether an
       agreement is enforceable, we must examine whether both parties
       have manifested an intent to be bound by the terms of the



                                          - 17 -
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negligent supervision of Smith and Moyer by Rhoads & Sinon, was dismissed

only as a byproduct of the dismissal of Appellant’s other counts, we reinstate

Count IV to the extent that it relates the cause of action for breach of contract

with Wife, asserted by Appellant as the estate of the intended third party

beneficiary.13

                       Count I - Breach of Fiduciary Duty

       Next, Appellant challenges the trial court’s grant of summary judgment

on and dismissal of Count I, breach of fiduciary duty. Appellant’s Brief at 35-

38.

       Entry of summary judgment is governed by Rule 1035.2 of the Rules of

Civil Procedure:

       After the relevant pleadings are closed, but within such time as
       not to unreasonably delay trial, any party may move for summary
       judgment in whole or in part as a matter of law

          (1) whenever there is no genuine issue of any material fact
          as to a necessary element of the cause of action or defense
          which could be established by additional discovery or expert
          report, or
____________________________________________


       agreement, whether the terms are sufficiently definite, and
       whether consideration existed. If all three of these elements exist,
       the agreement shall be considered valid and binding.

Cardinale v. R.E. Gas Development LLC, 74 A.3d 136, 140 (Pa. Super.
2013) (quoting Johnston the Florist, Inc. v. TEDCO Construction Corp.,
657 A.2d 511, 516 (Pa. Super. 1995) (en banc)).
13 Although Appellant does not explicitly include a request to reinstate
Count IV if Count V is restored in its statement of questions, as it did for
Count III, compare Appellant’s Brief at 3 with id. at 4, it makes a general
plea to have Count IV reinstated if any of the other three counts are restored.
Id. at 5 n.2.

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J-A30043-19


           (2) if, after the completion of discovery relevant to the
           motion, including the production of expert reports, an
           adverse party who will bear the burden of proof at trial has
           failed to produce evidence of facts essential to the cause of
           action or defense which in a jury trial would require the
           issues to be submitted to a jury.

Pa.R.C.P. 1035.2.

           Our standard of review of an appeal from an order granting
           summary judgment is well settled: Summary judgment
           may be granted only in the clearest of cases where the
           record shows that there are no genuine issues of material
           fact and also demonstrates that the moving party is entitled
           to judgment as a matter of law. Whether there is a genuine
           issue of material fact is a question of law, and therefore our
           standard of review is de novo and our scope of review is
           plenary. When reviewing a grant of summary judgment, we
           must examine the record in a light most favorable to the
           non-moving party.

         Newell v. Montana West, Inc., 154 A.3d 819, 821–22 (Pa.
         Super. 2017) (citations and internal quotation marks omitted).

Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 100 (Pa. Super.

2017).

         For a claim for breach of fiduciary duty, the court must focus on the

nature of the relationship between the parties in order to determine whether

a confidential relationship existed and thus whether fiduciary duties existed.

See Mirizio v. Joseph, 4 A.3d 1073, 1082-84 (Pa. Super. 2010). “[T]he

concept of a confidential relationship cannot be reduced to a catalogue of

specific circumstances, invariably falling to the left or right of a definitional

line.”    Basile v. H & R Block, Inc., 777 A.2d 95, 101 (Pa. Super. 2001)

(quoting In re Estate of Scott, 316 A.2d 883, 885 (Pa. 1974)).




                                       - 19 -
J-A30043-19


       The elements the plaintiff must prove in claim of breach of
       fiduciary duty are:        (1) that the defendant negligently or
       intentionally failed to act in good faith and solely for the benefit of
       plaintiff in all matters for which he or she was employed; (2) that
       the plaintiff suffered injury; and (3) that the agent’s failure to act
       solely for the plaintiff’s benefit ... was a real factor in bring[ing]
       about plaintiff’s injuries[.]

McDermott v. Party City Corp., 11 F. Supp. 2d 612, 626 n.18 (E.D. Pa.

1998); see also Advanced Fluid Systems, Inc. v. Huber, 295 F. Supp. 3d

467, 487 (M.D. Pa. 2018) (“[t]o sustain [a] claim for breach of fiduciary duty,”

plaintiff “must demonstrate” that defendant “failed to act in good faith” and

for plaintiff’s “sole benefit” and that plaintiff “suffered an injury” as a result).14

       With respect to a breach of fiduciary duty claim, a confidential
       relationship and the resulting fiduciary duty may attach wherever
       one occupies toward another such a position of advisor or
       counsellor as reasonably to inspire confidence that he will act in
       good faith for the other’s interest. . . .

____________________________________________


14     “[A]lthough we are not bound by decisions from . . . courts in
       other jurisdictions, we may use them for guidance to the degree
       we find them useful, persuasive, and . . . not incompatible with
       Pennsylvania law.” Ferraro v. Temple University, 185 A.3d
       396, 404 (Pa. Super. 2018) (citing Newell v. Montana West,
       Inc., 154 A.3d 819, 823 & n.6 (Pa. Super. 2017)), reargument
       denied (June 27, 2018); see also [Commonwealth v.]
       Manivannan, 186 A.3d [472,] 483 [(Pa. Super. 2018),] (“When
       confronted with a question heretofore unaddressed by the courts
       of this Commonwealth, we may turn to the courts of other
       jurisdictions.”).

Farese v. Robinson, 2019 PA Super 336, *23 (filed November 8, 2019).

McDermott cited then-current Pennsylvania Suggested Standard Jury
Instruction Section 4.16. However, that section has been removed from the
most recent edition of the Pennsylvania Suggested Standard Civil Jury
Instructions.    Advanced Fluid, although written two decades later,
referenced McDermott.

                                          - 20 -
J-A30043-19


      Activity is actionable if it constitutes breach of a duty imposed by
      statute or by common law.            Our common law imposes on
      attorneys the status of fiduciaries vis a vis their clients; that is,
      attorneys are bound, at law, to perform their fiduciary duties
      properly. Failure to so perform gives rise to a cause of action. It
      is “actionable.”

      At common law, an attorney owes a fiduciary duty to his
      client; such duty demands undivided loyalty and prohibits
      the attorney from engaging in conflicts of interest, and
      breach of such duty is actionable.

Dougherty v. Pepper Hamilton LLP, 133 A.3d 792, 797 (Pa. Super. 2016)

(emphasis added) (internal citations, ellipsis, and quotation marks omitted)

(some formatting); see also Kirschner v. K & L Gates LLP, 46 A.3d 737,

757 (Pa. Super. 2012) (attorney’s duty of honesty, fidelity, and confidentiality

prohibits attorney from engaging in conflicts of interest, and breach of such

duty is actionable).

      Appellant’s amended complaint makes clear that Count I is based upon

an allegation that Appellees breached their fiduciary duty to Husband as their

client, not their duty to Wife. Amended Complaint, 11/7/2016, at 12 ¶ 55;

see also Appellant’s Brief at 36 (“there is no doubt that [Appellees] breached

their duties to [Husband]”).    The amended complaint further alleges that

Appellees breached their fiduciary duty by engaging in a conflict of interest

arising from Appellees simultaneously representing Mr. Sinon, Mrs. Sinon,

Wife, and Husband, as well as serving as trustees of the LSP Trust. Amended

Complaint, 11/7/2016, at 2, 10 ¶¶ 5, 8, 46; see also Appellant’s Brief at 35-

37 (arguing that Appellees “assume[d] a position adverse or antagonistic to”

Husband and “engaged in a conflict of interest” by “engaging in family

                                     - 21 -
J-A30043-19


representation where they put the interests of one client ([Mrs. Sinon])” over

Husband’s interests).    The amended complaint continues that, due to this

conflict of interest, Appellees “chose to ignore those duties” owed to Husband

(and Wife) “and to instead improperly speculate what [Mrs. Sinon]’s wishes

might have been had she still been alive[,]” going so far as actively to try to

avoid having Wife make an outright appointment of the assets of the LSP Trust

to Husband. Amended Complaint, 11/7/2016, at 10-11 ¶¶ 48-49. In other

words, the amended complaint contends that Appellees placed their duty of

loyalty to Mrs. Sinon – widow of one of the firm’s founding partners – above

that owed to Husband, who was also their client. See id. Furthermore, the

amended complaint contends that Appellees never informed Husband of the

potential for conflicts of interest. Id. at 10 ¶ 46.

      Accordingly, the amended complaint alleged facts that, if established,

would demonstrate that Appellees violated their duty of undivided loyalty to

Husband by engaging in conflicts of interests, thereby breaching their fiduciary

duty to him, and such a breach is actionable. Dougherty, 133 A.3d at 797;

Kirschner, 46 A.3d at 757.

      In their motion for summary judgment, Appellees presented no facts

contradicting any of the allegations in the amended complaint. See generally




                                      - 22 -
J-A30043-19


Appellees’ Motion for Summary Judgment, 5/17/2018.15 On the other hand,

in his response to Appellees’ motion for summary judgment, he was able to

supplement his assertion that Husband was not informed of any potential

conflicts of interest, as well as an example of incorrect legal advice given to

him by Appellees. Appellant’s Response to Appellees’ Motion for Summary

Judgment, 6/15/2018, at 7, 9 ¶¶ 17, 19; id., Exhibit “3” at 70-71, 224-25;

id., Exhibit “4” at 88-101. Thus, there is a genuine issue of material fact as

to whether Appellees violated their fiduciary duty to Appellant by engaging in

a conflict of interest, and Appellees were not entitled to summary judgment

on Count I as a matter of law. Pa.R.C.P. 1035.2; see also Reason, 169 A.3d

at 100.

       To the extent that any language in Count I can be read to suggest that

Appellees breached a fiduciary duty to Wife, this Court has previously ruled

that Wife’s Estate has no standing. Begley, No. 155 EDA 2014, at 8. Thus,

only the claim for a breach of fiduciary duty to Husband is reinstated.16 Again,

as Count IV, negligent supervision of Smith and Moyer by Rhoads & Sinon,

____________________________________________


15 As Appellant notes in his brief, Appellees “did not take the position with
respect to the Summary Judgment Motion that [Husband] was not their client,
nor did they contend that the evidence was insufficient to establish the
attorney-client relationship between them and [Husband].” Appellant’s Brief
at 37.
16 We thereby agree with Appellees that Husband and Husband’s Estate would

not have standing to bring a claim for breach of fiduciary duty owed to Wife.
See Appellees’ Brief at 31.




                                          - 23 -
J-A30043-19


was dismissed only as a byproduct of the dismissal of Appellant’s other counts,

we reinstate Count IV to the extent that it relates the cause of action for

breach of fiduciary duty owed to Husband.17

                                       Count III

       Appellant’s remaining challenge is to the trial court’s grant of summary

judgment on and dismissal of Count III. Appellant’s Brief at 38. Appellant

specifically contends that the trial court “erroneously determin[ed] that the

evidence presented for such claim was inadmissible hearsay.” Id.

       Our standard of review for a grant of summary judgment remains the

same. See Reason, 169 A.3d at 100.

       In both Appellant’s original complaint and amended complaint, Count III

was entitled “intentional and reckless misconduct[.]” Complaint, 4/26/2015,

at 14; Amended Complaint, 11/7/2016, at 15. However, there is no such

cause of action recognized in Pennsylvania as “intentional and reckless

misconduct.”

       In his response to Appellees’ motion for summary judgment, Appellant

asserts that Count III “was intended to be a claim for interference with an




____________________________________________


17 Although Appellant does not explicitly include a request to reinstate
Count IV if Count I is restored in its statement of questions, we find the plea
sufficiently presented and preserved before this Court for the same reasons
as for Count V, above. Appellant’s Brief at 3, 5 n.2.


                                          - 24 -
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inheritance[.]”     Appellant’s Response to Appellees’ Motion for Summary

Judgment, 6/15/2018, at 21 ¶ 58.

       Assuming we accept Appellant’s contention that Count III is actually a

claim for tortious interference with testamentary expectancy, the elements of

such a cause of action are:

       (1) the testator indicated an intent to change his or her will to
       provide a described benefit for the plaintiff; (2) the defendant
       used fraud, misrepresentation or undue influence to prevent the
       execution of the intended will; (3) the defendant successfully
       prevented that execution; and (4) but for the defendant’s conduct,
       the testator would have changed the will.

McNeil v. Jordan, 934 A.2d 739, 741 (Pa. Super. 2007) (emphasis added)

(citation omitted). Thus, even if we agree that Count III is a cause of action

recognized in Pennsylvania, Appellant still has to be able to establish Wife’s

intent to change her will to benefit Appellant. See id.18 After a thorough

review of the record, the briefs of the parties, the applicable law, and the well-

reasoned analysis by the Honorable John J. McNally III, we conclude

Appellant’s remaining issue merits no relief.          The trial court opinion

comprehensively discusses and properly disposes of that question:

       [Appellees] argue that there is no admissible evidence of record
       supporting that it was [Wife]’s intent to change her will to exercise
       the special appointment power in favor of Husband. [Appellees]
       assert that the only evidence of [Wife]’s intent is Husband’s email
       to the attorneys, which they describe as inadmissible hearsay.



____________________________________________


18 Establishing Wife’s intent “to change” her will is distinct from establishing
whether Wife always intended her will to appoint the assets of the LSP Trust
to Husband.

                                          - 25 -
J-A30043-19


     [Appellant] asserts that . . . there are genuine issues of material
     fact as to [Appellees’] actions in interfering with [Husband]’s
     inheritance. As evidence of Wife’s intent to change her Will in
     order to exercise her special appointment power in favor of
     Husband, [Appellant] points to (1) [Husband’s] email instruction
     to [Appellees] of March 12; (2) evidence that their marital estate
     planning where each gave to the other all of their assets; (3) an
     email from [Wife] to the [Appellees] in 2003 specifically advising
     them that she intended her husband to have all of her assets;
     (4) the communications made on [Wife]’s behalf from the day of
     the March 9 meeting through the time of her slipping into a coma
     and [Appellees’] acknowledgment thereof and agreement to act
     upon the communications.

     [Appellant] asserts that [Husband’s] email is not inadmissible
     hearsay; rather, the email was an instruction.         [Appellant]
     explains that it is a statement made by an individual who
     [Appellees] knew was acting on behalf of Wife (as her agent) with
     authority to speak on her behalf (and where the many year
     relationship with [Appellees] established it to be their practice).
     [Appellant] asserts that [Husband’s] emails are offered to show
     that the communications were made. He argues that by agreeing
     to act upon Husband’s email of March 12th which communicated
     Wife’s intent to amend her will, they acknowledged that that was
     her intent and that he was acting as her agent. . . .

     [The trial court found] the aforementioned emails to be
     inadmissible hearsay offered for the truth of the matter contained
     therein and no exceptions to the hearsay rule apply. There is no
     evidence of record of any direct communication by Wife to her
     attorneys indicating an intent to change her Will to provide
     Husband with a described benefit. In fact, in his Amended
     Complaint, [Appellant] acknowledges that “[f]rom March 9 until
     [Wife] slipped into a coma on March 21, 2010, neither [Appellee]
     Moyer nor [Appellee] Smith had any direct communication with
     [Wife].” [Appellant]’s Amended Complaint at ¶22. [Appellant],
     in his response to [Appellees’] motion for summary judgment,
     presented no evidence of any direct contact between [Wife] and
     [Appellees] in which she expressed an intent to change her will to
     exercise the special appointment power in favor of Husband.

     The absence of admissible evidence to establish any one of the
     elements of [Appellant’s] Intentional Interference with
     Inheritance claim is fatal. Since the [c]ourt finds that the record
     is devoid of admissible evidence of specific intent on behalf of Wife

                                    - 26 -
J-A30043-19


       to change her Will to benefit Husband, [Appellant]’s claim must
       fail.

Trial Court Opinion, filed May 3, 2019, at 10-12 (emphasis in original)

(footnote omitted).19

                                      Conclusion

       In conclusion, we reverse summary judgment on and reinstate Counts I

and V and their associated negligent supervision claims from Count IV. We

affirm summary judgment and the dismissal of Count III and its associated

negligent supervision claim from Count IV.

       Affirmed in part.      Reversed in part.    Case remanded.     Jurisdiction

relinquished.



Judge Dubow joins.

Judge Nichols Concurs in the Result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020

____________________________________________


19The parties’ briefs discussed the applicability of Agnew to Count III, but,
as the trial court did not rely upon this case in its examination of this cause of
action, we find their analysis to be moot. See Appellant’s Brief at 43-44;
Appellees’ Brief at 41.

                                          - 27 -
