J-A13037-16
                               2016 PA Super 184
SHARLEEN M. RELLICK-SMITH,                      IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                    v.

BETTY J. RELLICK AND KIMBERLY V.
VASIL

                          Appellees                 No. 1105 WDA 2015


                Appeal from the Order entered June 22, 2015
              in the Court of Common Pleas of Indiana County
                     Orphans' Court at No. 32-14-0490

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

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

      In a well-reasoned Opinion, the learned Majority correctly concludes

that Rellick-Smith has standing to pursue her claims as a beneficiary. In my

view, however, Rellick-Smith waived any argument that she is a beneficiary.

Therefore, in my view we are constrained to affirm the Orphans’ Court’s

order. Accordingly, I respectfully dissent.

      It is axiomatic that “we will not reverse a judgment or decree on a

theory that was not presented to the trial court.”    Kimmel v. Somerset

Cty. Comm’rs, 333 A.2d 777, 779 (Pa. 1975) (emphasis added; citations

omitted). In this case, Rellick-Smith did not present a beneficiary theory to

the Orphans’ Court.      In her answer to the Defendants’ motion to dismiss,

Rellick-Smith argued, in three locations, that she was not a beneficiary of

the Totten trust. See Rellick-Smith’s Answer to Motion to Dismiss, 3/3/15,
J-A13037-16


at ¶¶ 1, 2, 3. In her brief before this Court, Rellick-Smith emphasizes that

she did not present a third-party beneficiary theory to the Orphans’ Court.

See Rellick-Smith’s Brief at 13.1

      As our Supreme Court explained, “where the parties fail to preserve an

issue for appeal, the Superior Court may not address the issue, even if the

disposition of the trial court was fundamentally wrong.” Danville Area Sch.

Dist. v. Danville Area Educ. Ass'n, PSEA/NEA, 754 A.2d 1255, 1259 (Pa.

2000) (citation omitted).   In this case, the Orphans’ Court’s decision was

fundamentally wrong; however, Rellick-Smith made a strategic decision to

not present a third-party beneficiary theory to the Orphans’ Court. As such,

she waived any claim that she is a beneficiary and I would affirm the

Orphans’ Court order. Therefore, I respectfully dissent.




1
  Although the term “third-party beneficiary” does not appear in the learned
Majority’s Opinion, it is evident from the learned Majority’s reasoning that
they rely on a third-party beneficiary theory to find that Rellick-Smith has
standing. See Majority Opinion, ante at 10-12. Other courts have explicitly
relied upon a third-party beneficiary theory in addressing Totten trusts. E.g.
Estate of Morton, 769 P.2d 616, 620 (Kan. 1987)        (A    Totten     trust’s
“beneficiary’s claim to the proceeds of the account is based on a third-party
beneficiary theory.”). Thus, in my view the learned Majority reverses the
Orphans’ Court on a theory that Rellick-Smith waived.



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