Schwartz, I. v. Speyer, D. ( 2020 )

J-A24010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ILENE SCHWARTZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DEBRA SPEYER : No. 2539 EDA 2018
Appeal from the Order Entered July 30, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): #2016-27328
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 06, 2020
Ilene Schwartz (Ms. Schwartz), the plaintiff/appellant,1 appeals pro se
from the order entered on July 30, 2018, by the Court of Common Pleas of
Montgomery County that sustained the preliminary objections filed by Debra
Speyer (Ms. Speyer), the defendant/appellee, and dismissed Ms. Schwartz’s
complaint, which was an attempt by Ms. Schwartz to re-litigate a will contest
involving her aunt’s will that had concluded in 2007, when Ms. Schwartz filed
a praecipe to withdraw her appeal from the probate of her aunt’s estate. We
affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Ms. Schwartz is the niece of the decedent, Katherine Winokur, who died in
1998, and whose will is again the subject of this appeal.
J-A24010-19
Initially, we note that Ms. Schwartz’s brief does not contain a Statement
of Questions Involved as required by Pa.R.A.P. 2116(a). The rule provides in
pertinent part that:
The statement of the questions involved must state concisely the
issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail. The statement will be
deemed to include every subsidiary question fairly comprised
therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.
Pa.R.A.P. 2116(a). Based upon this error alone, we could conclude that Ms.
Schwartz has waived any and all issues for review by this Court. See Wirth
v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014) (stating “[t]his rule is to be
considered in the highest degree mandatory, admitting of no exception;
ordinarily no point will be considered which is not set forth in the statement
of questions involved or suggested thereby”) (citation omitted). However,
because Ms. Schwartz has itemized the four points she wishes to contest in
the argument section of her brief, we choose not to quash this appeal for
failure to include a Statement of Questions Involved.
Rather, we review this case in relation to the arguments she presents,
and also conclude that the orphans’ court correctly determined that Ms.
Schwartz did not have standing and that her complaint was barred pursuant
to the doctrines of res judicata and collateral estoppel. Having examined the
certified record, the briefs submitted by the parties, the applicable law, and
the thorough opinion authored by the Honorable Joseph A. Smyth, Senior
Judge of the Court of Common Pleas of Montgomery County, dated March 5,
-2-
J-A24010-19
2019, we conclude that Judge Smyth’s well-reasoned opinion accurately
disposes of the arguments presented. Accordingly, we adopt Judge Smyth’s
opinion as our own and affirm the July 30, 2018 order on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/20
-3-
2016-27328-0027 08:59Page
Opinion,
Circulated 12/16/2019 AM 1
Court of Common Pleas of Montgomery County-Civil Action
Ilene Schwartz, Plaintiff-Appellant No. 16-27328 (Pa. C.P. Montg. County July
30, 2018), appeal docketed, No. 2539 EDA
2018 (Pa. Super. Ct. Sept. 5, 2018)
vs.
Debra Speyer, Defendant-Appellee
OPINION
Mar/,£2019
Smyth,S.J.
Introduction:
This case, delayed from the beginning, is a self-represented party's attempt to re-litigate
her contest of her aunt's will against the executor after withdrawing an appeal in Orphan's Court
in 2007 that did the same thing. The civil side of this Court dismissed Plaintiffs complaint on
Defendant's "preliminary .. objections. and Plaintiff pursued an appeal to the Superior Court of
Pennsylvania, necessitating this opinion under the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1925(a).
Case History:
Plaintiff, niece of a decedent, instituted this action against Defendant, the decedent's
executor (though these identities were not then knowable by the Court) in November 2016 by
filing a writ of summons, which was served on the executor that December. The case lay
dormant for approximately a year until November 21, 2017, when an attorney appeared for the
ecutor and filed a praecipe to enter a rule upon the niece to file a complaint within twenty days
der Pa.R.C.P. 1037(a). She did not comply until January 16, 2018.
The complaint reported that the decedent, Katherine Winokur, died in 1998 (twenty years
efore the filing of the complaint), and the executor, an attorney, who also held a power of
attorney for the decedent during her lifetime, petitioned the Register of Wills for and received
2016-27328-0027 Opinion, Page 2
letters testamentary to probate a will from 1993, which she had prepared. {Compl. paras. 3-4, 7.)
The decedent was a widow with no children whose intestate heirs were her nieces and nephews,
including Plaintiff. (Compl. para. 5.) Plaintiff did not attach a copy of the will to her complaint,
but Defendant did to her preliminary objections to it. The will states, inter alia,
I direct that funds from my estate [alleged to amount to about $1,000,000]
be placed in the "Abraham and Bessie Diperstein/Katherine Winokur Charitable
Foundation" which my executor [{Defendant)] shall establish after my death, and
which funds my executor shall administer and distribute to the charities that she
sees fit to receive such funds.
Due to the poor treatment I have received by family members over the
years, I have not bequest {sic} any property to anyfamily member.
(Prelim, Objs. Ex.Bat 1 (emphasis added).)
After the executor had probated the will with the Register of Wills, in 1999 the niece
filed an appeal to the Orphan's Court under the Decedents, Estates and Fiduciaries Code, 20 Pa.
C.S. § 908, represented by attorneys from a firm prominently including one who now occupies .
the Orphan's Court bench, Judge Murphy. In a motion to withdraw as counsel filed in the
Orphan's Court on Ianuary 31, 2007, Judge Murphy related how the niece had failed to respond
to a half dozen letters sent to her over a sixteen-month period in 2003/2004 concerning the
subject of the representation, and how she could no longer be reached at any of the work or home
telephone numbers she had provided, or they had been changed. Judge Ott of the Orphan's
Court scheduled a hearing on the motion to withdraw as counsel, but before the hearing was
held, on March 23, 2007, the decedent's niece, represented by the Murphy firm, voluntarily
withdrew the appeal from probate with prejudice (Prelim. Objs. Ex. C) and consented to
counsel's withdrawal. Judge Ott then canceled the hearing and dismissed counsel's motion to
withdraw as moot. On February 6, 2012, the executor filed with the Register of Wills a final
status report under the Pennsylvania Orphan's Court Rules, Pa. O.C.R. 6.12, 589 Pa. LXI (2006)
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(current version at Pa. O.C.R. 10.6(b) (effective Sept. l, 2016)), that administration of the estate
was completed. In re Estate of Winokur, No. l 998-X3431 (Pa. Orphans' Ct. Montg. County Feb.
6, 2012).
Subsequently, in 2014, an outfit that apparently searches for lost estate assets contacted
the niece about a supposed account of the decedent's in the amount of $59,000 in which the
niece supposedly had an interest. (Compl. para. 15.) She entered into arrangements with the
firm to pursue the asset; however, that effort bore no fruit, and the parties ended the relationship.
(Compl, paras. 16" 17.)
She then, in late 2016, filed and served on the executor the writ of summons in this case,
and about a year later, after being prompted by the executor to do so and some further delay,
filed a complaint in January 2018. The pro se complaint had counts for fraud, theft by deception,
breach of fiduciary duty, unjust enrichment, and conversion in the executor's handling of the
decedent's assets and estate.
On February 1, 2018, the executor timely filed and served preliminary objections under
the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. 1028. The preliminary objections argued
1) "lack of capacity to sue," Pa.R.C.P. 1028(a)(5), in that the niece as a non-beneficiary of her
aunt's estate had no standing to sue the estate's executor; 2) the doctrines of collateral estoppel
and res judicata barred the niece from re-litigating the validity of the will, after her previous
petition challenging the will was withdrawn with prejudice in 2007; 3) "legal insufficiency of
[the complaint] (demurrer)," Pa.R.C.P. 1028(a)(4), as to the niece's attempt to state a claim for
fraud; 4) failure to state a valid cause of action for theft by deception; 5) legal insufficiency of
the attempted claim of breach of fiduciary duty; 6) lack of any fiduciary duty owing to the niece
from the executor; 7) legal insufficiency of the attempted claim of unjust enrichment; 6) legal
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2016-27328-0027 Opinion, Page 4
insufficiency of the attempted claim of conversion; 8) the complaint's demand for in excess of
$1,000,000 plus continuing interest violated Pa.R.C.P. 102l(b) ("Any pleading demanding relief
for unliquidated damages shall not claim any specific sum."); 9) the complaint's demand for
attorneys' fees should be stricken as legally unsupported; 10) the complaint's demand for
unspecified other relief should be stricken; 11) the complaint's demand for punitive damages
should be stricken as unwarranted; and 12) allegations taken from the withdrawn appeal from
probate (Compl. paras. 4-11) and asserting Defendant's alleged mistreatment of Plaintiff's aunt
should be stricken as "scandalous or impertinent," Pa.R.C.P. 1028(aX2).
On March 13, 2018, twenty days past the twenty-day period ordinarily provided to file a
responsive pleading by Pa.R.C.P. 1026(a) ("[E]very pleading subsequent to the complaint shall
be filed within twenty days after service of the preceding pleading .... '') (albeit the preliminary
objections were not endorsed with a notice to plead under Pa.R.C.P. 1361), the niece moved for a
sixty-day extension of time to respond to the preliminary objections. The executor answered the
motion, and on March 23, 2018, Judge Silow of this Court granted an extension of sixty days
from that date for the niece to respond to the preliminary objections. She filed her response late
even under the extension, on May 29, 2018.
Meanwhile, the case passed the deadline to be placed in the Court's trial-readiness
program under local rule, Montg. Co., Pa., R.C.P. "'200(3)(b) ("If an outside-arbitration[-]limit
case is not praeciped [sic] for [t]rial within 18 months of the date of filing or transfer of said
action, the case will be scheduled by the Court for a Case Management Conference before the
Court or its designee ...."). On June 5, 2018, Judge Rogers, Civil Administrative Judge of the
Court, entered an order scheduling a case-management/settlement conference under Rule 200 for
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2016-27328-0027 Opinion, Page 5
July 31, 2018. On June 8, 2018, the executor filed a reply to the niece's response to the
preliminary objections.
Upon review of the preliminary objections, response, and reply in the context of the
complaint, the Court found most of the preliminary objections to have merit. On July 30, 2018,
the Court entered an order sustaining the preliminary objections and dismissing the complaint.
Twenty-nine days later, on August 28, 2018, the niece filed what she captioned
"Emergency Motion To Strike The Order Dismissing Complaint Entered By Judge Joseph Smyth
On The Eve Of The Case Management Settlement Conference Due To An Actual Conflict Of
Interest That Judge Smyth Possesses Against Plaintiff And Her Witness." The text of the
"emergency" motion did not identify the source of the alleged conflict of interest the undersigned
allegedly had with Plaintiff or her "witness" (allegedly, her son), but in any event, the motion did
not immediately come to the attention of the undersigned because Plaintiff certified service of
the motion only upon opposing counsel, not the undersigned, and she filed no cover sheet with
the motion as required under local rule, Montg. Co., Pa., R.C.P. 208.3(b)(l), so no return date on
the motion was set by the Court and it was never processed as a motion under that rule. The
motion also complained of the undersigned having handled the preliminary objections when
another judge of the Court was listed on the docket as the judge assigned to the case; however,
since the start of 2016, this Court has had in place a program in which all preliminary objections
are assigned to senior judges of the Court, see Montg. Co., Pa., R.C.P. 1028(c) cmt. 2 (effective
Jan. 1, 2016), and the undersigned had ruled on the executor's preliminary objections in that
capacity. At the time of doing so, the undersigned had no specific knowledge or recollection of
Plaintiff's identity or of any potential conflict she alleged existed. In retrospect, even had the
motion with its scanty description of an alleged conflict been properly and timely presented for
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2016-27328-0027 Opinion, Page 6
disposition, the undersigned would have had no basis for undoing the ruling sustaining the
preliminary objections and disqualifying himself from the case under the prevailing standard:
A motion for disqualification or recusal is properly directed to and decided
by the jurist whose participation is challenged. In disposing of a recusal request, a
jurist must first make a conscientious determination of his or her ability to assess
the case before the court in an impartial manner, free of personal bias or interest
in the outcome. "This is a personal and unreviewable decision that only the jurist
can make." Once satisfied with that self-examination, the jurist must then
consider whether or not continued involvement in the case would tend to
undermine public confidence in the judiciary.
Commonwealth v. Travaglia, 541 Pa. 108, 144, 661 A.2d 352, 370 (1995) (citations omitted)
(quoting Goodheart v. Casey, 523 Pa. 188, 201, 565 A.2d 757, 764 (1989) (decision of three,
justice supreme court))); cf McFarlandv. Ethicon, Inc., No. 20 EM 2019 (Pa. Mar. 12, 2019)
(denying emergency application for extraordinary relief and/or King's Bench jurisdiction and for
stay based on trialjudge's mother's pending lawsuit against separate subsidiary of party). The
niece has not preserved for appeal any claim that the undersigned jurist should have disqualified
himself from this case or, not having done so sua sponte, should have vacated the order
sustaining preliminary objections and dismissing the action for any purported conflict, bias, or
interest. Cf Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal."); Reilly ex rel. Reilly v. Se. Pa. Transp. Auth., 507 Pa. 204,
224, 489 A.2d 1291, 1301 ( 1985) ("The failure to preserve an issue [of disqualification of a trial
judge] on appeal will be excused only when a strong public interest outweighs the need to protect
the judicial system from improperly preserved issues.").
The niece took any consideration of her "emergency" motion (filed twenty-nine days
after the order giving rise to the alleged emergency) off the table by filing this appeal to the
Superior Court of Pennsylvania the next day, August 29, 2018, the thirtieth and final day to
appeal under Pa.RA.P. 903(a). See Pa.R.A.P. 170l(a) ("Except as otherwise prescribed by these
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2016-27328-0027 Opinion, Page 7
rules, after an appeal is taken ... the trial court ... may no longer proceed further in the
matter."). As with the "emergency" motion, the.niece failed to prove service of her appeal on the
undersigned, thus violating Pa.R.A.P. 906(aX2). (She served the notice of appeal only on
opposing counsel, and not on any of the officials of the Court upon whom Pa.R.A.P. 906(a)(2)-
(4) required service. The notice of appeal also failed to comply with Pa.R.A.P. 904(a) (requiring
request for transcript or statement in absence of transcript of proceedings); the "emergency"
motion made representations about what had transpired at the case management/settlement
conference on July 31, 2018, although there is no indication whether that proceeding was
recorded.) The Court did not become alerted to the appeal (or to the "emergency" motion) until
receiving notice of the docketing of the appeal from the Superior Court on or after September 10,
2018, and then had to try to reconstruct the case from the Superior Court's notice back through
entry of the July 30, 2018, order sustaining the executor's preliminary objections.
Present Issues:
Does a non-beneficiary have standing to challenge the actions of an executor of an estate
in a civil action after proceedings in Orphan's Court have concluded? Do the proceedings in
Orphan's Court in which the non-beneficiary raised the same claims work res judicata and
collateral estoppel on her civil action?
Discussion:
Although the Court found merit to many of the executor's preliminary objections,
including demurrers to the niece's discrete claims, we will confine our discussion to the
"omnibus" objections, those that challenged the validity of the entirety of the complaint and
warranted its dismissal: The niece lacked standing to sue the executor, and the collateral
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2016-27328-0027 Opinion, Page 8
estoppel/resjudicata (issue/claim preclusion) effect of the proceeding in Orphan's Court barred
this civil action.
Lack of standing is a proper preliminary objection under 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: ... (5) lack of capacity to sue .... "), "Prior to judicial resolution of a
dispute, an individual must as a threshold matter show that he has standing to bring the action...
. [A] controversy is worthy of judicial review only if the individual initiating the legal action has
been 'aggrieved.'" Pittsburgh Palisades Park. LLC v, Commonwealth, 585 Pa. 196, 203-04, 888
A.2d 655, 659 (2005) (quoting In re Hickson, 573 Pa. 127, 136, 821 A.2d 1238, 1243 (2003)).
The keystone to standing in these terms is that the person must be
negatively impacted in some real and direct fashion. If the individual "is not
adversely affected in any way by the matter he seeks to challenge], he] is not
'aggrieved' thereby and has no standing to obtain a judicial resolution of his
chaUenge. In particular, it is not sufficient for the person claiming to be
'aggrieved' to assert the common interest of all citizens in procuring obedience to
the law."
Pittsburgh Palisades, 585 Pa at 204, 888 A.2d at 660 (quoting Hickson, 573 Pa. at 136, 821
A.2d at 1243).
All of the niece's claims in this case challenged the alleged actions or omissions of her
deceased aunt's fiduciary--her attorney, power of attorney, and later executor-In the handling of
the decedent's affairs and estate during her lifetime and after she died. Someone who is not the
beneficiary of or who has no interest in an estate lacks standing to contest a fiduciary's handling
of the estate. See In re Kilpatrick's Estate, 368 Pa. 399, 84 A.2d 339 (1951) (holding surviving
husband had no standing as party interested in estate of deceased wife's first husband as would
permit surviving husband to file petition for review of final account filed in first husband's estate
and confirmed by court notwithstanding that successful prosecution of claim would result in
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2016-27328-0027 Opinion, Page 9
increase of first husband's estate and hence estate of deceased wife); Oudry-Davis v. Findley, 64 ,
Pa. Super. 92 (1916) (holding one of decedent's two children had no right to maintain action at
law to recover one-half of sum of money alleged to have been wrongly paid out by decedent's
agent where plaintiff showed no title from decedent in latter's lifetime to any part of money
sought to be recovered nor that it had been allotted to her since decedent's death under any
family arrangement).
If the niece contended, as she did, that she had been improperly excluded from her aunt's
estate by the will the executor had drafted and her actions and omissions in the handling of the
estate and/or before that in the handling of the aunt's affairs as her attorney and power of
attorney, the remedy was to seek to participate in the Orphan's Court proceedings to contest the
matter. Having done so, and then having withdrawn the contest in 2007-nine years before
instituting this action-the niece is not entitled to maintain an action against the executor on the
civil side of the Court on the same subject. Cf. Decedents, Estates and Fiduciaries Code, 20 Pa.
C.S. § 711 ("Except as provided in section 712 (relating to nonmandatory exercise ofjurisdiction
through the orphans' court division) and section 713 (relating to special provisions for
Philadelphia County), the jurisdiction of the court of common pleas over the following shall be
exercised through its orphans' court division: (1) Decedents' estates.--The administration and
distribution of the real and personal property of decedents' estates .... (2) Testamentary
trusts.e-The administration and distribution of the real and personal property of testamentary
trusts, and the reformation and setting aside of any such trusts, whether created before or after
the effective date of this chapter . . . . (12) Fiduciaries.-The appointment, control, settlement of
the accounts of, removal and discharge of, and allowance to and allocation of compensation
among, all fiduciaries of estates and trusts, jurisdiction of which is exercised through the
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orphans' court division, except that the register shall continue to grant letters testamentary and of
administration to personal representatives as heretofore.... (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.' (18)
Appeals and proceedings from registers.-Appeals from and proceedings removed from
registers. . . . (22) Agents.-All matters pertaining to the exercise of powers by agents acting
under powers of attorney as provided ... in Chapter 56 (relating to powers of attorney)."). The
niece's memorandum of law in response to the preliminary objections cited no case law to
support her opposition to the executor's argument that the niece lacked standing to maintain this
civil action to challenge the executor's handling of the decedent's affairs and estate (Resp. Mem.
Law 7-8) and this Court found none either.
Res judicata, or claim preclusion, is a doctrine by which a former
adjudication bars a later action on all or part of the claim which was the subject of
the first action. Any final, valid judgment on the merits by a court of competent
jurisdiction precludes any future suit between the parties or their privies on the
same cause of action. Res judicata applies not only to claims actually litigated,
but also to claims which could have been litigated during the first proceeding if
they were part of the same cause of action.
Collateral estoppel, or issue preclusion, is a doctrine which prevents re-
litigation of an issue in a later action, despite the fact that it is based on a cause of
action different from the one previously litigated. The identical issue must have
been necessary to final judgment on the merits, and the party against whom the
plea is asserted must have been a party, or in privity with a party, to the prior
action and must have had a full and fair opportunity to litigate the issue in
question.
Balent v. City of Wilkes-Barre, 542 Pa. 555, 563-64, 669 A.2d 309, 313 (1995) (citations
omitted); cf Hunsicker v. Brearman, 402 Pa. Super. 347, 586 A.2d 1387 (1991) (holding
motorist was precluded under doctrine of res judicata from commencing new suit in order to
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assert claim for personal injuries against plaintiff motorists who had instituted negligence action
against him where motorist filed counterclaim in action which did not demand compensation for
personal injuries and he settled suit with plaintiff motorists resulting in his counterclaim being
marked "settled, discontinued, and ended with prejudice," notwithstanding fact that motorist had
instituted his new action prior to settling plaintiff motorists' action; motorist was not required to
file counterclaim but once he did so he was required to assert all causes of actions he had against
plaintiff motorists).
Ordinarily, res judicata and collateral estoppel are affirmative defenses that must be
raised in an answer as new matter under Pa.R.C.P. 1032(a), and are not grounds for preliminary
objection under Pa.R.C.P. 1028(a), "unless the complaint 'sets forth in detail, either directly or
by reference, the facts and issues pleaded by the prior suit."' Weinar v. Lex, 116 A.3d 907, 926
(Pa. Super. Ct. 2017) (quoting Kiely v. J.A. Cunningham Equip; Inc., 387 Pa. 598, 601--02, 128
A.2d 759, 760 (1957)), appeal denied, 189 A.3d 994 (Pa. 2018). Here, the niece's civil
complaint was nearly the same as the appeal she filed from probate under 20 Pa.C.S. § 908
(through Judge Murphy as counsel), but withdrew-and then attached as an exhibit to her civil
complaint filed over nine years later. (Compl. Ex. D.) She withdrew the appeal with prejudice
on March 23, 2007, the Orphans' Court dismissed her counsel's petition for leave to withdraw as
.moot in an order dated March 26, 2007, and on February 6, 2012, the executor filed with the
Register of Wills a final status report of completed administration of the estate. The only
significant addition to the civil action raises allegations about the asset allegedly discovered by
the "claim bureau" that told the niece, after she withdrew her appeal and the estate was
concluded, about an account of the estate in which she allegedly had an interest--before she
terminated her relationship with that firm as well. Any such account belonging to the estate
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would have been subject to the executor's administration at the time the niece's appeal was filed
and later withdrawn, and rights to the account determined when the estate became finalized. On
the face of the pleadings, including the exhibits attached to them containing the prior pleadings
from the Orphan's Court proceedings> the Court could find, and did, that the niece's civil action
against the executor was barred by issue/claim preclusion. Cf Gray v. PennyMac Corp., 2019
Pa. Super. 7 (affirming dismissal of mortgagor's prose action over mortgagee's changing of
locks on premises as frivolous on defendant's motion under Pa.R.C.P. 233.1 (a) ("Upon the
commencement of any action filed by a pro se plaintiff in the court of common pleas, a
defendant may file a motion to dismiss the action on the basis that ( 1) the pro se plaintiff is
alleging the same or related claims which the pro se plaintiff raised in a prior action against the
same or related defendants, and (2) these claims have already been resolved pursuant to a written
settlement agreement or a court proceeding.") where mortgagor had previously attempted to set
off or otherwise avoid liability for defaulting on mortgage in related prior actions by mortgagee
against mortgagor in foreclosure and by mortgagor against mortgagee to garnish rent and claims
had already been resolved in prior court proceedings).
Conclusion:
"[The Superior] Court will reverse the trial court's decision regarding preliminary
objections only where there has been an error oflaw or abuse of discretion." Brosovic v.
Nationwide Mut. Ins., 841 A.2d 1071, 1073 (Pa Super. Ct. 2004) (affirming dismissal of suit on
preliminary objections), quoted in Cooper v. Frankford Health Care Sys., Inc., 960 A.2d 134,
144 (Pa. Super. Ct. 2008) (affirming dismissal of suit on preliminary objections).
When the court has come to a conclusion by the exercise of its discretion, the
party complaining of it on appeal has a heavy burden; it is not sufficient to
persuade the appellate court that it might have reached a different conclusion if, in
the first place, charged with the duty imposed on the court below; it is necessary
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to go further and show an abuse of the discretionary power. "An abuse of
discretion is not merely an error ofjudgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias[,] or ill-will, as shown by
the evidence or the record, discretion is abused."
Paden v. Baker Concrete Constr., Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995) (quoting
Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934) (unanimous opinion)).
This lower Court respectfully suggests that it did not err at law or abuse its discretion in
sustaining the executor's preliminary objections and dismissing the niece's civil action
contesting the handling of her aunt's affairs and estate by the executor when the same claims
raised in the action had been, or could have been, the subject of the niece's prior contest in
Orphans' Court that she withdrew with prejudice, and the niece, a non-beneficiary in the estate,
had no standing to pursue the executor again on the civil side of the Court. The Court
respectfully asks that the honorable Superior Court affirm the decision sustaining preliminary
objections and dismissing this action.
BY THE COURT:
• S.J.
cc: Ilene Schwartz
Jeffrey B. Mccarron, Esquire
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