One of Pennsylvania's Smallest Classes

Imagine your parent passes away, and you are an inheritor under the will. There is one problem, the attorney who drafted your parent's will did something wrong. Can you recover for their malpractice in Pennsylvania? This is the situation encountered in Hess v. Fox Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007). There are two major points the case provides. The first point is more of a procedural matter stating that when you appeal a judgment, the statement for matters complained of on appeal must be reasonably specific or the matters will be considered waived, and appeal denied. The attorney malpractice point which is important is that there are certain situations where a third party who does not have an attorney-client relationship may recover in a will situation.

The defending law firm was retained by The Rosewaters to provide estate planning advice, including will drafting and trust creation. Frederic and Richard Hess were the plaintiffs and stepsons of Mrs. Rosewater from a prior marriage. They brought an action against the law firm for negligence, breach of contract, intentional breach of the covenant of good faith and fair dealing, and punitive damages; all based on Mrs. Rosewater's will. The will was executed in 1990 and admitted to probate following her death in 2002. Mrs. Rosewater's will established several trusts including a marital and residuary trust. The plaintiffs were named as the beneficiaries of the residuary trust.

In the summer of 2003, following Mrs. Rosewater's death her husband withdrew $5,000,000 from the marital trust. He died 4 months after withdrawing the money. Mrs. Rosewater's will vested her husband with a fair amount of power over the marital trust. The will also provided that any money left in the marital trust upon the death of Mr. Rosewater would pass to the residuary trust, and thus to the plaintiffs. In the complaint, the plaintiffs alleged Mr. Rosewater's withdrawal of funds was contrary to the testamentary wishes of Mrs. Rosewater, and that her will did not reflect her testamentary wishes.

At the first trial, the complaints were dismissed by the court with prejudice. No written opinion was issued. Following the setback, the plaintiffs filed an appeal with the superior court.

Before considering the merits of an issue, the court must first determine whether the appealing party (appellants) has waived all their issues on appeal by failing to file a sufficiently specific Rule 1925(b) statement. This statement requires the appellant to delineate the specific issues raised. A statement which is too vague or overly broad will often times not be considered specific enough and thus not incompliance. The appellate court noted that before reaching any conclusion about the statement, there must first be a review of the record and any trial court opinion. The Court required this to ensure that the basis of the ruling being appealed is provided. If the reasons for a trial ruling are not provided then an appellant may have no choice but to write a broad statement concerning the appeal. Thus, under certain circumstances where the appellant is unable to ascertain the trial court's rationale for an appealed ruling, it is not appropriate to find waiver or to dismiss the appeal based on this rule.

In this case the Court stated that the rule was not complied with and the statement overly broad such that normally it would be dismissed. However, because there was no record for the ruling, and it was not obvious what basis the judges ruled on, they could not expect the appellants to guess at the trial court's rationale. Thus, the Court heard the appeal.

Since this case was being heard based on a preliminary objection, the pleadings of the plaintiffs, if proven needed to provide a basis for recovery. The Court first dealt with the malpractice issue. In Pennsylvania, to maintain a claim of legal malpractice based on negligence, a plaintiff must show an attorney-client or analogous professional relationship with the defendant-attorney. The Court went on to remark how commonly known this rule is, and that it applies in any context, including drafting wills based on Guy v. Liederbach,501 Pa. 47 (1983).

As with many legal rules, the Court recognized an exception in estate planning situations because intended beneficiaries under a will who lose an intended benefit due to the negligence of a testator's attorney should be afforded some remedy. To achieve this objective, the Pennsylvania Supreme court created a cause of action which would flow from the 3rd party beneficiary against drafting attorney. This action is based in contract as opposed to negligence, the common malpractice action.

To get standing under the contract cause of action requires a 3rd party to be in a very narrow class. The Supreme Court established a 2 part test requiring that

"the recognition of the beneficiary's right must be appropriate to effectuate the intention of the parties AND the performance must satisfy an obligation of the promisee (deceased person) to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance"

The first part is the standing requirement. The language concerning clearly indicated circumstances refers to reading intent from the testator's arrangements with the attorney and the text of the will.

The Guy case previously mentioned provides a situation where the above test applies. In that case, the plaintiff was named as a beneficiary in the will and as an executor. The attorney who drafted the will also directed the plaintiff to witness the signing. At the time, New Jersey law controlled, stating a law there prevented a witness from also inheriting under a will. The probate court then invalidated the will because of the infraction, after which the plaintiff filed a tort and contract claim alleging legal malpractice.

Initially, the Pennsylvania trial court dismissed the action because of the lack of an attorney-client relationship. The Supreme Court disagreed, and reversed the case. The Court very specifically limited the class of plaintiffs to those who "would otherwise have no means by which to obtain their expected interests under the will." It must be clear that the innocent party was harmed by legal malpractice.

In this case, the tort action for malpractice was dismissed because of lack of relationship between the plaintiffs and attorneys. The contract action was the best hope for the defendants. Based on the principles enunciated in Guy, the Court had to base their decision concerning injury on the text of the will and the arrangements with the attorney who prepared said will. The Hess brothers received exactly what was bequeathed to them according to the will. Their claim was based on the fact that Mrs. Rosewater intended to give them more than they received. They thus did not fall into the narrow class allowed to enter contract actions for malpractice as 3rd parties.

The greatest lesson is that the Court is very protective of the relationship between clients and attorneys. It is difficult to create an almost legal fiction whereby a relationship is read into the court's records. While the Hess brothers may have been promised something more by their step-mother, they received the intended benefit based on the will's text. They suffered no harm, which is a requirement for the contract action. If there is no harm then they could not claim to be in the narrow class created by the Pennsylvania Supreme Court.

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