PITTSBURGH – Counsel for a Cranberry Township woman who allegedly nixed a $1 million bequest from her deceased lover to one of his best friends, rejects what she sees as a series of legally insufficient claims lodged in the second version of the complaint.
Bruce N. Ambrose of Upper St. Clair first filed suit in the Allegheny County Court of Common Pleas on Nov. 5 versus Dolores A. O’Toole, of Cranberry Township.
“Ambrose maintained a close friendship with Raymond A. Ames, until Ames’ death on Oct. 23, 2021. Ames valued his friendship with Ambrose and trusted Ambrose to handle many of his personal affairs,” the suit said.
“In fact, on or about Sept. 10, 2021, Ames executed a General Power of Attorney which named Ambrose as Ames’ Attorney-in-Fact, a Durable Health Care Power of Attorney which named Ambrose as Ames’ Health Care Agent, and a Last Will and Testament which named Ambrose as a Co-Executor.”
Ambrose added that Ames and O’Toole were involved in a romantic relationship beginning about two years ago, until Ames’ death.
On Sept. 27, 2021, Ames was hospitalized at St. Clair Hospital in Mount Lebanon, with diagnoses of chronic respiratory failure and aspiration pneumonia. Shortly after being admitted, Ames began end-of-life planning and requested hospice care. After he was discharged from the hospital, hospice nurses began visiting Ames at his residence multiple times per week.
In addition to hospice care, Ames accepted an offer from O’Toole to live at Ames’ residence and perform the duties of his primary caretaker.
“On or about Sept. 30, 2021, Ames instructed Ambrose, his Attorney-in-Fact, to contact Ames’ financial advisor, Anthony Gaslevich, and request several checks be issued as gifts. Included in this series of gifts from Ames were two checks in the amount of $1,000,000 each, one made payable to O’Toole and one to Ambrose. It is believed and therefore averred that O’Toole accepted the gift to her and cashed the check for $1,000,000. It is believed and therefore averred that when O’Toole learned of Ames’ intended gift to Ambrose, she contacted Ames’ financial advisor, fraudulently represented that she had authority from Ames, and cancelled the check to Ambrose. Ambrose never received the gift which Ames intended Ambrose to have. Ames died on Oct. 23, 2021, and was therefore unable to resurrect his intended gift to Ambrose,” the suit stated.
“When Ambrose called Ames’ financial advisor, pursuant to instructions from Ames, Ambrose had a reasonable expectation of and was entitled to receive a $1,000,000 gift from Ames. O’Toole fraudulently misrepresented her authority to Ames’ financial advisor when she cancelled the check to Ambrose. The purpose of O’Toole’s misrepresentation was to interfere with and prevent Ames’ gift to Ambrose, which gift Ambrose expected. As a result of O’Toole’s intentional conduct, the expected gift to Ambrose failed. Because Ames died on Oct. 23, 2021, he was unable to resurrect his intended gift to Ambrose. As a result of O’Toole’s intentional conduct, Ambrose has been damaged in the amount of $1,000,000.”
In preliminary objections filed on Dec. 6, defense counsel denied the plaintiff’s allegations and said they are not a cognizable cause of action under Pennsylvania law.
“Fatal to plaintiff’s claim is that tortious interference with a gift is not a recognized cause of action under Pennsylvania law and, in fact, has been explicitly rejected by the Pennsylvania Superior Court. Pennsylvania has not adopted the Restatement (Second) of Torts Section 774B as applied to inter vivos gifts.” the objections stated, in part.
UPDATE
After an amended complaint was filed on Dec. 22, which added Cheryl Lee Butelli and Kathy Louise Susan as defendants, a number of additional counts were also introduced into the litigation: These included tortious interference with an inheritance, conversion, unjust enrichment, concerted tortious conduct and/or aiding and abetting liability, and imposition of a constructive trust.
In Jan. 11 preliminary objections, the defendant explained once again that Pennsylvania has explicitly declined to adopt the Restatement (Second) of Torts, Section 774B and has given no indication that it would adopt Restatement 3rd Liability For Economic Harm Section 19 in the context of inter vivos gifts, and therefore, has deliberately not recognized the cause of action of tortious interference with a gift.
“Count II (tortious interference with an inheritance) should also be dismissed because none of the elements of tortious interference are met here. Most critically, a new will was allegedly executed here. This is not a case that meets the ‘relatively narrow circumstances’ intended for tortious interference with an inheritance. Further, to the extent that the amended complaint alleges that defendants coerced Ames to create a new trust naming Butelli and Susan as the trustees, interference with a trust cannot form the basis of a claim of the interference with an inheritance,” the new preliminary objections added.
“Likewise, Count V (concerted tortious conduct and/or aiding and abetting liability) should also be dismissed because plaintiff failed to allege an essential element of concerted tortious conduct and/or aiding and abetting liability, namely that O’Toole knew that Butelli and/or Susan’s conduct constitutes a breach of duty and gave substantial assistance or encouragement to Butelli and/or Susan to so conduct themselves. In addition, as a matter of law, O’Toole did not commit an underlying tort because tortious interference with a gift is not an actionable tort under Pennsylvania law, and the tortious interference with an inheritance claim does not state a claim upon which relief may be granted.”
For a lone count of tortious interference, the plaintiff is seeking $1,000,000, together with interest on all sums due and such other relief this Court deems just and appropriate.
The plaintiff is represented by Alexander L. Holmquist, Robert O. Lampl and James R. Cooney of Robert O. Lampl Law Office, plus Dennis M. Blackwell and Nicholas R. Kocent of The Blackwell Law Firm, in Pittsburgh.
The defendant is represented by James R. Hankle, Nicholas L. Fiske and Jeremy C. Smith of Sherrard German & Kelly, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-013664
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com