PHILADELPHIA – A Florida man who filed a lawsuit seeking to redress a grievance surrounding the alleged inequitable distribution of assets from his mother’s will to himself and his two siblings, has lost his case.
John R. Greisiger first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 15 versus High Swartz, LLP, Kathleen Thomas, Esq. and Judith Loughlin, all of Pennsylvania.
“Ruth Greisiger is the mother of three adult children, Judith Loughlin, Arthur Greisiger and plaintiff John R. Greisiger. Ruth passed away on Sept. 10, 2021. Her last will was purportedly written and signed on May 7, 2019. The will was written by the law firm of High Swartz and attorney Thomas. Attorney Thomas was one of two witnesses to the execution and notarization of the will. High Swartz and Thomas were engaged to accomplish Ruth’s long-stated intention to equally distribute her assets within and outside of a will equally amongst her children,” the suit said.
“It was common knowledge amongst her three children, as stated from time to time by Ruth herself, that she intended to distribute her remaining assets equally to her children, even though some assets were to be dedicated to one child or another. Nevertheless, her intention was that in the end, her probate and non-probate assets were to be equally distributed to her children. By May of 2019, Ruth was in poor physical and mental health, and required extensive care and treatment. Care and treatment for her physical and mental conditions required payment over and above any available insurance coverage. Payment was funded through Ruth’s existing assets, which included investments and trusts.”
The suit explained that prior to May 2019, she parted ways with her prior counsel and was then brought to High Swartz and Thomas – who created the will, accounted for all of her assets and created the necessary documents to achieve that objective.
The suit is further dedicated to righting a “scheme that failed to accomplish the equal distribution of Ruth’s assets to her children.”
“The utter failure of High Swartz, attorney Thomas and defendant Loughlin, to the extent defendant Loughlin was bound to achieve the intentions and objective of Ruth to equally distribute her assets to her children, constitutes a breach of contractual duties and obligations, and that is compounded and complicated by the conduct of defendant Loughlin, who used undue influence to deny plaintiff’s rights to an equal hare of Ruth’s assets,” the suit stated.
The defendants filed a motion to dismiss the case on April 21, for failure to state claims upon which relief could be granted.
“Plaintiff has failed to state a claim against attorney defendants for which relief may be granted as all three counts. With respect to the breach of contract claim, plaintiff lacks standing. As to the count for tortious interference with an inheritance or expectancy, Pennsylvania law does not recognize the cause of action in the form pursued by plaintiff. With respect to ‘concert of action’, attorney defendants are not alleged to have taken any specific action, and to the extent that plaintiff argues that attorney defendants permitted Loughlin to improperly use her mother’s money by abusing a power of attorney, Plaintiff does not allege any facts to establish defendant attorneys had any control whatsoever over Loughlin, or that she acted upon their advice,” per the dismissal motion.
“Further, plaintiff has already filed similar litigation in the Bucks County Court of Common Pleas and Orphans’ Court, which possesses jurisdiction over any litigation concerning the distribution of assets due to Ruth’s death, whether through probate or non-probate mechanisms. In fact, the probate exception to jurisdiction serves as an absolute bar to this matter being litigated in federal court. Lastly, because litigation concerning the probate of plaintiff’s mother’s estate is presently ongoing in Orphans’ Court, this Honorable Court should refrain from exercising jurisdiction over plaintiff’s present claims pursuant to the abstention doctrine. Accordingly, plaintiff’s claims against the attorney defendants must be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).”
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald A. McHugh ordered the case dismissed in a June 21 memorandum opinion, finding the plaintiff’s claims were not adequately substantiated.
“The claims plaintiff asserts find no support in Pennsylvania law. Claims against attorneys brought by disappointed beneficiaries of a will are limited to cases where an attorney’s error has prevented the literal terms of the will from being enforced. Liability for tortious interference with an inheritance or expectancy does not extend to inter vivos transfers. I am therefore compelled to grant defendants’ motion to dismiss,” McHugh said.
“The contract claims against attorney Thomas and High Swartz are set forth in Counts I and II of the complaint. Defendants contend that given the nature of his claims, plaintiff lacks standing because he cannot be considered a third-party beneficiary of their contract to provide legal services to his mother. Defendants’ interpretation of Pennsylvania law is correct.”
To determine whether a third-party beneficiary of a will would prevail, McHugh added, the Supreme Court of Pennsylvania established a two-part test: “(1) The recognition of the beneficiary’s right must be appropriate to effectuate the intention of the parties, and (2) The performance must satisfy an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.”
According to McHugh, while there is no dispute that plaintiff was a named legatee, which satisfied the first prong, his claim fell outside the scope of the second prong.
“This precedent is fatal to plaintiff’s claims here. He alleges that decedent’s true intent was to distribute her estate equally among her children, but he received less than an equal share of her assets because her lawyer restructured her estate and removed certain assets from the May 7, 2019 will. Like the plaintiffs in Hess, Mr. Greisiger ‘does not directly attack the validity’ of the will. In fact, he specifically states that he is not challenging the will as a product of undue influence, or because of a lack of testamentary capacity, or fraud. And as in Hess, he does not claim that the property he received under the will was less than what the will itself provided. Nor does he claim that he lost his intended legacy due to the attorney’s failure to properly draft the will,” McHugh said.
“Instead, plaintiff’s claim is premised on his belief that decedent intended for him to receive more property than he did. And although plaintiff alleges that his mother made this intention clear by telling her children she wanted them to receive her property in equal shares, the Supreme Court of Pennsylvania has held that it is only the will that ‘clearly indicate[s] the testator’s intent.’ To hold otherwise would be to allow ‘virtually any legatees, disappointed in their share of the testator’s bequests, [to] mount an indirect attack on the will by bringing suit against the testator's attorney, claiming that the will’s text did not truly reflect the testator’s intent and thus that the attorney breached his or her contract with the testator to benefit the (disappointed) legatees.’ And it bears mention that the extrinsic evidence in Estate of Agnew – a draft of an amendment to the trust that counsel admitted to having drafted pursuant to his client’s direct instructions – is far more compelling than the extrinsic evidence here, but the Court there nonetheless declined to confer standing.”
McHugh concluded that since Pennsylvania does not recognize a cause of action for interference with inter vivos transfers, plaintiff has failed to state a claim upon which relief can be granted and his case would be dismissed.
The plaintiff was represented by Richard J. Gerace of Gerace Law Office, in Philadelphia.
The defendants were represented by Jessica M. Keough and Paul C. Troy of Kane Pugh Knoell Troy & Kramer in Norristown, plus Samantha B. Kats of Mannion Prior, in King of Prussia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-00591
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com