Estate of: Sidney Rothberg
166 A.3d 378
| Pa. Super. Ct. | 2017Background
- Lynn Rothberg Kearney (appellant) was born in 1953 and later learned her father, Sidney Rothberg (decedent), was alive; decedent executed a will on January 21, 2002 that did not provide for her.
- Decedent died May 13, 2008; the 2002 will was admitted to probate naming other beneficiaries and appointing Saranne Rothberg-Marger as executrix.
- Appellant previously contested the will (challenge denied and affirmed on appeal in 2015) and then filed a Petition for Declaratory Judgment (March 14, 2016) seeking relief under 20 Pa.C.S. § 2507 as an "omitted child."
- Executrix Saranne Rothberg-Marger filed preliminary objections in the nature of a demurrer arguing § 2507(4) applies only to children born or adopted after a will is executed; appellant was born long before the 2002 will.
- The Orphans’ Court sustained the preliminary objections and dismissed the petition without prejudice; appellant appealed pro se.
Issues
| Issue | Plaintiff's Argument (Kearney) | Defendant's Argument (Rothberg-Marger/estate) | Held |
|---|---|---|---|
| Whether the petition was improperly dismissed because the Estate/defaulted | Kearney argued the Estate or beneficiaries did not properly respond and thus she was entitled to a declaratory judgment | Respondent timely filed preliminary objections identifying herself as executrix; response was sufficient | Court held response was proper; no default |
| Whether § 2507(4) applies when child was born before the will but was unknown to testator | Kearney argued "among others" and equitable reasons make § 2507 cover unknown pre‑will children | § 2507(4) plainly covers only children born/adopted after a will is made; statute is unambiguous and McCulloch and precedent exclude pre‑will births | Court held § 2507(4) does not apply to children born before the will; petition fails as matter of law |
| Whether the petition was a barred second attempt to claim an interest | Kearney denied the petition was a second attempt | Executrix noted prior litigation and characterized the current petition as a later attempt to claim interest | Court found characterization immaterial to dispositive statutory issue and sustained objections |
| Whether public policy/equity requires relief for unknown pre‑will children | Kearney urged policy favors protecting unintentionally disinherited children | Court: Pennsylvania law allows parental disinheritance; legislature provided remedy only for children born after will; courts cannot expand statute on equity grounds | Court rejected public policy argument and affirmed dismissal |
Key Cases Cited
- 412 North Front Street Assoc., LP v. Spector Gadon & Rosen, P.C., 151 A.3d 646 (Pa. Super. 2016) (standard for reviewing demurrer/preliminary objections)
- Appeal of McCulloch, 6 A. 253 (Pa. 1886) (predecessor‑statute holding that a child born before will is not an "after‑born" child under the remedial provision)
- In re Sommerville’s Estate, 177 A.2d 496 (Pa. 1962) (recognizing a parent may disinherit children)
- In re Agostini’s Estate, 457 A.2d 861 (Pa. Super. 1983) (affirming that a testator can disinherit children for any reason)
- Pa. Dep’t of Transp., Bureau of Driver Licensing v. Weaver, 912 A.2d 259 (Pa. 2006) (statutory construction principle: ascertain legislative intent)
- In re Houston’s Estate, 89 A.2d 525 (Pa. 1952) (noting surviving spouse is uniquely protected from disinheritance)