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Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 9-3-2004 Golden v. Golden Precedential or Non-Precedential: Precedential Docket No. 03-2184 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Golden v. Golden" (2004). 2004 Decisions. Paper 288. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/288 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Circuit Judges, and DEBEVOISE,* District Judge UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT (Filed :September 3, 2004) JULIA MORROW (Argued) No. 03-2184 JOEL W. TODD Dolchin, Slotkin & Todd 2005 Market Street 24th Floor ROBERT GOLDEN, Attorney-in-Fact Philadelphia, PA 19103 for LEAH GOLDEN; DONALD EARWOOD, Executor of the Counsel for Appellants Estate of HELEN EARWOOD, CHRISTOPHER M. TRETTA (Argued) Appellants Yost & Tretta 1500 John F. Kennedy Boulevard v. Two Penn Center Plaza, Suite 610 Philadelphia, PA 19102 DAVID S. GOLDEN; DARLENE KOPOSKO JAMES T. DAVIS MELINDA K. DELLAROSE Davis & Davis 107 East Main Street Uniontown, PA 15401 On Appeal from the United States District Court Counsel for Appellees for the Western District of Pennsylvania (Dist. Court No. 01-cv-00576) District Judge: Honorable David S. Cercone OPINION OF THE COURT Argued: January 22, 2004 * Honorable Dickinson R. Debevoise, Senior United States District Before: ALITO and CHERTOFF, Judge for the District of New Jersey, sitting by designation. 1 David S. Golden and Darlene Koposko are CHERTOFF, Circuit Judge. both adult citizens of the Commonwealth of Pennsylvania. Robert Golden, attorney-in-fact for Leah Golden, and Donald Earwood, On September 1, 1999, Irene I. executor of the estate of Helen Earwood, King executed a Last Will and Testament appeal a final order of the United States (the “Will”) and an inter vivos trust (the District Court for the Western District of “Trust”). Pursuant to her testamentary Pennsylvania dismissing their action for scheme, all of her property was transferred lack of jurisdiction. Appellants’ action to the Trust, under which she named sought, through various means, to herself the sole trustee. In the event of her challenge the distribution of assets from incapacity or death, Appellee David the estate of Irene I. King. In addition to Golden was to become the sole trustee. asserting a number of familiar torts, As a redundancy, her Will also contained including fraud and slander, the complaint a “pour over” provision, transferring all of asserted several grounds for relief that her property to the Trust upon her death. relate to probate law, including undue Under the terms of the original Trust, the influence and breach of fiduciary duty as Trust corpus was, upon her death, to be the executor of a will. Appellants also distributed in equal one-third shares sought punitive damages. The District among Leah Golden, Ms. King’s sister-in- Court dismissed the action as falling law, Helen Earwood, Ms. King’s sister, within the probate exception to federal and Appellee David Golden, Ms. King’s diversity jurisdiction. This case, therefore, brother.2 The original Trust, Will, and requires us to explore the contours of the other attendant paperwork were prepared probate exception. We will affirm in part by Nicholas J. Cook, Esq., and his office. and reverse in part. As set forth in the complaint, Ms. Appellant Robert Golden is a King’s health deteriorated over the months citizen of the state of New York and holds that followed. Concurrently, Appellee general power of attorney for Leah David Golden began exercising increasing Golden, also a citizen of the state of New control over both Ms. King’s finances York. Appellant Donald Earwood is the and, allegedly, over Ms. King herself. At personal representative of the estate of some point during the fall of 1999, Helen Earwood, a citizen of the state of Appellee David Golden terminated Ms. Georgia prior to her death.1 Appellees King’s professional home care services in 1 2 In diversity actions involving The legacies were contingent upon estates, the courts look to the citizenship of the legatees surviving Ms. King. In the the decedent to determine jurisdiction. See event that they predeceased, the Trust 28 U.S.C. § 1332(c)(2). named contingent beneficiaries. 2 favor of those provided by Appellee Golden. Darlene Koposko and Koposko’s mother On July 26, 2000, Ms. King died. and daughter. During this time, On September 19, 2000, Ms. King’s Will Appellants allege, several of their attempts was probated and letters testamentary to visit Ms. King were either directly thereafter issued. At some point rebuffed by Appellee David Golden or thereafter, Appellee David Golden, met with so much hostility that they were through Nicholas Cook, filed a soon terminated. Pennsylvania Inheritance Tax Return (the By June 14, 2000, Ms. King was “tax return”) with the Fayette County bedridden, experiencing excruciating pain Register of Wills listing the net value of and unable to maintain bodily functions. Ms. King’s estate as $188,946.00. She was being medicated for her pain and Distribution of the legacies has not was prescribed hospice care. That occurred due to the pendency of the morning, however, she purportedly instant litigation. summoned Appellee Koposko to her side Appellants brought this action in and dictated the preparation of a document the United States District Court for the altering the distributive scheme Western District of Pennsylvania on enumerated in her Trust. Ms. Koposko March 28, 2001. Appellants alleged then purportedly prepared a handwritten jurisdiction based on diversity of instrument memorializing those changes citizenship and an amount in controversy (the “Addendum”), propped Ms. King up in excess of $75,000. In addition to in bed, watched her sign the instrument seeking punitive damages, Appellants and then, along with one of Ms. asserted six causes of action: (1) undue Koposko’s long-time friends, witnessed it. influence; (2) fraud; (3) forgery; (4) Appellee Koposko then allegedly placed slander (asserted by Appellant Earwood the Addendum in a dresser drawer where only); (5) tortious interference with it remained until June 27, 2000, when she inheritance; and (6) breach of fiduciary delivered it to the offices of Nicholas duty as executor of a will (asserted against Cook. Appellee David Golden only). Appellants The Addendum reduced the amount essentially alleged that their shares under of the legacy granted to Leah Golden from Ms. King’s Trust were reduced either as a one-third of Ms. King’s estate to “the sum result of Appellees’ outright forgery, or as of [$5,000].” J.A. at 48. In a similar a result of Appellees’ wrongful influence manner, the Addendum reduced the on, or slanderous statements to, Ms. King. amount of the legacy granted to Helen On June 20, 2002, after discovery Earwood from one-third of Ms. King’s was complete, the parties filed cross estate to “the sum of [$10,000].” Id. The remainder of the estate, according to the Addendum, was to pass to Appellee David 3 motions for summary judgment.3 On issues of subject matter jurisdiction, November 18, 2002, the District Court defects in the pleading of the amount in conducted a pretrial conference but, on controversy cannot be waived and, as a March 23, 2003, sua sponte dismissed the consequence, may be raised by any party action for lack of subject matter at any time during litigation of the dispute. jurisdiction. Appellants timely appealed. See Fed. R. Civ. P. 12(h)(3); see also, e.g., Kontrick v. Ryan, __ U.S. __, 124 S.Ct. Appellees present two arguments 906, 915 (2004). The federal courts against subject matter jurisdiction. First, themselves, of course, have a continuing they claim that Appellants have failed to obligation to investigate their jurisdiction satisfy the amount in controversy over the matters before them. See Exxon requirement for diversity jurisdiction. See Mobil Corp. v. Saudi Basic Indus. Corp., 28 U.S.C. § 1332(a). Second, they urge 364 F.3d 102, 104 (3d Cir. 2004) (quoting that Appellants’ action falls under the Desi’s Pizza, Inc. v. City of Wilkes-Barre, probate exception to federal diversity 321 F.3d 411, 420 (3d Cir. 2003)); jurisdiction. See, e.g., Markham v. Allen, Meritcare Inc. v. St. Paul Mercury Ins. 326 U.S. 490 (1946); Waterman v. Canal- Co., 166 F.3d 214, 217 (3d Cir. 1999). Louisiana Bank & Trust Co., 215 U.S. 33, Even if no party reaches the issue, 45 (1909); Moore v. Graybeal, 843 F.2d therefore, the courts may take the initiative 706, 709 (3d Cir. 1988). We exercise and probe the sufficiency with which the plenary review over a district court’s amount in controversy has been pled. See dismissal for lack of subject matter Meritcare, 166 F.3d at 217. jurisdiction. See Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir. 2004). Where a federal cause of action is based on diversity jurisdiction, the I. complaint must allege an amount in A. controversy between the parties in excess of the statutory minimum. See 28 U.S.C. Appellees contend that the amount § 1332(a). The amount need not be in controversy has not been adequately proven; rather, the amount is judged from pled. The amount in controversy is a the face of the complaint and is generally statutory limit on the subject matter over established by a good faith allegation. See which the federal courts have jurisdiction. Horton v. Liberty Mut. Ins. Co., 367 U.S. See 28 U.S.C. § 1332(a).4 As with all 348, 353 (1961) (measuring “good faith” by whether it appears “to a legal certainty 3 Appellants’ motion sought only the claim is really for less than the partial summary judgment on their undue jurisdictional amount”) (internal influence, fraud and forgery claims. quotations and citations omitted); St. Paul 4 At all times during this controversy, the statutory minimum was $75,000. 28 U.S.C. § 1332(a). 4 Mercury Indem. Co. v. Red Cab Co., 303 Snyder v. Harris, 394 U.S. 332, 335 U.S. 283, 288 (1938); see also Jumara v. (1969); Suber, 104 F.3d at 588 (3d Cir. State Farm Ins. Co., 55 F.3d 873, 877 (3d 1997); see also 14B Wright, Miller & Cir. 1995). Each plaintiff must meet the Cooper, Federal Practice and Procedure 3d amount in controversy § 3704 at 134 (1994). requirement—claims may not be Claims for punitive damages may aggregated among plaintiffs to meet the be aggregated with claims for statutory minimum. See Meritcare, 166 compensatory damages unless the former F.3d at 218 (citing 14B Wright, Miller & are “‘patently frivolous and without Cooper, Federal Practice and Procedure 3d foundation.’” Packard, 994 F.2d at 1046 § 3704 at 134 (1994)). On the other hand, (quoting Gray v. Occidental Life Ins. Co., courts do not separately evaluate each of 387 F.2d 935, 936 (3d Cir. 1968)). the causes of action asserted by any one Punitive damage claims are per se plaintiff against any one defendant.5 “‘patently frivolous and without foundation’” if they are unavailable as a matter of state substantive law. See In re 5 The notable exception occurs Corestates Trust Fee Litig., 39 F.3d 61, 64 where recovery on one of the plaintiff’s (3d Cir. 1994); Packard v. Provident Nat. claims excludes recovery for one or more Bank, 994 F.2d 1039, 1046 (3d Cir. of the others. See Suber v. Chrysler Corp., 1993). Where guidance from state 104 F.3d 578, 588 (3d Cir. 1997). substantive law is absent, the federal In cases where a plaintiff has sued multiple defendants on the theory that they share liability, several circuit courts each defendant is liable for the entire measure pleading of the amount in amount, although the plaintiff only controversy under the rubric of recovers the entire amount once. Cf. “aggregation.” See, e.g., Middle Tenn. Michie v. Great Lakes Steel Div., Nat News Co. v. Charnel of Cincinnati, Inc., Steel Corp., 495 F.2d 213, 218-19 (6th Cir. 250 F.3d 1077, 1081 (7th Cir. 2001); 1974). If that amount of liability is above Jewell v. Grain Dealers Mut. Ins. Co., 290 the statutory threshold, jurisdiction has F.2d 11, 13 (5th Cir. 1961). Thus, a attached. Any other rule would effectively plaintiff is permitted to “aggregate” his or multiply the amount in controversy her claims against the multiple defendants requirement by the number of defendants to meet the statutory requirement. We alleged to share liability. have never passed on the issue. Here, all but one of Appellants’ Although we think the causes of action assert that the Appellees “aggregation” approach reaches the correct are jointly liable. In pleading the amount result, we do not see the question as one of in controversy, therefore, the Appellants aggregation. Rather, an assertion of joint need not have distinguished among the and several liability is an assertion that Appellees. 5 courts must attempt to predict the position $250,000.00.6 But if the filing of the tax that the state courts would take on the return with the Orphans’ Court was a question. Corestates, 39 F.3d at 64. If determination by that court of the actual appropriately made, therefore, a request value of the estate, then a determination by for punitive damages will generally satisfy a federal court that the estate should have the amount in controversy requirement been valued higher than $188,946 would because it cannot be stated to a legal constitute an impermissible collateral certainty that the value of the plaintiff’s impeachment of a state court judgment. claim is below the statutory minimum. See Rooker v. Fidelity Trust, Co., 263 U.S. 413 (1923); District of Columbia B. Court of Appeals v. Feldman, 460 U.S. With the foregoing general 462 (1983); see also Exxon, 364 F.3d at principles in mind, we turn to the specific 104. Although this Court asked counsel, allegations of the complaint. through supplemental briefing, to clarify how the Orphans’ Court treated the tax Appellees argue that the filing, they were unable to do so. compensatory damages at stake fall below the $75,000 threshold. They observe that Nevertheless, the jurisdictional the tax return filed with the Pennsylvania amount in controversy may be satisfied on Orphans’ Court lists the estate’s net value another basis: the complaint seeks punitive at $188,946.00. The original Trust damages. If punitive damages are provided that Appellants each receive a available under Pennsylvania state law for one-third share of the estate, or the causes of action asserted by the $62,982.00. But the amended Trust Appellants, and if the claims for punitive provided for a distribution of $10,000 to damages are not otherwise “patently Helen Earwood and $5,000 to Leah frivolous and without foundation,” then Golden. Thus, Appellees argue, Appellant the pleadings satisfy the necessary amount Earwood has alleged an amount in in controversy. Packard, 994 F.2d at controversy of $52,982.00 and Appellant 1046. Golden $57,982.00, each less than the Pennsylvania law permits the statutory minimum. recovery of punitive damages for “torts Appellants respond that the that are committed willfully, maliciously, statutory minimum has been met because or so carelessly as to indicate wanton the complaint alleged that, but for Appellees’ conduct, the value of the estate would have been valued in excess of 6 The complaint alleged, for example, that Appellee David Golden had either wasted estate assets prior to Ms. King’s death, or failed to report them on the tax return. 6 disregard of the rights of the party action for tortious interference with injured.” Thompson v. Swank, 176 A. inheritance by both Appellants against 211 (Pa. 1934); see also SHV Coal, Inc. v. both Appellees.7 There is no direct Continental Grain Co., 587 A.2d 702, 704 pronouncement by the Pennsylvania courts (Pa. 1991). The Pennsylvania Supreme that punitive damages are recoverable in Court has adopted section 908(2) of the actions for tortious interference with Restatement (Second) of Torts, which inheritance, but punitive damage awards states that “[p]unitive damages may be have been upheld in actions for analogous awarded for conduct that is outrageous, torts. See, e.g. Judge Tech. Servs., Inc. v. because of the defendant’s evil motive or Clancy, 813 A.2d 879, 888-90 (Pa. Super. his reckless indifference to others.” Ct. 2002) (tortious interference with Restatement (Second) Torts § 908(2) contractual relations). Given the (1979); see also Feld v. Merriam, 485 Pennsylvania Supreme Court’s broad A.2d 742, 747-48 (Pa. 1984). The pronouncements with respect to the Pennsylvania Supreme Court has also availability of punitive damages, and discussed with approval Comment b of given the assertion of allegedly intentional that section, which states that “[r]eckless or reckless conduct here, we may indifference to the rights of others and confidently predict that the Pennsylvania conscious action in deliberate disregard of courts would not bar the recovery of them . . . may provide the necessary state punitive damages in this action.8 of mind to justify punitive damages.” Corestates, 39 F.3d at 64. From the face Restatement (Second) Torts § 908 cmt. b; see also SHV, 587 A.2d at 704-05; Martin 7 v. Johns-Manville Corp., 494 A.2d 1088, We note that the Pennsylvania 1096-98 (Pa. 1985), overruled on other Courts recognize only the tort of grounds by Kirkbride v. Lisbon intentional interference with inheritance. Contractors, Inc., 555 A.2d 800, 801 (Pa. See Cardenas v. Schober, 783 A.2d 317, 1989). 324 n.2 (Pa. Super Ct. 2001). We interpret the complaint to allege that tort. Id. at The complaint asserts conduct on 325. the part of Appellees that Appellants Our focus on Appellants’ claims for allege to be, at least, recklessly tortious. slander and tortious interference with For example, the complaint asserts a cause inheritance is deliberate. As will become of action for slander by Appellant apparent, infra, they are the only two Earwood against both Appellees. claims that survive this appeal. Pennsylvania permits the recovery of 8 punitive damages for slander claims. See Of course, whether punitive Walder v. Lobel, 488 A.2d 622, 626 (Pa. damages are appropriate in this case is a Super. Ct. 1985) (defamation generally). question for the finder of fact. See G.J.D. The complaint also asserts a cause of v. Johnson, 713 A.2d 1127, 1131 (Pa. 1998). 7 of the complaint, Appellants’ punitive without the power to probate a will or damage claim is not “patently frivolous administer an estate.9 Markham, 326 U.S. and without foundation.” Packard, 994 at 494; Canal-Louisiana, 215 U.S. at 43; F.2d at 1046. Thus, at this stage in the see also Georges v. Glick, 856 F.2d 971, litigation, it does not “appear to a legal 973 (7th Cir. 1988); Rice v. Rice Found., certainty” the Appellants’ claims fall 610 F.2d 471, 475 (7th Cir. 1979). below the statutory minimum. Horton, The probate exception extends 367 U.S. at 353 (internal quotations and both to matters of “pure” probate and to citations omitted). matters “ancillary” to probate. See Farrell Appellants have adequately pled v. O’Brien, 199 U.S. 89, 110 (1905); see the amount in controversy. We move to also Dragan v. Miller, 679 F.2d 712, 715 the more tangled question presented on (7th Cir. 1982), cert. denied, 459 U.S. appeal: whether the probate exception 1017 (1982); Rice, 610 F.2d at 475. On precludes the federal courts from the other hand, strictly in personam exercising subject matter jurisdiction over actions whose subject matter relates only Appellants’ substantive causes of action. incidentally to probate can be maintained in federal court because the exercise of II. jurisdiction under such circumstances The lineage of the probate would not “interfere with the probate exception to federal diversity jurisdiction proceedings or [require the court to] can be readily traced. As early as 1875, assume general jurisdiction of the probate the Supreme Court observed that “a court or control of the property in the custody of of equity will not entertain jurisdiction of the state court.” Markham, 326 U.S. at a bill to set aside a will or the probate 494. thereof,” and dismissed the action before it on that basis. In re Broderick’s Will, 88 9 U.S. (21 Wal.) 503, 509 (1875). Later Although the Supreme Court’s opinions by the Court were more explicit reasoning in Markham and Canal- as to the reason: the Judiciary Act of 1789 Louisiana was directed to the equitable and its successors granted the federal power of the federal courts, the same result courts equitable powers coextensive with occurs where the complaint seeks legal those held by the English Chancery Court relief. The power of the federal courts to in 1789. See Judiciary Act of 1789, ch. grant legal relief was limited by the 20, § 11, 1 Stat. 78; Markham, 326 U.S. at Judiciary Act of 1789 to be coextensive 494; Canal-Louisiana, 215 U.S. at 43. with the English common-law courts. Because probate matters in late eighteenth Like the Chancery Court, the common-law century England were assigned to the courts did not consider probate matters. ecclesiastical court and not to the Cf. Markham, 326 U.S. at 494; Rice v. Chancery Court, the federal courts are Rice Found., 610 F.2d 471, 475 (7th Cir. 1979). 8 Where is the line of demarcation? Moore, 843 F.2d at 710. Likewise, the Various descriptions of the probate probate exception bars federal courts from exception over the years often seem to adjudicating claims that challenge substitute one opaque verbal formulation management of the estate. Cf. Princess for another. See Markham, 326 U.S. at Lida, 305 U.S. at 459, 465-67 (treating a 494; Princess Lida of Thurn and Taxis v. claim of trustee mismanagement as related Thompson, 305 U.S. 456, 466-67 (1939); f o r j u r i s d ictional purp oses t o Canal-Louisiana, 215 U.S. at 46; Farrell, administration of the corpus). Third, 199 U.S. at 110; Dragan, 679 F.2d at 715; federal courts may nevertheless exercise Lamberg v. Callahan, 455 F.2d 1216, jurisdiction over an otherwise barred 1216 (2d Cir. 1972). But however one probate-related cause of action if the articulates the precise contours of the action would be maintainable inter partes probate exception, three principles in the state courts of general jurisdiction.11 discernable from caselaw are enough to Sutton v. English, 246 U.S. 199, 205 guide our disposition of this appeal. First, the federal courts lack the Desi’s Pizza, 321 F.3d at 419. A rule, like power to actually probate a will. See the one announced in Moore, prohibiting Markham, 326 U.S. at 494; Moore, 843 federal court review of claims seeking to F.2d at 709; see also Georges, 856 F.2d at annul or set aside an already-probated will 973. Second, where a will has already is entirely consonant with the Rooker- been probated, permitting an action that Feldman doctrine, and comports with the seeks, expressly or in fact, to assail or federalism and comity concerns that the contradict a judgment of the probate court doctrine embodies. See Moore, 843 F.2d generally constitutes an impermissible at 710. interference with the probate.10 See 11 This rule even applies where the will has already been probated and a 10 This view of the interference judgment favorable to the plaintiff might prong is fortified by other considerations. annul or set aside the will (i.e., collaterally Federal courts, with the exception of the impeach the probate). But this rule is Supreme Court, cannot “sit[] in direct strictly construed. It is not enough that the review of the decisions of a state tribunal.” cause of action be recognized; the state Gulla v. North Strabane Twp., 146 F.3d courts must also recognize and sanction 168, 171 (3d. Cir. 1998) (citing Feldman, the use of that cause of action to 460 U.S. at 482; Rooker, 263 U.S. at 416). collaterally impeach a probate. As we This rule, known as the Rooker-Feldman observed in Moore, it is in this way that doctrine, prohibits federal courts from state substantive law can “expan[d] the considering any claim “inextricably power of a federal courts to hear matters i n t e rt w i n ed” wit h a state court related to but independent of probate adjudication. See Exxon, 364 F.3d at 104; proceedings.” 843 F.2d at 709. 9 (1918); Farrell, 199 U.S. at 110-11; see the trust operates as a will, distributing also Moore, 843 F.2d at 709. This corpus upon the death of the settlor. They supplemental rule means that a state can point out that trusts, by definition, do not effectively contract the scope of the pass through probate. That being so, they probate exception if it allows its courts of argue, actions involving trusts should per general jurisdiction to adjudicate se not be subject to the probate exception. challenges to probate. This mistakes the scope of the In sum, federal courts have the probate exception, which is not limited to power to entertain in personam diversity the formal act of probating a will. As actions, firmly grounded in recognized described previously, the probate legal theories, if their resolution will not exception bars a federal court from undercut the past probate of a will or entertaining both matters of “pure” result in the federal court “assum[ing] probate and matters “ancillary” to probate. general jurisdiction of the probate or Farrell, 199 U.S. at 110; Moore, 843 F.2d control of the property in the custody of at 709; see also Dragan, 679 F.2d at 715; the state court.” Markham, 326 U.S. at Rice, 610 F.2d at 475. Accordingly, the 494. Where relief can be granted without Seventh Circuit has rejected a per se rule challenging the probate c ourt’s identical to the one proposed by the determinations or management of the res, Appellants here. See Storm v. Storm, 328 the exercise of federal jurisdiction could F.3d 941, 944-45 (7th Cir. 2003); see also not “interfere with the probate.” And, in Georges, 856 F.2d at 974 n. 2. In any event, if the actions would be Georges, the Seventh Circuit noted that maintainable inter partes in the state analysis of the probate exception applies courts of general jurisdiction, the state has as well to trusts that act as “will presumably determined as a matter of law substitutes”: that such actions will not disrupt the The plaintiffs argue that the activities of the state probate courts. probate exception is A. inapplicable here because this action relates to the The parties acknowledge, as they execution of an inter vivos must, the foregoing threshold principles. trust, not to a will. We From that point of departure, however, reject such a per se rule. they proceed down different analytical The inter vivos trust is paths. clearly a will substitute. Appellants contend that the probate However, the fact that this exception is categorically inapplicable to case does involve a will this case. They argue that the probate substitute does not exception by its terms applies only to a automatically render the will, and not to a trust—even if, as here, probate exception 10 applicable. se apply to preempt this action. Of course, we have already observed that the state 856 F.2d at 974 n.2. can shrink the probate exception by The probate exception protects the assigning probate related claims to a state state’s interest in managing all challenges court of general jurisdiction. But the addressing an estate res located in that reverse does not follow. A state cannot state or with which the state has some expand the probate exception—and defeat meaningful connection. That interest is no otherwise proper federal jurisdiction over less compelling if the estate res is a matter—simply by vesting exclusive distributed by trust rather than by a will. authority over otherwise in personam We agree with the Court of Appeals for actions in the probate court. See Canal- the Seventh Circuit in holding that causes Louisiana, 215 U.S. at 43-44; Payne v. of action involving trusts are treated under Hook, 74 U.S. (7 Wal.) 415, 429-30 the probate exception in the same way as (1869); see also 17 Wright, Miller & actions involving wills. Cooper, Federal Practice and Procedure 3d § 4211, at 475 (1988). That is to say, if a Appellees take the opposite claim is otherwise outside the scope of the categorical position, and contend that the probate exception, a federal court is not probate exception applies categorically to divested of jurisdiction simply because the all claims here. They argue that, because state places that sort of claim in state the Pennsylvania legislature has probate court. See Marshall v. Lauriault, transferred to the Orphans’ Court the 372 F.3d 175, 181 (3d Cir. 2004). power to administer and oversee actions seeking to reform trusts, see 20 Pa. C.S.A. Accordingly, we reject the § 711(3),12 the probate exception must per categorical argument of each party. Instead, we must examine the substance of each of the claims to determine whether it 12 In relevant part, 20 Pa. C.S.A. § falls within the probate exception. 711 states: B. [J]urisdiction of the court of common pleas over the We first turn to the claims of undue following shall be exercised influence, forgery and breach of fiducuary through its orphans’ court duty as an executor. division: Once a will has been probated, it generally constitutes an impermissible (3) The administration and interference with the probate for a federal distribution of the real and court to entertain a cause of action that personal property of inter seeks, in fact or in effect, to attack a vivos trusts, and th e determination of the probate court. reformation or setting aside of any such trusts . . . . 11 We take a fairly broad view of the invalidate the will . . . . We types of actions that interfere with the are not impressed with the probate proceedings. Moore, 843 F.2d at concept that granting her 710. Under that broad view, we must relief would not interfere conclude that Appellants’ claims for with the probate undue influence, forgery and breach of proceedings if done by an fiduciary duty as an executor would award of damages rather interfere with the already-completed than by an order to the probate proceedings and, therefore, are executor directing subject to the probate exception. distribution of the estate. Either way the substance is In Moore, this Court upheld the the same. district court’s dismissal under the probate exception of an action seeking to establish Id. (internal citations omitted). Under rights in an estate that had already been Moore, therefore, actions that seek in probated. 843 F.2d at 710. Moore, a effect to reform a will or overturn a legatee under an earlier, revoked will, determination of will validity by the sought a declaration that the will probated probate court constitute an impermissible by the Delaware probate court was invalid interference with the probate. as a result of either undue influence or Here, the practical effect of each of lack of testamentary capacity. See id. at Appellants’ claims for undue influence 707. We held that Moore’s action was and forgery would do exactly that: declare barred by the probate exception because it the Addendum and its distributive scheme would interfere with the Delaware courts’ invalid or unenforceable. To be sure, the past probate of the estate by partially Register of Wills and the Orphans’ Court reversing the bequests. See id. at 710. In never directly passed on the Trust or its other words, a judgment favorable to Addendum. But the Register of Wills did Moore would necessarily adjudicate a probate Ms. King’s Will which, in turn, matter normally determined as a part of passed all of her property “under the terms probate. “[W]e are satisfied that of [her] trust agreement . . . and any jurisdiction cannot be sustained on the amendments thereto.” J.A. at 38. As we theory that this is an action by a legatee see it, therefore, by probating Ms. King’s which does not interfere with the probate Will, the Register also implicitly proceedings.” Id. We noted that the result determined the Trust, the Addendum and did not change simply because Moore cast their combined distributive scheme to be her action to recover damages rather than valid and enforceable.13 Appellants’ to reform the will. Regardless of how Moore characterizes her claim, she 13 The Register of W ills is a judicial is seeking in substance to officer under Pennsylvania law, subject to 12 claims for undue influence and forgery is that Appellee David Golden would strike at that determination of misappropriated or wasted estate assets validity, however. For a will that is the prior to probate. See In re Lux’s Estate, result of undue influence or that is forged 389 A.2d 1053, 1055 (Pa. 1978). The is necessarily invalid. See 20 Pa. C.S.A. § complaint also arguably raises the theory 2502; In re Fleming’s Estate, 109 A. 265, that Appellee David Golden breached his 267-68 (Pa. 1919);14 In re Carothers duty as the executor of Ms. King’s estate Estate, 150 A. 585, 586 (Pa. 1930). An by operating under a conflict of interest. implicit federal court judgment that the These claims strike at management of the Addendum is invalid or unenforceable estate, and the District Court is would be inconsistent with the Orphans’ nonetheless without jurisdiction to Court’s probate jurisdiction over Ms. adjudicate it. In Pennsylvania, all claims King’s estate. As the Seventh Circuit has that an estate’s executor engaged in self- observed, application of the probate dealing are handled in the probate court, exception depends not on how the federal either by removal of the offending claim is labeled, but on whether the action executor, see 20 Pa. C.S.A. § 3182, or by is “in effect one to declare [the] . . . will assessing a penalty against that executor. invalid because of undue influence.” See In re Estate of Harrison, 745 A.2d Dragan, 679 F.2d at 717. 676, 679 (Pa. Super. Ct. 2000). Claims for breach of fiduciary duty as executor of Appellants’ claim for breach of an estate are never adjudicated outside the fiduciary duty as the executor of a will is probate context. Appellants’ breach of also at odds with the probate jurisdiction fiduciary duty claim—indeed, under either of the Orphans’ Court. Based on the theory—is, therefore, a classic example of complaint, the primary theory of a claim that is so “ancillary” to probate Appellants’ breach of fiduciary duty claim that it is not justiciable in federal court. See Farrell, 199 U.S. at 110. That is because, as the Supreme Court observed in appellate review by the Orphans’ Court. Princess Lida, claims of mismanagement See Mangold v. Neuman, 91 A.2d 904, of an estate relate “solely as to 905-06 (Pa. 1952). administration and restoration of corpus.” 14 305 U.S. at 281; see also Mangieri v. The Pennsylvania Statute of Mangieri, 226 F.3d 1, 3 (1st Cir. 2000) Wills, 20 Pa. C.S.A. § 2502, provides, in (holding probate exception excludes claim relevant part, that “[e]very will shall be in that fiduciary should refund money to the writing and shall be signed by the testator estate). at the end thereof.” In short, if the signature on a testamentary document is Moreover, these theories of forged, that document must be invalid as it recovery do not come within any state law was never validly executed. See inter partes exemption from the probate Fleming’s Estate, 109 A. at 267-68. 13 exception. Pennsylvania law does not vest court of common pleas. . . . in the Pennsylvania courts of general Case law confirms jurisdiction any power to establish rights that an action contesting the in an estate on the theories of undue validity of a will on grounds influence, forgery or breach of fiduciary of lack of testamentary duty as an executor. Indeed, at least with capacity, undue influence, respect to undue influence, authority is and confidential directly to the contrary. See Lucidore v. relationship must be Novak, 570 A.2d 93, 94-95 (Pa. Super. Ct. brought as an appeal from 1990). In Lucidore, the plaintiffs probate in the orphans’ attempted to sue, in the Court of Common court division of the court Pleas, the executrix and the attorney of the of common pleas . . . . [I]t estate of their deceased aunt. Id. at 94. At is incorrect to file a the time of the suit, the deceased’s will complaint in the civil had already been probated by the Orphans’ division seeking to set aside Court and Letters Testamentary had the will. issued. Id. The complaint alleged that the defendants had exercised undue influence Id. at 94-95. over the deceased, and sought an We are persuaded, therefore, that injunction against disposition of assets the Pennsylvania courts do not recognize from the estate on the ground that “the undue influence as a tort existing outside will was obtained as a result of the undue the probate context. Further, no influence.” Id. Pennsylvania case permits a suit, in the The Court of Common Pleas state courts of general jurisdiction to sue dismissed the case for lack of jurisdiction for forgery of a will or breach of fiduciary and the Pennsylvania Superior Court duty as executor of an estate. These affirmed, saying that undue influence theories of recovery also contest the claims fell exclusively within the ambit of validity of the will, and must be addressed the probate court: “as an appeal from probate.” Id. at 95. [T]here is no doubt that the C. appellants incorrectly Appellants’ claim for the tort of captioned the nature of their fraud presents a somewhat closer question. action as a complaint in Fraud is a well-established tort in equity in that this action Pennsylvania. See, e.g., Gibbs v. Ernst, must be an appeal from 647 A.2d 882, 889 (Pa. 1994). And if the probate. Further, there is no Appellants were pressing a theory of fraud doubt that appellants that did not in any way challenge the brought the action in the Orphans’ Court’s probate of Ms. King’s incorrect division of the 14 estate, the District Court might well have intent.15 See In re Glover’s Estate, 669 jurisdiction over those claims. But as it A.2d at 1016-17. In that case as well, stands, both of the fraud theories that the Appellants’ theories are inimical to the complaint might conceivably support determinations of the Orphans’ Court that entail a direct challenge to determinations the Will, the Trust, the Addendum and of the Orphans’ Court. their combined distributive scheme are both valid and enforceable. From the complaint, the Appellants could argue two possible theories of fraud. Since the Appellants’ fraud claims First, that the Appellees forged the effectively seek to challenge the Orphans’ Addendum and Ms. King’s signature on it Court’s probate of Ms. King’s estate, we and thereby defrauded the Orphans’ Court must go on to ask: Would Pennsylvania and robbed the Appellants of their allow a court of general jurisdiction to inheritance. See, e.g., In re Fleming’s entertain such a fraud claim anyway? To Estate, 109 A. at 267-68. Second, that the be sure, fraud may be a recognized tort in Appellees fraudulently induced Ms. King Pennsylvania. But we are not aware that into signing the Addendum by making her any court in Pennsylvania has permitted a believe that it said something other than plaintiff to seek to challenge the past what it actually said, and thereby deprived probate of an estate through the vehicle of the Appellants of their inheritance. See, a fraud action. As we have observed, it is e.g., In re Estate of Glover, 669 A.2d not enough under the inter partes 1011, 1016-17 (Pa. Super. Ct. 1996). exemption from the probate exception for a state court to recognize a cause of Under either theory, the action; rather, the state court must Addendum—which the Orphans’ Court recognize the use of that action to impeach implicitly found to be valid and a probate. Any other rule would reward enforceable—is either invalid or creative pleading and would undermine unenforceable. If Appellants’ first both the fundamental assumptions of the possible fraud theory is correct and the “inter partes” exemption from the probate Addendum and Ms. King’s signature on it exception and the finality that the probate were forged, the documents are obviously system requires. See Moore, 843 F.2d at invalid as a forgery. See 20 Pa. C.S.A. § 2502; In re Fleming’s Estate, 109 A. at 267-68. We have already explained why 15 Pennsylvania law is not clear such a theory falls within the probate whether a will whose execution was the exception. And if the Appellants’s second r e s u l t o f f r a u d a n d theory is correct, the Addendum is either misrepresentation—though technically invalid or unenforceable because Mrs. meeting all statutory requirements— is King was misled about what she was invalid or is simply unenforceable. See In signing and, therefore, the document does re Paul’s Estate, 180 A.2d 254, 261-62 not reflect Ms. King’s testamentary (Pa. 1955); Glover, 669 A.2d at 1016-17. 15 710; see also Storm, 328 F.3d at 945. been slandered and damaged by the Thus, Appellants’ fraud claims must be Appellees is in no way contrary to the dismissed—as with their claims for undue Orphans’ Court’s determination that the influence, forgery and breach of fiduciary Will, the Trust, the Addendum and their duty as executor of a will—because combined distributive scheme are valid recovery on those claims would not be and enforceable. To be sure, the amount otherwise maintainable in th e of Earwood’s damage as a result of the Pennsylvania courts of general alleged slander might—though it need jurisdiction, would be contrary to a not—be measured by the difference determination of the probate court, and between the legacy under the Addendum would impermissibly “interfere with the and the legacy under the Trust. But a probate proceedings.” Markham, 326 judgment that the Appellees slandered U.S. at 494; Moore, 843 F.2d at 710. Earwood and caused her some amount of damage does nothing to impeach the D. Orphans’ Court’s determination that Ms. As already noted, federal courts King intended to and succeeded in retain the power to entertain in personam distributing her estate via the scheme laid diversity actions involving parties to a will out in the Trust and its Addendum. The if the resolution of the action will have no District Court has jurisdiction to consider effect on the past probate of a will. The Appellant Earwood’s claim for slander. first of Appellants’ causes of action that is So, too, is there jurisdiction over saved by this principle is Appellant Appellants’ claims for tortious Earwood’s claim for slander. interference with inheritance. Despite its A claim for slander is a strictly in entwinement with probate, a cause of personam action. It is, in this case, also action for tortious interference with firmly based on a recognized legal inheritance is one brought in personam. It theory—the Pennsylvania courts have long is no different from any other tort—the recognized the tort of slander. See, e.g., plaintiff is asserting that some tortious Klumph v. Dunn, 66 Pa. 141 (Pa. 1870); action on the part of the defendant has Chubb v. Gsell, 34 Pa. 114 (Pa. 1859); see caused him or her damage. Further, also Corabi v. Curtis Pub. Co., 273 A.2d though it may not be so in other states,16 a 899, 908 (Pa. 1971). Moreover, even claim for tortious interference with assuming that slander is proven, relief can inheritance is one based on a legal theory be granted without challenging the Orphans’ Court’s determinations of estate 16 value and testamentary document validity, In Moore, for example, we enforceability and distributive scheme. concluded that the Delaware state courts That is to say, a determination by the would not permit a plaintiff to bring an District Court that Earwood may have action for tortious interference with inheritance. 843 F.2d at 710-11. 16 recognized by the Pennsylvania state Cf. id. courts. See Mangold, 91 A.2d at 907; True, any cause of action for Cardenas, 783 A.2d at 325-26. tortious interference of inheritance Further, relief can be granted brought in Pennsylvania implicitly without challenging the Orphans’ Court’s contends that the testator’s intent was, at determinations of estate value and some point in time, something other than testamentary document vali dity, what the Orphans’ Court found it to be at enforceability and distributive scheme. In the testator’s death. Indeed, one of the Pennsylvania, the elements of tortious elements of tortious interference with interference with inheritance are: inheritance in Pennsylvania is that the testator intended to make a distribution to (1) The testator indicated an the plaintiff but was prevented from doing intent to change his will to so by the defendant. The tort claim, provide a described benefit therefore, does posit that the distributive for plaintiff, scheme that the Orphans’ Court found to (2) The defendant used be in place at the time of the testator’s fraud, misrepresentation or death is different from the one the testator undue influence to prevent at some point intended. execution of the intended But this is not the same as a will, challenge to the validity, enforceability or (3) The defendant was interpretation of a testamentary document successful in preventing the passed on by the Orphans’ Court. Id. To execution of a new will; and the contrary. The theory of the tort is that the will actually probated was valid and (4) But for the Defendant’s enforceable because it reflected [sic] conduct, the testator testamentary intent at the time it was would have changed his made, but that the alleged tortfeasor will. wrongly induced the testator to maintain Cardenas, 783 A.2d at 326. In no event that will. Whatever the outcome of an does an action for tortious interference action for tortious interference with with inheritance in Pennsylvania challenge inheritance, the Orphans’ Court’s the Orphans’ Court’s determination of determinations of testamentary document value of the estate. Cf. Mangold, 91 A.2d validity, enforceability and interpretation at 907. Nor may a plaintiff use an action will, as they must, remain unaffected. Id. for tortious interference with inheritance An example will help to clarify the to challenge the validity or enforceability point. Take a hypothetical testator who of the testamentary documents (if any) adopts a valid testamentary distributive admitted to probate, or the testamentary scheme that does not provide for person P. scheme established by those documents. 17 At some point, Testator contemplates elements of tortious interference with changing the testamentary distributive inheritance do not call into question the scheme to add a legacy for P, but person D probate court’s determination of somehow intentionally prevents the testamentary document validity or change. Thus, at the time of Testator’s enforceability.17 The probate of a will, death, the only scheme providing for the therefore, does not prevent a party from distribution of Testator’s assets is the bringing an action for tortious interference earlier—and valid—scheme leaving with inheritance in the Pennsylvania nothing to P. courts of general jurisdiction. The original testamentary scheme To be sure, while an action for was a true and correct expression of tortious interference with inheritance does Testator’s then-intent. Because Testator not challenge the validity or enforceability never revoked or superseded the earlier of the distributive scheme affirmed by the testamentary scheme, that scheme probate court, recovery on that theory remained valid, and the Orphans’ Court may, de facto, alter the distributive was required to probate it. Independent of scheme. It was this consideration that the validity and enforceability of gave us pause in Moore. 843 F.2d at 710. Testator’s earlier scheme, D harmed P, There, we affirmed the dismissal of the because, but for D’s actions, Testator plaintiff/appellant’s claim for tortious would have amended the testamentary interference with inheritance because such scheme and P would have received a an action would be “so inconsistent with legacy. If P sues D for tortious the Delaware statutory plan for exclusive interference, that suit does not impeach the review of probate proceedings that validity or enforceability of the original allowing it would subvert the probate will. To the contrary, it relies on that law.” Id. Central to our reasoning, validity to support the claim that D damaged P by preventing the testamentary 17 scheme from being changed. Cf. Georges, Indeed, this is one of the key, 856 F.2d at 974 (finding jurisdiction over outc ome-dete r minative distinc tio ns a claim for legal malpractice in between Appellants’ fraud claims and their preparation of a trust because the claim tortious interference with inheritance “does not seek to disturb the finality of the claims. Recovery on Appellants’ fraud . . . probate proceedings”). claims would require the District Court to directly contradict the Orphans’ Court’s Under Mangold and Cardenas, P determination that the Will, the Trust, the may sue D in the Pennsylvania courts of Addendum and their combined distributive general jurisdiction for tortious scheme are valid and enforceable. interference with inheritance. Mangold, Appellants’ tortious interference with 91 A.2d at 907; Cardenas, 783 A.2d at inheritance claims, by contrast, require no 325-26. Put simply, in Pennsylvania, the such contradiction. 18 however, was the fact that the Delaware The District Court has jurisdiction courts did not unambiguously permit to consider Appellants’ claims for slander tortious interference with inheritance and tortious interference with inheritance. claims in the courts of general jurisdiction. Of course, we take no position as to Id. at 710 & n.4. That being so, it was not whether the Appellants have alleged the province of the federal courts to sufficient facts to meet the elements of entertain actions whose de facto effect those torts as the Pennsylvania courts have would be to re-allocate estate assets post- defined them. That inquiry is for the probate. District Court. 19 But unlike in Moore, the state courts in this case do unambiguously Id. (emphasis added, citations omitted). recognize the viability, outside the probate Even though “Indiana law would require context, of claims for tortious interference [his] tort claim be heard in the probate with inheritance. State law, therefore, [court],” plaintiff/appellant Storm sued in compels a different result in this case. federal court rather than wait for the will Pennsylvania law permits actions for to be admitted to probate. Id. at 945. tortious interference with inheritance in Storm failed, therefore, to meet the state the courts of general jurisdiction and a law jurisdictional prerequisite that “a will federal court must adjudicate such claims contest [be] unavailable to supply an just as they would any other tort claim adequate remedy.” That being so, the brought pursuant to our diversity Indiana courts of general jurisdiction— jurisdiction.18 a n d , by e xte nsion, the f e d e r a l courts—could not entertain Storm’s action for tortious interference with inheritance. 18 State law also compels the Id. at 945-946. The Seventh Circuit difference between our result and the dismissed the claim, calling the action “in Seventh Circuit’s holding in Storm. 328 substance a will contest.” Id. at 945. F.3d at 945. Storm was strongly guided by By contrast, the Pennsylvania courts the fact that the plaintiff/appellant failed to contemp late no such jurisdictional meet a state law jurisdictional prerequisite prerequisite to bringing a claim for tortious for his tortious interference w ith interference with inheritance. The inheritance claim. concerns that guided the result in Storm, [Tortious] interference with therefore, are not present here. inheritance is a recognized 19 tort in Indiana; such an For example, in resolving the action may be brought in a still-undecided cross motions for summary court of general jurisdiction, judgment as they apply to Appellants’ provided a will contest is claims for tortious interference with unavailable to supply an inheritance, the District Court will have to adequate remedy. determine whether the facts as alleged 19 III. For the foregoing reasons, the judgment of the District Court will be affirmed in part and reversed in part and the case will be remanded for further proceedings in accordance with this opinion. establish that Ms. King intended to change her will to benefit the Appellants and that she would have succeeded in doing so but for the Appellees’ actions. 20