J-S29016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PHILIP J. BERG : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EDWIN R. RUBIN : No. 1456 EDA 2017
v. :
:
:
AND BONNIE OSTROFSKY :
Appeal from the Order March 24, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): November Term, 2015
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED JUNE 18, 2018
Philip J. Berg (Appellant) appeals from the trial court’s orders granting
judgment on the pleadings in favor of Appellees, Edwin R. Rubin (Rubin) and
Bonnie Ostrofsky (Ostrofsky). We affirm.
Appellant and his two siblings, Judith Morris (Judith) and Joan Rubin
(Joan), were the beneficiaries under the will of their mother, Rebecca
Nissenbaum (Decedent). The will named Appellant and Judith as co-executors
of the estate (Estate), and was admitted to probate on August 29, 2013. The
same day, however, the three siblings executed an agreement (2013
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S29016-18
Agreement), under which Judith became the sole executrix and Appellant
relinquished his role as co-executor in exchange for the Estate forgiving
Appellant’s debt to Decedent of more than $350,000. The 2013 Agreement
also set forth procedures for the administration of the Estate and distribution
of Decedent’s personal property, and stated that the parties would not take
any legal action against Judith as executrix or against Joan as bookkeeper for
the Estate, so long as Judith and Joan exercised their fiduciary duties to the
best of their ability. At this juncture, we note that Joan is married to Rubin,
an attorney whose license was suspended by the Pennsylvania Supreme
Court,1 and Ostrofsky is an attorney who provided legal services to the Estate
from November 2013 to May 2014.
On December 4, 2013, Appellant filed a lis pendens and a creditor’s
claim of $7,050 against the Estate. On April 4, 2014, Appellant also objected
to the accounting, filed an $87,500 beneficiary’s claim, and requested that the
trial court charge attorney’s fees, costs, and statutory sanctions against the
executrix, Judith, for her alleged breach of the 2013 Agreement. On April 25,
2014, Appellant filed a bankruptcy petition in federal court. Upon application
by the Estate, the bankruptcy court partially lifted the automatic stay so that
the Estate litigation could resume. The Estate litigation spanned two years.
____________________________________________
1 The record indicates that Appellant was also suspended from the practice of
law. Email from Rubin to Appellant, 8/22/13, Exhibit 9 to Appellant’s Amended
Complaint, 3/8/16.
-2-
J-S29016-18
On November 5, 2015, Appellant, Judith, and Joan executed a
settlement agreement (2015 Agreement). The 2015 Agreement stated that
the parties’ intent was “to fully resolve all issues and disputes arising . . . from
the Estate’s administration . . . and to forego continued litigation of the same.”
Family Settlement Agreement, 11/5/15, at 2. The 2015 Agreement also
included the following release clause:
The Parties, for themselves and for their heirs, issue, spouses,
executors, administrators, successors, and assigns, hereby
mutually and irrevocably remise, release and forever discharge
each other, individually and in any fiduciary capacity whatsoever
(including, but not limited to, Judith in her capacity as Executrix
of the Estate), their heirs, issue, executors, administrators,
attorneys, successors and assigns of and from any and all
damages, actions, suits, demands, costs, expenses, judgments,
claims, causes of action, liabilities and indebtedness of any kind
or nature whatsoever, whether at law or in equity, individual or
derivative, known or unknown, asserted or unasserted, liquidated
or unliquidated, foreseeable or unforeseeable, matured or
unmatured, that each Party or person or entity claiming by,
through or under these Parties ever had, now have or in the future
may have or claim to have against each other or the Estate by
reason of, or arising out of any cause, matter, thing or event from
the beginning of the world to the end of time related to the
Estate’s administration, including without limitation all matters or
claims which have been raised or could have been raised by the
Parties, individually or collectively, or any third party, whether an
individual or any kind or nature of an entity, during the Estate
administration or arising out of any act or omission of the
Executrix in her administration of the Estate, whether due to
negligence or otherwise, or in connection with the 2013
Agreement, the Property, [Appellant’s] Creditor’s, Beneficiary’s
and Surcharge Claims in the Orphans’ Court, and disputes arising
in [Appellant’s] Bankruptcy, including the Estate’s [proof of claim]
and [Appellant’s] Sanctions Motion.
Id. at 4-5 (emphasis added). Pertinently, the 2015 Agreement did not define
the term “attorney,” and although the agreement referred to the executrix’s
-3-
J-S29016-18
“[prior] lawyer [sic],” the only attorneys identified by name were the Estate’s
attorney, “Ryan D. Harmon, Esquire, then of the law firm Zarwin, Baum,
DeVito, Kaplan, Schaer & Toddy, P.C.” and Appellant’s counsel, James F.
Casquale, Esquire. Id. at 1-3.
Less than one month later, on December 3, 2015, Appellant commenced
the instant action against Rubin and Ostrofsky, averring that they
“misinterpreted the [2015 Agreement] to advise the Executrix in a course of
action to exhaust the Estate’s assets such that [Appellant] . . . received none
of his intended benefits.” Appellant’s Amended Complaint, 3/8/16, at 1.
Specifically, Appellant presented a third-party beneficiary claim for breach of
contract against Rubin and Ostrofsky, averring that they failed to counsel
Judith, as the executrix, “against adopting positions contrary to the” 2013
Agreement, and thus deprived Appellant of his beneficiary and creditor’s
interests in the Estate. Appellant’s Amended Complaint at 8.
Rubin and Ostrofsky each filed preliminary objections, which were
overruled by the trial court. They then each filed an answer and new matter,
raising, inter alia, the defense of release; Rubin also denied that he ever acted
as attorney to the Estate, the executrix, or any beneficiary. Subsequently,
Rubin and Ostrofsky each filed a motion for judgment on the pleadings,
reiterating that Appellant’s claims were barred by the release clause in the
2015 Agreement. Appellant filed a response, arguing that the release clause
only discharged from liability the named signatories — himself, Judith, and
-4-
J-S29016-18
Joan — and any individuals specifically identified in the 2015 Agreement.
Thus, according to Appellant, the only “released” attorneys were those named
in the agreement.
The trial court agreed with Rubin and Ostrofsky that the release clause
barred Appellant’s claims, and on March 24, 2017, granted their motions for
judgment on the pleadings, and dismissed Appellant’s complaint with
prejudice. Appellant filed a motion for reconsideration, which the court
denied. Appellant took this timely appeal.2
Appellant presents the following issues for our review:
1. Did the trial court err when granting judgment on the pleadings
by not considering [Appellant’s] allegation concerning the
meaning of the undefined term ‘attorneys’ in a release clause
contrary to the . . . Supreme Court’s instruction in Insurance
Adjustment Bur., Inc. v. Allstate Ins. Co., [905 A.2d 462 (Pa.
2006)] (Complaint’s allegation as to agreement’s meaning is an
averment of fact to be accepted as true)?
2. Did the trial court re-write a release cause by relying upon
selective language and without considering either the entirety of
the clause or the Agreement as a whole document and contrary
to the established law governing interpretation of releases?
3. Did the trial court err by determining the undefined term ‘prior
lawyer’ — stated in the singular — extends to both Ostrofsky and
Rubin and thereby resolving a disputed factual issue raised in the
pleadings?
4. Did the trial court err by accepting procedurally improper
Motions for Judgment on the Pleadings which do not accept as true
all factual averments of the Amended Complaint or which proceed
from Rubin’s lately-raised factual claim to be the Executrix’ ‘prior
attorney’ in contradiction of his pleadings where he repeatedly
____________________________________________
2 The trial court did not order Appellant’s compliance with Pa.R.A.P. 1925(b).
-5-
J-S29016-18
denied ever being attorney to the Executrix and the Estate?
Appellant’s Brief at 5.
We address Appellant’s interrelated issues together. The essence of
Appellant’s claims is that the trial court erred in granting judgment on the
pleadings because the parties’ competing pleadings presented a question of
fact: the meaning of the term “attorneys” in the release clause of the 2015
Agreement. Appellant maintains that ¶50 of his amended complaint averred
that the term meant the “then current attorneys specifically named earlier in
the [2015 Agreement] and not any lawyer unidentified and unnamed
anywhere in the [2015 Agreement].” Id. at 13-14. According to Appellant,
the trial court disregarded this factual averment and improperly accepted the
argument of Rubin and Ostrofsky that the term “attorney” included all
attorneys, including prior attorneys, Rubin and Ostrofsky. Furthermore,
Appellant asserts that the trial court’s determination that the release clause
was a “broad release,” cannot be reconciled with the paragraphs of the 2015
Agreement that specifically identified attorneys by name.
We first note the relevant standard of review:
A trial court may grant a motion for Judgment on the Pleadings
only in those cases which are so free from doubt that a trial would
be a fruitless waste of resources. This may often be the case when
the dispute will turn on the construction of a written agreement.
Upon review, the appellate court must affirm only in those cases
which are clear and free from doubt. We must reverse if the action
was based on a clear error of law or if there were facts disclosed
by the pleadings which should be resolved by the jury.
Flatley by Flatley v. Penman, 632 A.2d 1342, 1343 (Pa. Super. 1993)
-6-
J-S29016-18
(citations omitted).
With respect to release agreements, this Court has stated:
“The courts of Pennsylvania have traditionally determined the
effect of a release using the ordinary meaning of its language and
interpreted the release as covering ‘only such matters as can fairly
be said to have been within the contemplation of the parties when
the release was given.’”
* * *
[O]ur Supreme Court held that a release given to a particular
individual and “any and all other persons . . . whether herein
named or not” was applicable to all tort-feasors despite the fact
that they were not specifically identified in the release. The Court
reasoned:
If such a release can be nullified or circumvented, then
every written release and every written contract or
agreement of any kind no matter how clear and pertinent
and all-inclusive, can be set aside whenever one of the
parties has a change of mind or whenever there
subsequently occurs a change of circumstances which were
unforeseen, or there were after-discovered injuries, or the
magnitude of a releasor’s injuries was unexpectedly
increased, or plaintiff made an inadequate settlement. It
would make a mockery of the English language and of the
law to permit this release to be circumvented or held to be
nugatory.
Fortney v. Callenberger, 801 A.2d 594, 598 (Pa. Super. 2002) (citations
omitted). “There is no requirement that a release specifically name all of the
parties to be released if the terms of the release clearly extend to them.” In
re Estate of Bodnar, 372 A.2d 746, 748 (Pa. 1977) (mortgagee bank’s
release — which precluded it from pursuing any claim against “any and all
other person . . . which might be claimed as liable to [Reicher] on account of
any and all knowns claims . . . arising out of payments to Reicher” — precluded
-7-
J-S29016-18
bank from asserting claim, which was related to Reicher, against person not
named in release). With respect to contract interpretation generally, we have
stated:
When construing agreements involving clear and unambiguous
terms, this Court need only examine the writing itself to give effect
to the parties understanding. The court must construe the
contract only as written and may not modify the plain meaning of
the words under the guise of interpretation. When the terms of a
written contract are clear, this Court will not re-write it or give it
a construction in conflict with the accepted and plain meaning of
the language used.
Habjan v. Habjan, 73 A.3d 630, 640 (Pa. Super. 2013) (citations omitted).
Upon review, it was proper for the trial court to resolve the parties’
dispute in this case as to “the construction of a written agreement.” See
Flatley, 632 A.2d at 1343, 1344 (“This case does not involve a dispute over
the law of this state regarding the effect of releases or the general rules of
contract construction. Instead, the parties disagree as to how . . . clauses in
the document . . . should be read in light of the generally accepted rules of
contract interpretation.”).
Here, the trial court examined the release clause and concluded:
The ordinary meaning of the language of this broad release clearly
bars [Appellant’s] instant action and, as such, there are no
disputed issues of fact and [Rubin and Ostrofsky] are entitled to
judgment as a matter of law.
Trial Court Opinion, 10/31/17, at 5. We agree.
While we have quoted the release clause in full above, the pertinent
language is:
-8-
J-S29016-18
The Parties . . . hereby mutually and irrevocably remise, release
and forever discharge each other [and] their . . . attorneys . . .
of and from any and all damages, actions, suits, demands, costs,
expenses, judgments, claims, causes of action, liabilities and
indebtedness of any kind or nature whatsoever . . . arising out of
any cause, matter, thing or event from the beginning of the world
to the end of time related to the Estate’s administration, including
without limitation all matters or claims which . . . could have been
raised by the Parties . . . during the Estate administration . . . .
Family Settlement Agreement at 4-5 (emphasis added). The plain language
of the clause is clear: Appellant unequivocally agreed to release Judith, Joan,
and their attorneys (as well as heirs, issue, executors, administrators,
successors and assigns) from any claim related to the administration of the
estate. Appellant’s argument, that the term “attorneys” meant only the
attorneys who were specifically named in the 2015 Agreement, is not
supported by the plain language of the contract, which imposed no such
definition or restriction on the term “attorneys.” See Habjan, 73 A.3d at 640.
Accordingly, the trial court did not err in holding that Appellant’s claims against
Rubin and Ostrofsky were barred by the 2015 Agreement. We thus affirm the
orders granting their motions for judgment on the pleadings and dismissing
Appellant’s complaint with prejudice.
Orders affirmed.
-9-
J-S29016-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/18
- 10 -