Kohut, J. v. Vlahos, D.

J-A25033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER KOHUT, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS EXECUTRIX OF THE ESTATE : PENNSYLVANIA
OF JOHN HAUSER, JACQUELINE :
DAVISSON, JOSEPH HAUSER AND, :
CHRISTOPHER HAUSER :
:
Appellants :
v. :
: No. 355 WDA 2022
:
DARLENE VLAHOS, ESQ., AND :
VLAHOS LAW FIRM, P.C. :
:
:

Appeal from the Order Entered March 14, 2022
In the Court of Common Pleas of Erie County Civil Division at No(s): No.
11774-21

BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: NOVEMBER 29, 2022

Jennifer Kohut, individually and as executrix of the Estate of John Hauser

(Estate), Jacqueline Davisson, Joseph Hauser, and Christopher Hauser

(collectively Heirs) appeal from the order entered in the Erie County Court of

Common Pleas, sustaining the preliminary objections filed by Darlene Vlahos,

Esquire (Attorney Vlahos) and Vlahos Law Firm, P.C. (collectively Law Firm)

and dismissing Heirs’ legal malpractice action because Heirs had no standing

to sue Law Firm as third-party beneficiaries of Attorney Vlahos’s legal services

contract with John Hauser (Decedent). On appeal, Heirs contend that the

trial court erred as a matter of law in sustaining the demurrer to their

complaint because (1) as named legatees in Decedent’s probated will, they
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had standing to sue Law Firm as third-party beneficiaries; (2) the decision in

Estate of Agnew v. Ross, 152 A.3d 247 (Pa. 2017), is distinguishable; and

(3) their amended complaint sufficiently pled a cause of action asserting Law

Firm’s negligence. For the reasons below, we affirm.

The relevant facts underlying this appeal, as set forth in Heirs’ amended

complaint, are as follows. In April of 2014, Decedent executed a will (2014

Will), which was prepared by Attorney Vlahos. See Heirs’ Amended

Complaint, 11/8/21, at ¶¶ 10-12. Because Decedent’s wife passed away a

month earlier, the 2014 Will “provided for equal distributions of the residue of

his estate to each of his four children as well as an unfunded trust for his

grandchildren, Christopher and Breanna Hauser.” Id. at ¶ 12. Heirs are three

of his adult children and his grandson, Christopher.1

In July of 2018, Decedent and his then-fiancée, Rebecca Kistle (Becky),

met with Attorney Vlahos to discuss revisions to his will, as well as the drafting

of a will for Becky, due to their upcoming nuptials in October of 2018. Heirs’

Amended Complaint at ¶¶ 15-16. Heirs allege that Decedent and Becky

agreed to the following:

[I]n the event of their deaths [they would] bequeath only the
marital home, household goods and equipment to one another and
[would] bequeath the residue of their estates to their adult
children from their first marriages. [They] also agree that a fund
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1One of Decedent’s adult children, John W. Hauser, died prior to 2018. See
Heirs’ Amended Complaint at Exhibit C, Vlahos File Note, 7/17/18 (Vlahos File
Note), at 2. His portion of the estate passed to his surviving daughter,
Breanna. Id. She is not a party to this lawsuit.

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or special needs trust would be set up and funded from
[D]ecedent’s assets for the benefit of [his] grandson[,
Christopher,] who is autistic and disabled.

Id. at ¶ 1. Attorney Vlahos agreed to represent both Decedent and Becky.

Id. at ¶ 20.

Attorney Vlahos “memorialized” the proposed provisions of the

respective wills in a “File Note” dated July 17, 2018. Heirs’ Amended

Complaint at ¶ 22; see also Vlahos File Note. Pursuant to the couple’s

agreement, Decedent’s revised will was to “contain a provision that [he] is

married to [Becky], and . . . made provisions for his wife Becky outside the

will and has not made any provisions for the residue of the estate to Becky.”

Heirs’ Amended Complaint at ¶ 24; Vlahos File Note at 1-2. Heirs allege that

Attorney Vlahos failed to advise Decedent that this proposed language was

inadequate to ensure that the entire residue of his estate would pass to Heirs,

and that, to effectuate his wishes, he and Becky would have had to execute a

separate pre- or postnuptial agreement.2 Id. at ¶¶ 25-26.

____________________________________________

2 Pursuant to Section 2203(a) of the Probate, Estates and Fiduciaries (PEF)
Code, a surviving spouse has “a right to an elective share of one-third” of their
deceased spouse’s estate regardless of the provisions of the decedent’s will.
See 20 Pa.C.S. 2203(a). However, this “right of election . . . may be waived,
wholly or partially, before or after marriage or before or after the death of the
decedent.” 20 Pa.C.S. § 2207. Relevant herein, Section 2507 further
provides:

If the testator marries after making a will, the surviving
spouse shall receive the share of the estate to which he would
have been entitled had the testator died intestate, unless the will
shall give him a greater share or unless it appears from the will
(Footnote Continued Next Page)

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Decedent and Becky were married on October 13, 2018. Heirs’

Amended Complaint at ¶ 36. Heirs assert that “[o]n multiple occasions both

prior to and after the wedding, [D]ecedent placed phone calls to [Attorney]

Vlahos offering to come to her office to sign his revised will or requesting that

she send the will to him for execution.” Id. at ¶ 38. Heirs attached to their

amended complaint a November 30, 2018, email exchange between Attorney

Vlahos and a coworker in her office. The coworker informed Attorney Vlahos

that Decedent and Becky were married in October and “they want to sign their

Wills.” See Heirs’ Amended Complaint at Exhibit D, Email Exchange,

11/30/18. Attorney Vlahos responded by asking her coworker to call Decedent

and “let him know that we will send out the drafts for them to review.” Id.

____________________________________________

that the will was made in contemplation of marriage to the
surviving spouse.

20 Pa.C.S. § 2507(3) (emphasis added). Under the intestacy provisions, “[i]f
there are surviving issue of the decedent one or more of whom are not issue
of the surviving spouse, [the surviving spouse is entitled to] one-half of the
intestate estate.” 20 Pa.C.S. § 2102(4) (emphasis added).

Accordingly, unless Decedent and Becky executed a separate
agreement, Becky was entitled to a one-third elective share of Decedent’s
Estate even if the proposed will had been executed. See 20 Pa.C.S. §§
2203(a), 2207. Here, however, because Decedent’s 2014 Will was not revised
prior to his marriage or death, Becky was entitled to elect a one-half share of
the Estate, which she ultimately did. Therefore, Heirs also allege that “[t]he
potential operation of [Section] 2203 created a conflict of interest between
the concurrent representation of [Decedent] and Becky in their estate
planning.” Heirs’ Amended Complaint at ¶ 27.

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Attorney Vlahos failed to “timely prepare and forward[ the] documents” prior

to Decedent’s death five weeks later, on January 4, 2019. Id. at ¶ 54.

Consequently, Decedent’s 2014 Will was probated, as it was the only

will finalized before his death. See Heirs’ Amended Complaint at ¶ 48.

Because it was drafted prior to his engagement and marriage to Becky,

[the] will was probated pursuant to 20 Pa.C.S. [§] 2102 which
provided Becky was to receive 50% of the residue of the estate
while the three surviving children and one surviving grandchild
each received 12.5% of the residue of the estate.[3] Christopher
Hauser did not receive any distributive share because the 2014
Will did not fund the trust that was intended for him.

Id. Heirs aver that, as a result of Attorney Vlahos’s negligence, their

“distributive shares” were reduced by nearly $700,000. Id. at ¶ 59.

On August 16, 2021, Heirs filed a civil complaint against Law Firm,

asserting causes of action for negligence-based and contract-based legal

malpractice. Law Firm filed preliminary objections on November 29, 2021.

Law Firm argued: (1) Heirs cannot establish a negligence action because

“[t]he individual beneficiaries had no attorney-client relationship” with Law

Firm; and (2) as “purported beneficiaries of an unexecuted estate planning

document[, Heirs had] no standing” to assert a breach of contract claim as

third-party beneficiaries under Agnew.4 Law Firm’s Preliminary Objections to
____________________________________________

3 As noted supra, Decedent’s predeceased son’s share of the estate passed
to his surviving daughter, Breanna.

4 Law Firm also objected to the allegations in the amended complaint
regarding Becky’s estate planning as “impertinent matter.” See Law Firm’s
Preliminary Objections to Amended Complaint, 11/29/21, at 4.

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Amended Complaint, 11/29/21, at 2-3. Heirs filed an answer to Law Firm’s

preliminary objections on December 23, 2021, and Law Firm subsequently

filed a reply brief in support of their preliminary objections.

The trial court conducted oral argument on March 3, 2022. Thereafter,

on March 14th, the court entered an order sustaining Law Firm’s preliminary

objections and dismissing Heirs’ complaint with prejudice “consistent with”

Agnew. Order, 3/14/22. This timely appeal followed.5

Heirs present the following issues for our review:

1. Did the trial court err as a matter of law in sustaining a
demurrer to this legal malpractice case where [Heirs], who are
named legatees in the probated Will, state a cause of action as
third[-]party beneficiaries of the contract for legal services
under the Restatement (Second) of Contract § 302, adopted
by Guy v. Liederbach, 459 A.2d 744 (Pa. 1983)?

2. Did the trial court err as a matter of law in dismissing this case
at the preliminary objection stage for lack of standing and
failing to distinguish the facts of this case from [Agnew]?

3. Did the trial court err as a matter of law in dismissing the
negligence count for failure to state a cause of action where
the facts averred in the Amended Complaint plead a specific
undertaking by the lawyer to perform services for the benefit
of [H]eirs?

Heirs’ Brief at 5-6.

____________________________________________

5 Heirs complied with the trial court’s order to file a timely Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and the trial court
subsequently filed a responsive opinion on May 26, 2022. Although Heirs’
concise statement asserts 12 allegations of error, they present only three
issues in their brief. See Heirs’ Concise Statement of Errors Complained of
on Appeal, 4/13/22, at 1-4. To the extent that their Rule 1925(b) statement
raises any claims not included in their brief, they are abandoned on appeal.

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When reviewing an order sustaining preliminary objections, we are

guided by the following:

Our standard of review of an order . . . is to determine
whether the trial court committed an error of law. When
considering the appropriateness of a ruling on preliminary
objections, the appellate court must apply the same standard as
the trial court.

Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.

Fiedler v. Spencer, 231 A.3d 831, 835–36 (Pa. Super. 2020) (citation

omitted), appeal denied, 241 A.3d 335 (Pa. 2020).

In the present case, Heirs assert a claim for legal malpractice. “[A]n

action for legal malpractice may be brought in ether contract or tort.”

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007)

(citation omitted).

The elements of a legal malpractice action, sounding in
negligence, include: (1) employment of the attorney or other
basis for a duty; (2) failure of the attorney to exercise ordinary
skill and knowledge; and (3) that such failure was the proximate
cause of the harm to the plaintiff. With regard to a breach of
contract claim, an attorney who agrees for a fee to represent a
client is by implication agreeing to provide that client with
professional services consistent with those expected of the
profession at large.

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Id. at 570–71 (citations & quotation marks omitted).

Where, as here, the plaintiffs did not employ the allegedly negligent

attorney, their legal malpractice claim is limited. Both the parties and the trial

court agree the Pennsylvania Supreme Court decisions in Guy v. Liederbach,

supra, and Estate of Agnew v. Ross, supra, provide the framework for

malpractice claims brought against the drafter of the will by a beneficiary of

the will based upon a failed legacy. Accordingly, a preliminary review of those

decisions will be instructive.

In Guy, the Pennsylvania Supreme Court framed the issue before it as

follows:

[W]hether a named beneficiary of a will who is also named
executrix has a cause of action against the attorney who drafted
the will and directed her to witness it where the fact that she
witnessed the will voided her entire legacy and her appointment
as executrix.

Guy, 459 A.2d at 746.

In that case, the decedent, a Pennsylvania resident, employed the

attorney to draft a will naming Frances Guy as executrix and primary

beneficiary of the residual estate. Guy, 459 A.2d at 747. At the attorney’s

direction, Guy signed the will as a witness. Id. When the decedent died 15

years later while residing in New Jersey, Guy qualified as executrix of the

decedent’s estate, but, pursuant to a later invalidated New Jersey law, she

was barred from taking her share of the estate because she was a “subscribing

witness to the will.” Id. (footnote omitted). Thus, Guy filed a legal

malpractice claim against the attorney, asserting the attorney’s actions in

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directing her to sign the will fell below the applicable standard of care, and

constitute a breach of the attorney’s contract with the decedent, of which Guy

was a third-party beneficiary. Id. at 747-48. Further, Guy alleged that the

attorney knew or should have known that the decedent owned property in

New Jersey, and that it was his “express choice that [she] should be the

[primary] beneficiary of all his estate[.]” Id. at 748.

The attorney filed preliminary objections, asserting the absence of an

attorney-client relationship with Guy, which the trial court sustained. Guy,

459 A.2d at 748. On appeal, a panel of this Court reversed, determining that

a beneficiary can state a cause of action against an attorney who drafts the

will under either a negligence or third-party beneficiary theory. Id.

Upon review, the Supreme Court affirmed in part, and reversed in part.

Guy, 459 A.2d at 753. First, the Court held that Guy could not state a

negligence cause of action against the attorney. The Court recognized that

its prior decision in Lawall v. Groman, 37 A. 98 (Pa. 1897), appeared to

permit, at least in dicta, “persons other than clients” to bring legal malpractice

actions, if there was “a specific undertaking on the attorney’s part to

perform a specific service for a third party, coupled with the reliance of

the third party and the attorney’s knowledge of that reliance[.]” 6 Guy, 459

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6 We note that the malpractice claim in Lawall involved an attorney who
performed a title search for a borrower. See Lawall, 37 A. at 98-99.
Although the attorney was hired and paid by the borrower, the
mortgagor/plaintiff specifically requested the attorney search for other
(Footnote Continued Next Page)

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A.2d at 749 (emphasis added). The Guy Court distinguished the facts before

it as follows:

[A beneficiary] could not have an attorney specifically undertake
for her the writing of a testator’s will which made her the residuary
beneficiary of that will. She could not rely on the attorney’s
professional expertise because he could not employ his expertise
on her behalf in such a manner. Such a beneficiary is left without
any remedy for the failed legacy. Because she is a beneficiary,
she could not have had privity with the attorney, nor could any
specific undertaking have been arranged between them. The
intentions of the testator and the expectation of the named
beneficiary are thus frustrated under the strict privity rule, despite
the dicta in Lawall.

Guy, 459 A.2d at 749. Accordingly, the Court “retain[ed] the requirement

that [a] plaintiff must show an attorney-client relationship or a specific

undertaking by the attorney furnishing professional services, as in Lawall, as

a necessary prerequisite for” a legal malpractice claim rooted in negligence.

Id. at 750.

Next, the Supreme Court contemplated whether the estate could sue

the attorney for malpractice based on the failure of the will “to effectuate the

testator’s intent.” Guy, 459 A.2d at 749. The Court held an estate has no

standing to bring a lawsuit because it would suffer no harm as a result of a

failed legacy. Id.

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liens on the property, which the attorney agreed to do. Id. at 99. The
Supreme Court held that “there was sufficient evidence to submit to the jury
on the existence of the relation of attorney and client in the case.” Id.
Conversely, here, there is no allegation Heirs explicitly asked Law Firm to
perform any legal tasks on their behalf.

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Lastly, the Guy Court considered whether Ms. Guy could proceed under

a breach of contract malpractice claim as a third-party beneficiary. See Guy,

459 A.2d at 750. Relying on Section 302 of the Restatement (Second) of

Contracts, the Court approved the following two-part test for determining

whether a person is “an intended third[-]party beneficiary: (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.” Id. at 751 (quotation marks omitted).

The Supreme Court further explained:

Applying these general considerations and Restatement
(Second) § 302 to the case of beneficiaries under a will, the
following analysis emerges. The underlying contract is that
between the testator and the attorney for the drafting of a will.
The will, providing for one or more named beneficiaries, clearly
manifests the intent of the testator to benefit the legatee. Under
Restatement (Second) § 302(1), the recognition of the “right to
performance in the beneficiary” would be “appropriate to
effectuate the intention of the parties” since the estate either
cannot or will not bring suit. Since only named beneficiaries can
bring suit, they meet the first step standing requirement of § 302.
Being named beneficiaries of the will, the legatees are intended,
rather than incidental, beneficiaries who would be § 302(1)(b)
beneficiaries for whom “the circumstances indicate that the
promisee intends to give the beneficiary the benefit of the
promised performance.” In the case of a testator-attorney
contract, the attorney is the promisor, promising to draft a will
which carries out the testator’s intention to benefit the legatees.
The testator is the promisee, who intends that the named
beneficiaries have the benefit of the attorney’s promised
performance. The circumstances which clearly indicate the

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testator’s intent to benefit a named legatee are his
arrangements with the attorney and the text of his will.

Id. at 751-52 (emphasis added & footnote omitted). The Court concluded

that “persons who are named beneficiaries under a will and who lose their

intended legacy due to the failure of an attorney to properly draft the

instrument should not be left without recourse or remedy[.]” Id. at 752.

Therefore, it reversed the decision of the Superior Court, in part, and

remanded the case for further proceedings on Guy’s contract-based legal

malpractice claim.

In subsequent decisions, this Court has emphasized that Guy provided

a right of recovery for a “narrow” class of legatees as third-party beneficiaries

under a breach of contract malpractice claim. See Hess v. Fox Rothschild,

LLP, 925 A.2d 798, 807 (Pa. Super. 2007); Gregg v. Lindsay, 649 A.2d 935,

937 (Pa. Super. 1994). We have also repeated Guy’s holding that a

beneficiary cannot recover an action in tort for legal malpractice because there

is no attorney-client relationship. See Hess, 925 A.2d at 808; Gregg, 649

A.2d at 937 n.1.

In Agnew, the Supreme Court, once again, considered the scope of a

legal malpractice claim based upon a failed legacy. In that case, the testator

retained the attorney “to draft various estate planning documents[,]”

including a will and amendments to a revocable trust. Agnew, 152 A.3d at

249 (footnoted omitted). Over the next several years, the attorney drafted

various amendments to the documents, which were executed by the testator.

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Id. As of 2007, the revocable trust amendment directed, inter alia, that upon

testator’s death, the assets would be distributed to four colleges. Id.

When the testator entered a hospice program in March of 2010, he met

with the attorney to discuss changes to his estate plan. See Agnew, 152

A.3d at 249. The testator wanted to “limit the amounts going to charity and

provide more funds to” plaintiffs, who are relatives of his late wife. Id. at

249-50. The attorney subsequently drafted a revised will (2010 Will) and an

amendment to the revocable trust (2010 Trust Amendment), and emailed the

documents to the testator in August of 2010. Id. at 250. On September 2nd,

the attorney met with the testator, who signed the 2010 Will and another

estate document. Id. The 2010 Will bequeathed specific gifts to certain

beneficiaries, including the plaintiffs, and directed that the residue of the

estate be transferred to the revocable trust. Id. at 249. The testator,

however, did not sign the 2010 Trust Amendment at the time because the

attorney did not have a copy of the document with him. Id. at 250. The

testator subsequently died in January of 2011, before executing the 2010

Trust Amendment. Id. The attorney later testified in a deposition that he

believed the testator “would have signed the amendment” but he could not

“say for certain.” Id. at 251.

The plaintiffs filed both a contract-based and negligence-based legal

malpractice action against the attorney. With respect to the contract-based

cause of action, they “claimed to be third-party beneficiaries of the [testator’s]

contract for legal services . . ., and as a result of [the attorney’s] breach,

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[they] were denied sums of money to which they were entitled under the 2010

Trust Amendment.” Agnew, 152 A.3d at 251. The plaintiffs also “asserted a

legal malpractice claim sounding in negligence[.]” Id.

The attorney filed preliminary objections, which the trial court sustained

in part. Agnew, 152 A.3d at 251. Specifically, the court dismissed (1) all

claims by the Estate, because it was not a proper party, and (2) the plaintiffs’

negligence-based claims, because they did not have an attorney-client

relationship with the attorney. Id. However, the court permitted the

plaintiff’s contract-based claims to proceed, concluding that they “could

potentially establish they were intended third-party beneficiaries of the legal

services contract[.]” Id.

Following discovery, the attorney moved for summary judgment, which

the trial court granted. Agnew, 152 A.3d at 251. A panel of this Court

reversed on appeal, relying upon the deposition testimony of the attorney that

“believed he made a mistake by not presenting the 2010 Trust Amendment”

to the decedent for his signature in September of 2010, and his failure to do

so was an “oversight[.]” Id. at 252 (citations & quotation marks omitted).

Accordingly, this Court determined that the plaintiffs had standing to sue the

attorney because the record “support[ed] an inference that [the attorney]

intended to give [them] the benefit of his contract with” the decedent. Id. at

254 (citation & quotation marks omitted).

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The Pennsylvania Supreme Court reversed the Superior Court’s ruling

and remanded for reinstatement of the trial court’s order granting summary

judgment. Agnew, 152 A.3d at 248. The Court opined:

We agree with [the attorney] that the fact [the plaintiffs] were
named as beneficiaries in the unexecuted 2010 Trust
Amendment does not provide them with standing to recover on a
contract claim against [the attorney]. Stated another way, we
hold an executed testamentary document naming an individual
as a legatee is a prerequisite to that individual’s ability to enforce
the contract between the testator and the attorney he hired to
draft that particular testamentary document. See, e.g.,
Guy, supra (plaintiff had standing to sue testator’s lawyer for
mistake in drafting will, where she was named legatee in that will).
Although [the plaintiffs] are named heirs in [the decedent’s] 2010
Will, they recovered their legacy under that will and we do not
consider that document as dispositive of [their] right to sue [the
attorney] for any breach related to the Revocable Trust and its
amendments. In our view, the dispositive testamentary
documents in this claim for breach of contract related to
the drafting and execution of the 2010 Trust Amendment,
are the 2007 Trust Amendment in which [the plaintiffs] are
not named, and the unexecuted 2010 Trust Amendment in
which they are named.

Id. at 259 (some emphases added). The Court further distinguished the facts

in Guy noting in that case, the third-party beneficiary “achieved standing

based on an executed will in which she was expressly identified,” while in

the case before it, the plaintiffs “seek to recover for breach of contract based

on their being named in a document the testator never signed.” Id. at 260

(emphasis added).

The Agnew Court emphasized that, when construing a will, the

intention of the testator “must be determined from what appears upon the

face of the will[,]” and extrinsic evidence is not permitted “as evidence of a

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testator’s intention independent of the written words employed.” Agnew,

152 A.3d at 262 (citation & quotation marks omitted). Further, the Court

opined that policy considerations supported its decision:

A testator may change an estate plan at any time, adding and
subtracting legatees, increasing and decreasing bequests. Under
such mercurial circumstances, we decline to confer standing to
purported heirs to prosecute a breach of contract action against
the testator’s attorney on the basis the attorney failed to ensure
the testator signed the particular document making a potential
bequest.

Id. at 263 (footnote omitted).

Accordingly, the Court held:

[The testator’s] intent, as reflected in the executed testamentary
documents, is paramount, and extrinsic evidence may not be
considered in undermining that expressed purpose. The client has
the ultimate authority to determine the purpose and scope of an
attorney’s representation. . . . It follows . . . that a testator’s
purpose in engaging an attorney to draft an estate plan is to
benefit (or not) certain persons upon his death. An attorney is
obligated to draft documents which carry out the testator’s plan
regardless of the effects or consequences to any potential
beneficiaries. To the extent the attorney has drafted
testamentary documents, which have been fully executed by the
testator, such documents are conclusive evidence the testator
intended to benefit the named beneficiaries, and we hold
individuals who are named only in unexecuted, consequently
invalid documents — such as [the plaintiffs] with respect to the
2010 Trust Amendment — may not claim status as third-party
beneficiaries of the legal contract between the testator and his
attorney, and may not achieve a legacy through alternate means,
such as a breach of contract action. . . .

Agnew, 152 A.3d at 264.

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With this background in mind, we consider Heirs’ claims on appeal.7 In

their first issue, Heirs argue that the trial court erred in sustaining Law Firm’s

demurrer because they stated a contract-based legal malpractice action

against Law Firm as third-party beneficiaries under the two-part test set forth

in Guy. Heirs’ Brief at 24-27. Heirs insist they meet the standing requirement

because they are the named beneficiaries in Decedent’s 2014 Will. Id. at

27. With regard to the second part of the test — i.e., determining whether

Decedent intended to benefit Heirs via the failed legacy — Heirs assert that

Guy directs us to consider both the text of the will and the “arrangements

with the attorney[.]” Id. at 28. They maintain that, in the present case,

Attorney Vlahos’s File Note “qualifies as an admission of a party,” and details

the “scope, terms and intentions of the contract between [Attorney] Vlahos

and [Decedent.]” Id. Heirs insist that upon a review of the File Note, “one

can reasonably infer that the purpose and intent behind that contract for legal

services was to prevent the other spouse’s election against a Will under the

Probate Code and protect the inheritance of their respective children.” Id. at

31-32, citing Scarpitti v. Weborg, 609 A.2d 147 (Pa. 1992). Indeed, they

contend: “From this attorney[’s] File Note, one can reasonably infer that the

third party beneficiary relationship of the Heirs was intended and within the

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7We note that Heirs do not argue on appeal that the Estate has standing to
pursue any legal malpractice claims. See Guy, 459 A.2d at 749 (holding
estate has no standing to bring legal malpractice suit because it suffered no
harm from a failed legacy).

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contemplation of both [Decedent] and [Attorney] Vlahos.” Id. at 33. Heirs

further argue that Attorney Vlahos breached her contract with Decedent by

failing to “fulfill any legal services under the contract” for five months. See

id. at 34. Accordingly, as a result of Decedent’s marriage, Attorney Vlahos’s

breach “not only affected execution of the new will but also prevented the

[2014 Will] from being enforced according to . . . the intentions of” Decedent

— that is, “to leave all his property to his children and grandchildren.” Id. at

35. Therefore, Heirs contend the trial court erred when it found they failed to

state a cause of action for legal malpractice under Guy.

Heirs’ argument focuses solely on the Supreme Court’s ruling in Guy,

while ignoring its subsequent decision in Agnew. Nevertheless, we find that

facts presented in Guy are distinguishable. In that case, the intention of the

testator to benefit Guy was evident by the language of the signed document.

Guy was explicitly named in the will — which was executed by the testator —

and her legacy failed solely as a result of the attorney’s advice directing her

to sign the will as a witness. See Guy, 459 A.2d at 747-48. Conversely,

here, Heirs rely upon extrinsic evidence to establish Decedent’s intention.

They do not claim, as in Guy, that the probated will failed due to Attorney

Vlahos’s negligence. Rather, Heirs argue that Decedent’s stated intention was

to leave his inheritance to them, but that changing circumstances (Decedent’s

marriage to Becky) and Attorney Vlahos’s failure to take additional actions,

resulted in their failed legacy. Here, Decedent’s intent to leave his estate to

Heirs as reflected in the 2014 Will was “frustrated” by his marriage to Becky,

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not by any negligent act or omission by Attorney Vlahos in drafting the 2014

Will.

Heirs insist, however, that under Guy, the trial court was permitted to

consider Attorney Vlahos’s File Note, which demonstrates Decedent’s intent to

revise his will in 2018 to protect Heirs’ inheritance. See Heirs’ Brief at 28,

31-33. Heirs emphasize that, in Guy, the Supreme Court advised that, “[t]he

circumstances which clearly indicate the testator’s intent to benefit a named

legatee are his arrangements with the attorney and the text of his will.”

Id. at 28, citing Guy, 459 A.2d 752 (emphasis added). They maintain that

the File Note details Decedent’s arrangements with Attorney Vlahos,

specifically, that he “entered into [the] contract for legal services to deal with

the anticipated modification by operation of law under the Probate Code of

existing Wills upon remarriage.” Heirs’ Brief at 29. However, again, we

emphasize that Heirs ignore the Supreme Court’s subsequent decision in

Agnew, which held that “[t]o the extent [an] attorney has drafted

testamentary documents, which have been fully executed by the testator,

such documents are conclusive evidence” of the testator’s intent, and

“individuals who are named only in unexecuted, consequently invalid

documents . . . may not claim status as third-party beneficiaries[.]” Agnew,

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152 A.3d at 264. Thus, Heirs are not entitled to relief under Guy, and their

first issue fails.8

In their second claim, Heirs argue the trial court erred when it

determined they were entitled to no relief under Agnew. See Heirs’ Brief at

36. They insist that the “facts, circumstances and legal malpractice claim in

this case are markedly different than Agnew and require a different result

under the test for standing.” Id. Heirs emphasize that, in the present case,

Decedent contracted with Attorney Vlahos to protect the beneficiaries named

in his 2014 Will, while in Agnew, the testator sought to amend a trust to

name new beneficiaries. See id. at 36-37. They assert the Agnew Court

noted the record “did not contain a retainer agreement or other contract for

legal services . . . for the Court to use in the analysis of [the testator’s]

intentions . . . with respect to the third[-]party beneficiary issue.” Id. at 37-

38 (citation omitted). Here, however, Heirs insist the “terms of the contract

set forth in a detailed File Note show that [they] were contemplated third[-

]party beneficiaries of the contract.” Id. at 37. Heirs also emphasize that

while the Supreme Court did not permit the use of extrinsic evidence to

establish the testator’s intent in Agnew, it did leave open the possibility that

extrinsic evidence may be admissible “to prove a testator’s intent in other

contexts.” Heirs’ Brief at 39, citing Agnew, 152 A.3d at 264, n.15.

____________________________________________

8We note, too, that the Guy Court did not rely upon extrinsic evidence to
determine the decedent’s intent.

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Heirs further argue that the case before us “presents an entirely

different set of circumstances than” those in Agnew. Heirs’ Brief at 41. Here,

Decedent never had the opportunity to review the proposed revised will due

to Attorney Vlahos’s failure to take any action for five months, while in Estate

of Agnew, the testator reviewed the revised trust agreement but for some

reason, did not sign the draft. Id. Moreover, Heirs emphasize that, unlike

Agnew, this case does not involve “only an unexecuted and invalid document”

— rather, Decedent’s intentions are clear based on the executed 2014 Will

and Attorney Vlahos’s File Note. Id. at 42 (quotation marks omitted). See

id. at 43 (referring to these documents as “[t]he best evidence of [Decedent’s]

intention”). Heirs contend “[t]he equities in this case favor the admission of

extrinsic evidence,” namely, Attorney Vlahos’s File Note. Id. at 43.

Heirs also insist that policy concerns expressed by the Agnew Court are

not present in this case. Heirs’ Brief at 44. They maintain the Supreme Court

sought to “prevent the proliferation of suits in which a beneficiary sues the

testator’s attorney in an attempt to gain a larger share of an estate than is

provided in the operative will.” Id. at 44-45. Therefore, they contend the

courts of this Commonwealth have denied standing when “the legatee’s claim

was premised solely on an unexecuted document which named the legatee as

a beneficiary for the first time.” Id. at 45. Heirs assert, however, that the

present case “involves loss of a legacy in an executed will” and that a recent

unpublished decision of this Court “allowed a third[-]party beneficiary claim

for a lawyer’s dilatory failure to prepare and deliver an unexecuted codicil.”

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J-A25033-22

Id. at 46, citing Begley v. Rhoads & Sinon LLP, 155 MDA 2014, 2015 WL

7432994 (unpub. memo.) (Pa. Super. 2015). Heirs also contend another

unpublished decision of this Court, Schmidt v. Rosin, 1310 EDA 2019, 2020

WL 3866052 (unpub. memo.) (Pa. Super. 2020), involves “analogous”

circumstances. Heirs’ Brief at 49.

In the present case, the trial court found the Supreme Court’s decision

in Agnew controlled. The court opined:

The[ ] facts [presented in this case] are indistinguishable
from those presented in Agnew, except perhaps that Agnew’s
facts are stronger given the failed instrument in that case was
reviewed and apparently approved by [the testator], and [the
attorney] acknowledged [the testator] probably would have
signed the document but for [the attorney’s] failure to present it
to him. In the case at bar, [Decedent] never even saw the
document the Heirs say should determine their inheritance.

The Heirs attempt to distinguish Agnew by arguing that
unlike the third-party beneficiaries in Agnew, [Heirs] were named
legatees in the 2014 [W]ill, which was modified by operation of
law due to [Attorney] Vlahos’s failure to timely draft a new will.
The court did not find that argument persuasive, or even
permissible, under Agnew since its success would depend on
extrinsic evidence virtually identical to that rejected in Agnew.
Further, the Heirs’ argument that being named in a prior properly
executed will should serve to invalidate that will in favor of a
subsequent unexecuted will was rejected since it leads to the
absurd result, again relying on extrinsic evidence, that the very
will [Decedent] retained [Attorney] Vlahos to change would be
used to prove he did not intend to change it, at least not in any
way disadvantageous to the Heirs.

Trial Ct. Op., 5/26/22, at 9-10 (quotation marks omitted).

Upon our review of the record and relevant case law, we agree with the

ruling of the trial court. The Agnew Court made clear that a testator’s intent,

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with regard to a proposed legacy, must be derived only from testamentary

documents that have been “fully executed by the testator.” Agnew, 152 A.3d

at 264. Consequently, “individuals who are named only in unexecuted . . .

documents . . . may not claim status as third-party beneficiaries of the legal

contract between the testator and his attorney, and may not achieve a legacy

through alternate means, such as a breach of contract action.” Id. Here,

Heirs contend they are third-party beneficiaries of Decedent’s legal contract

with Attorney Vlahos based upon purported discussions between Decedent

and Attorney Vlahos that do not appear in an executed testamentary

document. Thus, under Agnew, they are entitled to no relief.

Furthermore, we reject Heirs’ attempt to distinguish Agnew on its facts.

Although they emphasize that that they were explicitly named beneficiaries in

Decedent’s 2014 Will, their allegation of legal malpractice does not relate to

that will. In other words, Heirs’ legacy did not fail because of Attorney Vlahos’s

legal advice concerning the 2014 Will or her drafting of that will. See Agnew,

152 A.3d at 259 (holding “an executed testamentary document naming an

individual as a legatee is a prerequisite to that individual’s ability to enforce

the contract between the testator and the attorney he hired to draft that

particular testamentary document”) (some emphasis added). Rather,

their intended legacy under the 2014 Will was thwarted due to a change in

circumstances that did not involve Attorney Vlahos, namely, Decedent’s

marriage to Becky. Although Heirs argue that Decedent’s intention was to

preserve their inheritance even after his marriage, the only proof they have

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of that assertion is extrinsic evidence — Attorney Vlahos’s File Note. That “File

Note” however is no different from the proposed, unexecuted 2010 Trust

Amendment rejected by the Supreme Court in Agnew. As the Court

explained, “[a] testator may change an estate plan at any time, adding and

subtracting legatees, increasing and decreasing bequests.” Agnew, 152 A.3d

at 263. Until Decedent signed a revised will, his purported intent to continue

to leave his entire estate to Heirs remains unknown.

Furthermore, Heirs ignore the fact that in Agnew, as here, the plaintiffs

were named beneficiaries in another testamentary document (the 2010

Will) that was probated. See Agnew, 152 A.3d at 249-50. However, the

Agnew Court concluded that fact did not establish the plaintiffs’ standing to

assert a breach of contract claim against the attorney who drafted the

unexecuted 2010 Trust Amendment. The Court opined:

Although [the plaintiffs] are named heirs in [the testator’s] 2010
Will, they recovered their legacy under that will and we do not
consider that document as dispositive of [their] right to sue [the
attorney] for any breach related to the Revocable Trust and its
amendments. In our view, the dispositive testamentary
documents in this claim for breach of contract related to the
drafting and execution of the 2010 Trust Amendment, are the
2007 Trust Amendment in which [the plaintiffs] are not named,
and the unexecuted 2010 Trust Amendment in which they are
named.

Id. at 259. We recognize that in the present case, Heirs were the named

beneficiaries in the 2014 Will. However, while that will establishes Decedent’s

intent to leave them his estate to Heirs at that time, it does not establish his

intent to continue to leave his entire estate to Heirs after his marriage to

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Becky. Therefore, Heirs’ standing to assert a legal malpractice claim with

respect to the 2014 Will does not translate to their standing to assert a

malpractice claim with regard to an unexecuted revised will.

We also conclude that Heirs’ reliance on two unpublished decisions of

this Court provide no basis for relief. Preliminarily, we note that Pennsylvania

Rule of Appellate Procedure 126 permits a party to cite, for persuasive value,

an “unpublished non-precedential memorandum decision of [this Court] filed

after May 1, 2019[.]” Pa.R.A.P. 126(b)(1)-(2) (emphasis added).

Conversely, “[t]his Court’s memorandum decisions filed on or before May 1,

2019 may not be cited for any reason other than for purposes of law of the

case and related doctrines.” LSF8 Master Participation Tr. v. Petrosky,

271 A.3d 1288, 1292 (Pa. Super. 2022). Accordingly, Heirs’ citation to and

reliance on Begley, which was filed on March 9, 2015, is improper.9

____________________________________________

9 Even if we were permitted to consider Begley for its persuasive value, it is
distinguishable on its facts. In that case, Wife executed a will that
“bequeathed all property subject to Wife’s powers of appointment to
Husband.” Begley, 155 MDA 2014 (unpub. memo. at 6). At that time, Wife
was “the lifetime income beneficiary of a trust settled by her mother” and
under that trust, Wife “had the power to appoint the assets of the [trust] by
specific reference in her Will.” Id. at 2 (footnote omitted). The language of
the will did not “specifically reference the power of appointment” in the trust.
Id. Thus, shortly before Wife’s death, Husband contacted the attorneys who
drafted the will and requested they prepare a codicil to Wife’s will “that
specifically exercised the power of appointment in Husband’s favor.” Id. at 3.
The attorneys failed to do so before Wife’s death, and the “significant assets
in the [trust] were not appointed to Husband[.]” Id. Husband subsequently
sued the attorneys for legal malpractice. Id. at 3-4. The trial court sustained
the attorneys’ preliminary objections, and dismissed the complaint, finding,
(Footnote Continued Next Page)

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Further, Heirs’ reliance on Schmidt v. Rosin, supra, for persuasive

authority also fails. First, Schmidt did not involve a failed legacy based upon

alleged legal malpractice by an attorney who drafted testamentary

documents. Second, the 2020 Schmidt decision upon which Heirs rely was

subsequently vacated by the Pennsylvania Supreme Court in a per curiam

order. See Schmidt v. Rosin, 248 A.3d 415, 354 EAL 2020 (Pa. 2021). The

Supreme Court remanded the case back to this Court for consideration of

whether one of the plaintiffs — who asserted a legal malpractice claim against

an attorney as an intended third-party beneficiary of a legal contract —“raised

and preserved a contract-based theory” of relief. Id. Upon remand, this Court

determined that the purported third-party beneficiary did not preserve the

claim, and, therefore, was entitled to no relief. See Schmidt v. Rosin, 2021

____________________________________________

inter alia, that Husband had no standing to assert a claim against the
attorneys. Id. at 4.

A panel of this Court reversed that part of the trial court’s ruling on
appeal, and remanded for further proceedings. Begley, 155 MDA 2014, at 8.
Critically, the panel determined that Husband was a “named legatee” in Wife’s
will, and that the “text of the will” supported Husband’s claim that “Wife
intended for her will to appoint the assets of the [trust] in favor of Husband.”
Id. at 6-7. Moreover, Husband alleged in the complaint that “the only reason
Wife’s will did not effectuate this testamentary intent is that Wife was unaware
of the requirement of specificity[, and o]nce she was made are of [it], she
requested that [the attorneys] rectify this oversight.” Id. at 7-8.
Consequently, the panel concluded Husband had standing to bring a legal
malpractice claim as an intended third-party beneficiary. Id. at 8.

Here, however, Heirs rely upon Attorney Vlahos’s File Note to establish
their claim that Decedent intended to protect their inheritance in a revised will
after his marriage to Becky.

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WL 2394591, 1310 EDA 2019 (Pa. Super. 2021) (unpub. memo. at 10).

Therefore, any discussion of this claim in the prior, vacated decision of this

Court is of no moment.10 Accordingly, Heirs’ second claim fails.

Lastly, Heirs argue the trial court erred when it dismissed their

negligence-based claim because Attorney Vlahos’s File Note established the

requisite “privity,” that is, she engaged in a “specific undertaking” to furnish

legal services to Heirs. See Heirs’ Brief at 50-51. Relying upon Section 51(3)

of the Restatement (Third) of the Law Governing Lawyers, Heirs argue that a

lawyer owes a duty to a nonclient when: (1) the lawyer knows that their client

intended for the lawyer’s services to benefit the nonclient “as one of the

primary objectives[;]” (2) the duty to the nonclient would “not significantly

impair the lawyer’s performance of obligations to the client; and” (3) “the

absence of such a duty would make enforcement of those obligations to the

client unlikely.” Id. at 53, citing Restatement (Third) of the Law Governing

Lawyers § 51(3)(a)-(c) (2000). Further, they insist all three elements are

present here. See Heirs’ Brief at 53-64. Heirs also contend that, in violation

of the Pennsylvania Rules of Professional Conduct, Attorney Vlahos “neglected

her ethical duty to point out the potential conflict between concurrent

____________________________________________

10 We note, however, that the 2020 Schmidt panel determined the third-party
beneficiary had standing based upon an executed document, which was later
hindered due to the attorney’s dilatory conduct in drafting that document.
See Schmidt, 2020 WL 3866052, at *3, 5. Conversely, here, the Decedent’s
“intent” to preserve Heirs’ inheritance after his marriage to Becky is not
evident in any executed document.

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representation of [Decedent] and his future wife and obtain the requisite

written waiver.” Heirs’ Brief at 57.

Heirs’ negligence-based legal malpractice claim fails for several reasons.

First, the Guy Court rejected any negligence-based legal malpractice claims

brought by a nonclient unless there is a “specific undertaking by the attorney

furnishing professional services[.]” Guy, 459 A.2d at 750. Here, there is no

allegation that Heirs specifically requested Attorney Vlahos to provide any

services on their behalf, or that Attorney Vlahos specifically agreed to do

so. Compare Lawall, 37 A. at 98-99. Furthermore, this Court has

consistently relied upon Guy’s holding that a third-party beneficiary may not

recover under a negligence-based legal malpractice claim since there is no

attorney-client relationship. See Hess, 925 A.2d at 808; Gregg, 649 A.2d at

937 n.1.

Heirs attempt to skirt this settled law by invoking Section 51 of the

Restatement (Third) of the Law Governing Lawyers. First, Heirs did not assert

the applicability of the Restatement before the trial court. For that reason

alone, this argument is waived. See Pa.R.A.P. 302(a) (“issues not raised in

the trial court are waived and cannot raised for the first time on appeal.”).

Second, our review reveals that no Pennsylvania published decision has cited,

let alone adopted, Section 51 of the Restatement (Third) of the Law Governing

Lawyers. Thus, in light of the Supreme Court’s explicit direction in Guy, we

decline to apply the Restatement in order to obtain a different result here.

Heirs’ reference to Attorney Vlahos’s ethical duties pursuant to the

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Pennsylvania Rules of Professional Conduct similarly fails because they have

no standing to assert any negligence-based malpractice claims against her.

Accordingly, our review reveals no error of law in the trial court’s ruling

sustaining Law Firm’ preliminary objections in the nature of a demurrer, and

dismissing Heirs’ complaint with prejudice. See Fiedler v. Spencer, 231

A.3d at 835–36.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/29/2022

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