Brown, B. v. Boyer, C. ( 2018 )

J-A21005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEVERLY E. BROWN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CATHY S. BOYER, ESQUIRE AND : No. 206 WDA 2017
BOYER, PAULISICK & EBERLE :
Appeal from the Order January 12, 2017
In the Court of Common Pleas of Butler County Civil Division at No(s):
2014-10798
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
CONCURRING STATEMENT BY OLSON, J.: FILED MAY 18, 2018
I agree with the learned Majority that the trial court erred in sustaining
Appellees’ preliminary objections in the nature of a demurrer. I write
separately to explain why I believe that the dismissal of Appellant’s second
amended complaint was not warranted.
As the Majority correctly notes:
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 objection.
Majority Memorandum, at 3, quoting Adams v. Hellings Builders, Inc., 146
A.3d 795, 798 (Pa. Super. 2016). In this case, the trial court concluded that
Appellant’s claim for damages was too speculative because “no action or
J-A21005-17
inaction of [Appellant’s] counsel would have resulted in [Appellant’s] ability to
receive her ex-husband’s [p]ension in any form” and “no change in negotiation
tactic[s] would have provided [Appellant] with a separate annuity”. Trial Court
Opinion, 1/12/17, at 5. It is true that Appellant’s ex-husband’s pension plan
was not a qualified ERISA1 plan; therefore, Appellant was not able to receive
the agreed-upon annuity. However, had Appellant known that she was unable
to receive a separate annuity, she may have been able to negotiate other
terms that would have provided her with the financial security that she sought.
The trial court concluded that, “even if armed with the knowledge that her ex-
husband’s [p]ension [p]lan did not provide her with a separate annuity . . .
there is no way to know exactly what [Appellant] would or would not have
foregone, or received in further negotiations with her ex-husband prior to the
January 24, 2012 [] QDRO”. Id. However, Appellant’s second amended
complaint asserts
. . . if [Appellant] had known that the Slippery Rock Borough Police
Pension Plan was not a qualified plan, and that she would not be
entitled to a separate annuity payable on her ex-husband’s
earliest retirement date, which would survive his death, then she
would have been in a position to bargain for a more favorable
distribution of marital assets based on that knowledge.
Second Amended Complaint, 5/2/16, at ¶ 24. As this case is at the preliminary
objection stage, all material facts set forth in the second amended complaint
are admitted as true, as well as all reasonable inferences deducible therefrom.
____________________________________________
1 Employee Retirement Income Security Act, 29 U.S.C.A. § 1001, et seq.
-2-
J-A21005-17
Adams, supra. As such, we must assume that Appellant would have
negotiated other more favorable terms had she known that she would not
receive the pension annuity. At this stage, we must permit Appellant an
opportunity to establish, if she can, what she would have done differently had
she known of her counsel’s improper advice.2 I again emphasis that we are
at the preliminary objection stage and that dismissal of a complaint should be
sustained only in cases which are clear and free from doubt that the plaintiff
will be unable to prove facts legally sufficient to establish the right to relief. I
do not believe that this is one of those cases.
Judge Stabile joins this concurring statement.
____________________________________________
2 The trial court noted that, after counsel’s mistake was uncovered, Appellant
did have the opportunity to continue negotiations with her former husband
and enter into a new domestic relations order. Trial Court Opinion, 1/12/17,
at 5. The trial court goes on to conclude “[w]hile [the new order] may not
reflect everything that [Appellant] desired to receive in the divorce
proceedings, it does represent to [the trial court] that some measure of
correction was undertaken.” Id. I do not believe that the fact that a new
order was negotiated after the pension mistake was known prevents Appellant
from establishing, if possible, that she would have received even better terms
at the outset of the negotiations if she had known that she would be precluded
from obtaining an annuity from her former husband’s pension plan.
-3-