J-S29016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PHILIP J. BERG

Appellant

v.

EDWIN R. RUBIN

v.

AND BONNIE OSTROFSKY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1456 EDA 2017

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 

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* Former Justice specially assigned to the Superior Court.
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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.

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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.
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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 
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“[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 
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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 

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2 The trial court did not order Appellant’s compliance with Pa.R.A.P. 1925(b).
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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) 
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(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 
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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:
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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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/18/18