J-A03013-20

2020 PA Super 83

E. O'REAN FIEDLER 

Appellant

v.

PATTI S. SPENCER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 859 MDA 2019

Appeal from the Order Entered May 21, 2019

In the Court of Common Pleas of Lancaster County Civil Division at 

No(s): CI-10-00775

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

OPINION BY LAZARUS, J.: FILED: APRIL 2, 2020

E. O’Rean Fiedler appeals from the order, entered in the Court of 

Common Pleas of Lancaster County, granting the preliminary objections of 

Appellee, Patti S. Spencer (“Attorney Spencer”), and dismissing, with 

prejudice, Fiedler’s third amended complaint. Upon careful review, we affirm. 

The trial court set forth the pertinent factual and procedural history of 

this matter as follows:

[Fiedler’s] third amended complaint alleges that following her 

father’s death in 2004, [Fiedler] took her mother, Betty J. Fiedler 

(“Betty”), to [Attorney Spencer] to have a Will and general Power 

of Attorney prepared. [Attorney] Spencer prepared the Will and 

Power of Attorney naming Betty’s daughters, [] Fiedler and 

Latisha Bitts ([“Bitts”]), as co-executrices and equal cobeneficiaries of her estate, and co-agents under her Power of 

Attorney. Over the next two (2) years, as Betty’s health 

deteriorated, the Power of Attorney was activated and [] Fiedler 

and [] Bitts began to manage Betty’s financial affairs, as Betty had 

to move from her house to eventual placement in a skilled nursing 

unit. With Betty’s consent, [] Fiedler and [] Bitts sold Betty’s 

house and personal property. During 2006, Betty [] made gifts in 
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the form of checks to [] Fiedler, [] Bitts, and [] Bitts’ son, Adam 

Buckius ([“Buckius”]). Plaintiff alleges that [] Bitts and [] Spencer 

pressured Betty to make these inter vivos gifts. 

In the Fall of 2006, Betty executed a new Will and Power of 

Attorney naming [] Bitts as sole executrix and agent, and [] 

Buckius as Successor Executor under the Will, which [] Fiedler 

learned through a letter from [Attorney] Spencer. [] Fiedler 

alleges that “the foregoing actions were the result of a scheme of 

[Spencer and Bitts] to remove [Fiedler] from any position of 

authority with respect to her mother’s financial affairs so that Bitts 

could deplete Betty’s estate prior to Betty’s death and eviscerate 

Betty’s testamentary intention to have her estate divided evenly 

between Plaintiff and Bitts.” [Fiedler] alleges that over the next 

three (3) years until Betty’s death in September 2009, gifts made 

on behalf of Betty and signed by [] Bitts included a $330,000.00 

check to [] Buckius to buy a house and additional checks totaling 

$150,515.00, almost exclusively to [] Bitts, [] Buckius and his 

wife, and [] Bitts’ stepson and his wife. In a companion case, the 

$330,000.00 gift to [] Buckius was later found by the Pennsylvania 

Superior Court to be unlawful under the language in Betty’s Power 

of Attorney. [Fiedler] alleges that “[Attorney Spencer’s] actions 

were fraudulent in that she advised Bitts that she could make the 

gift in furtherance of Bitt’s [sic] scheme to deplete Betty’s assets” 

and violate Betty’s testamentary intent. 

[] Fiedler initiated this action by filing a complaint on January 25, 

2010, against [Attorney] Spencer, along with [] Bitts, [] Buckius, 

and [Buckius’ wife,] Kimberly S. Buckius. [Attorney] Spencer filed 

preliminary objections to [] Fiedler’s complaint, and [] Fiedler filed 

an amended complaint on April 9, 2010. [Attorney] Spencer filed 

preliminary objections to [] Fiedler’s amended complaint, and [] 

Fiedler filed a second amended complaint on May 13, 2010. 

[Attorney] Spencer filed preliminary objections to the second 

amended complaint on June 3, 2010, and [] Fiedler filed her 

response and brief in opposition on June 16, 2010. The matter

was stayed pending the full and final resolution of the related 

estate [] and Power of Attorney matter[s] before the Orphans’

Court by order dated July 13, 2010. This court lifted the stay and 

discontinued [] Fiedler’s action with prejudice as against [] Bitts, 

Adam Buckius, and Kimberly S. Buckius, by order dated 

September 13, 2018.

By order dated December 3, 2018, this court sustained [Attorney] 

Spencer’s preliminary objections to [] Fiedler’s second amended 
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complaint and granted [] Fiedler leave to amend her complaint.

[] Fiedler filed a third amended complaint on December 17, 2018, 

to which [Attorney] Spencer filed preliminary objections on 

January 10, 2019. Because [] Fiedler’s third amended complaint 

failed to add factual allegations to correct the legal insufficiencies 

for which the claims in her second amended complaint were 

dismissed and it was clear that the facts did not support her 

claims, this court dismissed [] Fiedler’s claims with prejudice by 

order dated May 9, 2019. [] Fiedler filed a notice of appeal to the 

Superior Court of Pennsylvania on May 24, 2019, and filed her 

statement of errors on June 17, 2019.

Trial Court Opinion, 7/3/19, at 1-3.

On appeal, Fiedler raises the following claims for our review:1

1. Whether the [trial] court erred as a matter of law and abused 

its discretion in ruling that existing legal precedent prohibits the 

recognition of [] Fiedler’s tortious interference with inheritance 

claim, or, alternatively, for not extending existing legal precedent 

to the facts of this case, assuming arguendo, existing precedent 

does not permit [] Fiedler’s cause of action under the facts and 

inferences from those facts set forth in the pleadings?

2. Whether the [trial] court erred as a matter of law and abused 

its discretion in failing to find that for purposes of pleading [] 

Fiedler did not establish legal grounds to proceed on her civil 

conspiracy claim since the well-pleaded facts and reasonable 

inferences from those facts establish that Patti Spencer and 

Latisha Bitts maliciously combined with a common purpose to do 

overt, unlawful acts to deprive [] Fiedler of her rightfully expected 

inheritance?

3. Whether the [trial] court erred as a matter of law and abused 

its discretion in failing to find that for purposes of pleading [] 

Fiedler did not establish legal grounds to recover punitive 

damages since the well-pleaded facts and reasonable inferences 

from those facts establish that Patti Spencer acted willfully and 

____________________________________________

1 Although Fiedler listed four claims in her statement of issues presented, her 

first claim merely combined and restated her other three claims. Accordingly, 

we have omitted that claim and will address only the remaining three specific 

issues. 
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maliciously, or, alternatively, so carelessly as to indicate wanton 

disregard of the rights of [] Fiedler?

Brief of Appellant, at 3-4. 

We begin by noting our scope and standard of review of an order 

sustaining preliminary objections:

Our standard of review of an order of the trial court overruling or 

[sustaining] preliminary objections 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.

Adams v. Hellings Builders, Inc., 146 A.3d 795, 798 (Pa. Super. 2016), 

quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (internal 

citation omitted).

Fiedler’s first issue involves the trial court’s conclusion that her claim for 

tortious interference with an inheritance was insufficient as a matter of law. 

Fiedler alleges that, contrary to the court’s finding, she “adequately pled facts 

and reasonable inferences drawn from the facts to establish her right to relief.” 

Brief of Appellant, at 13. She further argues that the court’s reliance on 

Hollywood v. First Nat. Bank of Palmerton, 859 A.2d 472 (Pa. Super. 
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2004), was improper, alleging that “until Hollywood there was no binding 

precedent involving extension of the interference with expected inheritance 

doctrine to those situations beyond demonstrable interference with the 

testamentary scheme enshrined in a decedent’s will.” Brief of Appellant, at 

19. Fiedler suggests that: (1) because no court prior to Hollywood had 

addressed the doctrine in the context of inter vivos gifts, and (2) because the 

Hollywood court’s decision was “specifically based on its fact-specific finding 

that there was ‘no discussion of intentional conduct . . . related to fraud, 

duress or other tortious means intentionally prevent[ing] another from 

receiving from a third person an inheritance or gift,” Brief of Appellant, at 20, 

“Hollywood and its progenitors can only be read [to mean] that Pennsylvania 

has not extended the doctrine where such intentional tortious conduct or 

undue influence has not been adequately pled.” Id. Thus, Fiedler argues that 

this is a case of first impression and we are not bound by “any controlling 

precedent at all.” Id. Fiedler urges us to extend the doctrine to matters 

involving inter vivos transfers alleged to diminish an eventual bequest as 

contemplated by section 774B of the Restatement of Torts (Second). 

In response, Attorney Spencer argues that, contrary to Fiedler’s 

assertions, the law in Pennsylvania is clear that a claim alleging intentional 

interference with inheritance “cannot be premised upon inter vivos transfers 

alleged to have diminished the plaintiff’s eventual inheritance.” Brief of 

Appellee, at 14. Rather, “to establish a cause of action, a plaintiff must 

demonstrate the decedent has sought to make changes in his will to the 
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plaintiff’s benefit and was prevented from doing so.” Id. Thus, Attorney 

Spencer argues, even if the allegations set forth in Fiedler’s third amended 

complaint are accepted as true, they provide no basis for recovery. Further, 

Attorney Spencer argues that this Court is bound by precedent and that 

Hollywood was not “specifically based on its fact-specific finding,” but simply 

applied established law. She asserts that any mention in that case of 

intentional conduct as it relates to section 744B of the Restatement is nonbinding dicta and, even if it were not, Fiedler did not adequately allege any 

fraud or other intentional conduct on Attorney Spencer’s part. 

Our Supreme Court first recognized a cause of action for interference 

with expected inheritance in Marshall v. DeHaven, 58 A. 141 (Pa. 1904). 

The elements of the tort are as follows: (1) the testator indicated an intent 

to change her will to provide a described benefit to the plaintiff; (2) the 

defendant used fraud, misrepresentation, or undue influence to prevent 

execution of the intended will; (3) the defendant was successful in preventing 

the execution of a new will; and (4) but for the defendant’s conduct, the

testator would have changed her will. Cardenas v. Schober, 783 A.2d 317, 

326 (Pa. Super. 2001), citing Marshall, supra. 

Subsequently, the Restatement (Second) of Torts defined a cause of 

action for intentional interference with an inheritance or gift as follows:

One who by fraud, duress or other tortious means intentionally 

prevents another from receiving from a third person an 

inheritance or gift that he would otherwise have received is 

subject to liability to the other for loss of the inheritance or gift.
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Restatement of Torts (Second), § 774B. Although several states have adopted 

this cause of action,2 Pennsylvania has not expanded the doctrine to include 

inter vivos transfers as contemplated by the Restatement. “Thus, our law 

requires that to establish ground[s] for recovery under this cause of action, a 

plaintiff must demonstrate the decedent had sought to make changes in [her] 

will to plaintiff’s benefit, and that the defendant, through means of fraud, 

misrepresentation, or undue influence thwarted the decedent’s intent.” 

Hollywood, 859 A.2d at 478. 

In Hollywood, this Court for the first time considered a claim for 

tortious interference with an inheritance in the context of inter vivos depletion 

of a decedent’s estate. There, the decedent’s daughter forged checks and 

made unauthorized withdrawals from the decedent’s bank accounts during the 

decedent’s lifetime. The plaintiff, a son of the decedent and the administrator 

of his estate, commenced suit against the banks from which those improper 

withdrawals had been made, alleging, inter alia, tortious interference with an 

inheritance. The banks filed preliminary objections in the form of a demurrer, 

which the trial court sustained. 

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2 See, e.g., DeWitt v. Duce, 408 S.2d 216 (Fla. 1981); Nemeth v. 

Banhalmi, 425 N.E.2d 1187 (Ill. App. 1981); Minton v. Sackett, 671 N.E.2d 

160 (Ind. App.1996); Huffey v. Lea, 491 N.W.2d 518 (Iowa 1992); 

Plimpton v. Gerrard, 668 A.2d 882 (Me. 1995); Hammons v. Eisert, 745 

S.W.2d 253 (Mo. App. 1988); Doughty v. Morris, 871 P.2d 380 (N.M. App.

1994); Firestone v. Galbreath, 616 N.E.2d 202 (Ohio 1993); Harris v. 

Kritzik, 480 N.W.2d 514 (Wis. App. 1992).
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On appeal,Son did not argue that the trial court had erred; rather, he 

“suggest[ed] that various policy considerations counsel this Court to expand 

the definition of the tort in Pennsylvania to encompass instances of dissipation 

of a decedent’s estate during life as provided in the Restatement (Second) of 

Torts.” Id. at 476-77. We concluded that, “[g]iven the relatively narrow 

circumstances to which this cause of action may apply,” the trial court properly 

granted the defendants’ demurrers. Id. at 478. 

We further noted that “even if we were to examine Son’s allegations in 

light of the language of the Restatement, we would be compelled to reach the 

same conclusion, as Son offers no discussion of intentional conduct ascribed 

to the Banks that might satisfy the corresponding element under the 

Restatement.” Id. 

We agree with Attorney Spencer that, even assuming as true the wellpleaded facts of Fiedler’s third amended complaint and reasonable inferences 

drawn therefrom, Fielder cannot sustain an action for intentional interference 

with an inheritance under Pennsylvania law. Fiedler does not allege that Betty 

expressed an intent to alter her will to benefit Fiedler,3 or that Attorney 

Spencer prevented the execution of such a will. See id. Rather, at most, the 

facts pleaded by Fiedler establish that Attorney Spencer: (1) prepared a 

power of attorney for Betty naming Bitts as sole agent and (2) erroneously 

____________________________________________

3 The decedent did execute a new will on October 11, 2006. However, Fiedler’s 

beneficial interest in that will remained the same as it was in decedent’s prior 

will—she was entitled to one-half of the estate.
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advised Bitts as to the propriety of certain inter vivos transfers that, when 

made by Bitts, resulted in a reduction in the value of Betty’s probate estate. 

Accordingly, Fiedler is unable to satisfy the elements required to prove 

intentional interference with an inheritance under the law of this 

Commonwealth.

Moreover, we decline Fiedler’s invitation to adopt the cause of action set 

forth in section 744B of the Restatement (Second) of Torts, as any such 

change in the law is beyond the mandate of this Court. “This Court is of course 

bound by existing precedent under the doctrine of stare decisis.” Eckman v. 

Erie Ins. Exch., 21 A.3d 1203, 1209 (Pa. Super. 2011), quoting Dixon v. 

GEICO, 1 A.3d 921, 925–26 (Pa. Super. 2010) (citation omitted); see also 

Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (this 

Court continues to follow controlling precedent as long as decision has not 

been overturned by our Supreme Court). To the extent that dicta from our 

opinion in Hollywood could be read to suggest a willingness on the part of 

this Court to consider adopting the cause of action prescribed in the 

Restatement where intentional tortious conduct is alleged, see id. at 478, we 

are neither obligated nor inclined to do so here. See Maloney v. Valley Med. 

Facilities, Inc., 984 A.2d 478, 490 (Pa. 2009), quoting Northwestern Nat'l 

Ins. Co. v. Maggio, 976 F.2d 320, 323 (7th Cir.1992) (“No court . . . is 

obliged to treat a dictum of another court (or, for that matter, its own dicta) 

as binding precedent.”). In any event, Fiedler has not adequately alleged any 

fraud, duress, undue influence, or other tortious conduct on the part of 
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Attorney Spencer that could arguably bring this case within the ambit of the 

Restatement cause of action. 

In light of the foregoing, the trial court properly sustained Attorney 

Spencer’s preliminary objections and dismissed, with prejudice, Fiedler’s claim 

for tortious interference with inheritance.

Next, Fiedler asserts that the trial court erred in dismissing her claim for 

civil conspiracy to interfere with an inheritance. Specifically, Fiedler alleges 

that Attorney Spencer acted in concert with Bitts “to actively with malice 

aforethought deprive [Fiedler] of her rightful and expected share of Betty’s 

estate with respect to the . . . gifts held unlawful by the Pennsylvanian [sic] 

Superior Court[.]” Third Amended Complaint, 12/17/18, at ¶ 58. Fiedler is 

entitled to no relief.

In order to state a civil action for conspiracy, a complaint must 

allege: 1) a combination of two or more persons acting with a 

common purpose to do an unlawful act or to do a lawful act by 

unlawful means or for an unlawful purpose; 2) an overt act done 

in pursuance of the common purpose; and 3) actual legal damage. 

Additionally, absent a civil cause of action for a particular act, 

there can be no cause of action for civil conspiracy to commit that 

act. Proof of malice is an essential part of a cause of action for 

conspiracy. The mere fact that two or more persons, each with 

the right to do a thing, happen to do that thing at the same time 

is not by itself an actionable conspiracy.

Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. 2004) 

(citations and quotation marks omitted) (emphasis added).

Here, we have already determined that Fiedler failed to state a claim for 

tortious interference with an inheritance. Accordingly, she is unable to sustain 
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a cause of action for conspiracy to commit that act. See id. (“[A]bsent a civil 

cause of action for a particular act, there can be no cause of action for civil 

conspiracy to commit that act.”). Therefore, we find that the trial court 

properly sustained Attorney Spencer’s preliminary objections and dismissed, 

with prejudice, Fiedler’s claim for civil conspiracy.

Finally, Fiedler asserts that the trial court erred in dismissing her claim 

for punitive damages because the facts alleged in the third amended complaint 

“show both outrageous conduct and reckless indifference to the rights of [] 

Fiedler committed by [Attorney] Spencer.” Brief of Appellant, at 24. Fiedler 

is entitled to no relief.

“Punitive damages are awarded, in addition to a plaintiff’s actual 

damages, to punish a defendant for outrageous acts and to deter him or others 

from engaging in similar conduct.” DiGregorio v. Keystone Health Plan E., 

840 A.2d 361, 369 (Pa. Super. 2003). However, “[i]f no cause of action exists, 

then no independent action exists for a claim of punitive damage[s] since 

punitive damages is only an element of damages.” Kirkbride v. Lisbon 

Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989).

Here, Fiedler failed to plead a viable cause of action for either tortious 

interference with inheritance or civil conspiracy to commit that act. As one 

cannot recover punitive damages independent of an underlying cause of 

action, the trial court properly dismissed Fiedler’s claim for punitive damages. 

See id. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/02/2020