J-S48032- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 O. HOWARD MUMMAU, RAE W. MUMMAU, GERALDINE M. ZIMMERMAN, AND ELI ZIMMERMAN, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellants

v. JEFFREY D. MOHLER AND CLYMER & MUSSER, P.C. CLAIR S. MUMMAU, INDIVIDUALLY AND IN HIS CAPACITY AS ATTORNEY IN FACT FOR IVA K. MUMMAU, LAWRENCE N. MUMMAU , INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF IVA K. MUMMAU, I. BERNICE TAMKIN AND GALEN S. SPICKLE R, Appellees No. 161 MDA 2014

Appeal from the Order December 30 , 2013 in the Court of Common Pleas of Lancaster County

Civil Division at No.: CI

- 06 -04412

BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 09, 2014 Appellants, O. Howard Mummau, Rae W. Mummau, Geral dine M. Zimmerman, and Eli Zimmerman, appeal from the order of December 30, 2013, sustaining Appellees’ preliminary objections and d ismissing Appellants’ second amended complaint with prejudice. After careful review, we affirm.

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* Retired Senior Judge assigned to the Superior Court.J-S48032- 14

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We take the following summary from the trial court’s opinion of December 30, 2013, supplemented as necessary for our revi ew by the parties’ various filings. This is a case for damages with a long and convoluted history, involving a dispute between sibling s over the parties’ family farm and the estate of Iva K. Mummau. Owen a nd Iva Mummau, hu sband and wife, had eight children and owned a broile r chicken farm in Mount Joy Township, Pennsylvania. Each of their child ren owned a 3.8% interest in the Mummau farm until 1985, when, at Owe n’s request, six of their children re-conveyed their interests back to Owen and Iva. ( See Complaint, 12/19/06, at 6 ¶ 26, 7-8 ¶¶ 41-43). The other two siblings, O. Howard Mummau and Geraldine M. Zimmerman, refused to re-convey their interests. ( See id. at 9-10 ¶ 52). According to Appellants’ complaint, in 1996, O . Howard Mummau, acting as “attorney in fact” for Owen and Iva, began th e process of subdividing a portion of the farm zoned for residenti al use. 1 ( See id. at 6 ¶¶ 30 -32). On February 11, 1997, he received a notice let ter terminating his power to act as his parents’ attorney in fact. ( See id. at 16-17 ¶ 95). In 1997, Owen and Iva’s son Clair Mummau, acting as the ir attorney in fact, executed an agreement between him and his wife a nd Owen and Iva to

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1 As is evident from the complaint, Appellants’ brief an d elsewhere in the record, O. Howard Mummau is also an attorney- at -law, who represents himself and the other Appellants in this appeal.J-S48032- 14

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purchase the farm, with advice from attorney Jeffrey D. Mohler of the law firm Clymer and Musser, P.C. ( See id. at 4 ¶ 13-14). In January 1999, Owen and Iva executed new wills which eliminated a mar ital bypass trust from their previous wills. ( See id. at 3 ¶ 17; see also Petition to Extend Time in Which to File Complaint, 9/21/06, at 2-3 ¶ 1 0-11). In his new will, Owen acknowledged Clair’s option to purchase the farm but left his entire estate to Iva, whom he appointed executor. Owen died on March 13, 1999. The subdivision of th e residential lots was completed shortly thereafter. On May 23, 2000, Iv a executed a codicil to her will, assisted by Clair Mummau as attorney in f act and Jeffrey D. Mohler. On February 22, 2000, Mohler filed a Petit ion for Partition of Real Properties against Appellants “to bring a resolution to the fractional interests in the farm and lots[ and to] reunit[e] the farm and lots into a single owner[.]” (Second Amended Complaint, 7/14/08, at 31 ¶ 178). The partition action was filed in order to remove O. Howa rd Mummau and Geraldine Zimmerman as record owners of the farm and r esidential lots due to their respective 3.8% interests that they did not re -convey back to Owen in 1985. ( See Complaint, 12/19/06, at 26-27 ¶¶ 159-61). Appella nts demanded consideration for their interests in the farm, claiming that the action was a “formalistic cover for the true reason for th e litigation which was to achieve the ultimate objective to effect a disinh eritance of [Appellants] by Iva Mummau and the acquisition of the farm by Clair at a price he ha d set without a challenge by [Appellants].” (Second Am endedJ-S48032- 14

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Complaint, 7/14/08, at 31 ¶ 179). Appellants did no t attend a settlement conference scheduled in February 2004. ( See Complaint, 12/19/06, at 37 ¶ 167(z)). Eventually, Mohler, as representative for Iva K. Mumm au, Clair Mummau, family friend Galen Spickler, O. Howard Mumm au, and Geraldine Zimmerman concluded a settlement which disposed of Appel lants’ interests in the farm and residential lots, and provided that C lair would buy the farm for $402,000.00, thus settling their respective interest s in the lots and the farm. ( See id. at 38-39 ¶ 168(j)). As a result, the partition actio n was withdrawn, and in 2004, the farm was conveyed to Clai r and Jean Mummau, and then to their son, Kevin and his wife Stacey. ( See id. at 39 ¶ 168(o)). Appellants claim the sale price was well below fair ma rket value. ( See id. at 38 -39 ¶ 168(j)). Iva died on August 8, 2006. ( See id. at 3 ¶ 7). Her sons Lawrence Mummau and Clair Mummau were appointed executors of t he estate. ( See id. ). Appellants filed a caveat challenging the validity of Iva’s will and codicil on September 16, 2006. ( See Petition to Extend Time in Which to File Complaint, 9/21/06, at Exhibit I). While Iva’s will and the codicil were in probate, A p pellants continued to litigate this action. Eventually, on May 29, 2010, a ll eight children and six grandchildren of Owen and Iva entered into a settleme nt agreement which resolved all the objections and caveats raised by Appell ants in their challenges to Iva’s (and through her will and codicil) Owen’s estates. ( SeeJ-S48032- 14

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In re Estate of Iva K. Mummau , No. 1382 MDA 2013, unpublished memorandum at Exhibit B, page 7 (Pa. Super. filed M ay 12, 2014)). The settlement included a tortfeasor release and provided that Owen and Iva’s estates did not include the farm. ( See id. at *2). Simultaneously to the orphans’ court proceedings, Appell ants filed a writ of summons in the instant case on May 4, 2006. ( See Trial Ct. Op., 12/30/13, at 1). As stated by Appellant O. Howard Mummau:

The gravamen of this case arises from . . . an underly ing action, (an action to partition in real estate) in the Orphans’ Court brought by [Appellees Jeffrey D. Mohler and Cl ymer & Musser, P.C.] as counsel in the name of Iva [K]. Mummau, but in itiated by Clair Mummau as her attorney in fact, agai nst [Appellants] in connection with the purported settlemen t of the estate [of] Owen E. Mummau, Deceased, who was the fathe r of [Appellant], O. Howard Mummau. (Petition to Extend Time in Which to File Complaint, 9/21/06, at 2 ¶ 6). Appellants’ complaint claimed wrongful use of civil pro ceedings, malicious use of process, abuse of process, tortious interfe rence with contractual relations, intentional infliction of emoti onal distress by outrageous conduct, and unjust enrichment/constructive tru st, and requested compensatory and punitive damages. ( See generally Complaint, 12/19/06). Appellees filed preliminary objections. O n January 26, 2007, Appellants filed a “First Amended Complaint” which added a cla im for “negligent/intentional infliction of emotional distre ss by outrageous conduct[.]” (First Amended Complaint, 1/26/07, at 6). Appellees filed another set of preliminary objections, and on June 25 , 2008, the trial courtJ-S48032- 14

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dismissed with prejudice the intentional infliction of e motional distress count in the amended complaint, granting Appellants leave t o amend this claim within twenty days. ( See Order, 6/25/08, at unnumbered pages 1-3). On July 14, 2008, Appellants filed a second amended compl aint claiming fraud, Appellees filed preliminary objections, and Appellants responded with preliminary objections of their own. ( See Second Amended Complaint, 7/14/08, at 35). Appellants then filed a motion to discontinue against all defendants except Jeffery Mohler and Clymer & Mussler, PC, which the court denied on November 4, 2009. ( See Order, 11/04/09). Eventually, on December 30, 2013, the trial court denied Appellants’ preliminary objections and sustained those of Appellees, dismissing the complai nt. ( See Order, 12/30/13). Appellants timely appealed. 2 Appellants raise three questions for our review:

I. Did the court err in dismissing [Appellants]’ first and second amended complaints when it granted, then revoked , [Appellants]’ extension of time to file a complaint where damages to be claimed are dependent upon an underlyin g case now on appeal to this Court, where it made no findin g in disposing of preliminary objections that [Appellants] fa iled to state a cause or causes of action, and failed to dispose of preliminary objections for more than five years, witho ut explanation, claiming that [Appellants] were require d to appeal interlocutory orders within thirty days of entry?

____________________________________________ 2 Pursuant to the trial court’s order, Appellants filed a Rule 1925(b) statement on February 18, 2014. The trial court ente red a Rule 1925(a) opinion on April 2, 2014. See Pa.R.A.P 1925.J-S48032- 14

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II. Did [the] court err in denying [Appellants]’ petitio n to discontinue their action against all defendants named e xcept Jeffrey D. Mohler and Clymer & Mussler, P.C., in 2009 where the defendants whose discontinuance was requested were [Appellants]’ family members and the court’s basis for di smissal of the action in its final order, in ter alia , was its claim that the case was a family dispute which it could not understand? III. Should the trial court’s dismissal of [Appellants]’ acti on be reversed where it engaged in a pattern of procedura l manipulation in conjunction with the underlyin g orphans’ court case (on appeal in the Superior Court) including, inter alia , an ex parte conference with the orphans’ court judge and counsel for defendants Mohler and Clymer & Musser, P.C. prior to disposition of preliminary objections, denial of discovery requeste d by [Appellants], denial of [Appellants]’ petition to di scontinue action as to defendants other than Mohler and Clymer & Mussler , P.C., while failing to dispose of preliminary objections for more than five years without explanation in violation of the j udicial code? (Appellants’ Brief, at 4 -5). In their first issue, Appellants argue, inter alia , that the trial court erred in granting Appellees’ preliminary objections to each claim raised in their complaints. ( See Appellants’ Brief, at 17 -51). However, Appellants fail to develop with citation to the record or relevant au thority their assertion that the trial court erred in revoking their extensio n of time to file their initial complaint. ( See Appellants’ Brief, at 12 -15, 17); see also Pa.R.A.P

. 2119(a)-(c). Therefore, to the extent that we can d iscern the first issue as a challenge to the grant of Appellees’ preliminary obje ctions, we will review Appellants’ claims.

Our standard of review is as follows: When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material , factual averments and all inferences fairly deducibleJ-S48032- 14

- 8 - therefrom. Where the preliminary objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections. Moreover, we review the trial court’s decision for an abuse of discretion or an error of law. Further, this Court has noted the following with rega rd to review of a trial court’s decisi on to sustain preliminary objections.

In assessing the propriety of the trial court’s decision to sustain preliminary objections, we examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. This Court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or an abuse of discretion. Burgoyne v. Pinecrest Cmty. Ass’n , 924 A.2d 675, 679-80 (Pa. Super. 2007) (citations omitted).

This Court, during review of an order granting a dem urrer, may not supply a fact missing in the complaint. We are also precluded from considering any conclusions of law or infer ences which are not supported by the factual allegations conta ined in the complaint. This includes argumentative allegations or expressions of opinion. And while it is true that alle gations of malice, intent and other conditions of the mind may be pled generally, see Pa.R.C.P. 1019(b), such characterizations of conduct, without supporting factual allegations, are i nsufficient. Hart v. O’Malley , 647 A.2d 542, 552-53 (Pa. Super. 1994), affirmed , 676 A.2d 222 (Pa. 1996) (citations omitted).J-S48032- 14

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First, Appellants assert that the court erred in dismi ssing their claims for wrongful use of civil proceedings and malicious use o f process regarding the partition actio n because they “specifically aver that there was no ‘settlement’ of the underlying litigation” and that, contrary to the trial court’s determination, the withdrawal of the partition acti on “ was a termination favorable to [Appellants].” (Appellants’ Brief, at 18, 22 (emphasis in original); see id. at 17-40). We disagree. “Wrongful use of civil proceedings is a tort which arises w hen a party institutes a lawsuit with malicious motive and lacking pr obable cause.” Mi Lor, Inc. v. DiPentino , 654 A.2d 1156, 1157 (Pa. Super. 1995) (citation omitted). A person who takes part in the procurement, initiatio n or continuation of civil proceedings against another is subje ct to liability to the other for wrongful use of civil proce edings: (1) he acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and (2) the proceedings have terminated in favor of the person against whom they are brought. 42 Pa.C.S.A. § 8351(a). The burden of proof is prescribed by 42 Pa.C.S.A. § 83 54 as follows: In an action brought pursuant to this subchapter the plaintiff has the burden of proving, when the issue is properly raised, that: (1) The defendant has procured, initiated or continued the civil proceedings against him.J-S48032- 14

- 10 - (2) The proceedings were terminated in his favor. (3) The defendant did not have probable cause for his action. (4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on whi ch the proceedings were based. (5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages). 42 Pa.C.S.A. § 8354. Here, Appellants contend that the partition action wa s a wrongful use of civil proceedings against them. It is well- settled that: “The purpose and effect of a partition is to give each of [the] joint o wners the possession he is entitled to o f his share in severalty.” Ramsey v. Taylor , 668 A.2d 1147, 1150 (Pa. Super. 1995) (citation and internal quotat ion marks omitted). “The rule is that the right to partition is an inciden t of a tenancy in common, and an absolute right.” Bernstein v. Sherman , 902 A.2d 1276, 1278 (Pa. Super. 2006) (citations and internal quotation marks omitted). In the instant case, Appellants argue that they stated a prima facie claim for wrongful use of civil proceedings because “the re al motivation for the partitio n action was Clair’s pursuit to obtain Iva’s farm” and Ap pellees’ partition action ended in withdrawal, constituting te rmination in favor of Appellants. (Appellant’s Brief, at 19). However, A ppellants readily concede that they retained two 3.8% interests in the farm, a nd that the litigation was commenced in order “to bring a resolution to the fractional interests in th e farm and lots[ and to] reunit[e] the farm and lots in to a single owner[.]”J-S48032- 14

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(Second Amended Complaint, 7/14/08, at 31 ¶ 178). T hus, Appellees had a right to partition, and probable cause to bring the partition action. See Bernstein , supra at 1278. Because Appellees had probable cause, Appellants cannot state a claim for wrongful use of c ivil proceedings. See 42 Pa.C.S.A. § 8354(3); Mi -Lor, Inc. , supra at 1157. Accordingly, the trial court did not err in dismissing this claim. Similarly, Appellants’ claim for malicious use of process does not merit relief. “In an action for malicious prosecution, the p laintiff must prove that the defendant instituted proceedings without probable cause, with malice, and that the proceedings were terminated in favor of the plaintiff.” De Salle v. Penn Cent. Transp. Co. , 398 A.2d 680, 682 (Pa. Super. 1979) (citation and footnote omitted). As previously discussed, Appelle es did not lack probable cause to bring the partition action, and thus Appellants could not recover on this claim. See Burgoyne , supra at 679-80. Thus, the court did not err in dismissing this claim. Next, Appellants assert that the court erroneously dis missed their claim for abuse of process because they “allege a variety o f actions on the part of [Appellees] whose purposes were not the legitim ate object of a partition action.” (Appellants’ Brief, at 38). We di sagree. Abuse of civil process is concerned with the perversion of a process after it is issued. The Restatement (Second) of To rts § 682 defines the tort “abuse of process” as the use of leg al process against another primarily to accomplish a purpose for which it is not designed. To establish a claim for abuse of process, it must be shown that the defendant (1) used a l egal process against the plaintiff, (2) primarily to accompli sh aJ-S48032- 14

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purpose for which the process was not designed, and (3) ha rm has been caused to the plaintiff . The word “process” as used in the tort of abuse of process has been interpreted broadl y and encompasses the entire range of procedures incident to th e litigation process.

* * * . . . [A]n essential element of the tort of abuse of p rocess[ is] that the process was used primarily for a purpose for whi ch the process was not designed. It is not enough that the proce ss employed was used with a collateral purpose in mind. A cause of action for abuse of process requires some definite act or threat not authorized by the process, o r aimed at an objective not legitimate in the use of t he process . . .[;] there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions

. Hart , su

pra at 551 -52 (citations and quotation marks omitted; emphasis in original). As previously discussed, Appellees initiated the partiti on action in order to resolve Appellants’ “fractional” interests in the farm. Thus, the general allegation that Appellees had other, “real objectives” is insufficient to state a claim for abuse of process. (Appellant’s Brief, at 38). Appellants’ only actual, specific assertion of use of the litigation process against them is their undeveloped claim that “[Appellee] Mohler’ s signature to the Petition for Partition was a bad faith violation of Pa.R.C.P. 1023(b).” ( Id. ). Rule 1023 was rescinded April 22, 2002, effective July 1, 20 02, and thus we are unable to discern what Appellants intend in arguing b ad faith on this basis. See Pa.R.C.P. 1023; Pa.R.A.P. 2119(a)-(b). This claim do es not merit relief.J-S48032- 14

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Next, Appellants contend that they stated a cause of act ion in fraud because “Iva Mummau was subject to conduct of [Appellees] w hich fraudulently and unduly by said fraud induced her to become engaged in litigation against [Appellants] and to change her test amentary instruments in pursuance of Clair’s illegal objectives regarding Iva ’s farm.” (Appellants’ Brief, at 40). We disagree. To state a claim for fraud, Appellants must show: (1) A representation; (2) which is material to the tra nsaction at hand; (3) made falsely, with knowledge of its falsit y or recklessness as to whether it is true or false; (4) with th e intent of misleading another into relying on it; (5) justif iable reliance on the misrepresentation; and, (6) the resulting injur y was proximately caused by the reliance. Weston v. Northampton Pers. Care, Inc. , 62 A.3d 947, 960 (Pa. Super. 2013), appeal denied , 79 A.3d 1099 (Pa. 2013). “Averments of fraud or mistake sh all be averred with particularity.” Pa.R.C.P. 1019(b ). “For a prima facie case of fraud, the recipient of the misrepresentation must be the one to reasonably rely up on the misrepresentation and to be damaged as a proximate cause of that reliance.” Joyce v. Erie Ins. Exch./Erie Ins. Co. , 74 A.3d 157, 167 (Pa. Super. 2013) (citation omitted; emphasis in original). Here, Appellants aver that Iva Mummau was the recipient of Appellees’ allege d fraud and that Appellants were damaged as a result. ( See Appellan ts’ Brief, at 40 -41). Appellants fail to state a claim for fraud where the ir complaint “does not allege that the recipient of the misrepresentation was the individual or entityJ-S48032- 14

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damaged as a proximate cause of reasonable reliance upo n the misrepresentation .” Joyce , supra at 167. Thus, the court did not err in dismissing this claim. Next, Appellants allege that they have stated a cause o f action for tortious interference with an inheritance because of “num erous facts concerning the actions of [Appellees] f ollowing Iva’s execution of her last will and codicil by which it can be reasonably inferred tha t, but for [Appellees’] wrongful and tortious conduct Iva would have included Howard and Geraldine as beneficiaries on an equal basis with her o ther children.” (Appellants’ Brief, at 43). Appellants are barred by the doctrine of res judicata from pursuing this claim.

The fundamental principle upon which [ res judicata ] is based is that a court judgment should be conclusive as betw een the parties and their privies in respect to every fact w hich could properly have been considered in reaching the determin ation and in respect to all points of law relating directly to th e cause of action and affecting the subject matter before the cour t. The essential inquiry is whether the ultimate and controll ing issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights. Chada v. Chada , 756 A.2d 39, 43-44 (Pa. Super. 2000) (citation and emphasis omitted).

A judgment upon the merits bars a subsequent suit upon t he same cause, though brought in a different form of actio n, and a party therefore cannot, by varying the form of action or adopting a different method of presenting his case, escape the ope ration of the principle that one and the same cause of action sh all not be twice litigated.J-S48032- 14

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Dempsey v. Cessna Aircraft Co. , 653 A.2d 679, 682 (Pa. Super. 1995), appeal denied , 663 A.2d 684 (Pa. 1995) (citation omitted). Here, the “ the ultimate and controlling issues, ” that is, the validity of Iva K. Mummau’s will in the face of Appellants’ claims of undue influence and fraud, have been thoroughly litigated in Orphans’ Co urt proceedings in which Appellants availed themselves of the opportunity to appear and assert thei r rights. ( See In re Estate of Iva K. Mummau , No. 1382 MDA 2013 (Pa. Super. filed May 12, 2014)). Furthermore, a panel of this Court affirmed the Orphans’ Court’s enforcement of a settlement agreement between, inter alia , Appellants and the other Mummau children, which agreed that the family farm at issue here was not part of Iva K. Mummau’s estat e and provided, in relevant part: WHEREAS, all the parties to this Agreement believe it will be in the best interest of all parties hereto that all of th e claims and causes of action, either actual or potential, between an d among the parties to this Agreement be forever settled and r esolved. * * * 8. O. Howard Mummau and Geraldine M. Zimmerman shall execute a joint tortfeasor release in the civil action filed by O. Howard Mummau and Geraldine M. Zimmerman to No. CI- 06

- 04412 and currently pending in Lancaster County relea sing Clair S. Mummau, Laurence N. Mummau, Bernice Tamkin, Galen Spickler, Kevin Mummau, Stacy Mummau and Clair S. Mum mau and Laurence N. Mummau in their capacity as personal representatives of the Estate of Owen E. Mummau, Lau rence N. Mummau in his capacity as personal representative of the Estate of Iva K. Mummau, and Clair S. Mummau in his capacity as attorney- in -fact for Iva K. Mummau. 9. Each and every party to this Agreement, on behalf o f himself or herself and his or her heirs, executors and a ssigns doJ-S48032- 14

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forever release, acquit, discharge and hold harmless each other individually and collectively for any and all actions , causes of action, claims, demands, damages, costs, losses, expenses and compensation, on account of or in any way growing out of any and all known or unknown claims, either actual or po tential, between and among each other which have arisen or may have occurred at any time heretofore. . . . ( Id. at *3, Exhibit A, at 2 ¶¶ 8, 9; see also id. at Exhibit A, at 2 ¶ 10). Thus, Appellants had a full and fair opportunity to l itigate their claims related to the validity of Iva K. Mummau’s will, and have ev en executed a joint tortfeasor release of the relevant parties. See Chada , supra at 43-44. Therefore, we will not permit this issue to be twice- litigated, and conclude that it is barred by the doctrine of res judicata

. See Dempsey , supra at 682. Appellants cannot state a claim for tortious in terference with an inheritance. 3 Next, Appellants claim that they have “properly averr ed claims as [t]hird [p]arty [b]eneficiaries against [Appellees] Mo hler and Clymer &

____________________________________________ 3 Moreover, we observe that the thrust of Appellants’ cl aim, that Appellees persuaded Iva K. Mummau to transfer the farm to Clair Mummau at a diminished price, does not state a claim for tortious interference with an inheritance. “[O]ur law does not provide grounds for recovery on the basis of inter vivos transfers alleged to diminish an eventual bequest. R ather, we have limited the parameters of potential . . . claims to instances involving demonstrable interference with the testamentary scheme the decedent had sought to create by making changes in an existing will.” Estate of Hollywood v. First Nat’l Bank of Palmerton , 859 A.2d 472, 477 (Pa. Super. 2004), appeal denied , 876 A.2d 396 (Pa. 2005) (citation omitted). Appellants have not asserted that Appellees prevented Iva from changing her will in favor of Appellants. Therefore, even if Appellants had not released Appellees from tortfeasor liability, their cla im would not merit recovery on the basis of Iva’s inter vivos transfer to Clair.J-S48032- 14

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Musser, P.C.” (Appellants’ Brief, at 44). Specifically, they argue that th ey have standing because, “should their claims for tortious interference prevail, they would have standing to make claims as third party beneficiaries, because, but for the interference, they would be benef iciaries.” ( Id. at 45). As previously discussed, Appellants failed to state a clai m for tortious interference. Furthermore, their claim is barred by the doctrine of res judicata , in that they have already been given the opportunity t o be heard on their claims against the perpetuation of Iva K. Mummau ’s will. See Chada , supra at 43-44; ( see also In re Estate of Iva K. Mummau , No. 1382 MDA 2013 (Pa. Super. filed May 12, 2014)). Thus, th is claim would not merit relief. Finally, Appellants claim that they “averred facts whic h support a cause of actio n for Intentional Infliction of Emotional Distress.” (Appellants’ Brief, at 47). We disagree.

There remains some question as to whether the courts of this Commonwealth recognize a cause of action for intent ional infliction of emotional distress. However, our Supreme Court has indicated that in order for a plaintiff to prevai l on such a claim, he or she must, at the least, demonstrate inten tional outrageous or extreme conduct by the defendant, which causes severe emotional distress to the plaintiff. Swisher v. Pitz , 868 A.2d 1228, 1230 (Pa. Super. 2005) (citations omitted). “A plaintiff must also show physical injury or harm in order to sustain a cause of action for intentional infliction of e motional distress.” Fewell v. Besner , 664 A.2d 577, 582 (Pa. Super. 1995) (emphasis adde d;J-S48032- 14

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citation omitted). “It is basic to tort law that an in jury is an element to be proven.” Kazatsky v. King David Memorial Park , 527 A.2d 988, 995 (Pa. 1987) (stating that claim for intentional infliction o f emotional distress

i ncludes “requirement of some objective proof” of physical injury or harm). On review, Appellants’ complaint fails to aver what “re sulting physical harm” they suffered due to Appellees’ allegedly outrag eous conduct. See id. They claim, in pertinent part:

301. [Appellees’] conduct has been the direct and proximate cause of [Appellants’] severe emotional distress in the f orm of fright, horror, grief, shame, humiliation, embarrassm ent, anger, chagrin, disappointment, worry, depression. 302. [Appellees’] cond uct has been the direct and proximate cause of [Appellants’] physical illness requiring the servi ces of health care and medical professionals. (First Amended Complaint, 1/26/07, at 8 ¶¶ 301-02). Appellants fail to aver with any greater specificity what “p hysical illness requiring the services of health care and medical professionals” they suffered. ( Id. at 8 ¶ 302). Thus, they failed to aver sufficient facts to state a cl aim for intentional infliction of emotional distress. See Kazatsky , supra at 995; Fewell , supra at 582. The court did not err in dismissing this claim. See Burgoyne , supra at 679- 80. Accordingly, Appellants’ entire first issue lacks

merit. In their second issue, Appellants claim that “the trial c ourt’s rulings were arbitrary and capricious, an abuse of discretion a nd in violation of the Judicial Code of Conduct.” (Appellants’ Brief, at 51). Specifically, theyJ-S48032- 14

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argue that they “should have been granted an extension of time to file their complaint pending the outcome of the Orphans’ Co urt Estate of Iva K. Mummau proceeding.” ( Id. at 51). They also assert that “ordering [the October 17, 2008 joint settlement] conference was in err or.” ( Id. at 52). Finally, they allege that the court should have disqua lified itself for “violation of various canons of the Judicial Code of Conduct, effe ctive July 1, 2014, and the duties of judges under the Pennsylvania Constitutio n Article V, Section 17(b).” ( Id. at 54; see also id. at 53). 4 These issues are waived. First, Appellants’ brief engages in a self-serving and speculative history of this case, projecting their own “likely rationale[s]” as to what they believe the court really intended, without citation to the re cord. (Appellants’ Brief, at 56; see also id. at 51-56). They cite only to general case law and canons of the Pennsylvania Code of Judicial Conduct to assert that the court should have “disqualif[ied] [it]self in a proceeding whe re [its] impartiality may be reasonably questioned.” 5 ( Id. at 53); see also Lakatosh , supra at

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4 Appellants also raise a second sub- issue that they “should have been permitted discovery necessary to better prepare complaint” [sic], bu t utterly fail to develop this assertion with citations to the r ecord or relevant authority, thus waiving our review of this claim. (A ppellants’ Brief, at 57); see also Pa.R.A.P. 2119(a)-(b); Estate of Lakatosh , 656 A.2d 1378, 1381 (Pa. Super. 1995).

5 Appellants later repeat this assertion, claiming tha t, pursuant to Commonwealth v. Druce , 848 A.2d 104, 108 (Pa. 2004), “[a] violation of the Judicial Code of Conduct . . . combined with evide nce of bias or prejudice does require recusal.” (Appellants’ Brief, at 56 -57). Druce is inapposite, because it held that a judge’s comments to the media pri or to sentencing in (Footnote Continued Next Page)J-S48032- 14

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1381 (“[W]e need not reach the merits of [an appellant’s issues wher e the] argument section pertaining to these issues consists of gener al statements unsupported by any citation of authority. The argume nt portion of an appellate brief must include a pertinent discussion o f the particular point raised along with discussion and citation of pertinent authorities.”) (citation omitted). Thus, they have waived these claims. See Lakatosh , supra at 1381. The only argument which we can discern to address is App ellants’ claim that the court erred in “assert[ing] that [Appella nts] could not seek review of interlocutory orders” in its Rule 1925(a) opi nion. (Appellants’ Brief, at 55). Specifically, in the court’s opinion of April 2, 2014, the court stated that four of its prior orders were interlocutory and suggested that the appeal deadlines fell thirty days after their respecti ve entries. ( See Trial Court Opinion, 4/02/14, at unnumbered page 2). We agree with Appellants’ assertion that these orders were interlocutory and not appealable until a final order was entered, but nevertheless determine th at Appellants are entitled to no relief on this claim.

(Footnote Continued) _______________________ a criminal case did not violate judicial canons or codes of conduct, and does no t in fact state the “rule” purported by Appellants. Mo reover, Appellants fail to indicate that they ever properly filed a pet ition to recuse, and thus, have waived this claim on this ground as well. See Coulter v. Ramsden , 2014 Pa. Super. Lexis 1192, at *21 (Pa. Super. 2014) (“It is well -settled that a party seeking recusal or disqualification must rai se the objection at the earliest possible moment[.]”) (citation and emphasis omitted).J-S48032- 14

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It is well-settled that an appeal may be taken as of r ight from any final order of a lower court. See Pa.R.A.P. 341. Rule 341(b) provides that a “final order” is any order that: (1) disposes of all clai ms and of all parties; (2) is expressly defined as a final order by statute; or (3) is entered as a final order pursuant to Pa.R.A.P. 341(c). Id. By the court’s admissio n, the orders at issue were interlocutory, ( see Trial Court Opinion, 4/02/14, at unnumbered page 2) , and based on our review of the record, none of the court’s four orders d isposed of all claims, all parties, or were entered as final orders pursuant t o Rule 341(c): the November 29, 2006 order required Appellants to file a complaint within twenty days; the June 25, 2008 order did not did no t dispose of Appellants’ intentional infliction of emotional distress claim; the October 2, 2008 order was a scheduling order and did not dispose of any claims or issues; and the November 4, 2009 order denied Appellants’ motion to dismiss all defendants except Jeffery D. Mohler and Clymer & Mussler, and th erefore did not dispose of the parties or claims. Thus, the orders were i nterlocutory and unappealable until the court entered the final order of December 30, 2013, from which Appellants properly appealed. Nonetheless, “we may affirm the decision of the trial cou rt on any valid basis appearing of record.” Louis Dreyfus Commodities Suisse SA v. Fin. Software Sys., Inc. , 2014 Pa. Super. Lexis 2319, at *6 (Pa. Super. 2014) (citation omitted). As previously discussed, Appell ants’ claims for relief based on the substance of those prior orders lack m erit or have beenJ-S48032- 14

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waived on other grounds. Thus, we may affirm the trial court’s o rders on that basis, despite its incorrect assertion that Appellan ts’ appeals were untimely. The arguments raised in Appellants’ second i ssue do not merit relief. In their third issue, Appellants obje ct that “[t]he trial court’s dismissal of [the] First and Second Amended Complaints provide[s] scant analysis” and argue that they “should be permitted to proceed wi th civil claims in this matter solely with respect to [Appellees] Jeffrey D. Mo hler and Clymer & Musser, P.C.” (Appellants’ Brief, at 57 -58). We disagree. First, Appellants fail to develop or cite any authorit y for their contention that the trial court was obligated to “expl ain[] its legal reasoning for sustaining preliminary objections.” ( Id . at 57). Thus, this contention is waived. See Lakatosh , supra at 1381. Second, Appellants argue that, pending a disposition in the Orphans’ Court, they should be permitted to pursue their claims against Appellees Jeffrey D. Mohler and Clymer & Musser, P.C. ( See Appellants’ Brief, at 58

- 59). This claim is also waived for failure to cite to a ny relevant or persuasive authority. See Lakatosh , supra at 1381. Moreover, as previously discussed, in light of the Orphans’ Court deci sion at In re Estate of Iva K. Mummau , No. 1382 MDA 2013 (Pa. Super. filed May 12, 2014) , Appellants’ third -party beneficiary claims against Appellees are barred by res judicata and their settlement agreement. Accordingly, Appellan ts’ third issue does not merit relief.J-S48032- 14

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Order affirmed. Donohue, J., joins the memorandum. Jenkins, J., concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2014