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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

 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, Geraldine M. 

Zimmerman, and Eli Zimmerman, appeal from the order of December 30, 

2013, sustaining Appellees’ preliminary objections and dismissing Appellants’ 

second amended complaint with prejudice. After careful review, we affirm. 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.
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We take the following summary from the trial court’s opinion of 

December 30, 2013, supplemented as necessary for our review by the 

parties’ various filings. This is a case for damages with a long and 

convoluted history, involving a dispute between siblings over the parties’ 

family farm and the estate of Iva K. Mummau. Owen and Iva Mummau, 

husband and wife, had eight children and owned a broiler chicken farm in 

Mount Joy Township, Pennsylvania. Each of their children owned a 3.8% 

interest in the Mummau farm until 1985, when, at Owen’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 the process of 

subdividing a portion of the farm zoned for residential use.1

 (See id. at 6 ¶¶ 

30-32). On February 11, 1997, he received a notice letter 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 their attorney in 

fact, executed an agreement between him and his wife and Owen and Iva to 

____________________________________________ 

1 As is evident from the complaint, Appellants’ brief and elsewhere in the 

record, O. Howard Mummau is also an attorney-at-law, who represents 

himself and the other Appellants in this appeal. 
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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 marital 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 ¶ 10-11). 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 the residential lots 

was completed shortly thereafter. On May 23, 2000, Iva executed a codicil 

to her will, assisted by Clair Mummau as attorney in fact and Jeffrey D. 

Mohler. On February 22, 2000, Mohler filed a Petition 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. Howard Mummau and 

Geraldine Zimmerman as record owners of the farm and residential 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). Appellants 

demanded consideration for their interests in the farm, claiming that the 

action was a “formalistic cover for the true reason for the litigation which 

was to achieve the ultimate objective to effect a disinheritance of 

[Appellants] by Iva Mummau and the acquisition of the farm by Clair at a 

price he had set without a challenge by [Appellants].” (Second Amended 
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Complaint, 7/14/08, at 31 ¶ 179). Appellants did not attend a settlement 

conference scheduled in February 2004. (See Complaint, 12/19/06, at 37 ¶ 

167(z)). 

Eventually, Mohler, as representative for Iva K. Mummau, Clair 

Mummau, family friend Galen Spickler, O. Howard Mummau, and Geraldine 

Zimmerman concluded a settlement which disposed of Appellants’ interests 

in the farm and residential lots, and provided that Clair would buy the farm 

for $402,000.00, thus settling their respective interests in the lots and the 

farm. (See id. at 38-39 ¶ 168(j)). As a result, the partition action was 

withdrawn, and in 2004, the farm was conveyed to Clair 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 market 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 the 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, Appellants continued to 

litigate this action. Eventually, on May 29, 2010, all eight children and six 

grandchildren of Owen and Iva entered into a settlement agreement which 

resolved all the objections and caveats raised by Appellants in their 

challenges to Iva’s (and through her will and codicil) Owen’s estates. (See 
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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 May 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, Appellants 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 underlying 

action, (an action to partition in real estate) in the Orphans’ 

Court brought by [Appellees Jeffrey D. Mohler and Clymer & 

Musser, P.C.] as counsel in the name of Iva [K]. Mummau, but 

initiated by Clair Mummau as her attorney in fact, against 

[Appellants] in connection with the purported settlement of the 

estate [of] Owen E. Mummau, Deceased, who was the father 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 proceedings, 

malicious use of process, abuse of process, tortious interference with 

contractual relations, intentional infliction of emotional distress by 

outrageous conduct, and unjust enrichment/constructive trust, and 

requested compensatory and punitive damages. (See generally Complaint, 

12/19/06). Appellees filed preliminary objections. On January 26, 2007, 

Appellants filed a “First Amended Complaint” which added a claim for 

“negligent/intentional infliction of emotional distress 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 court 
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dismissed with prejudice the intentional infliction of emotional distress count 

in the amended complaint, granting Appellants leave to 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 complaint 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 complaint. (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 underlying case 

now on appeal to this Court, where it made no finding in 

disposing of preliminary objections that [Appellants] failed to 

state a cause or causes of action, and failed to dispose of

preliminary objections for more than five years, without 

explanation, claiming that [Appellants] were required 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 entered a Rule 1925(a) 

opinion on April 2, 2014. See Pa.R.A.P 1925. 
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II. Did [the] court err in denying [Appellants]’ petition to 

discontinue their action against all defendants named except 

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 dismissal 

of the action in its final order, inter 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]’ action be 

reversed where it engaged in a pattern of procedural 

manipulation in conjunction with the underlying 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 requested by 

[Appellants], denial of [Appellants]’ petition to discontinue 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 judicial 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 authority their assertion 

that the trial court erred in revoking their extension 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 discern the first issue as a 

challenge to the grant of Appellees’ preliminary objections, 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 deducible 
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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 regard to review 

of a trial court’s decision 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 demurrer, 

may not supply a fact missing in the complaint. We are also 

precluded from considering any conclusions of law or inferences 

which are not supported by the factual allegations contained in 

the complaint. This includes argumentative allegations or 

expressions of opinion. And while it is true that allegations 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 insufficient. 

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 dismissing their claims 

for wrongful use of civil proceedings and malicious use of process regarding 

the partition action 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 action “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 when a party 

institutes a lawsuit with malicious motive and lacking probable cause.” MiLor, Inc. v. DiPentino, 654 A.2d 1156, 1157 (Pa. Super. 1995) (citation 

omitted). 

 A person who takes part in the procurement, initiation or 

continuation of civil proceedings against another is subject to 

liability to the other for wrongful use of civil proceedings: 

(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. § 8354 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. 
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(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 which 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 was 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 owners the possession he is 

entitled to of his share in severalty.” Ramsey v. Taylor, 668 A.2d 1147, 

1150 (Pa. Super. 1995) (citation and internal quotation marks omitted). 

“The rule is that the right to partition is an incident 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 real motivation for 

the partition action was Clair’s pursuit to obtain Iva’s farm” and Appellees’ 

partition action ended in withdrawal, constituting termination in favor of 

Appellants. (Appellant’s Brief, at 19). However, Appellants readily concede 

that they retained two 3.8% interests in the farm, and that the litigation was 

commenced in order “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[.]” 
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(Second Amended Complaint, 7/14/08, at 31 ¶ 178). Thus, 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 civil 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 plaintiff 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, Appellees 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 dismissed their 

claim for abuse of process because they “allege a variety of actions on the 

part of [Appellees] whose purposes were not the legitimate object of a 

partition action.” (Appellants’ Brief, at 38). We disagree.

Abuse of civil process is concerned with the perversion of a 

process after it is issued. The Restatement (Second) of Torts 

§ 682 defines the tort “abuse of process” as the use of legal 

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 legal 

process against the plaintiff, (2) primarily to accomplish a 
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purpose for which the process was not designed, and (3) harm 

has been caused to the plaintiff. The word “process” as used in 

the tort of abuse of process has been interpreted broadly and 

encompasses the entire range of procedures incident to the 

litigation process. 

* * * 

. . . [A]n essential element of the tort of abuse of process[ is] 

that the process was used primarily for a purpose for which the 

process was not designed. It is not enough that the process 

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, or 

aimed at an objective not legitimate in the use of the 

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, supra at 551-52 (citations and quotation marks omitted; emphasis in

original). 

 As previously discussed, Appellees initiated the partition 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, 2002, and thus we are 

unable to discern what Appellants intend in arguing bad faith on this basis. 

See Pa.R.C.P. 1023; Pa.R.A.P. 2119(a)-(b). This claim does not merit relief. 
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 Next, Appellants contend that they stated a cause of action in fraud 

because “Iva Mummau was subject to conduct of [Appellees] which 

fraudulently and unduly by said fraud induced her to become engaged in 

litigation against [Appellants] and to change her testamentary 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 transaction at 

hand; (3) made falsely, with knowledge of its falsity or 

recklessness as to whether it is true or false; (4) with the intent 

of misleading another into relying on it; (5) justifiable reliance 

on the misrepresentation; and, (6) the resulting injury 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 shall 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 upon 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’ alleged fraud and that 

Appellants were damaged as a result. (See Appellants’ Brief, at 40-41). 

Appellants fail to state a claim for fraud where their complaint “does not 

allege that the recipient of the misrepresentation was the individual or entity 
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damaged as a proximate cause of reasonable reliance upon 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 of action for 

tortious interference with an inheritance because of “numerous facts 

concerning the actions of [Appellees] following Iva’s execution of her last will 

and codicil by which it can be reasonably inferred that, but for [Appellees’] 

wrongful and tortious conduct Iva would have included Howard and 

Geraldine as beneficiaries on an equal basis with her other 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 between 

the parties and their privies in respect to every fact which could 

properly have been considered in reaching the determination and 

in respect to all points of law relating directly to the cause of 

action and affecting the subject matter before the court. The 

essential inquiry is whether the ultimate and controlling 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 the 

same cause, though brought in a different form of action, and a 

party therefore cannot, by varying the form of action or adopting 

a different method of presenting his case, escape the operation 

of the principle that one and the same cause of action shall not 

be twice litigated. 
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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’ Court proceedings in which 

Appellants availed themselves of the opportunity to appear and assert their 

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 estate 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 the claims and 

causes of action, either actual or potential, between and among 

the parties to this Agreement be forever settled and resolved. 

* * * 

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 releasing Clair 

S. Mummau, Laurence N. Mummau, Bernice Tamkin, Galen 

Spickler, Kevin Mummau, Stacy Mummau and Clair S. Mummau 

and Laurence N. Mummau in their capacity as personal 

representatives of the Estate of Owen E. Mummau, Laurence 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 of 

himself or herself and his or her heirs, executors and assigns do 
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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 potential, 

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 litigate their claims related 

to the validity of Iva K. Mummau’s will, and have even 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 interference with an 

inheritance.3

Next, Appellants claim that they have “properly averred claims as 

[t]hird [p]arty [b]eneficiaries against [Appellees] Mohler and Clymer & 

____________________________________________ 

3 Moreover, we observe that the thrust of Appellants’ claim, 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. Rather, 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 claim would not merit 

recovery on the basis of Iva’s inter vivos transfer to Clair. 
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Musser, P.C.” (Appellants’ Brief, at 44). Specifically, they argue that they 

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 beneficiaries.” (Id. at 45). 

As previously discussed, Appellants failed to state a claim for tortious 

interference. 

 Furthermore, their claim is barred by the doctrine of res judicata, in 

that they have already been given the opportunity to 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, this claim would not 

merit relief. 

 Finally, Appellants claim that they “averred facts which support a 

cause of action 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 intentional 

infliction of emotional distress. However, our Supreme Court 

has indicated that in order for a plaintiff to prevail on such a 

claim, he or she must, at the least, demonstrate intentional 

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 emotional distress.” 

Fewell v. Besner, 664 A.2d 577, 582 (Pa. Super. 1995) (emphasis added; 
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citation omitted). “It is basic to tort law that an injury 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 of emotional distress 

includes “requirement of some objective proof” of physical injury or harm).

On review, Appellants’ complaint fails to aver what “resulting physical 

harm” they suffered due to Appellees’ allegedly outrageous 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 form of 

fright, horror, grief, shame, humiliation, embarrassment, anger, 

chagrin, disappointment, worry, depression. 

302. [Appellees’] conduct has been the direct and proximate 

cause of [Appellants’] physical illness requiring the services 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 “physical 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 claim 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 court’s rulings 

were arbitrary and capricious, an abuse of discretion and in violation of the 

Judicial Code of Conduct.” (Appellants’ Brief, at 51). Specifically, they 
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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’ Court Estate of Iva K. 

Mummau proceeding.” (Id. at 51). They also assert that “ordering [the 

October 17, 2008 joint settlement] conference was in error.” (Id. at 52). 

Finally, they allege that the court should have disqualified itself for “violation 

of various canons of the Judicial Code of Conduct, effective July 1, 2014, and 

the duties of judges under the Pennsylvania Constitution 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 record. (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 where [its] impartiality 

may be reasonably questioned.”5

 (Id. at 53); see also Lakatosh, supra at 

____________________________________________ 

4

 Appellants also raise a second sub-issue that they “should have been 

permitted discovery necessary to better prepare complaint” [sic], but utterly 

fail to develop this assertion with citations to the record or relevant 

authority, thus waiving our review of this claim. (Appellants’ 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 that, pursuant to 

Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004), “[a] violation of 

the Judicial Code of Conduct . . . combined with evidence 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 prior to sentencing in 

(Footnote Continued Next Page) 
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1381 (“[W]e need not reach the merits of [an appellant’s issues where the] 

argument section pertaining to these issues consists of general statements 

unsupported by any citation of authority. The argument portion of an 

appellate brief must include a pertinent discussion of 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 Appellants’ 

claim that the court erred in “assert[ing] that [Appellants] could not seek 

review of interlocutory orders” in its Rule 1925(a) opinion. (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 respective 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 that 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 

not in fact state the “rule” purported by Appellants. Moreover, Appellants 

fail to indicate that they ever properly filed a petition 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 raise the objection at 

the earliest possible moment[.]”) (citation and emphasis omitted). 
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It is well-settled that an appeal may be taken as of right 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 claims 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 admission, 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 disposed of all claims, 

all parties, or were entered as final orders pursuant to 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 not 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 therefore did not 

dispose of the parties or claims. Thus, the orders were interlocutory 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 court 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, Appellants’ claims for 

relief based on the substance of those prior orders lack merit or have been 
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waived on other grounds. Thus, we may affirm the trial court’s orders on 

that basis, despite its incorrect assertion that Appellants’ appeals were 

untimely. The arguments raised in Appellants’ second issue do not merit 

relief. 

In their third issue, Appellants object 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 with civil claims in this 

matter solely with respect to [Appellees] Jeffrey D. Mohler and Clymer & 

Musser, P.C.” (Appellants’ Brief, at 57-58). We disagree. 

First, Appellants fail to develop or cite any authority for their 

contention that the trial court was obligated to “explain[] 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 any relevant or 

persuasive authority. See Lakatosh, supra at 1381. Moreover, as 

previously discussed, in light of the Orphans’ Court decision 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, Appellants’ third 

issue does not merit relief. 
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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