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Estate of Rothberg

Superior Court of Pennsylvania

June 23, 2017

ESTATE OF: SIDNEY ROTHBERG, DECEASED APPEAL OF:LYNN ROTHBERG KEARNEY

         Appeal from the Order, April 15, 2016, in the Court of Common Pleas of Philadelphia County Orphans' Court Division at No. 673AP of 2009

          BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

          OPINION

          FORD ELLIOTT, P.J.E.

         Lynn Rothberg Kearney appeals pro se the order of the Court of Common Pleas of Philadelphia County that sustained the preliminary objections of Saranne Rothberg-Marger ("Rothberg-Marger"), the executrix of the Estate of Sydney Rothberg, Deceased ("Estate"), and dismissed appellant's petition for a declaratory judgment. After careful review, we affirm.

         The trial court set forth the following factual and procedural history:

In brief summary, [Appellant] was born on January 6, 1953. Appellant always thought that her father Sydney Rothberg had died in the late 1950s as a result of a car accident. However, in 2004, Appellant learned that Sydney Rothberg was alive and she searched for him. In response to Appellant's inquiries, on June 10, 2004, Saranne Rothberg-Marger indicated that after speaking with Decedent, he stated that Appellant was in "no way" related to him. By that point, Decedent Sidney Rothberg's Will had been executed on January 21, 2002 and did not provide for Appellant but instead provided for Saranne Rothberg, Michael Rothberg, and Nellie Ingram. Decedent died on May 13, 2008 and the January 21, 2002 Will was admitted to probate.
On August 14, 2014, Lynn Kearney filed a Notice of Appeal regarding the July 18, 2014 Findings of Fact, Discussion and Conclusions of Law issued by the Honorable Joseph D. O'Keefe denying her challenge to the Will of Sidney Rothberg. On June 26, 2015, the Superior Court of Pennsylvania affirmed the Court's July 18, 2014 Decree.
On March 14, 2016, Appellant filed a Petition for Declaratory Judgment stating that she should be considered an omitted heir under Section 2507 of the Probate, Estates and Fiduciaries ("PEF" Code). On April 4, 2016, Saranne Rothberg-Marger filed Preliminary Objections stating that Section 2507 does not apply to the instant case because Appellant was born before the Will was executed by Decedent on January 21, 2002. On April 18, 2016, Appellant filed an Answer again averring that she is entitled to relief under Section 2507.
On April 15, 2016, the Honorable George W. Overton issued a Decree sustaining the Preliminary Objections and dismissing the Petition for Declaratory Judgment without prejudice.
On May 2, 2016, Appellant filed a timely Notice of Appeal. Statements of Matters Complained of on Appeal were requested and properly tendered on June 2, 2016.

         Trial court opinion, 9/8/16 at 1-2 (citations omitted).

         On appeal, appellant raises the following issues for our review:

1. Whether the Orphans' Court erred as a matter of law or abused its discretion by overlooking or ignoring that the Estate is the proper party addressed by the Petition[?] Neither the Estate nor two of three beneficiaries responded to the Petition from their perspectives and thus defaulted and approved granting the declaratory judgment requested?
2. Whether the elements of demurrer were not proven; therefore, whether Orphans' Court erred as a matter of law and abused its discretion by improperly sustaining Preliminary Objection in the Nature of a Demurrer to Petition of Lynn Kearney for Declaratory Judgment ("Preliminary Objection"), when the Author failed to prove the statutory elements for demurrer?
3. Whether the Orphans' Court erred and abused discretion by granting the request that the Petition is a second attempt to claim an interest in Decedent's Estate?
4. Whether the Orphans' Court erred and abused discretion by failing to consider whether [42 Pa.C.S.A. § 2507] encompasses children unknown but born before a will is executed?
5. Whether the Orphans' Court erred as a matter of law and abused discretion by failing to properly consider the plain meaning of the Statute?
6. Whether the Orphans' Court erred and abused discretion by failing to properly consider public policy?
7. Whether the Orphans' Court erred and abused discretion by failing to properly consider that inheritance is favored among ...

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