ESTATE OF: SIDNEY ROTHBERG, DECEASED APPEAL OF:LYNN ROTHBERG KEARNEY
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.
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.
trial court set forth the following factual and procedural
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
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.
court opinion, 9/8/16 at 1-2 (citations omitted).
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
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