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J-A02006-02
2003 PA Super 52
PAUL L. MINNICH,
:
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
Appellant
:
:
v.
:
:
HARRY B. YOST,
:
:
Appellee
:
No. 1181 MDA 2001
Appeal from the Order entered June 28, 2001
In the Court of Common Pleas of Lancaster County
Civil at No.: Cl-99-12334
BEFORE: STEVENS, TODD, and CAVANAUGH, JJ.
OPINION BY STEVENS, J.:
Filed: February 10, 2003
¶1
This is an appeal from the order entered in the Court of Common Pleas
of Lancaster County granting Appellee Harry B. Yost, Esq.'s motion for
judgment on the pleadings and dismissing Appellant Paul L. Minnich's
Complaint. Minnich argues that the trial court erred in concluding that
Minnich could establish civil liability on neither his malpractice claim nor his
statutory-based claim of intentional concealment of a will. For the following
reasons, we affirm.
¶2
As contained in Minnich's Complaint filed on December 11, 2000, the
pleadings aver that Minnich's mother, Vera L. Minnich, died on January 14,
1997. In either July or October, 1997, Minnich's father consulted with
Attorney Yost for advice on estate planning. At that time or at some time
later, he delivered both his own will and the will of his deceased wife to

J-A02006-02
Yost.1 At the consultation, Yost knew or was advised of Vera Minnich's
death, and he knew or should have known that her will had not yet been
probated. Nevertheless, Yost did not advise Minnich's father to have Vera
Minnich's will probated, took no initiative to have the will probated, and
never advised Minnich's father to notify other family members of the
existence of the will.
¶3
Meanwhile, Minnich's own inquiry into his mother's estate had, to that
point, failed to disclose if his mother had prepared any letters testamentary
or if she had instead simply died intestate. Retaining counsel to assist him,
Minnich obtained from the Lancaster County Register of Wills a Citation to
Show Cause why Letters of Administration Should Not Be Issued to [him],
which was served on Minnich's father on December 16, 1997. Minnich's
father brought the Citation to Yost, and on or about December 29, 1997,
Yost delivered Vera Minnich's will to the Register of Wills.
¶4
Under the terms of his mother's valid and subsisting will, Minnich was
named co-executor of the estate, co-trustee of a trust created by the will,
and was awarded a substantial beneficial interest in his mother's estate.
Administration of the estate commenced shortly after receipt of the will.
¶5
The pleadings conclude with allegations that Yost is civilly liable for
negligence, on respective theories of malpractice and of violating a criminal

1 According to the Complaint, Yost did not participate in the preparation of
Vera Minnich's will.
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J-A02006-02
statute prohibiting the fraudulent concealment of a recordable instrument, in
connection with his failure to effect the immediate probate of Vera Minnich's
will. It is further averred that Yost's inaction cost Minnich $1,973 in fees for
the discovery of the will, and caused Minnich to experience "emotional and
physical distress, anxiety, pain and suffering, debilitating frustration, and
mental trauma" because of the "uncertainty as to the administration and
devolution of his mother's estate." The Complaint demands judgment
against Yost not in excess of $35,000 in compensatory and punitive
damages.
¶6
On February 20, 2001, Yost filed his Answer with New Matter to
Minnich's Complaint, wherein he denied owing any duty to Minnich, denied
any duty to produce or probate Vera Minnich's will, and averred that any
damages Minnich may have sustained stemmed from other sources. After
Minnich filed his reply to Yost's New Matter, Yost filed a Motion for Judgment
on the Pleadings. On June 28, 2001, the trial court granted Yost's motion
and dismissed Minnich's Complaint with prejudice. This timely appeal
followed.
¶7
Minnich raises three claims on appeal:
A.
WHEN A STATUTE PROHIBITS THE INTENTIONAL
CONCEALMENT OF A WILL WITH THE INTENT TO
DECEIVE SOMEONE, DOES THE VIOLATION OF THAT
STATUTE ESTABLISH PER SE LIABILITY TO A
PERSON WHO HAS INCURRED DAMAGES BECAUSE OF
THAT CONCEALMENT?
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B.
WHEN AN ATTORNEY IS CONSULTED FOR LEGAL
ADVICE BY A FAMILY MEMBER OF A PERSON WHO
HAD RECENTLY DIED AND THAT ATTORNEY TAKES
AND KEEPS POSSESSION OF THE DECEDENT'S WILL,
COULD A FINDER OF FACT DETERMINE THAT THE
ATTORNEY AGREED TO PROVIDE LEGAL SERVICES
TO THE DECEDENT'S ESTATE?
C.
IS THE PERSON WHO IS NAMED AS EXECUTOR IN A
DECEDENT'S WILL A THIRD PARTY BENEFICIARY TO
ANY AGREEMENT TO PROVIDE LEGAL SERVICES TO
THAT DECEDENT'S ESTATE?
Brief for Appellant, at 4.
¶8
In passing on a challenge to the sustaining of a motion for judgment
on the pleadings, our standard of review is limited. Lindstrom v. City of
Corry, 563 Pa. 579, 763 A.2d 394 (2000). We must accept as true all well
pleaded statements of fact of the party against whom the motion is granted
and consider against him only those facts that he specifically admits. Weik
v. Estate of Brown, 794 A.2d 907 (Pa.Super. 2002). We will affirm the
grant of such a motion only when the moving party's right to succeed is
certain and the case is so free from doubt that the trial would clearly be a
fruitless exercise. Id.
¶9
All of Appellant's claims sound in negligence. It is axiomatic that the
elements of a negligence-based cause of action are a duty, a breach of that
duty, a causal relationship between the breach and the resulting injury, and
actual loss. Campo v. St. Luke's Hospital, 755 A.2d 20 (Pa.Super. 2000).
When considering the question of duty, it is necessary to determine
"whether a defendant is under any obligation for the benefit of the particular
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J-A02006-02
plaintiff...and, unless there is a duty upon the defendant in favor of the
plaintiff which has been breached, there can be no cause of action based
upon negligence." J.E.J. v. Tri-County Big Brothers/Big Sisters, 692
A.2d 582, 584 (Pa.Super. 1997) (citation omitted).
¶10 We are first asked to address whether recovery was impossible on the
claim that Yost violated a criminal statute prohibiting the intentional
concealment of a will. 18 Pa.C.S.A. § 4103 provides in pertinent part that
"[a] person commits a felony of the third degree if, with intent to deceive or
injure anyone, he destroys, removes or conceals any will...or other writing
for which the law provides public recording."
¶11 The violation of a statute may serve as the basis for a finding of
negligence per se. This concept establishes both duty and breach of duty
where an individual violates an applicable statute designed to prevent a
public harm. Campo, supra. "[I]n analyzing a claim based on negligence
per se, the purpose of the statute must be to protect the interest of a group
of individuals, as opposed to the general public, and the statute must clearly
apply to the conduct of the defendant." Tri-County Big Brothers/Big
Sisters, 692 A.2d at 585. Accordingly, courts in this Commonwealth have
imposed a "narrow interpretation of what type of person falls within the
ambit of a statute designed to protect the public at large[, and the]
requirement that the harm suffered be that which the statute was designed
to protect." Campo, 755 A.2d at 26 (citing Witthoeft v. Kiskaddon, 557
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J-A02006-02
Pa. 340, 733 A.2d 623 (1999); and Klein v. Raysinger, 504 Pa. 141, 470
A.2d 507 (1983)).
¶12 It is clear from the Official Comment to Section 4103 that the statutory
purpose involved in no way distinguishes beneficiaries from the general
public. "This section is intended to be limited to writings, the destruction,
removal or concealment of which could lead to falsification of public
records." § 4103, Official Comment--1972 (emphasis added). The
overriding mission of the statute, therefore, is to preserve the accuracy,
integrity, and reliability of public records. Named beneficiaries under
writings which collectively make up public records undeniably profit from the
statute, but their interests are clearly not the foremost concern of the
statute. Accordingly, we refuse to imply a private cause of action in favor of
Minnich-as-beneficiary under a statute which addresses the issue of the
general public's confidence in their records.
¶13 Minnich's second and third issues combine to state that he has
standing to bring a negligence claim for breach of duty owed him as an
intended third party beneficiary of Yost's implied contract to represent Vera
Minnich's estate. To support this claim, Minnich relies on pleaded facts that:
Minnich's father consulted with Yost for advise on estate planning, told Yost
that Vera Minnich had died, and gave Yost both his and her valid wills; Yost
took the wills and noticed that Vera's had not been probated, but kept it in
his possession without effecting probate or assuring that Minnich-as-named-
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J-A02006-02
beneficiary be informed of the will's existence; as an experienced attorney
and officer of the court, Yost had a duty to promptly effect probate and to
promptly advise Minnich of his beneficial interest in the will; Yost's failure to
produce the will for probate until Minnich requested the register of wills to
issue a citation directing production was intentional, and it cost Minnich
considerably both in the way of fees connected with the discovery of the will
and in non-economic damages.
¶14 First, we agree that the complaint alleged sufficient facts to aver that
Minnich's father and Yost entered into an implicit contract for legal services
pertaining to Vera Minnich's estate. "Absent an express contract, an implied
attorney-client relationship will be found if 1) the purported client sought
advice or assistance from the attorney; 2) the advice sought was within the
attorney's professional competence; 3) the attorney expressly or impliedly
agreed to render such assistance; and 4) it is reasonable for the putative
client to believe the attorney was representing him." Cost v. Cost, 677 A.2d
1250, 1254 (Pa.Super. 1996). Here, the pleadings satisfy the standard's
first two factors with the averment that Minnich's father conferred with Yost
for his competent legal advice. Moreover, by averring that Yost knowingly
accepted and kept possession of the original will of Vera Minnich, whom Yost
knew to have recently died, the pleadings satisfied the third and fourth
factors that Yost impliedly agreed to assist the estate and that Minnich's
father reasonably believed such assistance would commence.
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J-A02006-02
¶15 We turn, then, to Minnich's contention that he is a third party
beneficiary with standing to press his action. In support of his position,
Minnich relies on the plurality decision in Guy v. Leiderbach, 501 Pa. 47,
459 A.2d 744 (1983) (Plurality), wherein the Supreme Court retained privity
(an attorney-client or analogous professional relationship, or a specific
undertaking) as an element of proof necessary to maintain an action in
negligence for professional malpractice, with the only exception being "a
narrow class of third party beneficiaries...under Restatement (Second) of
Contracts § 3022 where the intent to benefit is clear and the promisee
(client) is unable to enforce the contract." Guy, 501 at 51, 459 A.2d at 747
(footnote added) (emphasis added). See also Cardenas v. Schober, 783
A.2d 317, 322 (Pa.Super. 2001) (relying on Guy and § 302 to determine
whether plaintiffs fell within narrow class of legatees that may bring suit
under third party beneficiary theory.)
¶16 It is readily apparent, however, that Minnich's case is distinguishable
from the line of cases that adopted § 302 to give legatees their only
recourse when malpractice had denied them their expectancies under wills.
Of primary importance is that there is no indication in the complaint that the

2 The test under § 302 to determine the existence of an intended beneficiary
comprises a two-step inquiry, requiring that (1) the recognition of the
beneficiary's right must be "appropriate to effectuate the intention of the
parties," and (2) the performance must "satisfy an obligation of the
promisee to pay money to the beneficiary" or "the circumstances indicate
that the promisee intends to give the beneficiary the benefit of the promised
performance."
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J-A02006-02
promisee (Minnich's father) in the contract at issue was unable to enforce
the contract with Yost. Indeed, at the time Minnich incurred legal fees
connected with his efforts to produce his mother's will, his father was still
alive and could have enforced the implied contract with Yost to represent
Vera Minnich's estate competently.
¶17 Second, unlike the manifest intention of a testator and attorney drafter
of a will to benefit the legatees expressly named in the will, the manifest
intention of Minnich's father and Yost would seem to have been to benefit
the estate of Vera Minnich. That Minnich stood to gain from the probate of
Vera Minnich's will appears but a consequence of Minnich's father's primary
and manifest intent to take care of his wife's estate. This distinction is of
obvious critical importance because third party beneficiary theory does not
apply to a case where the plaintiff was not the intended beneficiary of the
contract between client and attorney.
¶18 Finally, we note that the "narrow class of legatees that may bring suit
under the third party beneficiary theory" has been permitted to do so
because legatees therein would otherwise have no means by which to obtain
their expectancies under the testamentary instruments naming them. Here,
Minnich took his expectancy under Vera Minnich's will upon its probate.
¶19 Therefore, we find that the implied contract between Minnich's father
and Yost to handle the estate of Vera Minnich does not manifest the intent to
benefit Minnich. This finding is fatal to the cause of action as stated before
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J-A02006-02
us, as Minnich's status as intended beneficiary of the implied contract was a
necessary predicate to his second negligence claim for damages.
¶20 For the foregoing reasons, we affirm.
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