Schwartz v. Speyer

Full title: ILENE SCHWARTZ Appellant v. DEBRA SPEYER

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Jan 6, 2020

No. J-A24010-19 (Pa. Super. Ct. Jan. 6, 2020)

Opinion

J-A24010-19 No. 2539 EDA 2018

01-06-2020

ILENE SCHWARTZ Appellant v. DEBRA SPEYER

MEMORANDUM BY BENDER, P.J.E.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered July 30, 2018
In the Court of Common Pleas of Montgomery County Civil Division at No(s): #2016-27328 BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.^* MEMORANDUM BY BENDER, P.J.E.:

* Retired Senior Judge assigned to the Superior Court.

Ilene Schwartz (Ms. Schwartz), the plaintiff/appellant,¹ appeals pro se from the order entered on July 30, 2018, by the Court of Common Pleas of Montgomery County that sustained the preliminary objections filed by Debra Speyer (Ms. Speyer), the defendant/appellee, and dismissed Ms. Schwartz's complaint, which was an attempt by Ms. Schwartz to re-litigate a will contest involving her aunt's will that had concluded in 2007, when Ms. Schwartz filed a praecipe to withdraw her appeal from the probate of her aunt's estate. We affirm.

1 Ms. Schwartz is the niece of the decedent, Katherine Winokur, who died in 1998, and whose will is again the subject of this appeal.

Initially, we note that Ms. Schwartz's brief does not contain a Statement of Questions Involved as required by Pa.R.A.P. 2116(a). The rule provides in pertinent part that:

The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.

Pa.R.A.P. 2116(a). Based upon this error alone, we could conclude that Ms. Schwartz has waived any and all issues for review by this Court. See Wirth v. Commonwealth , 95 A.3d 822, 858 (Pa. 2014) (stating "[t]his rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby") (citation omitted). However, because Ms. Schwartz has itemized the four points she wishes to contest in the argument section of her brief, we choose not to quash this appeal for failure to include a Statement of Questions Involved.

Rather, we review this case in relation to the arguments she presents, and also conclude that the orphans' court correctly determined that Ms. Schwartz did not have standing and that her complaint was barred pursuant to the doctrines of res judicata and collateral estoppel. Having examined the certified record, the briefs submitted by the parties, the applicable law, and the thorough opinion authored by the Honorable Joseph A. Smyth, Senior Judge of the Court of Common Pleas of Montgomery County, dated March 5, 2019, we conclude that Judge Smyth's well-reasoned opinion accurately disposes of the arguments presented. Accordingly, we adopt Judge Smyth's opinion as our own and affirm the July 30, 2018 order on that basis.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/6/20

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