ROBERT GOLDEN, Attorney-in-Fact for LEAH GOLDEN v. David S. Golden

1
PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2184
ROBERT GOLDEN, Attorney-in-Fact
for LEAH GOLDEN;
DONALD EARWOOD, Executor of the
Estate of HELEN EARWOOD,
Appellants
v.
DAVID S. GOLDEN;
DARLENE KOPOSKO
On Appeal from the
United States District Court
for the Western District of Pennsylvania
(Dist. Court No. 01-cv-00576)
District Judge:
Honorable David S. Cercone
Argued: January 22, 2004
Before: ALITO and CHERTOFF,
Circuit Judges, and DEBEVOISE,*
District Judge
(Filed :September 3, 2004)
JULIA MORROW (Argued)
JOEL W. TODD
Dolchin, Slotkin & Todd
2005 Market Street
24th Floor
Philadelphia, PA 19103
Counsel for Appellants
CHRISTOPHER M. TRETTA (Argued)
Yost & Tretta
1500 John F. Kennedy Boulevard
Two Penn Center Plaza, Suite 610
Philadelphia, PA 19102
JAMES T. DAVIS
MELINDA K. DELLAROSE
Davis & Davis
107 East Main Street
Uniontown, PA 15401
Counsel for Appellees
OPINION OF THE COURT
* Honorable Dickinson R.
Debevoise, Senior United States District
Judge for the District of New Jersey,
sitting by designation.

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CHERTOFF, Circuit Judge.
Robert Golden, attorney-in-fact for
Leah Golden, and Donald Earwood,
executor of the estate of Helen Earwood,
appeal a final order of the United States
District Court for the Western District of
Pennsylvania dismissing their action for
lack of jurisdiction. Appellants’ action
sought, through various means, to
challenge the distribution of assets from
the estate of Irene I. King. In addition to
asserting a number of familiar torts,
including fraud and slander, the complaint
asserted several grounds for relief that
relate to probate law, including undue
influence and breach of fiduciary duty as
the executor of a will. Appellants also
sought punitive damages. The District
Court dismissed the action as falling
within the probate exception to federal
diversity jurisdiction. This case, therefore,
requires us to explore the contours of the
probate exception. We will affirm in part
and reverse in part.
Appellant Robert Golden is a
citizen of the state of New York and holds
general power of attorney for Leah
Golden, also a citizen of the state of New
York. Appellant Donald Earwood is the
personal representative of the estate of
Helen Earwood, a citizen of the state of
Georgia prior to her death.1 Appellees
David S. Golden and Darlene Koposko are
both adult citizens of the Commonwealth
of Pennsylvania.
On September 1, 1999, Irene I.
King executed a Last Will and Testament
(the “Will”) and an inter vivos trust (the
“Trust”). Pursuant to her testamentary
scheme, all of her property was transferred
to the Trust, under which she named
herself the sole trustee. In the event of her
incapacity or death, Appellee David
Golden was to become the sole trustee.
As a redundancy, her Will also contained
a “pour over” provision, transferring all of
her property to the Trust upon her death.
Under the terms of the original Trust, the
Trust corpus was, upon her death, to be
distributed in equal one-third shares
among Leah Golden, Ms. King’s sister-in-
law, Helen Earwood, Ms. King’s sister,
and Appellee David Golden, Ms. King’s
brother.2 The original Trust, Will, and
other attendant paperwork were prepared
by Nicholas J. Cook, Esq., and his office.
As set forth in the complaint, Ms.
King’s health deteriorated over the months
that followed. Concurrently, Appellee
David Golden began exercising increasing
control over both Ms. King’s finances
and, allegedly, over Ms. King herself. At
some point during the fall of 1999,
Appellee David Golden terminated Ms.
King’s professional home care services in
1In diversity actions involving
estates, the courts look to the citizenship of
the decedent to determine jurisdiction. See
28 U.S.C. § 1332(c)(2).
2 The legacies were contingent upon
the legatees surviving Ms. King. In the
event that they predeceased, the Trust
named contingent beneficiaries.

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favor of those provided by Appellee
Darlene Koposko and Koposko’s mother
and daughter. During this time,
Appellants allege, several of their attempts
to visit Ms. King were either directly
rebuffed by Appellee David Golden or
met with so much hostility that they were
soon terminated.
By June 14, 2000, Ms. King was
bedridden, experiencing excruciating pain
and unable to maintain bodily functions.
She was being medicated for her pain and
was prescribed hospice care. That
morning, however, she purportedly
summoned Appellee Koposko to her side
and dictated the preparation of a document
altering the distributive scheme
enumerated in her Trust. Ms. Koposko
then purportedly prepared a handwritten
instrument memorializing those changes
(the “Addendum”), propped Ms. King up
in bed, watched her sign the instrument
and then, along with one of Ms.
Koposko’s long-time friends, witnessed it.
Appellee Koposko then allegedly placed
the Addendum in a dresser drawer where
it remained until June 27, 2000, when she
delivered it to the offices of Nicholas
Cook.
The Addendum reduced the amount
of the legacy granted to Leah Golden from
one-third of Ms. King’s estate to “the sum
of [$5,000].” J.A. at 48. In a similar
manner, the Addendum reduced the
amount of the legacy granted to Helen
Earwood from one-third of Ms. King’s
estate to “the sum of [$10,000].” Id. The
remainder of the estate, according to the
Addendum, was to pass to Appellee David
Golden.
On July 26, 2000, Ms. King died.
On September 19, 2000, Ms. King’s Will
was probated and letters testamentary
thereafter issued. At some point
thereafter, Appellee David Golden,
through Nicholas Cook, filed a
Pennsylvania Inheritance Tax Return (the
“tax return”) with the Fayette County
Register of Wills listing the net value of
Ms. King’s estate as $188,946.00.
Distribution of the legacies has not
occurred due to the pendency of the
instant litigation.
Appellants brought this action in
the United States District Court for the
Western District of Pennsylvania on
March 28, 2001. Appellants alleged
jurisdiction based on diversity of
citizenship and an amount in controversy
in excess of $75,000. In addition to
seeking punitive damages, Appellants
asserted six causes of action: (1) undue
influence; (2) fraud; (3) forgery; (4)
slander (asserted by Appellant Earwood
only); (5) tortious interference with
inheritance; and (6) breach of fiduciary
duty as executor of a will (asserted against
Appellee David Golden only). Appellants
essentially alleged that their shares under
Ms. King’s Trust were reduced either as a
result of Appellees’ outright forgery, or as
a result of Appellees’ wrongful influence
on, or slanderous statements to, Ms. King.
On June 20, 2002, after discovery
was complete, the parties filed cross

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motions for summary judgment.3 On
November 18, 2002, the District Court
conducted a pretrial conference but, on
March 23, 2003, sua sponte dismissed the
action for lack of subject matter
jurisdiction. Appellants timely appealed.
Appellees present two arguments
against subject matter jurisdiction. First,
they claim that Appellants have failed to
satisfy the amount in controversy
requirement for diversity jurisdiction. See
28 U.S.C. § 1332(a). Second, they urge
that Appellants’ action falls under the
probate exception to federal diversity
jurisdiction. See, e.g., Markham v. Allen,
326 U.S. 490 (1946); Waterman v. Canal-
Louisiana Bank & Trust Co., 215 U.S. 33,
45 (1909); Moore v. Graybeal, 843 F.2d
706, 709 (3d Cir. 1988). We exercise
plenary review over a district court’s
dismissal for lack of subject matter
jurisdiction. See Bakhtriger v. Elwood,
360 F.3d 414, 417 (3d Cir. 2004).
I.
A.
Appellees contend that the amount
in controversy has not been adequately
pled. The amount in controversy is a
statutory limit on the subject matter over
which the federal courts have jurisdiction.
See 28 U.S.C. § 1332(a).4 As with all
issues of subject matter jurisdiction,
defects in the pleading of the amount in
controversy cannot be waived and, as a
consequence, may be raised by any party
at any time during litigation of the dispute.
See Fed. R. Civ. P. 12(h)(3); see also, e.g.,
Kontrick v. Ryan, __ U.S. __, 124 S.Ct.
906, 915 (2004). The federal courts
themselves, of course, have a continuing
obligation to investigate their jurisdiction
over the matters before them. See Exxon
Mobil Corp. v. Saudi Basic Indus. Corp.,
364 F.3d 102, 104 (3d Cir. 2004) (quoting
Desi’s Pizza, Inc. v. City of Wilkes-Barre,
321 F.3d 411, 420 (3d Cir. 2003));
Meritcare Inc. v. St. Paul Mercury Ins.
Co., 166 F.3d 214, 217 (3d Cir. 1999).
Even if no party reaches the issue,
therefore, the courts may take the initiative
and probe the sufficiency with which the
amount in controversy has been pled. See
Meritcare, 166 F.3d at 217.
Where a federal cause of action is
based on diversity jurisdiction, the
complaint must allege an amount in
controversy between the parties in excess
of the statutory minimum. See 28 U.S.C.
§ 1332(a). The amount need not be
proven; rather, the amount is judged from
the face of the complaint and is generally
established by a good faith allegation. See
Horton v. Liberty Mut. Ins. Co., 367 U.S.
348, 353 (1961) (measuring “good faith”
by whether it appears “to a legal certainty
the claim is really for less than the
jurisdictional amount”) (internal
quotations and citations omitted); St. Paul
3 Appellants’ motion sought only
partial summary judgment on their undue
influence, fraud and forgery claims.
4At all times during this
controversy, the statutory minimum was $75,000. 28 U.S.C. § 1332(a).

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Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 288 (1938); see also Jumara v.
State Farm Ins. Co., 55 F.3d 873, 877 (3d
Cir. 1995). Each plaintiff must meet the
a m o u n t i n c o n t r o v e r s y
requirement—claims may not be
aggregated among plaintiffs to meet the
statutory minimum. See Meritcare, 166
F.3d at 218 (citing 14B Wright, Miller &
Cooper, Federal Practice and Procedure 3d
§ 3704 at 134 (1994)). On the other hand,
courts do not separately evaluate each of
the causes of action asserted by any one
plaintiff against any one defendant.5
Snyder v. Harris, 394 U.S. 332, 335
(1969); Suber, 104 F.3d at 588 (3d Cir.
1997); see also 14B Wright, Miller &
Cooper, Federal Practice and Procedure 3d
§ 3704 at 134 (1994).
Claims for punitive damages may
be aggregated with claims for
compensatory damages unless the former
are “‘patently frivolous and without
foundation.’” Packard, 994 F.2d at 1046
(quoting Gray v. Occidental Life Ins. Co.,
387 F.2d 935, 936 (3d Cir. 1968)).
Punitive damage claims are per se
“‘patently frivolous and without
foundation’” if they are unavailable as a
matter of state substantive law. See In re
Corestates Trust Fee Litig., 39 F.3d 61, 64
(3d Cir. 1994); Packard v. Provident Nat.
Bank, 994 F.2d 1039, 1046 (3d Cir.
1993). Where guidance from state
substantive law is absent, the federal
5 The notable exception occurs
where recovery on one of the plaintiff’s
claims excludes recovery for one or more
of the others. See Suber v. Chrysler Corp.,
104 F.3d 578, 588 (3d Cir. 1997).
In cases where a plaintiff has sued
multiple defendants on the theory that they
share liability, several circuit courts
measure pleading of the amount in
controversy under the rubric of
“aggregation.” See, e.g., Middle Tenn.
News Co. v. Charnel of Cincinnati, Inc.,
250 F.3d 1077, 1081 (7th Cir. 2001);
Jewell v. Grain Dealers Mut. Ins. Co., 290
F.2d 11, 13 (5th Cir. 1961). Thus, a
plaintiff is permitted to “aggregate” his or
her claims against the multiple defendants
to meet the statutory requirement. We
have never passed on the issue.
A l t h o u g h w e t h i n k t h e
“aggregation” approach reaches the correct
result, we do not see the question as one of
aggregation. Rather, an assertion of joint
and several liability is an assertion that
each defendant is liable for the entire
amount, although the plaintiff only
recovers the entire amount once. Cf.
Michie v. Great Lakes Steel Div., Nat
Steel Corp., 495 F.2d 213, 218-19 (6th Cir.
1974). If that amount of liability is above
the statutory threshold, jurisdiction has
attached. Any other rule would effectively
multiply the amount in controversy
requirement by the number of defendants
alleged to share liability.
Here, all but one of Appellants’
causes of action assert that the Appellees
are jointly liable. In pleading the amount
in controversy, therefore, the Appellants
need not have distinguished among the
Appellees.

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courts must attempt to predict the position
that the state courts would take on the
question. Corestates, 39 F.3d at 64. If
appropriately made, therefore, a request
for punitive damages will generally satisfy
the amount in controversy requirement
because it cannot be stated to a legal
certainty that the value of the plaintiff’s
claim is below the statutory minimum.
B.
With the foregoing general
principles in mind, we turn to the specific
allegations of the complaint.
Appellees argue that the
compensatory damages at stake fall below
the $75,000 threshold. They observe that
the tax return filed with the Pennsylvania
Orphans’ Court lists the estate’s net value
at $188,946.00. The original Trust
provided that Appellants each receive a
one-third share of the estate, or
$62,982.00. But the amended Trust
provided for a distribution of $10,000 to
Helen Earwood and $5,000 to Leah
Golden. Thus, Appellees argue, Appellant
Earwood has alleged an amount in
controversy of $52,982.00 and Appellant
Golden $57,982.00, each less than the
statutory minimum.
Appellants respond that the
statutory minimum has been met because
the complaint alleged that, but for
Appellees’ conduct, the value of the estate
would have been valued in excess of
$250,000.00.6 But if the filing of the tax
return with the Orphans’ Court was a
determination by that court of the actual
value of the estate, then a determination by
a federal court that the estate should have
been valued higher than $188,946 would
constitute an impermissible collateral
impeachment of a state court judgment.
See Rooker v. Fidelity Trust, Co., 263
U.S. 413 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S.
462 (1983); see also Exxon, 364 F.3d at
104. Although this Court asked counsel,
through supplemental briefing, to clarify
how the Orphans’ Court treated the tax
filing, they were unable to do so.
Nevertheless, the jurisdictional
amount in controversy may be satisfied on
another basis: the complaint seeks punitive
damages. If punitive damages are
available under Pennsylvania state law for
the causes of action asserted by the
Appellants, and if the claims for punitive
damages are not otherwise “patently
frivolous and without foundation,” then
the pleadings satisfy the necessary amount
in controversy. Packard, 994 F.2d at
1046.
Pennsylvania law permits the
recovery of punitive damages for “torts
that are committed willfully, maliciously,
or so carelessly as to indicate wanton
6 The complaint alleged, for
example, that Appellee David Golden had
either wasted estate assets prior to Ms.
King’s death, or failed to report them on
the tax return.

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disregard of the rights of the party
injured.” Thompson v. Swank, 176 A.
211 (Pa. 1934); see also SHV Coal, Inc. v.
Continental Grain Co., 587 A.2d 702, 704
(Pa. 1991). The Pennsylvania Supreme
Court has adopted section 908(2) of the
Restatement (Second) of Torts, which
states that “[p]unitive damages may be
awarded for conduct that is outrageous,
because of the defendant’s evil motive or
his reckless indifference to others.”
Restatement (Second) Torts § 908(2)
(1979); see also Feld v. Merriam, 485
A.2d 742, 747-48 (Pa. 1984). The
Pennsylvania Supreme Court has also
discussed with approval Comment b of
that section, which states that “[r]eckless
indifference to the rights of others and
conscious action in deliberate disregard of
them . . . may provide the necessary state
of mind to justify punitive damages.”
Restatement (Second) Torts § 908 cmt. b;
see also SHV, 587 A.2d at 704-05; Martin
v. Johns-Manville Corp., 494 A.2d 1088,
1096-98 (Pa. 1985), overruled on other
grounds by Kirkbride v. Lisbon
Contractors, Inc., 555 A.2d 800, 801 (Pa.
1989).
The complaint asserts conduct on
the part of Appellees that Appellants
allege to be, at least, recklessly tortious.
For example, the complaint asserts a cause
of action for slander by Appellant
Earwood against both Appellees.
Pennsylvania permits the recovery of
punitive damages for slander claims. See
Walder v. Lobel, 488 A.2d 622, 626 (Pa.
Super. Ct. 1985) (defamation generally).
The complaint also asserts a cause of
action for tortious interference with
inheritance by both Appellants against
both Appellees.7 There is no direct
pronouncement by the Pennsylvania courts
that punitive damages are recoverable in
actions for tortious interference with
inheritance, but punitive damage awards
have been upheld in actions for analogous
torts. See, e.g. Judge Tech. Servs., Inc. v.
Clancy, 813 A.2d 879, 888-90 (Pa. Super.
Ct. 2002) (tortious interference with
contractual relations). Given the
Pennsylvania Supreme Court’s broad
pronouncements with respect to the
availability of punitive damages, and
given the assertion of allegedly intentional
or reckless conduct here, we may
confidently predict that the Pennsylvania
courts would not bar the recovery of
punitive damages in this action.8
Corestates, 39 F.3d at 64. From the face
7 We note that the Pennsylvania
Courts recognize only the tort of
intentional interference with inheritance.
See Cardenas v. Schober, 783 A.2d 317,
324 n.2 (Pa. Super Ct. 2001). We interpret
the complaint to allege that tort. Id. at
325.
Our focus on Appellants’ claims for
slander and tortious interference with
inheritance is deliberate. As will become
apparent, infra, they are the only two
claims that survive this appeal.
8 Of course, whether punitive
damages are appropriate in this case is a
question for the finder of fact. See G.J.D.
v. Johnson, 713 A.2d 1127, 1131 (Pa.
1998).

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of the complaint, Appellants’ punitive
damage claim is not “patently frivolous
and without foundation.” Packard, 994
F.2d at 1046. Thus, at this stage in the
litigation, it does not “appear to a legal
certainty” the Appellants’ claims fall
below the statutory minimum. Horton,
367 U.S. at 353 (internal quotations and
citations omitted).
Appellants have adequately pled
the amount in controversy. We move to
the more tangled question presented on
appeal: whether the probate exception
precludes the federal courts from
exercising subject matter jurisdiction over
Appellants’ substantive causes of action.
II.
The lineage of the probate
exception to federal diversity jurisdiction
can be readily traced. As early as 1875,
the Supreme Court observed that “a court
of equity will not entertain jurisdiction of
a bill to set aside a will or the probate
thereof,” and dismissed the action before
it on that basis. In re Broderick’s Will, 88
U.S. (21 Wal.) 503, 509 (1875). Later
opinions by the Court were more explicit
as to the reason: the Judiciary Act of 1789
and its successors granted the federal
courts equitable powers coextensive with
those held by the English Chancery Court
in 1789. See Judiciary Act of 1789, ch.
20, § 11, 1 Stat. 78; Markham, 326 U.S. at
494; Canal-Louisiana, 215 U.S. at 43.
Because probate matters in late eighteenth
century England were assigned to the
ecclesiastical court and not to the
Chancery Court, the federal courts are
without the power to probate a will or
administer an estate.9 Markham, 326 U.S.
at 494; Canal-Louisiana, 215 U.S. at 43;
see also Georges v. Glick, 856 F.2d 971,
973 (7th Cir. 1988); Rice v. Rice Found.,
610 F.2d 471, 475 (7th Cir. 1979).
The probate exception extends
both to matters of “pure” probate and to
matters “ancillary” to probate. See Farrell
v. O’Brien, 199 U.S. 89, 110 (1905); see
also Dragan v. Miller, 679 F.2d 712, 715
(7th Cir. 1982), cert. denied, 459 U.S.
1017 (1982); Rice, 610 F.2d at 475. On
the other hand, strictly in personam
actions whose subject matter relates only
incidentally to probate can be maintained
in federal court because the exercise of
jurisdiction under such circumstances
would not “interfere with the probate
proceedings or [require the court to]
assume general jurisdiction of the probate
or control of the property in the custody of
the state court.” Markham, 326 U.S. at
494.
9 Although the Supreme Court’s
reasoning in Markham and Canal-
Louisiana was directed to the equitable
power of the federal courts, the same result
occurs where the complaint seeks legal
relief. The power of the federal courts to
grant legal relief was limited by the
Judiciary Act of 1789 to be coextensive
with the English common-law courts.
Like the Chancery Court, the common-law
courts did not consider probate matters.
Cf. Markham, 326 U.S. at 494; Rice v.
Rice Found., 610 F.2d 471, 475 (7th Cir.
1979).

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Where is the line of demarcation?
Various descriptions of the probate
exception over the years often seem to
substitute one opaque verbal formulation
for another. See Markham, 326 U.S. at
494; Princess Lida of Thurn and Taxis v.
Thompson, 305 U.S. 456, 466-67 (1939);
Canal-Louisiana, 215 U.S. at 46; Farrell,
199 U.S. at 110; Dragan, 679 F.2d at 715;
Lamberg v. Callahan, 455 F.2d 1216,
1216 (2d Cir. 1972). But however one
articulates the precise contours of the
probate exception, three principles
discernable from caselaw are enough to
guide our disposition of this appeal.
First, the federal courts lack the
power to actually probate a will. See
Markham, 326 U.S. at 494; Moore, 843
F.2d at 709; see also Georges, 856 F.2d at
973. Second, where a will has already
been probated, permitting an action that
seeks, expressly or in fact, to assail or
contradict a judgment of the probate court
generally constitutes an impermissible
interference with the probate.10 See
Moore, 843 F.2d at 710. Likewise, the
probate exception bars federal courts from
adjudicating claims that challenge
management of the estate. Cf. Princess
Lida, 305 U.S. at 459, 465-67 (treating a
claim of trustee mismanagement as related
f o r jurisd ictional purp oses to
administration of the corpus). Third,
federal courts may nevertheless exercise
jurisdiction over an otherwise barred
probate-related cause of action if the
action would be maintainable inter partes
in the state courts of general jurisdiction.11
Sutton v. English, 246 U.S. 199, 205
10 This view of the interference
prong is fortified by other considerations.
Federal courts, with the exception of the
Supreme Court, cannot “sit[] in direct
review of the decisions of a state tribunal.”
Gulla v. North Strabane Twp., 146 F.3d
168, 171 (3d. Cir. 1998) (citing Feldman,
460 U.S. at 482; Rooker, 263 U.S. at 416).
This rule, known as the Rooker-Feldman
doctrine, prohibits federal courts from
considering any claim “inextricably
intertwined” wit h a state court
adjudication. See Exxon, 364 F.3d at 104;
Desi’s Pizza, 321 F.3d at 419. A rule, like
the one announced in Moore, prohibiting
federal court review of claims seeking to
annul or set aside an already-probated will
is entirely consonant with the Rooker-
Feldman doctrine, and comports with the
federalism and comity concerns that the
doctrine embodies. See Moore, 843 F.2d
at 710.
11 This rule even applies where the
will has already been probated and a
judgment favorable to the plaintiff might
annul or set aside the will (i.e., collaterally
impeach the probate). But this rule is
strictly construed. It is not enough that the
cause of action be recognized; the state
courts must also recognize and sanction
the use of that cause of action to
collaterally impeach a probate. As we
observed in Moore, it is in this way that
state substantive law can “expan[d] the
power of a federal courts to hear matters
related to but independent of probate
proceedings.” 843 F.2d at 709.

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(1918); Farrell, 199 U.S. at 110-11; see
also Moore, 843 F.2d at 709. This
supplemental rule means that a state can
effectively contract the scope of the
probate exception if it allows its courts of
general jurisdiction to adjudicate
challenges to probate.
In sum, federal courts have the
power to entertain in personam diversity
actions, firmly grounded in recognized
legal theories, if their resolution will not
undercut the past probate of a will or
result in the federal court “assum[ing]
general jurisdiction of the probate or
control of the property in the custody of
the state court.” Markham, 326 U.S. at
494. Where relief can be granted without
challenging the probate c ourt’s
determinations or management of the res,
the exercise of federal jurisdiction could
not “interfere with the probate.” And, in
any event, if the actions would be
maintainable inter partes in the state
courts of general jurisdiction, the state has
presumably determined as a matter of law
that such actions will not disrupt the
activities of the state probate courts.
A.
The parties acknowledge, as they
must, the foregoing threshold principles.
From that point of departure, however,
they proceed down different analytical
paths.
Appellants contend that the probate
exception is categorically inapplicable to
this case. They argue that the probate
exception by its terms applies only to a
will, and not to a trust—even if, as here,
the trust operates as a will, distributing
corpus upon the death of the settlor. They
point out that trusts, by definition, do not
pass through probate. That being so, they
argue, actions involving trusts should per
se not be subject to the probate exception.
This mistakes the scope of the
probate exception, which is not limited to
the formal act of probating a will. As
described previously, the probate
exception bars a federal court from
entertaining both matters of “pure”
probate and matters “ancillary” to probate.
Farrell, 199 U.S. at 110; Moore, 843 F.2d
at 709; see also Dragan, 679 F.2d at 715;
Rice, 610 F.2d at 475. Accordingly, the
Seventh Circuit has rejected a per se rule
identical to the one proposed by the
Appellants here. See Storm v. Storm, 328
F.3d 941, 944-45 (7th Cir. 2003); see also
Georges, 856 F.2d at 974 n. 2. In
Georges, the Seventh Circuit noted that
analysis of the probate exception applies
as well to trusts that act as “will
substitutes”:
The plaintiffs argue that the
probate exception is
inapplicable here because
this action relates to the
execution of an inter vivos
trust, not to a will. We
reject such a per se rule.
The inter vivos trust is
clearly a will substitute.
However, the fact that this
case does involve a will
s u b s t i t u t e d o e s n o t
automatically render the
p r o b a t e e x c e p t i o n

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applicable.
856 F.2d at 974 n.2.
The probate exception protects the
state’s interest in managing all challenges
addressing an estate res located in that
state or with which the state has some
meaningful connection. That interest is no
less compelling if the estate res is
distributed by trust rather than by a will.
We agree with the Court of Appeals for
the Seventh Circuit in holding that causes
of action involving trusts are treated under
the probate exception in the same way as
actions involving wills.
Appellees take the opposite
categorical position, and contend that the
probate exception applies categorically to
all claims here. They argue that, because
the Pennsylvania legislature has
transferred to the Orphans’ Court the
power to administer and oversee actions
seeking to reform trusts, see 20 Pa. C.S.A.
§ 711(3),12 the probate exception must per
se apply to preempt this action. Of course,
we have already observed that the state
can shrink the probate exception by
assigning probate related claims to a state
court of general jurisdiction. But the
reverse does not follow. A state cannot
expand the probate exception—and defeat
otherwise proper federal jurisdiction over
a matter—simply by vesting exclusive
authority over otherwise in personam
actions in the probate court. See Canal-
Louisiana, 215 U.S. at 43-44; Payne v.
Hook, 74 U.S. (7 Wal.) 415, 429-30
(1869); see also 17 Wright, Miller &
Cooper, Federal Practice and Procedure 3d
§ 4211, at 475 (1988). That is to say, if a
claim is otherwise outside the scope of the
probate exception, a federal court is not
divested of jurisdiction simply because the
state places that sort of claim in state
probate court. See Marshall v. Lauriault,
372 F.3d 175, 181 (3d Cir. 2004).
Accordingly, we reject the
categorical argument of each party.
Instead, we must examine the substance of
each of the claims to determine whether it
falls within the probate exception.
B.
We first turn to the claims of undue
influence, forgery and breach of fiducuary
duty as an executor.
Once a will has been probated, it
generally constitutes an impermissible
interference with the probate for a federal
court to entertain a cause of action that
seeks, in fact or in effect, to attack a
determination of the probate court.
12 In relevant part, 20 Pa. C.S.A. §
711 states:
[J]urisdiction of the court of
common pleas over the
following shall be exercised
through its orphans’ court
division:
(3) The administration and
distribution of the real and
personal property of inter
vivos trusts, and the
reformation or setting aside
of any such trusts . . . .

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12
We take a fairly broad view of the
types of actions that interfere with the
probate proceedings. Moore, 843 F.2d at
710. Under that broad view, we must
conclude that Appellants’ claims for
undue influence, forgery and breach of
fiduciary duty as an executor would
interfere with the already-completed
probate proceedings and, therefore, are
subject to the probate exception.
In Moore, this Court upheld the
district court’s dismissal under the probate
exception of an action seeking to establish
rights in an estate that had already been
probated. 843 F.2d at 710. Moore, a
legatee under an earlier, revoked will,
sought a declaration that the will probated
by the Delaware probate court was invalid
as a result of either undue influence or
lack of testamentary capacity. See id. at
707. We held that Moore’s action was
barred by the probate exception because it
would interfere with the Delaware courts’
past probate of the estate by partially
reversing the bequests. See id. at 710. In
other words, a judgment favorable to
Moore would necessarily adjudicate a
matter normally determined as a part of
probate. “[W]e are satisfied that
jurisdiction cannot be sustained on the
theory that this is an action by a legatee
which does not interfere with the probate
proceedings.” Id. We noted that the result
did not change simply because Moore cast
her action to recover damages rather than
to reform the will.
Regardless of how Moore
characterizes her claim, she
is seeking in substance to
invalidate the will . . . . We
are not impressed with the
concept that granting her
relief would not interfere
w i t h t h e p r o b a t e
proceedings if done by an
award of damages rather
than by an order to the
e x e c u t o r d i r e c t i n g
distribution of the estate.
Either way the substance is
the same.
Id. (internal citations omitted). Under
Moore, therefore, actions that seek in
effect to reform a will or overturn a
determination of will validity by the
probate court constitute an impermissible
interference with the probate.
Here, the practical effect of each of
Appellants’ claims for undue influence
and forgery would do exactly that: declare
the Addendum and its distributive scheme
invalid or unenforceable. To be sure, the
Register of Wills and the Orphans’ Court
never directly passed on the Trust or its
Addendum. But the Register of Wills did
probate Ms. King’s Will which, in turn,
passed all of her property “under the terms
of [her] trust agreement . . . and any
amendments thereto.” J.A. at 38. As we
see it, therefore, by probating Ms. King’s
Will, the Register also implicitly
determined the Trust, the Addendum and
their combined distributive scheme to be
valid and enforceable.13 Appellants’
13 The Register of W ills is a judicial
officer under Pennsylvania law, subject to

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13
claims for undue influence and forgery
would strike at that determination of
validity, however. For a will that is the
result of undue influence or that is forged
is necessarily invalid. See 20 Pa. C.S.A. §
2502; In re Fleming’s Estate, 109 A. 265,
267-68 (Pa. 1919);14 In re Carothers
Estate, 150 A. 585, 586 (Pa. 1930). An
implicit federal court judgment that the
Addendum is invalid or unenforceable
would be inconsistent with the Orphans’
Court’s probate jurisdiction over Ms.
King’s estate. As the Seventh Circuit has
observed, application of the probate
exception depends not on how the federal
claim is labeled, but on whether the action
is “in effect one to declare [the] . . . will
invalid because of undue influence.”
Dragan, 679 F.2d at 717.
Appellants’ claim for breach of
fiduciary duty as the executor of a will is
also at odds with the probate jurisdiction
of the Orphans’ Court. Based on the
complaint, the primary theory of
Appellants’ breach of fiduciary duty claim
is that Appellee David Golden
misappropriated or wasted estate assets
prior to probate. See In re Lux’s Estate,
389 A.2d 1053, 1055 (Pa. 1978). The
complaint also arguably raises the theory
that Appellee David Golden breached his
duty as the executor of Ms. King’s estate
by operating under a conflict of interest.
These claims strike at management of the
estate, and the District Court is
nonetheless without jurisdiction to
adjudicate it. In Pennsylvania, all claims
that an estate’s executor engaged in self-
dealing are handled in the probate court,
either by removal of the offending
executor, see 20 Pa. C.S.A. § 3182, or by
assessing a penalty against that executor.
See In re Estate of Harrison, 745 A.2d
676, 679 (Pa. Super. Ct. 2000). Claims
for breach of fiduciary duty as executor of
an estate are never adjudicated outside the
probate context. Appellants’ breach of
fiduciary duty claim—indeed, under either
theory—is, therefore, a classic example of
a claim that is so “ancillary” to probate
that it is not justiciable in federal court.
See Farrell, 199 U.S. at 110. That is
because, as the Supreme Court observed in
Princess Lida, claims of mismanagement
of an estate relate “solely as to
administration and restoration of corpus.”
305 U.S. at 281; see also Mangieri v.
Mangieri, 226 F.3d 1, 3 (1st Cir. 2000)
(holding probate exception excludes claim
that fiduciary should refund money to the
estate).
Moreover, these theories of
recovery do not come within any state law
inter partes exemption from the probate
appellate review by the Orphans’ Court.
See Mangold v. Neuman, 91 A.2d 904,
905-06 (Pa. 1952).
14 The Pennsylvania Statute of
Wills, 20 Pa. C.S.A. § 2502, provides, in
relevant part, that “[e]very will shall be in
writing and shall be signed by the testator
at the end thereof.” In short, if the
signature on a testamentary document is
forged, that document must be invalid as it
was never validly executed. See
Fleming’s Estate, 109 A. at 267-68.

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14
exception. Pennsylvania law does not vest
in the Pennsylvania courts of general
jurisdiction any power to establish rights
in an estate on the theories of undue
influence, forgery or breach of fiduciary
duty as an executor. Indeed, at least with
respect to undue influence, authority is
directly to the contrary. See Lucidore v.
Novak, 570 A.2d 93, 94-95 (Pa. Super. Ct.
1990). In Lucidore, the plaintiffs
attempted to sue, in the Court of Common
Pleas, the executrix and the attorney of the
estate of their deceased aunt. Id. at 94. At
the time of the suit, the deceased’s will
had already been probated by the Orphans’
Court and Letters Testamentary had
issued. Id. The complaint alleged that the
defendants had exercised undue influence
over the deceased, and sought an
injunction against disposition of assets
from the estate on the ground that “the
will was obtained as a result of the undue
influence.” Id.
The Court of Common Pleas
dismissed the case for lack of jurisdiction
and the Pennsylvania Superior Court
affirmed, saying that undue influence
claims fell exclusively within the ambit of
the probate court:
[T]here is no doubt that the
appellants incorrectly
captioned the nature of their
action as a complaint in
equity in that this action
must be an appeal from
probate. Further, there is no
doubt that appellants
brought the action in the
incorrect division of the
court of common pleas. . . .
Case law confirms
that an action contesting the
validity of a will on grounds
of lack of testamentary
capacity, undue influence,
a n d c o n f i d e n t i a l
relationship must be
brought as an appeal from
probate in the orphans’
court division of the court
of common pleas . . . . [I]t
is incorrect to file a
complaint in the civil
division seeking to set aside
the will.
Id. at 94-95.
We are persuaded, therefore, that
the Pennsylvania courts do not recognize
undue influence as a tort existing outside
the probate context. Further, no
Pennsylvania case permits a suit, in the
state courts of general jurisdiction to sue
for forgery of a will or breach of fiduciary
duty as executor of an estate. These
theories of recovery also contest the
validity of the will, and must be addressed
“as an appeal from probate.” Id. at 95.
C.
Appellants’ claim for the tort of
fraud presents a somewhat closer question.
Fraud is a well-established tort in
Pennsylvania. See, e.g., Gibbs v. Ernst,
647 A.2d 882, 889 (Pa. 1994). And if the
Appellants were pressing a theory of fraud
that did not in any way challenge the
Orphans’ Court’s probate of Ms. King’s

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15
estate, the District Court might well have
jurisdiction over those claims. But as it
stands, both of the fraud theories that the
complaint might conceivably support
entail a direct challenge to determinations
of the Orphans’ Court.
From the complaint, the Appellants
could argue two possible theories of fraud.
First, that the Appellees forged the
Addendum and Ms. King’s signature on it
and thereby defrauded the Orphans’ Court
and robbed the Appellants of their
inheritance. See, e.g., In re Fleming’s
Estate, 109 A. at 267-68. Second, that the
Appellees fraudulently induced Ms. King
into signing the Addendum by making her
believe that it said something other than
what it actually said, and thereby deprived
the Appellants of their inheritance. See,
e.g., In re Estate of Glover, 669 A.2d
1011, 1016-17 (Pa. Super. Ct. 1996).
Under either theory, the
Addendum—which the Orphans’ Court
implicitly found to be valid and
enforceable—is either invalid or
unenforceable. If Appellants’ first
possible fraud theory is correct and the
Addendum and Ms. King’s signature on it
were forged, the documents are obviously
invalid as a forgery. See 20 Pa. C.S.A. §
2502; In re Fleming’s Estate, 109 A. at
267-68. We have already explained why
such a theory falls within the probate
exception. And if the Appellants’s second
theory is correct, the Addendum is either
invalid or unenforceable because Mrs.
King was misled about what she was
signing and, therefore, the document does
not reflect Ms. King’s testamentary
intent.15 See In re Glover’s Estate, 669
A.2d at 1016-17. In that case as well,
Appellants’ theories are inimical to the
determinations of the Orphans’ Court that
the Will, the Trust, the Addendum and
their combined distributive scheme are
both valid and enforceable.
Since the Appellants’ fraud claims
effectively seek to challenge the Orphans’
Court’s probate of Ms. King’s estate, we
must go on to ask: Would Pennsylvania
allow a court of general jurisdiction to
entertain such a fraud claim anyway? To
be sure, fraud may be a recognized tort in
Pennsylvania. But we are not aware that
any court in Pennsylvania has permitted a
plaintiff to seek to challenge the past
probate of an estate through the vehicle of
a fraud action. As we have observed, it is
not enough under the inter partes
exemption from the probate exception for
a state court to recognize a cause of
action; rather, the state court must
recognize the use of that action to impeach
a probate. Any other rule would reward
creative pleading and would undermine
both the fundamental assumptions of the
“inter partes” exemption from the probate
exception and the finality that the probate
system requires. See Moore, 843 F.2d at
15 Pennsylvania law is not clear
whether a will whose execution was the
r e s u l t o f f r a u d a n d
misrepresentation—though technically
meeting all statutory requirements— is
invalid or is simply unenforceable. See In
re Paul’s Estate, 180 A.2d 254, 261-62
(Pa. 1955); Glover, 669 A.2d at 1016-17.

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16
710; see also Storm, 328 F.3d at 945.
Thus, Appellants’ fraud claims must be
dismissed—as with their claims for undue
influence, forgery and breach of fiduciary
duty as executor of a will—because
recovery on those claims would not be
otherwise maintainable in th e
Pennsylvania courts of general
jurisdiction, would be contrary to a
determination of the probate court, and
would impermissibly “interfere with the
probate proceedings.” Markham, 326
U.S. at 494; Moore, 843 F.2d at 710.
D.
As already noted, federal courts
retain the power to entertain in personam
diversity actions involving parties to a will
if the resolution of the action will have no
effect on the past probate of a will. The
first of Appellants’ causes of action that is
saved by this principle is Appellant
Earwood’s claim for slander.
A claim for slander is a strictly in
personam action. It is, in this case, also
firmly based on a recognized legal
theory—the Pennsylvania courts have long
recognized the tort of slander. See, e.g.,
Klumph v. Dunn, 66 Pa. 141 (Pa. 1870);
Chubb v. Gsell, 34 Pa. 114 (Pa. 1859); see
also Corabi v. Curtis Pub. Co., 273 A.2d
899, 908 (Pa. 1971). Moreover, even
assuming that slander is proven, relief can
be granted without challenging the
Orphans’ Court’s determinations of estate
value and testamentary document validity,
enforceability and distributive scheme.
That is to say, a determination by the
District Court that Earwood may have
been slandered and damaged by the
Appellees is in no way contrary to the
Orphans’ Court’s determination that the
Will, the Trust, the Addendum and their
combined distributive scheme are valid
and enforceable. To be sure, the amount
of Earwood’s damage as a result of the
alleged slander might—though it need
not—be measured by the difference
between the legacy under the Addendum
and the legacy under the Trust. But a
judgment that the Appellees slandered
Earwood and caused her some amount of
damage does nothing to impeach the
Orphans’ Court’s determination that Ms.
King intended to and succeeded in
distributing her estate via the scheme laid
out in the Trust and its Addendum. The
District Court has jurisdiction to consider
Appellant Earwood’s claim for slander.
So, too, is there jurisdiction over
Appellants’ claims for tortious
interference with inheritance. Despite its
entwinement with probate, a cause of
action for tortious interference with
inheritance is one brought in personam. It
is no different from any other tort—the
plaintiff is asserting that some tortious
action on the part of the defendant has
caused him or her damage. Further,
though it may not be so in other states,16 a
claim for tortious interference with
inheritance is one based on a legal theory
16 In Moore, for example, we
concluded that the Delaware state courts
would not permit a plaintiff to bring an
action for tortious interference with
inheritance. 843 F.2d at 710-11.

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17
recognized by the Pennsylvania state
courts. See Mangold, 91 A.2d at 907;
Cardenas, 783 A.2d at 325-26.
Further, relief can be granted
without challenging the Orphans’ Court’s
determinations of estate value and
testamentary document vali dity,
enforceability and distributive scheme. In
Pennsylvania, the elements of tortious
interference with inheritance are:
(1) The testator indicated an
intent to change his will to
provide a described benefit
for plaintiff,
(2) The defendant used
fraud, misrepresentation or
undue influence to prevent
execution of the intended
will,
(3) The defendant was
successful in preventing the
execution of a new will; and
(4) But for the Defendant’s
[sic] conduct, the testator
would have changed his
will.
Cardenas, 783 A.2d at 326. In no event
does an action for tortious interference
with inheritance in Pennsylvania challenge
the Orphans’ Court’s determination of
value of the estate. Cf. Mangold, 91 A.2d
at 907. Nor may a plaintiff use an action
for tortious interference with inheritance
to challenge the validity or enforceability
of the testamentary documents (if any)
admitted to probate, or the testamentary
scheme established by those documents.
Cf. id.
True, any cause of action for
tortious interference of inheritance
brought in Pennsylvania implicitly
contends that the testator’s intent was, at
some point in time, something other than
what the Orphans’ Court found it to be at
the testator’s death. Indeed, one of the
elements of tortious interference with
inheritance in Pennsylvania is that the
testator intended to make a distribution to
the plaintiff but was prevented from doing
so by the defendant. The tort claim,
therefore, does posit that the distributive
scheme that the Orphans’ Court found to
be in place at the time of the testator’s
death is different from the one the testator
at some point intended.
But this is not the same as a
challenge to the validity, enforceability or
interpretation of a testamentary document
passed on by the Orphans’ Court. Id. To
the contrary. The theory of the tort is that
the will actually probated was valid and
enforceable because it reflected
testamentary intent at the time it was
made, but that the alleged tortfeasor
wrongly induced the testator to maintain
that will. Whatever the outcome of an
action for tortious interference with
inheritance, the Orphans’ Court’s
determinations of testamentary document
validity, enforceability and interpretation
will, as they must, remain unaffected. Id.
An example will help to clarify the
point. Take a hypothetical testator who
adopts a valid testamentary distributive
scheme that does not provide for person P.

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18
At some point, Testator contemplates
changing the testamentary distributive
scheme to add a legacy for P, but person D
somehow intentionally prevents the
change. Thus, at the time of Testator’s
death, the only scheme providing for the
distribution of Testator’s assets is the
earlier—and valid—scheme leaving
nothing to P.
The original testamentary scheme
was a true and correct expression of
Testator’s then-intent. Because Testator
never revoked or superseded the earlier
testamentary scheme, that scheme
remained valid, and the Orphans’ Court
was required to probate it. Independent of
the validity and enforceability of
Testator’s earlier scheme, D harmed P,
because, but for D’s actions, Testator
would have amended the testamentary
scheme and P would have received a
legacy. If P sues D for tortious
interference, that suit does not impeach the
validity or enforceability of the original
will. To the contrary, it relies on that
validity to support the claim that D
damaged P by preventing the testamentary
scheme from being changed. Cf. Georges,
856 F.2d at 974 (finding jurisdiction over
a claim for legal malpractice in
preparation of a trust because the claim
“does not seek to disturb the finality of the
. . . probate proceedings”).
Under Mangold and Cardenas, P
may sue D in the Pennsylvania courts of
general jurisdiction for tortious
interference with inheritance. Mangold,
91 A.2d at 907; Cardenas, 783 A.2d at
325-26. Put simply, in Pennsylvania, the
elements of tortious interference with
inheritance do not call into question the
probate court’s determination of
testamentary document validity or
enforceability.17 The probate of a will,
therefore, does not prevent a party from
bringing an action for tortious interference
with inheritance in the Pennsylvania
courts of general jurisdiction.
To be sure, while an action for
tortious interference with inheritance does
not challenge the validity or enforceability
of the distributive scheme affirmed by the
probate court, recovery on that theory
may, de facto, alter the distributive
scheme. It was this consideration that
gave us pause in Moore. 843 F.2d at 710.
There, we affirmed the dismissal of the
plaintiff/appellant’s claim for tortious
interference with inheritance because such
an action would be “so inconsistent with
the Delaware statutory plan for exclusive
review of probate proceedings that
allowing it would subvert the probate
law.” Id. Central to our reasoning,
17 Indeed, this is one of the key,
outcome-determinative distinctions
between Appellants’ fraud claims and their
tortious interference with inheritance
claims. Recovery on Appellants’ fraud
claims would require the District Court to
directly contradict the Orphans’ Court’s
determination that the Will, the Trust, the
Addendum and their combined distributive
scheme are valid and enforceable.
Appellants’ tortious interference with
inheritance claims, by contrast, require no
such contradiction.

-- 18 of 20 --

19
however, was the fact that the Delaware
courts did not unambiguously permit
tortious interference with inheritance
claims in the courts of general jurisdiction.
Id. at 710 & n.4. That being so, it was not
the province of the federal courts to
entertain actions whose de facto effect
would be to re-allocate estate assets post-
probate.
But unlike in Moore, the state
courts in this case do unambiguously
recognize the viability, outside the probate
context, of claims for tortious interference
with inheritance. State law, therefore,
compels a different result in this case.
Pennsylvania law permits actions for
tortious interference with inheritance in
the courts of general jurisdiction and a
federal court must adjudicate such claims
just as they would any other tort claim
brought pursuant to our diversity
jurisdiction.18
The District Court has jurisdiction
to consider Appellants’ claims for slander
and tortious interference with inheritance.
Of course, we take no position as to
whether the Appellants have alleged
sufficient facts to meet the elements of
those torts as the Pennsylvania courts have
defined them. That inquiry is for the
District Court.19
18 State law also compels the
difference between our result and the
Seventh Circuit’s holding in Storm. 328
F.3d at 945. Storm was strongly guided by
the fact that the plaintiff/appellant failed to
meet a state law jurisdictional prerequisite
for his tortious interference w ith
inheritance claim.
[Tortious] interference with
inheritance is a recognized
tort in Indiana; such an
action may be brought in a
court of general jurisdiction,
provided a will contest is
unavailable to supply an
adequate remedy.
Id. (emphasis added, citations omitted).
Even though “Indiana law would require
[his] tort claim be heard in the probate
[court],” plaintiff/appellant Storm sued in
federal court rather than wait for the will
to be admitted to probate. Id. at 945.
Storm failed, therefore, to meet the state
law jurisdictional prerequisite that “a will
contest [be] unavailable to supply an
adequate remedy.” That being so, the
Indiana courts of general jurisdiction—
a n d , by extension, the fed era l
courts—could not entertain Storm’s action
for tortious interference with inheritance.
Id. at 945-946. The Seventh Circuit
dismissed the claim, calling the action “in
substance a will contest.” Id. at 945.
By contrast, the Pennsylvania courts
contemp late no such jurisdictional
prerequisite to bringing a claim for tortious
interference with inheritance. The
concerns that guided the result in Storm,
therefore, are not present here.
19 For example, in resolving the
still-undecided cross motions for summary
judgment as they apply to Appellants’
claims for tortious interference with
inheritance, the District Court will have to
determine whether the facts as alleged

-- 19 of 20 --

20
III.
For the foregoing reasons, the
judgment of the District Court will be
affirmed in part and reversed in part and
the case will be remanded for further
proceedings in accordance with this
opinion.
establish that Ms. King intended to change
her will to benefit the Appellants and that
she would have succeeded in doing so but
for the Appellees’ actions.

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