In Re: Estate of Atrozskin, L., Appeal of Riley, C ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF LAWRENCE J. : IN THE SUPERIOR COURT OF
ATROZSKIN : PENNSYLVANIA
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APPEAL OF: CHRISTOPHER M. RILEY :
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: No. 838 WDA 2022
Appeal from the Order Entered June 22, 2022
In the Court of Common Pleas of Crawford County Orphans' Court at
No(s): O.C. 2019-106
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: MARCH 24, 2023
Appellant, Christopher M. Riley (Claimant), appeals the order of the
Court of Common Pleas of Crawford County Orphans’ Court Division (Orphans’
Court) denying his petition to compel the Estate of Lawrence J. Atrozskin (the
Estate) to convey real estate to him. For the reasons set forth below, we
affirm.
Lawrence J. Atrozskin (Decedent) and his wife, Onalee Atrozskin, were
the owners of 42 acres of real estate in Crawford County, Pennsylvania (the
Property). Decedent’s wife passed away on January 10, 2019 and her interest
in the Property passed to Decedent under her will. Decedent passed away on
April 20, 2019. Claimant is one of Decedent’s and Decedent’s wife’s grandsons
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* Retired Senior Judge assigned to the Superior Court.
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and lives in South Carolina. Claimant filed a notice of claim with the Estate
on November 20, 2019, asserting that he purchased the Property from
Decedent and Decedent’s wife under a 2003 agreement of sale, and, on
November 1, 2021, filed a petition to compel the Estate to convey the Property
to him. The Estate, in its response to the petition, disputed that Claimant had
bought the Property and asserted the defenses of the statute of limitations
and laches.
The Orphans’ Court held a hearing on the petition to compel conveyance
of real estate on May 6, 2022. At this hearing, Claimant and his mother
testified on Claimant’s behalf1 and the Estate called as witnesses the Executor,
who was also a grandson of Decedent and Decedent’s wife and a cousin of
Claimant, and Claimant’s younger brother.
Claimant introduced in evidence two handwritten documents that he
contended document a September 2, 2003 agreement to sell him the Property
for $600. N.T. at 20-24, 26-28; Petitioner’s Ex. 4; Petitioner’s Ex. 6. One of
these documents, titled “Agreement between Christopher Riley + Lawrence +
Onalee Atrozskin,” is signed only by Decedent’s wife and sets forth a
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1 Claimant’s mother was permitted to testify fully concerning the alleged
agreement because she was not a party to the alleged contract and did not
have a direct financial interest in Claimant’s claim against the Estate. N.T. at
4-5. The Orphan’s Court limited Claimant’s testimony based on the Dead
Man’s Act, 42 Pa. C.S. §5930, although it permitted him to briefly testify
concerning the writings that he alleged documented the contract for sale of
the Property and to testify on rebuttal after the Executor had testified. N.T.
at 59, 101.
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description of the Property, followed by the statement “Received payment of
$600 Sept. 2, 2003.” Petitioner’s Ex. 4; N.T. at 20-21. The second of these
documents, titled “Agreement between Chris Riley + Lawrence J. + Onalee J.
Atrozskin,” is signed by both Decedent and Decedent’s wife and dated
September 2, 2003 and states only “Paid $600 on 42 acres of land recorded
in Crawford County Deed Book 383 page 221 - Oct. 12, 1956.” Petitioner’s
Ex. 6. No copy of that deed book page was introduced in evidence.
Claimant’s mother testified that Decedent and Decedent’s wife sold
Claimant the Property for a purchase price of $600 on September 2, 2003 and
that she was present when the sale was made and the handwritten documents
were written out and signed. N.T. at 20-24, 26-28. Claimant’s mother
testified that Claimant gave Decedent and Decedent’s wife a check for $600
at that time and Claimant introduced in evidence a check stub from Claimant’s
checkbook showing a check for $600 dated September 2, 2003. Id. at 28-
30; Petitioner’s Ex. 7. Claimant’s mother testified that Decedent and
Decedent’s wife did not give deeds to family members to whom they sold land
because they did not want the land to be resold to strangers while they were
alive and that at the time of the 2003 transaction, Decedent and Decedent’s
wife said that they would not give Claimant a deed at that time because they
were still using the Property. N.T. at 12-14, 17, 30, 52-53. Claimant’s mother
also testified that after this transaction, Decedent and Decedent’s wife
continued to be the sole users of the Property. Id. at 30-31.
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Claimant testified that the document signed only by Decedent’s wife was
an agreement between him and his grandparents for purchase of the Property.
N.T. at 59. Claimant testified that he gave them a $600 check on September
2, 2003, at the time the agreement was written, but did not remember
whether the payee of the check was Decedent or Decedent’s wife. Id. at 59-
60. He testified that the document signed by both Decedent and Decedent’s
wife was written by Decedent’s wife at the same time as the document signed
only by Decedent’s wife. Id. at 61. Claimant testified that he did not expect
to receive a deed before Decedent and Decedent’s wife died because they
wanted the land to stay in their name while they were alive. Id. at 60-61.
The Executor testified that in 2013, Decedent’s wife gave him copies of
documents concerning the land that she and Decedent owned. N.T. at 76-79.
The Executor testified that the only document concerning any purchase by
Claimant that she gave him or that he had seen in administering the Estate
was a copy of the handwritten document relied on by Claimant describing the
Property and signed only by Decedent’s wife that contained all the same
language but also had a 10 foot dimension in a right-of-way in the description
of the Property and an additional handwritten notation below Decedent’s wife’s
signature that stated “8 acres pd for as of 2012.” Id. at 75-76, 79, 92-94,
97; Petitioner’s Ex. 5. The Executor testified that documents that Decedent’s
wife gave him concerning their land included a deed for the sale of 3.2 acres
adjoining the Property for $3,000 to another grandson, but did not include any
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deed to Claimant, and that deeds were prepared and delivered for other family
purchases while Decedent and Decedent’s wife were alive. N.T. at 76-79. The
Executor testified that Claimant did not pay taxes on the Property or seek to
pay any portion of those taxes during the years that he handled Decedent’s
and Decedent’s wife’s finances and that he found no records that Claimant
had ever paid taxes on the Property. Id. at 86, 95. The Estate’s inheritance
tax return reported that 46 acres of land owned by Decedent, consisting of
the Property combined with the adjoining acres that were sold for $3000, was
valued at $22,054.50. Id. at 83-85. The Executor further testified that in the
last months of Decedent’s life, Claimant’s mother wanted to take Decedent to
live with her in South Carolina and told the Executor that all the land belonged
to Decedent and that she wanted it sold to pay for Decedent’s care. Id. at
86-87. The Executor admitted that he did not dispute that Decedent and
Decedent’s wife had agreed to sell Claimant eight of the 42 acres of the
Property in exchange for Claimant’s payment of $600. Id. at 80, 81, 86.
Claimant’s brother testified that around the time of Decedent’s wife’s
and Decedent’s deaths he spoke to Claimant about taxes for the Property.
N.T. at 98. Claimant’s brother testified that he said to Claimant that he
understood that Claimant owned eight acres of the Property and that Claimant
did not respond to or dispute that statement. Id. at 98-101. Claimant
testified in rebuttal that he and Decedent’s wife and Decedent had an oral
agreement that “I would not discuss the total amount of anything I purchased
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with any of the family” so as not to make other family members jealous. Id.
at 102. Claimant also testified in rebuttal that the eight acres that other
witnesses had discussed was different land owned by Decedent and
Decedent’s wife, not a part of the Property. Id. at 102-04.
On June 22, 2022, following submission of post-hearing briefs, the
Orphan’s Court issued findings of fact and conclusions of law in which it found
that there was no agreement to sell the Property to Claimant for $600 or to
deliver a deed for the Property to him upon Decedent’s death and also
concluded that Claimant’s petition was barred by laches. Orphan’s Court
Findings of Fact and Conclusions of Law at 2-5. The Orphan’s Court issued an
order on the same date denying Claimant’s petition to compel the Estate to
convey real estate. Orphan’s Court Order, 6/22/22. This timely appeal
followed.
Claimant presents two issues for our review:
[1.] Whether the trial court abused its discretion and committed
an error of law in ruling that notwithstanding the validity and
enforceability of the Agreement to Purchase Real Estate, the
Appellant, Christopher M. Riley’s grandfather did not intend to
pass title for 42 acres mentioned in the Agreement.
[2.] Whether the trial court abused its discretion and committed
an error of law in ruling that the statute of limitations or doctrine
of laches barred the relief sought by Christopher M. Riley’s Petition
and that Christopher M. Riley “slept on his rights” in waiting until
his grandfather passed away before seeking to compel the
transfer of the deed to the Real Estate.
Appellant’s Brief at 12 (suggested answers omitted). This Court reviews the
Orphans’ Court’s decision to determine whether the record is free from legal
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error and the court’s factual findings are supported by the evidence. In re
Estate of Plance, 175 A.3d 249, 259 (Pa. 2017); In re Fiedler, 132 A.3d
1010, 1018 (Pa. Super. 2016) (en banc). Because the Orphans’ Court sat as
the fact finder, we cannot reverse its credibility determinations absent an
abuse of discretion. In re Estate of Walter, 191 A.3d 873, 878 (Pa. Super.
2018); Fiedler, 132 A.3d at 1018. We conclude that the Orphans’ Court’s
findings are supported by the evidence and that it did not err or abuse its
discretion in either its ruling on the merits of the claim or its alternative holding
that the claim was barred by laches.
With respect to Claimant’s first issue, whether Claimant purchased the
Property from Decedent and Decedent’s wife for the price of $600 was a
question of fact that the Orphans’ Court resolved against Claimant. The
Orphans’ Court’s finding that Decedent and Decedent’s wife did not sell
Claimant the Property is amply supported by the record. No deed for the
Property was prepared or delivered to Claimant in the more than 15 years
between the alleged sale in 2003 and the deaths of Decedent and Decedent’s
wife in 2019. N.T. at 3-4, 30, 51-52, 60-61, 78-79. Decedent and Decedent’s
wife continued to exercise full ownership of the Property after the alleged sale
and Claimant did not pay the taxes on the Property after the sale. Id. at 30-
31, 51, 86, 95.
The documents that Claimant contended showed an agreement to sell
him the Property for $600 were ambiguous as to what the agreement was.
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The document signed only by one of the owners, Decedent’s wife, relates to
the Property, but did not state whether $600 was the price for the Property,
which was 42 acres, or a portion of an undisclosed price that was paid on that
date, as it stated “Received payment of $600 Sept. 2, 2003,” not that $600
was payment in full. Petitioner’s Ex. 4. The document signed by both owners
referred to a page of a deed book that was not in evidence and stated that
the $600 received from Claimant was paid “on 42 acres of land,” not that
$600 was paid for the 42 acres of land. Petitioner’s Ex. 6 (emphasis added).
In addition, $600 was unusually low for the size of the Property and in
comparison to the evidence concerning its value, the only document
concerning the 2003 transaction that Decedent and Decedent’s wife kept
stated that Claimant had paid for only eight acres, and Claimant did not
dispute his brother’s statement to him that he had purchased only eight acres.
N.T. at 83-85, 98-101; Petitioner’s Ex. 5. Given the evidence that there was
no act by the owners indicating intent to transfer title or relinquish ownership
following the $600 payment and the evidence that the $600 was more
consistent with and was for only an 8-acre portion of the Property, the
Orphans’ Court’s did not abuse its discretion or err in concluding that there
was no agreement to sell the Property to Claimant for the $600 that he paid.
Claimant argues that this determination cannot stand because
Claimant’s mother and Claimant both testified that the handwritten documents
were an agreement to sell the Property for a total of $600 and that the absence
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of a deed was due Decedent and Decedent’s wife wanting to keep the Property
in their names until they died and because Claimant’s mother testified that
Claimant contributed to the taxes paid for the Property. Those arguments are
without merit. The Orphans’ Court found that Claimant’s mother and Claimant
were not credible. Orphan’s Court Findings of Fact and Conclusions of Law at
2, 4. That credibility finding was not an abuse of the court’s discretion. Not
only did the Orphans’ Court have the opportunity to observe the demeanor of
these two witnesses, neither of whom was a neutral party, but their testimony
was contradicted by the testimony of other witnesses. N.T. at 76-81, 86-87,
95, 98-101.
Claimant’s second issue likewise fails.2 The defense of laches applies
and bars a claim where it is shown that 1) there was a delay caused by the
claimant’s failure to exercise due diligence; and 2) the delay caused prejudice
to the opposing party. A.M.M. v. Pennsylvania State Police, 194 A.3d
1114, 1118 (Pa. Super. 2018); Fulton v. Fulton, 106 A.3d 127, 131 (Pa.
Super. 2014).
The Orphans’ Court correctly concluded that both of these elements
were satisfied here. Claimant did not assert his claim to the Property until
November 20, 2019, over 16 years after he contends that he bought and fully
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2 It is necessary to reach this issue despite our affirmance of the Orphans’
Court’s ruling on the merits because the laches ruling is broader and also bars
other claims based on the 2003 transaction.
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paid for it. That length of delay is sufficient to prove failure to exercise due
diligence. Fulton, 106 A.3d at 133-34 (9-to-11-year delay constituted failure
to exercise due diligence); Kern v. Kern, 892 A.2d 1, 9-10 (Pa. Super. 2005)
(10-year delay constituted failure to exercise due diligence). As a result of
Claimant’s failure to act, both of the alleged sellers died before he asserted
his claim that they sold him the Property and the Estate was denied the ability
to obtain their testimony concerning the terms of a transaction that was set
forth only in ambiguous handwritten documents. Prejudice exists where a
witness or party to the transaction has died during the period when the
claimant delayed in asserting his rights. Fulton, 106 A.3d at 134-35; Kern,
892 A.2d at 10.
Claimant argues that his delay in seeking specific performance was not
a failure to exercise due diligence because he was not to receive a deed for
the Property until the sellers died and therefore had no reason to seek to
enforce his rights before 2019. That argument, however, is based on his and
his mother’s testimony, which the Orphans’ Court found not credible.
Orphan’s Court Findings of Fact and Conclusions of Law at 2, 4. As noted
above, that credibility finding was not an abuse of the court’s discretion. The
Orphans’ Court therefore did not err in holding that Claimant’s delay
constituted a lack of due diligence.
For the foregoing reasons, we conclude that the Orphans’ Court’s factual
findings are supported by the evidence and that it did not err or abuse its
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discretion in holding that Claimant had not proved that he purchased the
Property and that Claimant was barred by laches.3 We therefore affirm the
Orphans’ Court’s order denying Claimant’s petition to compel the Estate to
convey real estate.
Order affirmed.
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3 The Estate requests in its brief that we award it attorney fees for this appeal
under Pa.R.A.P. 2744. We do not agree that an award of attorney fees is
appropriate here. Under Rule 2744, this Court may award the appellee
attorney fees if we determine that the appeal “is frivolous or taken solely for
delay or that the conduct of the [appellant] is dilatory, obdurate or vexatious.”
Pa.R.A.P. 2744. An appeal is not frivolous simply because it lacks merit.
Fulano v. Fanjul Corp., 236 A.3d 1, 16 n.17 (Pa. Super. 2020); U.S. Claims,
Inc. v. Dougherty, 914 A.2d 874, 878 (Pa. Super. 2006). Rather, the appeal
is frivolous only if has no basis in law or fact. Fulano, 236 A.3d at 16 n.17;
U.S. Claims, Inc., 914 A.2d at 878. The Estate argues that Claimant’s appeal
is frivolous because it is based on challenges to the Orphans’ Court’s credibility
determinations. An appeal may be found frivolous and attorney fees may be
awarded under Rule 2744 where the appellant’s arguments are based entirely
on challenges to the trier of fact’s credibility determinations. Canal Side Care
Manor, LLC v. Pennsylvania Human Relations Commission, 30 A.3d 568,
577-78 (Pa. Cmwlth. 2011); Reinhart v. Department of Transportation,
Bureau of Driver Licensing, 954 A.2d 761, 767-69 (Pa. Cmwlth. 2008).
That, however, is not the case here. Although Claimant has asserted
arguments based on his and his mother’s testimony despite the fact that the
Orphans’ Court found their testimony not credible, he does not base his appeal
entirely on attacks on the court’s credibility determinations, but also argues
that the handwritten documents are sufficient to prove his claim. Appellant’s
Brief at 18-19, 23-29. While we have concluded that this argument fails, we
cannot say that the appeal as a whole is so lacking in any basis in law or fact
that it can be held frivolous.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2023
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