In Re:Trust of Mihordin, M. Appeal of: Mihordin,V.

J-A05004-17
2017 Pa. Super. 145
IN RE: TRUST OF MARILYN : IN THE SUPERIOR COURT OF
MIHORDIN, DECEASED : PENNSYLVANIA
:
:
:
:
APPEAL OF: VICKI MIHORDIN : No. 1084 WDA 2016
Appeal from the Order June 24, 2016
In the Court of Common Pleas of Mercer County
Orphans’ Court at No(s): No. 2014-660
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
OPINION BY GANTMAN, P.J.: FILED MAY 16, 2017
Appellant, Vicki Mihordin, appeals from the order entered in the Mercer
County Court of Common Pleas, which granted the petition filed on behalf of
Appellees Lynda J. Pozzuto and her former husband, Michael L. Pozzuto
(“Pozzutos”) for reformation of a deed. We reverse.
The relevant facts and procedural history of this appeal are as follows.
The Pozzutos sought to transfer property located in Rayburn Township,
Armstrong County to Lynda Pozzuto’s parents, Richard and Marilyn Mihordin
(“Mihordins”). In 1995, the Pozzutos executed a Real Estate Sales
Agreement (“1995 Agreement”) between the Pozzutos as sellers and the
Mihordins as buyers of a parcel of land. Michael Pozzuto contacted his
counsel to prepare the 1995 Agreement. Pursuant to the 1995 Agreement,
the Mihordins would pay the Pozzutos $5,000.00 per year for a period of
J-A05004-17
three years and an additional $5,000.00 at closing for a total of $20,000.00.
The 1995 Agreement in full provides:
AGREEMENT
THIS AGREEMENT, made this 28th day of March,
1995, by and between Mike Pozzuto and Lynda Pozzuto,
his wife (hereinafter referred to as Sellers).
AND
Richard L. Mihordin and Marilyn R. Mihordin, his wife
(hereinafter referred to as Buyers);
WHEREAS, the Sellers are in the process of purchasing
certain property in Kittanning, Pennsylvania; and
WHEREAS, the Buyers wish to purchase some of the
aforesaid property from the Sellers;
NOW THEREFORE, THE PARTIES INTENDING TO BE
LEGALLY BOUND, AGREE AS FOLLOWS:
1. Sellers will sell and Buyers will purchase a parcel of land
of Buyers choice fronting on 100 feet of river for the sum
of $20,000.00 payable at $5,000.00 on day of closing and
$5,000.00 a year, each and every year for the succeeding
three (3) years.
2. If Buyers decide to sell the aforesaid parcel, they give
the Sellers the option to purchase the property for
$20,000.00. Said option to be exercised within 90 days
after written notice received by Sellers from Buyers.
3. If Sellers would default on the purchase of the said
property, they must refund the Buyers all hand monies
paid by Buyers to Sellers.
4. Upon Buyers payment of the full purchase price to
Sellers, they will receive a deed subject to any
encumbrances then existing on the property.
-2-
J-A05004-17
5. Upon the death of Buyers, the land is to revert back to
Sellers.
6. If Sellers sell the complete parcel of land, they will deed
over the property of Buyers to Buyers.
IN WITNESS WHEREOF, the parties hereto have set their
hands and seals the day and year first above written.
(See 1995 Sales Agreement, attached as Exhibit A to the Pozzutos’ Rule to
Show Cause; Appellant’s Brief, Appendix B at 17.) The Pozzutos and the
Mihordins signed the 1995 Agreement.
In 1998, the Pozzutos executed a deed transferring the riverfront
parcel of property to the Mihordins in fee simple. (See Deed of September
10, 1998, attached as Exhibit B to the Pozzutos’ Rule to Show Cause;
Appellant’s Brief, Appendix C at 18.) The scrivener of the 1995 Agreement
was also the scrivener of the 1998 deed, Attorney William Panella. He did
not refer to the 1995 Agreement in preparing the deed or include a
reversionary interest in favor of the Pozzutos in the 1998 deed.
Richard Mihordin died in May 2011. After his death, Marilyn Mihordin
created the irrevocable Trust of Marilyn Mihordin on August 23, 2011, and
transferred the subject parcel to the trust by virtue of a new deed of the
same date. The trust provided, inter alia, that upon Marilyn Mihordin’s
death, any remaining income and principal or corpus of the trust would go to
her two daughters equally. The named co-trustees and beneficiaries of the
trust are her two daughters, Lynda Pozzuto and Appellant, who both signed
the trust and agreed to accept the terms and conditions set forth in the
-3-
J-A05004-17
trust. Neither the trust nor the 2011 deed (both prepared by different
counsel) referred to any reversionary interest in favor of the Pozzutos. (See
The Marilyn R. Mihordin Irrevocable Trust Agreement, attached as Exhibit 1
to Appellant’s Answer to the Pozzutos’ Rule to Show Cause; Appellant’s Brief,
Appendices D and E, at 19, 20.) Marilyn Mihordin died on October 22, 2014.
On December 21, 2015, the Pozzutos filed a Rule to Show Cause Why
A Deed Should Not Be Reformed, seeking to reform the 1998 deed to reflect
their ownership of the property in question via a reversionary interest,
asserting a scrivener’s error or mistake as well as the intent of the parties as
represented in the 1995 Agreement. Appellant filed an answer on January
12, 2016, and a counterclaim for enforcement of the 2011 deed in trust and
an order directing the real estate to be distributed equally between the
daughters pursuant to the trust. The Pozzutos filed their answer to the
counterclaim on February 1, 2016, with new matter. Appellant replied to the
new matter on February 12, 2016.
The court held a hearing on February 23, 2016. By order of June 24,
2016, the court granted the Pozzutos’ petition and directed the 1998 deed to
be reformed to reflect the asserted reversionary interest in favor of the
Pozzutos, consistent with Article five of the 1995 Agreement. Appellant
timely filed a notice of appeal on July 20, 2016. On July 25, 2016, the court
ordered Appellant to file a concise statement of errors complained of on
appeal per Pa.R.A.P. 1925(b); Appellant timely complied on August 5, 2016.
-4-
J-A05004-17
Appellant raises this issue on appeal:
DID THE [TRIAL] COURT COMMIT ERROR IN ORDERING
THAT THE DEED IN QUESTION SHOULD BE REFORMED
DUE TO SCRIVENER’S ERROR?
(Appellant’s Brief at 4).
Appellant argues this case presents the classic example of the merger
doctrine, under which the 1995 Agreement merged with the 1998 deed,
which superseded any provisions of the 1995 Agreement not included in the
1998 deed. Appellant maintains that none of the instruments executed after
the 1995 Agreement, including the 1998 deed and the 2011 trust and 2011
deed, refer to a life estate or reversionary interest. Appellant reasons any
reversionary interest allegedly in the 1995 Agreement was lost, once the
1998 deed and all later instruments did not include it.
Additionally, Appellant argues the Pozzutos failed to prove a
“scrivener’s error” by clear and convincing evidence. Specifically, Appellant
asserts Attorney Panella’s testimony, which the trial court cited in its
decision to allow reformation of the 1998 deed, was insufficient to meet the
high standard of proof for reformation of the deed. Appellant directs our
attention to Attorney Panella’s testimony that he made no mistake when he
prepared the 1998 deed. Appellant also claims Attorney Panella could not
have known the Mihordins’ intentions, because he had no contact with them
and had not even met them. Appellant insists Attorney Panella’s failure to
refer to the 1995 Agreement when preparing the 1998 deed was not a mere
-5-
J-A05004-17
“scrivener’s error” under Pennsylvania law because he was the same
attorney who prepared both documents. Appellant observes the Pozzutos
presented no testimony from Attorney Carolyn E. Hartle, who drafted the
2011 deed and trust for Marilyn Mihordin, concerning Marilyn Mihordin’s
intentions. Regardless, Appellant maintains the Dead Man’s Act would bar
any testimony adverse to the intentions of Marilyn Mihordin, as expressed in
her testamentary documents, because she is deceased. Appellant submits
the Pozzutos failed to prove by clear and convincing evidence that the
disputed reversionary interest was omitted from the 1998 deed solely by
virtue of a “scrivener’s error” or mistake. Appellant concludes the doctrine
of merger governs this matter, and the court’s order to reform the 1998
deed must be reversed. For the following reasons, we conclude relief is due.
Our review of the court’s decision to allow reformation of the 1998
deed implicates the following principles:
[T]he Orphans’ [c]ourt is a court of equity, [which means]
that in the exercise of its limited jurisdiction conferred
entirely by statute, it applies the rules and principles of
equity. In equity matters, [w]e must accept the trial
court’s finding of fact, and cannot reverse the trial court’s
determination absent a clear abuse of discretion or error of
law. The trial court’s conclusions of law, however, are not
binding on an appellate court because it is the appellate
court’s duty to determine if the trial court correctly applied
the law to the facts of the case. If a decision of the
Orphans’ court lacks evidentiary support, this Court
has the power to draw [our] own inferences and
make [our] own deductions from facts and
conclusions of law.
In re Adoption of R.A.B., 153 A.3d 332, 334-35 (Pa.Super. 2016)
-6-
J-A05004-17
(emphasis added). In other words, “[W]here a trial judge passes upon the
question of whether the evidence introduced to reform a written instrument
meets the standard of being clear, precise and convincing, [that] ruling is
open to review [on appeal].” In re LaRocca’s Trust Estate, 411 Pa. 633,
641, 192 A.2d 409, 413 (1963).
“The general rule, in the absence of fraud or mistake, and of an intent
to the contrary, is that an antecedent contract for the purchase of land is
merged in the deed…upon the delivery and acceptance of the deed, there
exists a ‘prima facie presumption’ of merger.” Dobkin v. Landsberg, 273
Pa. 174, 182, 116 A. 814, 817 (1922) (internal citation and quotation marks
omitted). The law presumes that delivery and acceptance of a deed
consummates the prior agreement and precludes the parties “from looking
behind the conveyance to subjects of strife suggested by their
previous…contracts”; this preclusion applies to all parties in interest, even
third parties. Id. at 185, 116 A. at 818. “When a deed has been executed
in pursuance of a prior agreement, it is prima facie evidence the latter has
so merged that no action could be maintained on any of its covenants….”
Id. at 186, 116 A. at 818.
“Merger is said to be the rule, except when the intention of the parties
is otherwise, or where the stipulations in the contract sought to be enforced
are collateral to the functions performed by the deed.” Carsek Corp. v.
Stephen Schifter, Inc., 431 Pa. 550, 558-59, 246 A.2d 365, 370 (1968).
-7-
J-A05004-17
“A covenant has been said to be collateral, and therefore one which survives
delivery of the deed, if it bears no relation to title, possession, quantity or
emblements of the transferred property.” Id. at 559, 246 A.2d at 370
(providing example such as certain clauses in contracts dealing with
consideration). The intention of the parties is evidenced by the attending
circumstances of each transaction. Dobkin, supra. “Intention of the
parties...may be shown by their declarations, acts, or conduct at the time of
execution of the agreement in question or from the terms of the writing
itself.” Dick v. McWilliams, 291 Pa. 165, 169, 139 A. 745, 746 (1927).
“While the general rule undoubtedly is that, if the agreement is one for
sale of lands, it will be presumed, in absence of an intent to the contrary,
the contract of purchase is merged in the deed; yet such rule does not apply
where the plain intention of the parties is that a covenant in the contract
should not be merged in the deed.” Id. (illustrating how parties’
unequivocal acts made clear that merger was not intended, where
“agreement to complete the building was of a different nature, and collateral
to the agreement to sell. If the intention of the parties in the present case,
as indicated by their acts and declarations at the time of executing the
agreement, is to govern, then there can be no doubt they contemplated
keeping the written agreement in force. The matter was discussed among
them, and the very purpose of changing the date of the writing to one day
later than the date of the deed and bond and mortgage was to void
-8-
J-A05004-17
possibility of construing the agreement as having been merged”).
Therefore, “cases may be supposed where the deed would be deemed only a
part execution of the contract, if the provisions of the two instruments
clearly manifested such to be the intention of the parties. But the prima
facie presumption of the law arising from the [delivery and] acceptance of a
deed is that it is the execution of the whole contract. … [Y]et the general
rule is that a purchase is consummated by the conveyance; after which the
parties have no recourse to each other except for imposition or fraud, or
upon the covenants in the deed.” Dobkin, supra at 184, 116 A. at 817.
Thus, “to rebut the legal presumption [of merger], the intention to the
contrary must be clear and manifest.” Id. at 185, 116 A. at 818.
“[M]istake of a scrivener in preparing a deed, will, or other writing may
be established by parol evidence and the instrument reformed accordingly.”
In re Duncan’s Estate, 426 Pa. 283, 289, 232 A.2d 717, 720 (1967).
“[W]hether the mistake be unilateral or bilateral, the quality of proof
required to establish the existence of the mistake is the same; that proof of
the mistake must be established by evidence that is clear, precise,
convincing, and of the most satisfactory character.” Id. (quoting In re
LaRocca’s Trust Estate, supra at 640, 192 A.2d at 412). “[T]he evidence
must be established by two witnesses [or] by one witness and corroborating
circumstances.” Easton v. Washington County Ins. Co., 391 Pa. 28, 38,
137 A.2d 332, 337 (1957). “The witnesses must be found to be credible,
-9-
J-A05004-17
that the facts to which they testify are distinctly remembered…and that their
testimony is so clear, direct, weighty, and convincing as to enable the
[factfinder] to come to a clear conviction, without hesitancy, of the truth of
the precise facts in issue.” In re LaRocca’s Trust Estate, supra at 640,
192 A.2d at 413. Unsubstantiated testimony is insufficient to sustain
reformation of a deed or other written instrument, if the testimony is evasive
and contradictory. Id. at 643, 192 A.2d at 414. The transferors’ subjective
belief is irrelevant when compared to their “objective manifestations of
assent to the transfer of the deed.” DiMaio v. Musso, 762 A.2d 363, 366
(Pa.Super. 2000). If parties who can read do not “read a deed put before
[them] for execution, [they are] guilty of supine negligence, which is not the
subject of protection either in equity or at law.” In re LaRocca’s Trust
Estate, supra at 642, 192 A.2d at 414.
The Surviving Party as Witness Act (Dead Man’s Act) is found at 42
Pa.C.S.A. § 5930 and provides in pertinent part:
[I]n any civil action or proceeding, where any party to a
thing or contract in action is dead…and his right thereto or
therein has passed, either by his own act or by the act of
the law, to a party on the record who represents his
interest in the subject in controversy, neither any surviving
or remaining party to such thing or contract, nor any other
person whose interest shall be adverse to the said right of
such deceased…party, shall be a competent witness to any
matter occurring before the death of said party….
42 Pa.C.S.A. § 5930. The purpose of the rule is to prevent “the injustice
that would result from permitting a surviving party to a transaction to testify
- 10 -
J-A05004-17
favorably to himself and adversely to the interest of the decedent when the
representative of the decedent would be hampered in attempting to refute
the testimony by reason of the death of the decedent.” In re Estate of
Petro, 694 A.2d 627, 632 (Pa.Super. 1997); 42 Pa.C.S.A. § 5930.
“[B]ecause the decedent’s representative is unable to present evidence
regarding the transaction, the other party to the transaction should be
similarly restricted.” Visscher v. O’Brien, 418 A.2d 454, 458 (Pa.Super.
1980). Thus, the rule precludes surviving parties, who have an interest that
is adverse to the decedent’s estate, from testifying as to any transaction or
event which occurred before the decedent’s death. In re Estate of Petro,
supra. What disqualifies the witness is the adverse interest, not just the
adverse testimony. In re Hendrickson’s Estate, 388 Pa. 39, 45, 130 A.2d
143, 146 (1957). “This disqualification extends to two classes of witnesses
(surviving parties to a transaction and any other person) whose interest is
adverse to [the] deceased.” Id. Only a fixed vested interest disqualifies the
proposed testimony; “The true test of the interest of a witness is that he will
either gain or lose, as the direct legal operation and effect of the judgment,
or that the record will be legal evidence for or against him in some other
action. It must be a present, certain and vested interest, and not an
interest uncertain, remote, or contingent.” In re Groome’s Estate, 337 Pa.
250, 255, 11 A.2d 271, 273 (1940).
In the instant case, the trial court determined the deed should be
- 11 -
J-A05004-17
reformed and reasoned as follows:
The standard for achieving this remedy is to present the
[c]ourt with clear and convincing evidence of the
scrivener’s error and the mutual mistake. Therefore, in
order for [Appellees] to reform the deed to acquire the
property via a remainder interest, they must present this
[c]ourt with clear and convincing evidence that the parties
to the deed intended for the Mihordins to have a life estate
and [Appellees] to have a remainder interest, and this
would have been reflected in the deed but for the
scrivener’s error. [Appellees] have satisfied this burden
through the testimony of Attorney Panella.
It is the opinion of this [c]ourt that Attorney Panella’s
actions of writing the deed without referring to the Sales
Agreement resulted in scrivener’s error. Furthermore, he
presented to this [c]ourt clear and convincing evidence
that the parties to the deed were operating under a mutual
mistake, that being the absence of the life estate in the
deed. Had they referred to the Sales Agreement, they
would have included the life estate with reversionary
clause in the deed.
* * *
Here, [Appellees] are asserting that the scrivener of the
deed made a mistake when he left out the life estate and
remainder interest. Therefore, [Appellees] must show that
the Real Estate Sales agreement did not merge with the
deed if they can provide the [c]ourt with clear and
manifest evidence. As stated above, [Appellees] have
demonstrated clear and manifest evidence of the scrivener
error through the testimony of Attorney Panella.
Moreover, the Sales Agreement serves as [parol] evidence
reflecting the intent of the parties to have a life estate with
reversionary interest in the deed.
* * *
At issue in this case is whether Attorney Panella’s
testimony about his dealings with the Mihordins and the
drafting of the deed are barred by the Dead Man’s Act.
However, it is unlikely that Attorney Panella’s testimony
- 12 -
J-A05004-17
would trigger the protections of the Dead Man’s Act. The
testimony alleged to have occurred was that Attorney
Panella did not speak to the Mihordins, nor did he
reference the Real Estate Sales Agreement when drafting
the deed, and had he reviewed the agreement, he would
have seen that the agreement created a life estate to the
Mihordins and a remainder interest to [Appellees]. None
of these statements trigger the protections of the Dead
Man’s Act because Attorney Panella has no “interest nor
would he share in the outcome of the suit.” Therefore,
Attorney Panella’s testimony concerning his scrivener’s
error would not be barred by the Dead Man’s Act.
(Trial Court Opinion, filed June 24, 2016, at 5-8). The underlying premise of
the court’s decision was that the 1995 Agreement created a life estate in the
subject parcel in favor of the Pozzutos. We respectfully disagree with the
court’s analysis. See In re LaRocca’s Trust Estate, supra (allowing for
appellate review of trial court’s ruling on question “of whether the evidence
introduced to reform a written instrument meets the standard of being clear,
precise and convincing”).
The settled purpose of the 1995 Agreement was to memorialize the
Pozzutos’ intent to sell a water-front piece of their larger property to the
Mihordins for a sum certain of $20,000.00, with a down payment of
$5,000.00 at closing and the balance paid at the rate of $5,000.00 per year
over the next three years (or by 1998). Articles one through three of the
1995 Agreement expressly set forth the terms of the sale and purchase of
the parcel. Article four declares that the Mihordins will receive a deed to the
parcel upon payment of the full purchase price, thus concluding the
sale/purchase articles in the 1995 Agreement. By virtue of Article four, the
- 13 -
J-A05004-17
Pozzutos agreed to deed the parcel to the Mihordins as soon as the
Mihordins paid the full purchase price for the parcel. Article four makes no
mention of a life estate or reversionary interest relative to the deed. How,
then, can a life estate be created under Article five or the Pozzutos retain the
ability to sell the “complete” property and “deed over the property of Buyers
to Buyers” under Article six? To make sense of the 1995 Agreement,
Articles five and six should be viewed as intended to cover various
contingencies while the 1995 Agreement remained in force.1 Otherwise,
Articles five and six on their face conflict with the objective of the rest of the
1995 Agreement and render it ambiguous. Thus, the 1995 Agreement does
not support reformation of the 1998 deed as requested.
Further, Attorney Panella testified he had not ever met the Mihordins
and did not know them. (N.T. Rule to Show Cause, 2/23/16, at 22, 27).
Attorney Panella said he did the legal work on the 1995 Agreement and the
1998 deed for the Pozzutos. (Id.) So query how Attorney Panella could
have any personal knowledge of the Mihordins’ intent regarding the 1998
____________________________________________
1
The trial court agreed with Appellees that Article five of the 1995
Agreement created a life estate in their favor which continued after the sale
was consummated, so the life estate should have been reflected in the 1998
deed. Article five, however, is better understood as creating a reversionary
interest in the land in favor of Appellees until the sale was complete upon
final payment of the annual sums, at which time the Mihordins would own
the parcel in fee simple. See Article four. Appellees failed to prove by clear
and convincing evidence that their reading of the 1995 Agreement should
prevail. See Dick, supra (illustrating quality of proof needed to overcome
presumption of merger).
- 14 -
J-A05004-17
deed? The record also lacks any contrary manifest signs of the Mihordins’
intent with respect to the 1998 deed, except for what the 1998 deed
expressly states, so the merger doctrine prevails in these circumstances.
Yet, the trial court cited Attorney Panella’s testimony as clear evidence of all
of the parties’ intent to include a life estate with reversionary interest in the
1998 deed. To the extent Attorney Panella’s testimony can be construed to
portray the Mihordins’ intent, his testimony is both incompetent and
ineffective under the rules of evidence because he did not ever meet or
communicate with the Mihordins.
Further, Attorney Panella’s testimony is internally inconsistent and
evasive concerning his scrivener’s error and mistake. On the one hand, he
testified that if he had reviewed the 1995 Agreement, he would have
included a life estate in the 1998 deed. (Id. at 28). On the other hand, he
insisted he had made no mistake in preparing the 1998 deed, which did not
include the Pozzutos’ purported reversionary interest; he just did not have
the 1995 Agreement in front of him when he prepared the 1998 deed. (Id.)
Accepting all of Attorney Panella’s testimony as true, his inconsistencies
suggest no clear answer to whether a scrivener’s error or mistake actually
occurred. Attorney Panella dealt only with the Pozzutos and relied solely on
information from the Pozzutos in completing the 1995 Agreement and the
1998 deed at issue. Because Attorney Panella’s conflicting statements
regarding a potential error in the 1998 deed are defensive and internally
- 15 -
J-A05004-17
unreliable, his testimony does not amount to clear and convincing evidence
of a mere “scrivener’s error” or mistake. Thus, we are unable to agree with
the court’s conclusion that Attorney Panella’s testimony alone was enough to
satisfy the Pozzutos’ burden to prove a scrivener’s error or mistake by
legally sufficient evidence. See In re LaRocca’s Trust Estate, supra.
We emphasize that the Pozzutos had the burden to prove error or
mistake with respect to the 1998 deed. To support their position, they
presented: (a) the 1995 Agreement, which is ambiguous for their purposes;
(b) the testimony of Attorney Panella, which was internally inconsistent and
evasive on the issue of a scrivener’s error and mistake; and (c) the
testimony of Lynda Pozzuto, which addressed only her understanding of the
transaction. The Pozzutos did not present testimony from Michael Pozzuto
or from the attorney who created the irrevocable testamentary Trust of
Marilyn Mihordin in 2011, which transferred the subject parcel to the trust by
virtue of a new deed of the same date. Likewise, the Pozzutos offered no
evidence of the value of the parcel compared to how much they charged the
Mihordins or the significance of the parcel to the overall property or
competent evidence of the Mihordins’ intent regarding the parcel. In fact,
the only record evidence of the Mihordins’ intent is Marilyn Mihordin’s
transfer of the subject parcel, based on the 1998 deed, to her irrevocable
testamentary trust in 2011, which shows her understanding of her
ownership of the parcel in fee simple, contrary to the Pozzutos’ position.
- 16 -
J-A05004-17
Moreover, the record makes clear that Lynda Pozzuto was a party to
the 1995 Agreement, the 1998 deed, and Marilyn Mihordin’s 2011
testamentary trust and deed, so Lynda Pozzuto had ample time and
opportunity to discover any potential discrepancy concerning the 1995
Agreement, the 1998 deed, and the 2011 deed and trust, but she did
nothing until after Marilyn Mihordin died. The 1995 Agreement, the 1998
deed and the 2011 deed are not complicated documents. The Pozzutos were
simply negligent in their failure to examine the 1998 deed put before them
for execution, as was Lynda Pozzuto’s failure to examine the 2011 deed.2
Consequently, the Pozzutos deserve no protection in equity or at law at this
late date on the grounds asserted. See id.
Additionally, any life estate with reversionary interest allegedly created
by the 1995 Agreement cannot be deemed “collateral” to the functions of the
____________________________________________
2
Given the Pozzutos’ complete lack of evidence on the Mihordins’ intent and
the dearth of corroborating circumstances, In re LaRocca’s Trust Estate,
supra controls the present case; and the passage of 17 years until discovery
of the alleged mistake militates against reformation of the deed. The case of
Schwartz v. Gingerich, 14 A.2d 623, 625 (Pa. Super. 1940) is
unquestionably distinguishable, where the Schwartz Court held the clear
and precise testimony of the witness concerning the intent of all parties,
together with “all of the corroborating circumstances,” such as the specific
details of the lots at issue, the property assessments, the tax records, and
the lack of repairs or improvements, “was of such weight and directness as
to carry conviction” that the deed should be reformed under the doctrine of
mutual mistake. The number of corroborating circumstances essentially had
the force and effect of a second witness, according to the Court, so the
plaintiffs’ failure to discover the mistake until eight years after the execution
of the deed was not fatal to their claim for reformation in that case.
- 17 -
J-A05004-17
1998 deed, as a reversionary interest bears a direct relation to “title,
possession, quantity or emblements of the transferred property.” See
Carsek Corp., supra at 559. Therefore, the reversionary interest
supposedly created in Article 5 of the 1995 Agreement did not survive the
1998 deed and merged with the 1998 deed. The Pozzutos’ evidence does
not overcome the merger rule.
Finally, we briefly address the issue of whether Attorney Panella’s
testimony should have been excluded under 42 Pa.C.S.A. § 5930. Attorney
Panella undoubtedly has a personal interest in avoiding a professional
negligence action, and the outcome of the present proceeding might serve
as evidence against him in a legal malpractice suit. See In re Groome’s
Estate, supra. If, on the other hand, his personal concern with the
outcome of this case could be construed as contingent and not a present,
certain and vested interest, Attorney Panella’s testimony might have been
permissible under the Section 5930. Compare Commonwealth v. Veon,
___ Pa. ___, 150 A.3d 435 (2016) (holding “private pecuniary benefit”
under “Public Official and Employee Ethics Act,” a/k/a “conflict of interest”
statute governing restricted activities of public officials, must be private
financial interest and quantifiable gain; it does not extend to “intangible
political gain”) with In re Groome’s Estate, supra (conveying somewhat
broader test for “interest” of surviving witness, which includes gain or loss
for witness as direct legal operation and effect of judgment, or likelihood
- 18 -
J-A05004-17
that record will be legal evidence for or against witness in some other
action). Under the circumstances of the present case, however, we do not
have to decide the Section 5930 question, given the other limitations of
Attorney Panella’s testimony already discussed.
Based upon the foregoing, we hold the court erred in granting
reformation of the 1998 deed, where the record evidence in this case was
legally insufficient to prove a scrivener’s error or mistake necessary to
overcome the merger doctrine and support reformation; and Attorney
Panella’s testimony was incompetent evidence as to the Mihordins’ intent
with respect to any relevant transaction. Thus, we reverse the order
granting reformation of the 1998 deed.
Order reversed.
Judge Moulton joins this opinion.
President Judge Emeritus Bender files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
- 19 -