In Re: Est. of: I.A., Appeal of: Altman, H.

J-A17027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF IRVING ALTMAN, : IN THE SUPERIOR COURT
DECEASED : OF PENNSYLVANIA
________________________________ :
IN RE: IRVING ALTMAN AND LEHLA :
ALTMAN IRREVOCABLE TRUST UNDER :
AGREEMENT DATED APRIL 23, 1999 :
:
:
APPEAL OF: HARRY ALTMAN :
: No. 2519 EDA 2021
Appeal from the Order Entered November 9, 2021
In the Court of Common Pleas of Montgomery County Orphans’ Court at
No(s): 2012-X1370
IN RE: ESTATE OF IRVING ALTMAN, : IN THE SUPERIOR COURT
DECEASED : OF PENNSYLVANIA
________________________________ :
IN RE: IRVING ALTMAN AND LEHLA :
ALTMAN IRREVOCABLE TRUST UNDER :
AGREEMENT DATED APRIL 23, 1999 :
:
:
APPEAL OF: HARRY ALTMAN :
: No. 2520 EDA 2021
Appeal from the Order Entered November 9, 2021
In the Court of Common Pleas of Montgomery County Orphans’ Court at
No(s): 2016-X3993
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 24, 2022
Harry Altman (Appellant), and Karen Steinfeld and Debra Brockman
(Appellees), are the surviving children of Irving Altman (the decedent).
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* Retired Senior Judge assigned to the Superior Court.
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Appellant appeals from the November 9, 2021 order granting partial summary
judgment1 in favor of Appellees, co-executors and beneficiaries of the
decedent’s estate (the Estate) and beneficiaries of the Irving Altman and Lehla
Altman Irrevocable Trust U/A dated April 23, 1999 (the Trust).2 After review,
we affirm in part, reverse in part, and remand for further proceedings
consistent with this Memorandum.3
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1The November 9, 2021 order is appealable as of right pursuant to Pa.R.A.P.
342(a)(3), (5), and (6).
2 We point out that orphans’ court docket 2012-X1370 involves the Estate,
and docket 2016-X3993 involves the Trust. The record reveals that the
orphans’ court consolidated these matters on January 18, 2018, and it filed a
single dispositional order. Order, 11/9/21. Appellant filed timely separate
appeals at each orphans’ court docket on November 23, 2021. On February
24, 2022, this Court consolidated the appeals sua sponte.
3 The record reflects that an additional participant in this matter, co-trustee,
Larry Horowitz, CPA (Horowitz), also filed a motion for summary judgment
against Appellant and filed an appellate brief in this matter. On November 15,
2021, the orphans’ court denied Horowitz’s motion as moot because the issues
raised in the motion were dismissed with prejudice by the November 9, 2021
order at issue in this appeal. In light of our disposition, we acknowledge that
the issues raised in Horowitz’s motion may no longer be moot. However, we
decline Horowitz’s invitation to rule on his motion in the first instance. See
Horowitz’s Brief at 6 n.2. The status and resolution of the merits of Horowitz’s
motion for summary judgment are best left to the orphans’ court. See Aetna
Inc. v. Lexington Ins. Co., 968 A.2d 229, 230 (Pa. 2009) (per curiam)
(stating that “an action is ‘moot’ suggests that there is a legal issue involved
in a case, but because of the circumstances surrounding the case, the issue
has become an academic one and will not be resolved. What ‘mootness’ does
not suggest is that an issue was fully considered and a final judgment
entered.” (citing Consolidation Coal Co. v. District 5, United Mine
Workers of America, 485 A.2d 1118, 1124 (Pa. Super. 1984)) (formatting
altered); see also Friday v. Friday, 457 A.2d 91, 93 (Pa. Super. 1983)
(directing the lower court to address on remand the merits of a separate
petition that was no longer moot in light of this Court’s ruling).
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The orphans’ court summarized the relevant facts and procedural
history in this matter as follows:
Before the court is [Appellees’] motion for partial summary
judgment in which they ask the court to overrule and dismiss
certain objections made by [Appellant] to [Appellees’] first and
second final accountings of the Estate . . . and [the Trust], filed
by Larry Horowitz, CPA, co-trustee. . . .
The decedent, a resident of Springfield Township, Pennsylvania,
died on March 29, 2012. On April 23, 1999, [the] decedent and
his wife Lehla Altman created the Trust. The Trust named
[Appellant] and Larry Horowitz as co-trustees. Pursuant to court
order, Larry filed the First and Final Accounting to the Trust on
March 28, 2017. [Appellant] filed a [limited] joinder to said
account on April 27, 2017. Thereafter, [Appellant] filed objections
to said account on April 28, 2017. [Appellant’s] objections
generally assert that he has a right to reimbursement for premium
payments he made as trustee for [the] decedent’s life insurance
policy which funded the Trust.
[The d]ecedent had executed a will on March 15, 2011. The will
appointed the decedent’s children, [Appellant and Appellees Karen
and Debra], to serve jointly as co-executors and gave them the
authority to act by majority vote. Each of the siblings has a one-
third interest in the residue of the [E]state. On April 12, 2012,
the Register of Wills issued letters testamentary to the three
siblings. The decedent left an estate composed of substantial
assets including corporate holdings, stocks, depository accounts,
and real estate.
Initially, the three co-executors tried to administer the Estate
together with the assistance of [the] decedent’s long-time lawyer,
Michael Rogers, Esquire, but, due to a “pervasive level [of]
disagreement” between the co-executors, and “substantial
potential or actual conflicts of interest which cannot be
reconciled,” his firm withdrew from the representation of the co-
executors. [Appellees] retained Fox Rothschild LLP in November
2012. [Appellant] also retained separate counsel.
[Appellees] Karen and Debra, proceeded to carry out the duties of
co-executors by acting as a majority and filed a first and final
account and petition for adjudication on May 31, 2017. On July
10, 2017, the account was called to audit and [Appellant] filed
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objections. The three co-executors worked to reach a settlement
for two years but they were unable to reach an agreement.
[Appellees] filed an updated, second and final accounting and
petition for adjudication on July 29, 2019. The second account
was called to audit on September 3, 2019, at which time
[Appellant] filed additional objections.
By way of further procedural background, [Appellees] filed a
motion in limine to preclude statements from [Appellant] under
the Dead Man’s Act. On October 13, 2021, the court granted said
motion. On August 2, 2021, [Appellees] filed the instant motion
for partial summary judgment with an accompanying
memorandum of law. [Appellant’s] answer and memorandum of
law were filed on August 31, 2021. . . .
Orphans’ Ct. Mem. and Order, 11/9/21, at 1-3 (formatting altered).
On November 9, 2021, the orphans’ court granted partial summary
judgment in favor of Appellees. Appellant timely appealed, and both the
orphans’ court and Appellant complied with Pa.R.A.P. 1925.4
On appeal, Appellant presents the following issues:
1. Did the orphans’ court err as a matter of law when it granted
Appellees’ motion for partial summary judgment and dismissed
with prejudice Appellant’s objections, despite: (a) the
existence of numerous genuine issues of fact; and (b) the
failure to resolve all doubts in favor of Appellant?
2. Did the orphans’ court err as a matter of law when it relied
upon its declaration that Appellant is an incompetent witness
under the Dead Man’s Act, despite that a genuine issue of
material fact exists regarding whether Appellees waived any
application of the Dead Man’s Act?
3. Did the orphans’ court err as a matter of law when it
prematurely determined the validity and scope of the April 2,
2011 settlement agreement without: (a) any evidentiary
record; and (b) any determination of the admissibility and
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4 The orphans’ court filed its Rule 1925(a) opinion on February 15, 2022, which
incorporated and attached its November 9, 2021 memorandum and order.
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credibility of such evidence and; (c) considering parol
evidence?
4. Did the orphans’ court err as a matter of law when it dismissed
with prejudice Appellant’s objections regarding his ownership
of entities 2131 Associates LP/2131 Management Company,
LLC and TSAG Associates, Inc., ostensibly on the basis of its
improper review of possible trial exhibits, without any
determination of admissibility and credibility of any evidence,
and not in the light most favorable to Appellant?
5. Did the orphans’ court err as a matter of law when it dismissed
with prejudice Appellant’s objections regarding reimbursement
to AMA Contracting, Inc. by the Estate without an evidentiary
record and without determination of the admissibility and
credibility of any evidence related thereto, and not in a light
most favorable to Appellant?
6. Did the orphans’ court err as a matter of law when it dismissed
with prejudice Appellant’s objections to the Trust Account,
ostensibly because he “joined” the Account, in part, despite
that [Appellant] explicitly excluded “the failure to include
[Appellant’s] claim for reimbursement for premiums paid on
behalf of the Trust and his legal fees related to his
administration of the Trust and the litigation of this matter” and
explicitly reserving “the right to object to the failure to
reimburse him for the premiums paid and the legal fees and
costs incurred related to this matter.”
Appellant’s Brief at 5-6 (formatting altered).5,6
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5 Our review in this matter is complicated by the fact that Appellant’s brief
does not comply with Pa.R.A.P. 2119(a). Specifically, the argument section
does not correspond with the issues presented in the statement of questions
involved. As a result, it is difficult to distinguish which portions of the
argument section apply to the issues Appellant raises on appeal. However,
because we find that Appellant’s violations do not completely preclude
appellate review, we proceed with our discussion.
6 We are also constrained to point out that in his conglomeration of issues,
Appellant purports to argue that the orphans’ court erred in its findings
regarding the effect of the integration clause and asserts that the Agreement
(Footnote Continued Next Page)
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Summary Judgment
As we noted above, Appellant’s brief violates Pa.R.A.P. 2119(a) because
the argument section does not correspond to the statement of questions
involved. The first issue in Appellant’s statement of questions asserts that the
orphans’ court failed to apply the proper standard of review, failed to resolve
all doubts in Appellant’s favor, and dismissed Appellant’s objections to the first
and second final accountings of the Estate and first and final accounting of the
Trust despite the existence of genuine issues of fact. Appellant’s Brief at 5.
However, this general claim is not separately addressed in the argument
portion of Appellant’s brief. See id. at 5, 33-44. Rather, Appellant’s broad
assertion that the orphans’ court erred in granting partial summary judgment
introduces more specific issues discussed in the argument section. See id. at
33-44. Although we will dispose of Appellant’s overarching claim that the
orphans’ court erred in granting partial summary judgment, for clarity, we will
do so in light of the specific issues addressed below.7
____________________________________________
was ambiguous. See Appellant’s Brief at 34-50. However, Appellant did not
present these issues in his Rule 1925(b) statement. Because these claims
concerning the integration clause and ambiguity were not specified in
Appellant’s Rule 1925(b) statement, they are waived on appeal. See HSBC
Bank, NA v. Donaghy, 101 A.3d 129, 133 n.7 (Pa. Super. 2014) (explaining
that issues not properly raised in a Rule 1925(b) statement are waived on
appeal).
7 We also note that issues not included in Appellant’s statement of questions
involved are waived. See Koller Concrete, Inc. v. Tube City IMS, LLC,
115 A.3d 312, 320 n.9 (Pa. Super. 2015); see also Pa.R.A.P. 2116(a) (stating
that “[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”).
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Dead Man’s Act
Appellant contends that the orphans’ court erred when it applied the
Dead Man’s Act and precluded Appellant from testifying. Appellant’s Brief at
39. After review, we conclude that Appellant is entitled to no relief on this
claim of error.
In determining whether the orphans’ court erred in granting summary
judgment, our standard of review is de novo and our scope of review is
plenary. In re Estate of Caruso, 176 A.3d 346, 349 (Pa. Super. 2017).
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. Where the non-moving party bears the burden
of proof of an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a non-
moving party to adduce sufficient evidence on an issue essential
to his case and on which it bears the burden of proof establishes
the entitlement of the moving party to judgment as a matter of
law. Lastly, we will view the record in the light most favorable to
the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party.
Oberdick v. TrizecHahn Gateway, LLC, 160 A.3d 215, 219 (Pa. Super.
2017) (some citations omitted). Although “the non-moving party must be
given the benefit of all reasonable inferences,” the non-moving party “need
not be given the benefit of inferences not supported by the record or of mere
speculation.” Myers v. Penn Traffic Co., 606 A.2d 926, 930 (Pa. Super.
1992) (en banc).
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Additionally:
Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court’s decision absent a clear abuse of discretion. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support as to be clearly erroneous. In addition, to
constitute reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.
Crespo v. Hughes, 167 A.3d 168, 177 (Pa. Super. 2017) (citations omitted
and formatting altered).
The Dead Man’s Act is an evidentiary rule, which provides in relevant
part, as follows:
Surviving party as witness, in case of death[.]
[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 . . . 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 . . . unless the issue or inquiry be devisavit
vel non,[8] or be any other issue or inquiry respecting the property
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8 Devisavit vel non is defined as “[t]he name of an issue sent out of a court of
chancery, or one which exercises chancery jurisdiction, to a court of law, to
try the validity of a paper asserted and denied to be a will, to ascertain
whether or not the testator did devise, or whether or not that paper was his
will.” BLACK’S LAW DICTIONARY 452 (6th ed. 1991). The devisavit vel non
exception to the Dead Man’s Act provides that “witnesses are competent to
testify in disputes arising over the passage of property, through will or
intestacy, although their testimony might otherwise be rendered incompetent
(Footnote Continued Next Page)
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of a deceased owner, and the controversy is between parties
respectively claiming such property by devolution on the death of
such owner, in which case all persons shall be fully competent
witnesses.
42 Pa.C.S. § 5930. This Court has explained:
The Dead Man’s Act is an exception to the general rule of evidence
in this Commonwealth that: no interest or policy of law shall make
any person incompetent as a witness. The Act provides that one
whose interest is adverse to the interest of a decedent is not a
competent witness to any matter which occurred before the
decedent’s death.
Frazer v. McEntire, 265 A.3d 777, 781 (Pa. Super. 2021) (citations omitted
and formatting altered), appeal denied, 278 A.3d 309 (Pa. 2022).
Furthermore:
The purpose of the statute is to prevent the injustice that may
result from permitting a surviving witness to a transaction to give
testimony favorable to himself and adverse to the decedent, which
the decedent’s representative would be in no position to refute by
reason of the decedent’s death.
Under the Dead Man’s Act three conditions must exist before the
surviving party or witness is disqualified: (1) the deceased must
have had an actual right or interest in the matter at issue, i.e. an
interest in the immediate result of the suit; (2) the interest of the
witness—not simply the testimony—must be adverse; [and] (3) a
right of the deceased must have passed to a party of record who
represents the deceased’s interest.
Id. (citation omitted and formatting altered). When determining whether the
proposed witness’s interest is adverse to the interest of the decedent’s estate,
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through operation of the general rule.” In re Estate of Janosky, 827 A.2d
512, 516 n.3 (Pa. Super. 2003) (citation omitted).
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this Court has explained that “the interest must be one from which the witness
will either gain or lose as the direct legal operation and effect of the
judgment.” Id. (citation omitted and formatting altered).
The devisavit vel non exception provides that witnesses are
competent to testify in disputes arising over the passage of
property, through will or intestacy, although their testimony might
otherwise be rendered incompetent through operation of the
general rule. This exception applies to disputes involving the
transfer of a decedent’s estate both by operation of law or by will
and renders competent all witnesses claiming decedent’s property
by reason of his death.
Id. (citation omitted and formatting altered).
Here, the orphans’ court addressed the applicability of the Dead Man’s
Act as follows:
The [decedent] clearly had an interest in his Estate. The interests
of Appellant are adverse to that of the decedent because the
objections filed by Appellant make claims against the decedent’s
ownership interests in business entities as well as claims for
monies allegedly owed to Appellant by the decedent. Appellant
seeks to reduce the decedent’s ownership interests in [the]
business entities and the overall value of the Estate. Lastly, the
rights of the decedent passed to [Appellees] who filed the motion
for partial summary judgment as co-executors of the Estate.
While it is true that Appellant is also a co-executor, the . . . Dead
Man’s Act is applicable as long as “a right of the deceased must
have passed to a party of record who represents the deceased’s
interests.” [In re Estate of Cerullo, 247 A.3d 52, 55 (Pa. Super.
2021)]. [Appellees] are parties of record to the Estate and
represent the deceased’s interests. Thus, this court properly
found that Appellant is prohibited from testifying as to any matters
occurring prior to the death of the decedent except as may
otherwise be permitted by law.
Orphans’ Ct. Op., 2/15/22, at 8.
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Following our review of the record, we discern no error of law or abuse
of discretion in the orphans’ court’s application of the Dead Man’s Act. See
Frazer, 265 A.3d at 781; Crespo, 167 A.3d at 177. As stated previously, the
purpose of the Dead Man’s Act is to prevent the injustice that may result from
permitting a surviving witness to a transaction to give testimony favorable to
himself and adverse to the decedent that the decedent’s representative could
not refute due to the decedent’s death. Frazer, 265 A.3d at 781. Here,
Appellant challenged and sought to reduce the decedent’s ownership interests
in business entities and claimed that the decedent owed him money. See
Orphans’ Ct. Op., 2/15/22, at 8. Therefore, because Appellant’s interests are
adverse to those of decedent, we agree with the orphans’ court’s conclusion
that the Dead Man’s Act precluded Appellant’s testimony.9 Accordingly,
Appellant is not entitled to relief on this claim.
2011 Settlement Agreement
Appellant next contends that the orphans’ court erred in determining
the application and scope of the April 2, 2011 settlement agreement (the
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9 We note that we are constrained to disagree with the orphans’ court’s
alternative holding that Appellant waived this issue for failing to file an appeal
within thirty days from the entry of the October 13, 2021 order granting
Appellees’ motion in limine and precluding Appellant from testifying. See
Orphans’ Ct. Op., 2/15/22, at 6-7. We conclude that the October 13, 2021
order did not satisfy the criteria for a final order under Pa.R.A.P. 341 requiring
immediate appeal, nor did the failure to appeal result in waiver under
Pa.R.A.P. 342(c), because the October 13, 2021 order precluding Appellant
from testifying did not satisfy the requirements set forth in Pa.R.A.P.
342(a)(1)-(7) concerning appealable orphans’ court orders.
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Agreement) without an evidentiary record or a determination on the
admissibility and credibility of evidence, including parol evidence. Appellant’s
Brief at 33-35. Appellant asserts that the Agreement was procured by fraud
and that Appellant was owed a $1.5 million priority distribution. Id. at 35-36.
Appellees respond that the basis for Appellant’s argument consists of
only his own self-serving statements. Appellees’ Brief at 36. Further,
Appellees assert that Appellant’s “evidence” is not only inherently self-serving
and lacking in credibility, but it is also indisputably barred from consideration
pursuant to application of the parol evidence rule and the Dead Man’s Act. Id.
The orphans’ court addressed this issue as follows:
[Appellees] contend that the 2011 Settlement Agreement and
Release (hereinafter the “Agreement”) releases [the E]state from
certain claims made by [Appellant] in his objections to the first
and second accounts. [Appellees] maintain the Dead Man’s Act
bars [Appellant] from testifying that he signed the Agreement
based on [the] decedent’s alleged representation that he would
not change his will. In opposition, [Appellant] asserts that the
Agreement was procured by fraud and duress and suggests that
the court should disregard it. [Appellant] asserts that he was
fraudulently induced into entering into the Agreement based on
[the] decedent’s misrepresentation that he had not changed his
will.[FN1]
[FN1] At the time [Appellant] entered into the 2011
Settlement Agreement on April 2, 2011, [the] decedent
allegedly assured him that he had not changed his will. The
record shows [the] decedent made a new will on March 15,
2011 (“probated will”). The probated will contains no
provision granting “a priority distribution of $1.5 million to
[Appellant].” [Appellant] claims that [the decedent’s]
promise that his will contained this distribution was a
consideration that led him to enter into the Agreement.
The parol evidence rule bars admission into evidence any prior or
contemporaneous oral representations or agreements that are
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specifically covered by the written contract that is adopted as the
final and complete expression of the agreement. See Youndt v.
First Nat. Bank of Port Allegany, 868 A.2d 539, 546 (Pa. Super.
2005) (“Once a writing is determined to be the parties’ entire
contract, the parol evidence rule applies and evidence of any
previous oral or written negotiations or agreements involving the
same subject matter as the contract is almost always inadmissible
to explain or vary the terms of the contract.”) (internal citations
and quotation marks omitted); see also Blumenstock v.
Gibson, 811 A.2d 1029, 103[5] (Pa. Super. 2002) (“[A]lleged
prior or contemporaneous oral representations or agreements
concerning subjects that are specifically covered by the written
contract are merged in or superseded by that contract.”).
Furthermore, “[i]n order to protect those against whom
generalized and unsupported fraud may be levied, the
Pennsylvania Rules of Civil Procedure require that fraud be
averred with particularity.” Presbyterian Med. Cen. v. Budd,
832 A.2d 1066, 1072 (Pa. Super. 2003) (quotation marks
omitted). See also Pa.R.C.P. 1019(b). The specific elements of
fraud are as follows:
(1) a representation;
(2) which is material to the transaction at hand;
(3) made falsely, with knowledge of its falsity or
recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on
it;
(5) justifiable reliance on the misrepresentation; and
(6) the resulting injury was proximately caused by the
reliance.
Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994). “Fraudulent
misrepresentations may be proved to modify or avoid a written
contract if it is averred and proved that they were omitted from
the (complete) written contract by fraud, accident or mistake.”
Bardwell v. Willis Co., 100 A.2d 102, 104 (Pa. 1953) (citations
omitted). Reliance on the misrepresentation is not justifiable if
the contract omits the allegedly material term.[FN2] Thus, a claim
of fraud in the inducement will not defeat the parol evidence bar
if the complaining party signs a contract that does not include the
allegedly fraudulent term.[FN3]
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[FN2] “A party cannot justifiably rely upon prior oral
representations, yet sign a contract denying the existence
of those representations.” McGuire v. Schneider, Inc.,
534 A.2d 115, 119 (Pa. Super. 1987) ([citing] LeDonne v.
Kessler, 389 A.2d 1123, 1130 n.10. (Pa. Super. 1978)).
[FN3]“If plaintiffs relied on any understanding, promises,
representations or agreements made prior to the execution
of the written contract . . . , they should have protected
themselves by incorporating in the written agreement the
promises or representations upon which they now rely, and
they should have omitted the provisions which they now
desire to repudiate and nullify.” 1726 Cherry St. P’ship
by 1726 Cherry St. Corp. v. Bell Atl. Properties, Inc.,
653 A.2d 663, 669 (Pa. Super. 1995) (quoting McGuire,
534 A.2d at 119-20 (quoting Bardwell, 100 A.2d at 105)).
On April 2, 2011, [Appellant] entered into the Agreement with
[the] decedent, agreeing “to resolve any and all disputes”
between them, “from the beginning of the world to the date hereof
. . . in the interest of fully and finally eliminating all possible claims
between or concerning them, including any and all claims against
or in connection with [decedent’s] future estate.” The Agreement
was entered into between [the] decedent and [Appellant], his
agents, successors, representatives or assigns, and AMA
Contracting, Inc., as well as their agents, successors,
representatives or assigns. Under the terms of the Agreement,
[the] decedent agreed to pay [Appellant] $100,000 for his general
partnership and limited partnership interest, and any other
interest (if any) owned by [Appellant] in or concerning the
property located at 2131 Walnut Street in Philadelphia
Pennsylvania owned by 2131 Associates LP, and 2131
Management Company LLC. In addition, [the] decedent agreed
to pay AMA $600,000 and the taxes associated with each of these
two payments. The Agreement contained a covenant to forego
claims between [the] decedent and [Appellant], and/or AMA, as
well as with respect to any intercompany liabilities as between
2131 Associates, TSAG Associates, Inc., and AMA, as well as any
unpaid liabilities owed to [the] decedent on the balance sheet of
AMA. Moreover, [the] decedent and [Appellant] and AMA agreed
to a mutual release of their affiliates which included specifically a
release of:
all claims arising from, or which may or could arise from, (i)
any and all services and considerations of any kind rendered
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by [Appellant] or AMA to [the decedent] or to any entity in
which [the decedent] has or has ever had any ownership
interest, (ii) any and all debts concerning any and all
possible business, partnership, property, compensation, or
real estate matters, contracts, promises, expectations,
interests or obligations, (iii) all matters and debts, past and
future, referenced in, arising out of any activity or matter
concerning, or in any way otherwise alluded to on, the
schedule submitted by [Appellant] and attached hereto and
incorporated herein by reference as Exhibit “B”, (iv) any and
all debts owed by [Appellant] or [the decedent] to one
another, by [the decedent] to AMA, or by AMA to [the
decedent], (v) any and all debts owed by or to [Appellant],
[the decedent] or AMA to or from any entity in which [the
decedent] or [Appellant] have any ownership interest, (vi)
any and all other claims or allegations of any kind as
between [Appellant], [the decedent,] or AMA including,
without limitation, any and all claims or counterclaims that
could have been asserted through the date of this
Settlement Agreement and Release for breach of contract,
breach of partnership obligations, loan repayment, fraud,
misrepresentation, promissory estoppel, misappropriation,
conversion, breach of fiduciary duty, unjust enrichment,
quantum merit, duty of loyalty, and further including any
and all provisions, regulations, interpretations and notices
relating to any and all violations of any and all federal, state,
local and or municipality wage and hour statutes,
regulations, provisions or laws, or violations of any and all
other laws, rules, regulations, provisions or ordinances,
pertaining to creditors rights, uniform partnership act
obligations, real estate claims, debt repayment,
employment, discrimination, wages, hours, or any other
terms and conditions of employment or termination of
employment, and (vii) any and all other claims,
counterclaims, and/or third-party claims, which have been,
or which could have been, alleged or brought through the
Effective Date hereof by [the decedent], [Appellant,] or AMA
against any other party hereto in any court, arbitration
forum, or any and all other tribunals or forums of any kind
or nature.
[As mentioned above, Exhibit B was] attached to the Agreement
contained a spreadsheet prepared by [Appellant] summarizing
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various outstanding debts relating to TSAG, 1333 Associates, the
2131 Entities, Grant Avenue, and the Trust.
The court has already granted [Appellees’] motion in limine to
preclude [Appellant] from testifying as to any matters occurring
prior to the death of the decedent “except as may otherwise be
permitted by law, as will be determined by this court as necessary
in the further course of these proceedings.” Orphans’ Ct. Order
dated 10/13/2021. Any claim that [Appellant] was forced to enter
into the Agreement based on fraud or duress because of a
statement allegedly made by the decedent is precluded in
accordance with this Court’s October 13, 2021 order as the court
has determined [Appellant] is not a competent witness under the
Dead Man’s Act to testify as to any matter before [the] decedent’s
death. See [id.]; see also 42 Pa.C.S. § 5930. Moreover, the
court finds that the Agreement is an enforceable, integrated
writing that operates as a release of [the Estate] from liabilities to
[Appellant] and/or AMA concerning TSAG, AMA Consulting, 2131
LLC, 2131 L.P., and TSAG Associates. The Agreement was
integrated. The Agreement contains no mention of any promise
that [the] decedent’s will should contain “a priority distribution of
$1.5 Million to [Appellant]” and such a statement is the type of
testimony barred by the Dead Man’s Act. [Appellant] failed to
protect himself by incorporating that term into the written
Agreement. Moreover, [Appellant] failed to plead fraud and
duress with the requisite particularity required by the Rules of Civil
Procedure in his objections by raising it as an affirmative defense
in new matter. See [Pa.R.C.P. 1030] . . . .
Orphans’ Ct. Mem. and Order, 11/9/21, at 3-8 (some citations omitted and
formatting altered). The orphans’ court then concluded that Appellant’s claims
against the enforcement of the Agreement were meritless. Id. at 8.
Following our review of the record, we agree with the orphans’ court’s
conclusions. For the reasons thoroughly discussed by the orphans’ court,
there is no merit to Appellant’s claims concerning the scope, validity, or
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application of the Agreement.10 On the basis of the orphans’ court’s
memorandum and order, we conclude that Appellant’s claim is meritless. See
id. at 3-8; see also Orphans’ Ct. Op., 2/15/22, at 5-11.
Ownership of TSAG
In his fourth issue, Appellant states that the orphans’ court erred when
it concluded that the decedent owned 100% of the business entity known as
____________________________________________
10 To the extent that Appellant claims that the orphans’ court erred when it
concluded that Appellant failed to raise fraud and duress as an affirmative
defense pursuant to Pa.R.C.P. 1030, see Appellant’s Brief at 37-39, we
conclude that no relief is due. Although Appellant is correct that he was not
obligated to raise fraud and duress as affirmative defenses in “new matter” in
response to the first and second accountings, Appellees note that this
misstatement by the orphans’ court is of no moment. Appellees’ Brief at 35.
Appellees contend that while Appellant was not obligated to raise affirmative
defenses in “new matter,” he was nevertheless required to plead fraud and
duress with “particularity.” Id. (quoting Pa.O.C.R. 3.3(c)). Rule 3.3(c)
specifies that “[a]verments of fraud or mistake shall be averred with
particularity.” Moreover, Appellees state that because Appellant never
brought any claim or action seeking to invalidate the Agreement, and because
Appellant failed to plead any claim concerning fraud or duress, he fell short of
the particularity required by the rule. Id. Appellees continue: “Since
[Appellant] never properly challenged the validity of the Settlement
Agreement, there can be no error in the [o]rphans’ [c]ourt recognizing and
applying it as an ‘enforceable, integrated writing that operates as a release of
the TSAG, 2131, AMA, and Trust Objections.’” Id. (quoting Orphans’ Ct. Mem.
and Order, 11/9/21, at 7). We agree with Appellees, and we conclude that
the orphans’ court’s misstatement concerning Rule 1030 and “new matter,”
does not alter our disposition, and Appellant’s argument to the contrary is
unavailing. In any event, we reiterate that Appellant’s underlying issue is
meritless because, as the orphans’ court correctly concluded, Appellant cannot
justifiably rely upon prior oral representations, yet sign a contract denying the
existence of those representations. See Orphans’ Ct. Mem. and Order,
11/9/21, at 5, nn.2-3.
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TSAG, and Appellant claims that he owns 46.7%. Appellant’s Brief at 51.11
Appellant argues that the orphans’ court erred when it concluded that as of
January 29, 2007, Appellant no longer had any ownership interest in TSAG,
and he contends that there are genuine issues of material fact on this issue.
Id. at 51-52.
Appellees respond that this claim is meritless. Appellees contend that
the Agreement released and foreclosed any claims Appellant had against the
decedent and ultimately the Estate. Appellees’ Brief at 28. Appellees argue
that the Agreement expressly covers any and all claims concerning TSAG,
including a purported ownership interest. Id.
Following our review of the record, we discern no merit to Appellant’s
claim. As stated previously, we agree with the orphans’ court that the parol
evidence rule and Dead Man’s Act precluded Appellant from challenging the
validity of the Agreement. Likewise, we agree with the orphans’ court that
the Agreement unequivocally established that Appellant had no ownership in
TSAG. See Orphans’ Ct. Mem. and Order, 11/9/21, at 4-7, 10-11.
Further, we note that in addition to the Agreement, the record also
contains a letter from decedent to Appellant dated January 1, 2007, informing
Appellant that he was in default under the promissory note and no longer an
owner of TSAG. Appellees’ Mot. for Partial Sum. J., 8/2/21, at Ex. 22.
____________________________________________
11In his argument on this issue, Appellant does not mention any business
entity other than TSAG. See Appellant’s Brief at 51-53.
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Additionally, to the extent that Appellant continued to claim an ownership
interest in TSAG after January 1, 2007, the record reflects that on January 1,
2011, the decedent expressly cancelled Appellant’s TSAG shares due to
Appellant’s default on the promissory note, and the record contains the
cancelled promissory note and stock certificate reflecting that Appellant’s
ownership interest in TSAG was terminated as of January 1, 2011. See id. at
Ex. 23. Finally, the record contains a writing drafted on behalf of Appellant
and Appellees as executors of the Estate that was created in an effort to obtain
the TSAG corporate minute book, and this writing is dated June 13, 2012.
See id. at Ex. 24. In the June 13, 2012 writing, Appellant concedes that the
decedent was the sole owner of TSAG, and Appellant signed this document.
See id.
For these reasons, we agree with the orphans’ court that the record
unequivocally established that Appellant had no ownership in TSAG. We
discern no issue of material fact, and we conclude that Appellant is due no
relief.
Reimbursement of AMA
In his fifth issue, Appellant identifies a claim that the orphans’ court
erred when it dismissed Appellant’s objections concerning the Estate’s
reimbursement to AMA Contracting, Inc. See Appellant’s Brief at 6, 41.
However, as we noted previously, Appellant failed to provide argument that
corresponds directly with the issues he purports to raise on appeal. See id.
at 5-6; 33-54. Although Appellant mentions reimbursement as part of his
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broad argument related to the application of the Dead Man’s Act, it is difficult
to determine where Appellant provides argument or support for this specific
claim. See id. at 40-41.
We have already concluded that the orphans’ court committed no error
in its application of the Dead Man’s Act, and we conclude that Appellant is
entitled to no relief in that respect. Additionally, because Appellant provides
no further relevant argument on this specific claim, we conclude that the issue
is waived. See Koller Concrete, Inc., 115 A.3d at 321 (noting that this
Court will not address an issue “where no corresponding analysis is included
in the [appellate] brief” (citation omitted)); see also George v. Ellis, 911
A.2d 121, 131 (Pa. Super. 2006) (explaining that an issue is waived where
the appellant fails to develop an argument and cite to any relevant authority
in support of that claim). In any event, were we to reach this issue, we would
conclude that Appellant is not entitled to relief, and we would affirm on the
basis of the orphans’ court memorandum and order. See Orphans’ Ct. Mem.
and Order, 11/9/21, at 9.
Limited Joinder
In his final issue on appeal, Appellant claims that the orphans’ court
erred in dismissing his objections to the first and final accounting concerning
the Trust because Appellant joined that accounting as co-trustee. Appellant’s
Brief at 53. Appellant asserts that joinder was limited, and it contained a
reservation of rights regarding claims for reimbursement for insurance
premium payments Appellant made with respect to the decedent’s life
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insurance policy which funded the Trust. Id. at 53-54. Appellant also asserts
that he is entitled to reimbursement for his payment of the legal fees related
to the administration of the Trust and litigation involving the Trust. See id.
In its February 15, 2022 Rule 1925(a) opinion, the orphans’ court
agreed that Appellant’s joinder was limited, and that Appellant reserved his
rights regarding his claim for reimbursement of decedent’s life insurance
premiums and the legal fees related to the administration of the Trust and the
instant litigation. See Orphans’ Ct. Op., 2/15/22, at 10-11. The orphans’
court concluded that it erred in finding that Appellant could not object to an
accounting that he had joined because, although Appellant joined the
accounting, he did so with a specific reservation of rights and limited his
joinder. See id. Therefore, the orphans’ court agreed with Appellant that
remand was necessary with respect to these specific claims for
reimbursement. Id. at 11.
After review, we agree with the orphans’ court’s conclusion. Appellant’s
joinder was limited and contained a reservation of rights. See Appellant’s
Joinder of Accounting, 4/27/17. Additionally, although Appellant’s claims may
be precluded by the Agreement as Appellees contend, we agree with the
orphans’ court that it was error to grant summary judgment based solely on
the joinder because Appellant’s joinder specifically contained a reservation of
rights regarding Appellant’s claim for reimbursement for his payment
decedent’s life insurance premiums and the legal fees related to the
administration of the Trust and litigation of this matter. In other words, the
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orphans’ court erred in concluding that the Appellant’s claim for
reimbursement was barred based on joinder.12
For the reasons, we affirm the November 9, 2021 order granting partial
summary judgment in favor of Appellees except with respect to Appellant’s
claims for reimbursement for his payment decedent’s life insurance premiums
and legal fees as reserved in his limited joinder. See Appellant’s Joinder of
Accounting, 4/27/17. On Appellant’s claim for reimbursement, we reverse
and remand to the orphans’ court for further proceedings consistent with this
memorandum.
Order affirmed in part and reversed in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2022
____________________________________________
12 Although not included in the argument section of Appellees’ brief, Appellees
remark that even if Appellant’s joinder was limited, remand is unnecessary
because Appellant’s claim is ultimately barred by the Agreement. See
Appellees’ Brief at 17 n.8. However, that conclusion was never made by the
orphans’ court, and this Court will not make that determination in the first
instance. Appellant’s claim for reimbursement in this regard is left to the
orphans’ court on remand.
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