J-A17020-17

                                  2017 PA Super 366



    IN RE: PASSARELLI FAMILY TRUST                    IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA




    APPEAL OF: JOSEPH PASSARELLI

                                                        No. 3150 EDA 2016


                          Appeal from the Decree September 19, 2016
                 in the Court of Common Pleas of Chester County
                         Orphans' Court at No.: 1516-0101


BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

DISSENTING OPINION BY PLATT, J.:                  FILED NOVEMBER 16, 2017

        I respectfully dissent. I would affirm the decision of the Orphans’ Court

to terminate the trust based on its findings of fact, most significantly, fraud.

        The learned Majority correctly notes that we defer to the credibility

assessments and findings of fact of the Orphans’ Court. (See Majority, at *4).

But nevertheless, in my view, it engages in inappropriate speculation on the

facts. For example,

        Appellee [Wife] avers that she would not have executed the trust
        if she had known that the properties [house for Husband’s
        girlfriend, etc.] were included [in the marital trust assets]. Even
        if the properties had been listed on Schedule A, it is unlikely that
        Appellee would have known of their significance to the marriage
        at the time of the trust’s execution.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A17020-17


(Majority at *13).

      The learned Majority thus disregards an express finding of the Orphans’

Court, included in its Conclusions of Law:      “Petitioner [Appellee] met her

burden of proving that had she known of the purchase of the Riverside

Properties, she would not have executed the Trust.”            (Decision, dated

September 16, 2016 [filed 9/19/16], at 7 ¶ 6). This is an error-correcting

Court. It is not our role to second–guess the factual findings of the trial court.

      Similarly, in my view, the learned Majority acknowledges, but in practice

disregards, the Orphans’ Court’s credibility assessments, which plainly favor

Appellee. (See id. at 5, 6).

      Finally, I am concerned that the learned Majority seeks, perhaps

inadvertently, to expand the role of appellate review improperly.             (See

Majority, at *12: “Based on these principles and the discussion above, we are

satisfied that the standards required to set aside a trust on the basis of fraud

should be stricter than that which case law previously provided.”)

(emphasis added). This is an error-correcting court. Enlargement of the law

is beyond our mandate.

      As an intermediate appellate court, this Court is obligated to follow
      the precedent set down by our Supreme Court. It is not the
      prerogative of an intermediate appellate court to enunciate
      new precepts of law or to expand existing legal doctrines.
      Such is a province reserved to the Supreme Court.




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J-A17020-17


Moses v. T.N.T. Red Star Express, 725 A.2d 792, 801 (Pa. Super. 1999),

appeal denied, 739 A.2d 1058 (Pa. 1999) (citations omitted) (emphasis

added).

      Under our deferential standard of review, I would accept the factual

findings of the Orphans’ Court. I would also affirm its legal conclusion.

      Accordingly, I respectfully dissent.




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