J-S09029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MOCO BOSWELL, LLC, FORMERLY              :    IN THE SUPERIOR COURT OF
 KNOWN AS MOCO FIVE BOSWELL,              :         PENNSYLVANIA
 LLC                                      :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 ROBERT A. WIEDENHOFT                     :    No. 1130 WDA 2018
                                          :
                     Appellant            :

             Appeal from the Judgment Dated October 1, 2018
     In the Court of Common Pleas of Somerset County Civil Division at
                          No(s): 491 Civil 2015


BEFORE:    PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MAY 07, 2019

      Robert A. Wiedenhoft appeals from the judgment, entered in the Court

of Common Pleas of Somerset County, after the trial court granted reformation

of a deed conveying a certain parcel of property from Wiedenhoft to Appellee,

Moco Boswell, LLC, f/k/a Moco Five Boswell, LLC (“Moco Boswell”).         Upon

review, we affirm.

      In October 2013, Moco Boswell purchased a convenience store and gas

station located in Boswell, Somerset County. See First Amended Complaint,

2/17/16, at ¶ 3. In spring 2014, Wiedenhoft contacted Thomas G. Martin, a

member of Moco Boswell, to inform Martin that Wiedenhoft owned the vacant

lot located adjacent to the rear of Moco Boswell’s store (“Adjacent Parcel”)

and that the convenience store’s propane tank, located in the rear of the store,

was situated on Wiedenhoft’s property.        See id. at ¶¶ 6, 7; N.T. Trial,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09029-19



10/13/17, at 25, 67. Martin informed Wiedenhoft that Moco Boswell would be

interested in purchasing the Adjacent Parcel1 and may have an interest in

purchasing additional lots owned by Wiedenhoft in the future. See N.T. Trial,

10/13/17, at 25-26.        Martin and Wiedenhoft reached an oral agreement,

pursuant to which Moco Boswell would purchase the Adjacent Parcel from

Wiedenhoft for the sum of $18,000. See id. at 26. They agreed that Martin

would direct Moco Boswell’s attorney, David A. Pertile, Esquire, to prepare the

necessary deed.       See id. at 27.      The parties never entered into a written

agreement of sale.

       In preparation for the purchase, Martin directed Attorney Pertile to

perform a title search. See id. at 32. In furtherance of that request, Martin

directed his assistant to forward to Attorney Pertile a 2010 survey plan

depicting the Adjacent Parcel and surrounding parcels. The transmittal email

states:    “The ground we are purchasing is directly behind the store[.]”

Plaintiff’s Trial Exhibit 1. On the attached survey plan, the Adjacent Parcel is

labeled with the words “This is the property” and identified as “Tax Map 07-

24, Parcel 17-01.” Id. Attorney Pertile forwarded the survey plan to Robert

Boose, Esquire, of Somerset County, with a request that he prepare a title

report for the Adjacent Parcel. See First Amended Complaint, 2/17/16, at ¶

14 and Exhibit B. On July 8, 2014, Attorney Boose generated a title report.
____________________________________________


1 Martin testified that he did not know whether the store’s propane tank
actually encroached upon Wiedenhoft’s property, but it was not “that big of a
deal” because it was Moco Boswell’s practice to purchase properties adjacent
to their stores. See N.T. Trial, 10/13/17, at 25, 30.

                                           -2-
J-S09029-19



See Plaintiff’s Trial Exhibit 2. However, Attorney Boose performed the title

search on the wrong parcel, a plot identified in the title report as Tax Map 07-

24, Parcel 011-00 (“Detached Parcel”).           See id. at [3].   Attorney Pertile

prepared a deed using the legal description contained in the title report. See

Plaintiff’s Trial Exhibit 3.

       After preparing the deed, Attorney Pertile forwarded it to Wiedenhoft for

his review. N.T. Trial, 10/13/17, at 76, 87. Wiedenhoft reviewed the deed

and was aware that it would convey the Detached Parcel and not the Adjacent

Parcel. See id. at 76, 87-88. He did not, however, mention this fact to Martin

or Attorney Pertile because he believed the parties had agreed to a sale of the

Detached Lot, not the Adjacent Lot.2 See id. at 88. Wiedenhoft executed the

deed on July 25, 2014, and received a check for $18,000, less his share of

transfer tax. See First Amended Complaint, at ¶ 19; Answer, 3/9/16, at ¶

19.

       Several weeks after closing, Moco Boswell hired a surveyor to prepare

a survey of its newly acquired property. See N.T. Trial, 10/13/17, at 36. The

surveyor contacted Martin’s office after discovering a discrepancy between the

legal description in the deed and the property as it had been verbally described
____________________________________________


2  At trial, Wiedenhoft testified that, when he contacted Martin about the
allegedly encroaching propane tank, Martin expressed an interest in
purchasing the Detached Parcel for the purpose of constructing a diesel island
and was not interested in purchasing the Adjacent Parcel. See N.T. Trial,
10/13/17, at 67-75. Martin, on the other hand, testified that, while Moco
Boswell might be interested in discussing the acquisition of other properties
at some time in the future, “this deal was to solve the propane issue, and
acquire the property adjacent to our store.” Id. at 51.

                                           -3-
J-S09029-19



to him. See id. Upon discovering this mistake, Martin asked Attorney Pertile

to contact Wiedenhoft to request his assistance in correcting the deed at Moco

Boswell’s expense.      See id. at 39.    After Wiedenhoft failed to respond to

Attorney Pertile, Martin contacted him by telephone to request his assistance,

which Wiedenhoft refused. See id. at 39-41.

         On August 12, 2015, Moco Boswell filed a complaint for reformation of

the deed, alleging counts of breach of contract, promissory estoppel, and

fraud.     Wiedenhoft filed preliminary objections in the form of a demurrer,

which the court sustained, with leave to amend. Moco Boswell filed its first

amended complaint on February 17, 2016; Wiedenhoft filed an answer and

new matter, in which he raised the affirmative defense of the statute of frauds,

as well as the parol evidence rule, which Wiedenhoft asserted barred the

admission of facts upon which Moco Boswell’s causes of action relied.

         On August 18, 2017, Wiedenhoft filed a motion for judicial recusal,

alleging that the presiding judge, the Honorable David C. Klementik, had a

conflict of interest.     Specifically, Wiedenhoft cited the fact that Judge

Klementik had previously recused himself from a 2005 civil action entitled

“Robert and Gina Wiedenhoft and Stonebridge Shooting Sports, Inc. v.

Genesis, Inc. t/d/b/a Meadow Run, Genesis, Inc., a Pennsylvania Corporation,

also t/d/b/a SOLAR 7.” Wiedenhoft asserted that Judge Klementik previously

had an ownership interest in a company named “Solar Fuels,” which owned

coal on Wiedenhoft’s real estate, and had also served as legal counsel for

SOLAR 7 prior to his election to the bench. Wiedenhoft further alleged that

                                         -4-
J-S09029-19



Judge Klementik “may own an interest in coal and[/]or coal rights” on

Wiedenhoft’s property. Petition for Judicial Recusal, 8/18/17, at ¶ 6.

      Prior to the commencement of trial in this matter on October 13, 2017,

Judge Klementik heard argument on Wiedenhoft’s recusal motion.           Judge

Klementik concluded that Solar Fuel Company, the company in which he had

been a shareholder and for which he had acted as counsel, had not been a

party to the earlier action involving Wiedenhoft and that he had recused

himself from the earlier case only because he was personally familiar with

principals of Genesis, Inc. Judge Klementik further stated that he had sold his

interest in Solar Fuel approximately seven years earlier and had “no interest

whatsoever in any coal rights that have anything to do with [Wiedenhoft’s]

properties.” N.T. Trial, 10/13/17, at 11. Accordingly, Judge Klementik denied

the recusal motion and proceeded to trial.

      On December 31, 2017, the trial court issued Findings of Fact and

Conclusions of Law. The court concluded that Moco Boswell and Wiedenhoft

“had a meeting of the minds for the conveyance of the Adjacent Parcel only”

and that Wiedenhoft had acted in bad faith with the intent to defraud Moco

Boswell by accepting the latter’s purchase money despite his knowledge of the

drafting error in the deed. Conclusions of Law, 12/31/17, at 31. The court

found that Moco Boswell, through its agents, reasonably relied upon

Wiedenhoft’s review of the deed to its detriment when it paid $18,000 for the

Detached Parcel, which was not the subject of the parties’ agreement.

Accordingly, the court entered an order granting reformation of the deed.

                                     -5-
J-S09029-19



      Wiedenhoft filed a notice of appeal to this Court on January 11, 2018,

followed by a court-ordered statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). By order dated March 28, 2018, this Court

dismissed Wiedenhoft’s appeal for failure to file post-trial motions pursuant to

Pa.R.C.P. 227.1, without prejudice to Wiedenhoft’s right to seek permission

from the trial court to file post-trial motions nunc pro tunc.

      Upon remand, Wiedenhoft filed a motion to file post-trial motions nunc

pro tunc, which the trial court granted by order dated April 24, 2018.

Wiedenhoft filed his post-trial motion on May 1, 2018. After oral argument,

the trial court denied Wiedenhoft’s motion by order dated July 20, 2018.

Wiedenhoft filed a notice of appeal, followed by a court-ordered statement of

issues complained of on appeal pursuant to Pa.R.A.P. 1925(b). By order dated

September 25, 2018, this Court directed Wiedenhoft to file a praecipe to enter

judgment in the trial court. Wiedenhoft did so on October 1, 2018, and his

appeal is now ripe for disposition. See Pa.R.A.P. 905(a)(5) (notice of appeal

filed after announcement of determination, but before entry of appealable

order, treated as filed after such entry).

      Wiedenhoft raises the following claims on appeal:

      1. Whether the trial court erred in not granting [Wiedenhoft’s]
      [p]etition for [j]udicial [r]ecusal that was decided the morning of
      the trial following argument?

      2. Whether the decision of the trial court should be reversed as it
      was against the weight and sufficiency of the evidence?

      3. Whether the trial court erred in denying [Wiedenhoft’s] post-
      trial motion for reconsideration of rulings on the pre-trial motions

                                      -6-
J-S09029-19


      including [Wiedenhoft’s] preliminary objections and allowing
      presentation of evidence that was outside and[/]or in
      contradiction of the written contract in violation of the Statute of
      Frauds and the [p]arol [e]vidence [r]ule?

      4. Whether the trial court erred in denying [Wiedenhoft’s] post-
      trial motion for a new trial?

Brief of Appellant, at 7 (renumbered for ease of disposition).

      Wiedenhoft first alleges that Judge Klementik erred by not granting his

motion for recusal based on alleged conflicts of interest related to prior

business affiliations of the court. This issue is meritless.

      We review the denial of a motion to recuse for an abuse of discretion.

In re S.H., 879 A.2d 802, 808 (Pa. Super. 2005). This Court presumes judges

of this Commonwealth are honorable, fair and competent and, when

confronted with a recusal demand, have the ability to determine whether they

can rule impartially and without prejudice. Commonwealth v. Druce, 848

A.2d 104, 109 (Pa. 2004). The party who asserts that a trial judge should

recuse bears the burden of setting forth specific evidence of bias, prejudice,

or unfairness. Commonwealth v. Harris, 979 A.2d 387, 392 (Pa. Super.

2009) (citations omitted).

      As with all questions of recusal, the jurist must first make a
      conscientious determination of his or her ability to assess the case
      in an impartial manner, free of personal bias or interest in the
      outcome. The jurist must then consider whether his or her
      continued involvement in the case creates an appearance of
      impropriety and/or would tend to undermine public confidence in
      the judiciary. This is a personal and unreviewable decision that
      only the jurist can make. Where a jurist rules that he or she can
      hear and dispose of a case fairly and without prejudice, that
      decision will not be overruled on appeal but for an abuse of
      discretion.


                                      -7-
J-S09029-19



Rohm & Haas Co. v. Lin, 992 A.2d 132, 149 (Pa. Super. 2010), quoting

Overland Enterprise, Inc. v. Gladstone Partners, LP, 950 A.2d 1015,

1021 (Pa. Super. 2008).

       Here, Wiedenhoft has failed to put forth any specific evidence of bias,

prejudice, or unfairness on the part of Judge Klementik. Harris, supra. As

noted above, Judge Klementik possesses no interest in any coal rights

involving Wiedenhoft’s property. Moreover, the judge recused himself from

the earlier matter involving Wiedenhoft, not because he owned an interest in

any corporate entity that was a party to the suit, but because he was

personally acquainted with individuals involved in ownership of the corporate

defendant.     Wiedenhoft points to nothing in the record that would tend to

demonstrate that Judge Klementik was unable to hear and dispose of the case

fairly and without prejudice, or that his involvement created an appearance of

impropriety. Rohm & Haas Co., supra. Accordingly, the trial court did not

abuse its discretion in denying Wiedenhoft’s motion for recusal.3

       Wiedenhoft’s next two claims are interrelated and will be addressed

together. Essentially, Wiedenhoft asserts that the trial court misapplied the

law and made faulty credibility findings in reaching its decision to reform the

____________________________________________


3 We note that Wiedenhoft’s appellate argument on this issue is woefully
underdeveloped, consisting of a reproduction of his petition for recusal and a
recitation of the procedural history of his recusal request. Wiedenhoft cites
no case law and points to nothing in the record that supports his claim. While
we could, based on this deficiency, find Wiedenhoft’s claim waived, see
Commonwealth v. Delvalle, 74 A.3d 1081 (Pa. Super. 2013) (finding
undeveloped claim to be waived), we have chosen to address it on the merits.

                                           -8-
J-S09029-19



deed. Specifically, Wiedenhoft argues that: (1) the court erred by failing to

find that the statute of frauds and parol evidence rule barred Moco Boswell

from presenting extrinsic evidence regarding the parties’ intent; (2) the

evidence was insufficient to establish that Wiedenhoft had intent to defraud

Moco Boswell; and (3) the court erred in its credibility determinations. His

claims are all meritless.

      We begin by noting our standard of review in this matter. An action for

reformation of a deed lies in equity. Doman v. Brogan, 592 A.2d 104, 109

(Pa. Super. 1991). As such,

      [o]ur review of this case is guided by the principles that the scope
      of appellate review of a decree in equity is particularly limited,
      Lynch v. Hook, [] 444 A.2d 157 ([Pa. Super.] 1982), and that
      the findings of the Chancellor will not be reversed unless it
      appears that the Chancellor clearly committed an abuse of
      discretion or an error of law. Frowen v. Blank, [] 425 A.2d 412
      ([Pa.] 1981). Where credibility of witnesses is important to a
      determination, the findings of the Chancellor are entitled to
      particular weight because the Chancellor has the opportunity to
      observe their demeanor. Frowen[], supra; Bedillion v. W.A.
      Wilson Stave Co., Inc., [] 413 A.2d 411 ([Pa. Super.] 1979).
      Although an appeals court cannot sit as a trier of issues of fact
      and must accept the findings of fact of the lower court as the basis
      of its review, Lynch[], supra, an appellate court is not bound to
      accept the findings of the Chancellor which are without support in
      the record or have merely been derived from other facts.
      Frowen[], supra; In re McKinley's Estate, [] 337 A.2d 851
      ([Pa.] 1970). Thus, the Chancellor’s conclusions of law or fact
      which are derived from nothing more than reasoning from
      underlying facts and not involving a determination of credibility of
      witnesses, are reviewable. Felmlee v. Lockett, [] 351 A.2d 273
      ([Pa.] 1976); Krosnar v. Schmidt Krosnar McNaughton
      Garrett Co., [] 423 A.2d 370 ([Pa. Super.] 1980).

Dudash v. Dudash, 460 A.2d 323, 326 (Pa. Super. 1983).


                                     -9-
J-S09029-19



      Reformation of a deed may be made by a court of equity when there

has been a mistake by one party with knowledge of that mistake by the other

party. Id. at 327, citing Alderfer v. Pendergraft, 448 A.2d 601 (Pa. Super.

1982). A unilateral mistake may justify reformation of a deed only when the

party opposing reformation had such knowledge of the mistake as to justify

an inference of fraud or bad faith. Regions Mortgage, Inc. v. Muthler, 889

A.2d 39, 42 (Pa. 2005). “In effect, the party with knowledge of the mistake

is estopped from relying on the mistake.”        Line Lexington Lumber &

Millwork Co., Inc. v. Pennsylvania Pub. Corp., 301 A.2d 684, 687 (Pa.

1973). “The mistake under scrutiny, as well as the actual intent of the parties,

must be clearly proven.”     Dudash, 460 A.2d at 327, citing Hassler v.

Mummert, 364 A.2d 402 (Pa. Super. 1976).

      Parol evidence of a contemporaneous oral agreement is admissible to

alter, vary, add to, modify, or contradict a written instrument complete within

itself where the oral agreement was omitted through fraud, accident, or

mistake.   Kadel v. McMonigle, 624 A.2d 1059, 1061 (Pa. Super. 1993);

Gemini Equipment Co. v. Pennsy Supply, Inc., 595 A.2d 1211, 1215 (Pa.

Super. 1991). Similarly, the statute of frauds will not serve as a bar to relief

in action seeking reformation of a deed based upon an allegation of mistake




                                     - 10 -
J-S09029-19



and/or fraud.4     See Kutsenkow v. Kutsenkow, 202 A.2d 68, 68-69 (Pa.

1964).

       Here, Moco Boswell alleged that the deed resulted from a unilateral

mistake and that Widenhoft had knowledge of the mistake sufficient to justify

an inference of fraud or bad faith.            Dudash, supra; Regions Mortgage,

Inc., supra. Accordingly, the trial court properly allowed Moco Boswell to

present evidence as to the parties’ intent—specifically, that the parties’

agreement was that Wiedenhoft would sell the Adjacent Parcel to Moco

Boswell for the sum of $18,000. Kadel, supra.

       Based on the evidence adduced at trial, the court concluded that the

original impetus for Moco Boswell’s purchase of land from Wiedenhoft was to

address Wiedenhoft’s concerns about the placement of the propane tank,

which Wiedenhoft believed was situated on the Adjacent Parcel. As such, the

court found Wiedenhoft’s claim that Moco Boswell actually desired to purchase

the Detached Parcel to be “simply not credible.” Memorandum, 7/24/18, at

1.   The court further found—indeed, Wiedenhoft admitted at trial—that

Wiedenhoft was aware that the parcel set forth in the deed was the Detached

Parcel and not the Adjacent Parcel.             In light of these factors, the court

concluded that Wiedenhoft acted in bad faith with the intent to defraud Moco
____________________________________________


4The statute of frauds, 33 P.S. § 1, bars specific performance of a contract to
convey or devise real estate where the alleged agreement is not evidenced by
writing. Brinko v. Redden, 167 A.2d 467, 469 (Pa. 1961), quoting Stafford
v. Reed, 70 A.2d 345, 347 (Pa. 1950). Here, Moco Boswell does not seek
specific performance, but rather reformation of a deed.


                                          - 11 -
J-S09029-19



Boswell by failing to disclose his knowledge of the drafting error and, thus,

Moco Boswell was entitled to relief in the form of reformation of the deed.

       Upon thorough review of the record, we can discern no error of law or

abuse of discretion on the part of the trial court. The court’s conclusions are

fully supported by the evidence adduced at trial and its credibility

determinations are not subject to second-guessing by this Court. See Beaver

Valley Alloy Foundry Co. v. Therma–Fab, Inc., 814 A.2d 217, 224 (Pa.

Super. 2002) (on issues of credibility, we defer to trial court, sitting fact-

finder, as court had best opportunity to observe demeanor of witnesses).

Accordingly, Wiedenhoft is entitled to no appellate relief.

       Finally, Wiedenhoft claims that the trial court erred in denying his post-

trial motion, in which he asserted he is entitled to a new trial because he was

prejudiced by not being able to call Attorney Pertile as a witness at trial.

Wiedenhoft claims this testimony was relevant because Attorney Pertile was

the only party present representing Moco Boswell at settlement and certain

statements allegedly made by Wiedenhoft to Attorney Pertile at that time

would establish that Wiedenhoft did not act in bad faith or with fraudulent

intent. He has waived this claim.

       Wiedenhoft never attempted to call Attorney Pertile as a witness either

before or during trial.5 Rather, he raised this issue for the first time in his
____________________________________________


5The following exchange occurred between Judge Klementik and Wiedenhoft’s
counsel at argument on post-trial motions:




                                          - 12 -
J-S09029-19



post-trial motions. An issue raised for the first time in post-trial motions is

waived for purposes of appeal. Keffer v. Bob Nolan's Auto Serv., Inc., 59

A.3d 621, 630 (Pa. Super. 2012) (one may not, at post-trial motion stage,

raise new theory which was not raised during trial). Because Wiedenhoft did

not properly raise this issue before the trial court, he has waived it.

       Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2019




____________________________________________


       THE COURT: Couldn’t you have given [Attorney Pertile] a notice
       that you intended to call him as a witness, which would have
       forced him to get other counsel to present that part of the case?

       MR. LEAKE: Your Honor, the answer to the question is yes. I was
       honestly—I was trying to avoid that situation; and I thought that
       if we had the trial with Mr. Pertile as the trial attorney, it woudn’t
       be as big [] an issue as [] it turned out to be. I was trying to be
       courteous to Mr. Pertile. And it seems at the end of the day that
       we probably would have needed him as a witness.

N.T. Oral Argument, 6/4/18, at 6-7.



                                          - 13 -
J-S09029-19




              - 14 -
