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
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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.




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         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

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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.


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      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


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“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)

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(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).


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“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


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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,


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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


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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


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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

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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

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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).



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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


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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.


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       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.



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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


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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




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