J-A03022-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: ESTATE OF CARY H. SIMPSON, :           IN THE SUPERIOR COURT OF
DECEASED                          :                 PENNSYLVANIA
                                  :
                                  :
APPEAL OF: JOHN FREDERICK         :
SIMPSON                           :           No. 122 WDA 2018

              Appeal from the Order Entered December 19, 2017
                in the Court of Common Pleas of Blair County
                  Orphans’ Court at No(s): No. 2017 OC 11

BEFORE:     BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

                                                      FILED MAY 31, 2019

      I write separately because I am troubled by the Majority’s analysis of

Appellant’s argument as to why the June 1, 2017 consent decree should be

vacated.   In essence, Appellant alleges the orphans’ court should have

vacated the June 1, 2017 consent decree because Appellant agreed to the

decree under misleading pretenses created by the Executor.         Appellant’s

Brief at 33-24.

      “It has long been the law that courts of equity have the power to

reform a written instrument where there has been a showing of fraud,

accident or mistake.”   Zurich Am. Ins. Co. v. O’Hanlon, 968 A.2d 765,

770 (Pa. Super. 2009). Although Appellant argues the existence of a mutual

mistake, I believe he is really trying to express the existence of a unilateral

mistake. Generally, “[a] unilateral mistake, which is not due to the fault of

the party not mistaken, but to the negligence of the one who acted under

*Retired Senior Judge assigned to the Superior Court.
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the mistake, cannot be a basis for refusing to enforce [an agreement]

according to its terms.” Ford Motor Co. v. Buseman, 954 A.2d 580, 587

(Pa. Super. 2008). However, “a mistake by one party, and knowledge of the

mistake by the other, [may] justify relief as fully as a mutual mistake,” and

can estop the party with the knowledge of the mistake from relying on the

mistake. Line Lexington Lumber & Millwork Co., Inc. v. Pennsylvania

Pub. Corp., 301 A.2d 684, 687-88 (Pa. 1973). “The mistake must go to the

basis of the bargain between the parties, must materially affect the parties’

performance, and must not be one as to which the injured party bears the

risk before the party will be entitled to relief.” RegScan, Inc. v. Con-Way

Transp. Servs., Inc., 875 A.2d 332, 340 (Pa. Super. 2005). “If a mistake

is demonstrated, the contract may be reformed, or the injured party may

avoid his or her contractual obligations.” Id.

         Under the particular facts of this case, I believe Appellant has proven

that he agreed to the consent decree under the mistaken belief that the

Estate’s dire financial situation remained the same as it was at the May 3,

2017 hearing. The Executor filed a petition averring that the Estate had a

significant shortfall of assets that could not be met unless certain properties

specifically devised to Barbara and Appellant could be sold.      The Executor

represented the same during the May 3, 2017 proceeding. N.T., 5/3/2017,

at 29.




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      The parties were unable to complete the proceeding during the court’s

allotted timeframe; so the hearing was reconvened on June 1, 2017. The

parties used the delay to negotiate, and were able to come to an agreement

regarding the Executor’s request to sell the property devised to Appellant.

However, according to Appellant, despite representing that a judicially-

ordered sale of the properties was necessary to meet the obligations of the

Estate’s dire financial state, the Executor never informed Appellant or the

orphans’ court that Barbara had already disclaimed her interest in the

properties specifically devised to her, thereby clearing the way for the

Executor to accept pending offers to sell those properties and for the Estate

to receive a cash infusion.      Furthermore, the Executor never informed

Appellant or the orphans’ court that it had entered into a sales agreement

for the radio station and property two days before the June 1, 2017

proceeding.    Accordingly, Appellant contends that he agreed to sell the

Henderson Township property under the mistaken belief that sale of the

Henderson     Township   property   was   necessary   to   meet   the   Estate’s

obligations at that time, but in reality, the sale was not necessary.

      The Majority affirms the orphans’ court, which reasoned that Appellant

was aware of the Executor’s intent to sell the radio station from the

Executor’s testimony at the May 3, 2017 hearing.            The Majority also

emphasizes that Barbara’s disclaimer of the property specifically bequeathed

to her was recorded of public record in the Blair County Records of Deeds



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Office prior to Appellant’s agreement to the June 1, 2017 consent decree. I

find this fact to be irrelevant.   Could Appellant have checked the public

record with the Blair County Records of Deeds Office?         Sure.   But what

reasonable person would do so? Barbara disclaimed her interest prior to the

May 3, 2017 hearing; yet the Executor made no mention of such disclaimer

at the hearing.     Under these circumstances, it was reasonable and not

negligent for Appellant to have relied upon the Executor’s representations of

the Estate’s financial state.

      Nevertheless, I am not convinced that the sale of the properties

bequeathed to Barbara and the radio station could have saved the estate

from needing to sell the Henderson Township property.          As the Majority

discusses, Appellant’s calculations fail to account for all expenses and rely on

assets that may not come into fruition. Majority at 17. Thus, Appellant has

not proven that the pending sales of the properties referenced above could

have provided sufficient residentiary assets to the Estate such that the

Estate could avoid selling the Henderson Township Property.




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