J-A03022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ESTATE OF CARY H.                :   IN THE SUPERIOR COURT OF
 SIMPSON, 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.

MEMORANDUM BY SHOGAN, J.:                             FILED MAY 31, 2019

     Appellant, John Frederick Simpson, appeals from the order entered

December 19, 2017, denying his petition to set aside and vacate the court

order of June 1, 2017. After careful review, we affirm.

     Cary H. Simpson (“Decedent”) died on December 27, 2016. Orphans’

Court Opinion, 12/19/17, at 3. Decedent had a will, dated April 16, 2014,

which named two heirs: 1) son, Appellant; and 2) daughter, Barbara Simpson

Becker (“Barbara”). Id.; Will of Cary Simpson, 4/16/14, at 1-3. In his will,

Decedent made the following specific bequests of real property. To Appellant,

Decedent bequeathed two properties: 1) 10527 Schoolhouse Hollow Road,

Huntingdon, PA (“Henderson Township Property”), a family cabin wherein

Appellant lived at the time of the proceedings while separated from his wife;

and 2) 201 Shelton Avenue, Alexandria, PA, a home Decedent had purchased


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03022-19


for Appellant and his family, and for which Appellant had procured a

promissory note with Decedent as a co-signor, thereby obligating the estate

with this debt.    Orphans’ Court Opinion, 12/19/17, at 3-4.        Barbara was

bequeathed two properties as well: 1) 601 5th Street, Tyrone, PA; and 2)

5620 Rear East Pleasant Valley Boulevard, Tyrone, PA. Id. at 3. The residuary

estate was to be distributed equally to Appellant and Barbara. Id.

      The will was admitted to probate by the Register of Wills of Blair County,

and Letters Testamentary were issued on January 5, 2017, to John J. Hoyne,

Executor (“Executor”), of Decedent’s estate (“Estate”). Letters Testamentary,

1/5/17, at 1.     On January 10, 2017, Executor filed a petition to permit

Executor to continue to operate and expend funds for the WTRN AM and FM

Radio Station of the Allegheny Mountain Network, an asset of the Estate, for

a period of one year. The parties subsequently agreed to that request and

the orphans’ court entered an order on May 3, 2017, reflecting same.

Eventually, the Estate sought to sell the radio station and related property,

noted infra.

      On February 13, 2017, Executor filed a petition for order of court for

judicial sale of real estate and for order of court for personal representative to

take possession of real estate occupied by devisee (Appellant) to protect rights

of creditors/claimants. Appellant filed an answer on April 24, 2017. A hearing

was conducted on May 3, 2017, and scheduled for completion on June 1, 2017.

Order, 5/9/17, at 1. At the June 1, 2017 hearing, the parties indicated they


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had arrived at an agreement and presented a prepared order memorializing

the terms. The orphans’ court entered that order on the same date. In that

order, the orphans’ court granted the Estate’s request to sell the following

properties: the Henderson Township Property, with right of first refusal given

to Appellant; 5620 Rear East Pleasant Valley Boulevard, Tyrone, PA 16686;

and 601 Fifth Street, Tyrone, PA 16686. The real property at 201 Shelton

Avenue, which was specifically bequeathed to Appellant, was not included in

the sale.

       On July 6, 2017, the Estate filed a petition for preliminary injunction

against Appellant to cease and desist attempts to interfere with the contracted

sales of Radio Station WTRN and the radio station’s real estate. Appellant

filed an answer to the preliminary injunction on July 18, 2017.        The court

conducted a hearing on July 20, 2017, and granted the injunctive relief.

       On July 24, 2017, Appellant filed a petition to set aside and vacate the

court order of June 1, 2017.            In that petition, Appellant asserted that

subsequent to the June 1, 2017 order, Appellant learned that a purchase and

sale agreement for WTRN radio station and the WTRN property had been

entered,1 and that the Estate had received an offer for the purchase of

Decedent’s residence.         The Estate filed an answer and new matter on

August 2, 2017, admitting that the radio station and real estate were under



____________________________________________


1   The radio station was sold on August 31, 2017.

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contract, that there was an offer for the Decedent’s residence, and that a sales

agreement had been entered into with a third party for the Henderson

Township Property.     The court held hearings on September 11, 2017, and

October 30, 2017. On December 19, 2017, the orphans’ court entered an

order denying Appellant’s petition to set aside and vacate the June 1, 2017

order.

      In the December 19, 2017 opinion and order, the orphans’ court made

the following findings of fact, in relevant part:

           1. [Decedent] died December 27, 2016 testate with a will
      dated April 16, 2014 which named 2 heirs, son [Appellant] and
      daughter, [Barbara].

            2. [Decedent] made specific bequests:

            To: [Appellant]

                   a. [Henderson Township Property]

                   b. 201 Shelton Avenue, Alexandria, PA

            To: [Barbara]

                   a. 601 5th Street, Tyrone, PA

                   b. 5620 Rear East Pleasant Valley Boulevard, Tyrone,
                      PA.

            3. Residuary Estate consists of:

                   a. WTRN Radio Station - sold             $ 90,000.00

                   b. Forever of PA, Inc. consulting
                   Agreement:                              $350,000.00

                   $12,500/m x 28 installments (current)


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                c. Magnum Sales agreement                $294,588.59

                $4,250/month (very sporadic payments)

                d. Laurel Media Inc. Sales
                agreement                                $120,000.00

                $30,000/annually for 4 years (current)

                e. Bank accounts and personal
                property                                  $78,594.50

                                          TOTAL          $638,594.50

          4. Debts of the Estate

                a. First National Bank article
                   Of agreement (201 Shelton Ave.)       $188,906.00

                b. Reliance Bank - HELOC                 $114,855.00

                c. Credit Cards                           $75,269.92

                d. Personal representative (estimate)     $55,000.00

                e. Attorney fees (estimate)4              $98,000.00

                                         TOTAL           $343,124.92

          4  This estimate includes attorney fees for both the
          [E]state and the expert/specialized fees of
          Attorney Paxon for the sale of the WTRN radio station.

          5. [Henderson Township Property] is a family Cabin held for
     many generations and is where [Appellant] lives while currently
     separated from his wife.

           6. 201 Shelton Avenue, Alexandria, PA is a home [Decedent]
     bought for [Appellant] (and family) and [Appellant] procured a
     promissory note with that property for approximately
     $188,000.00 with [Decedent] as co-signor, thereby eventually
     obligating the [E]state on this debt.




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              7. [Barbara] disclaimed her interest in any specifically
        devised property5 (given to her by [Decedent’s] will) on April 11,
        2017 and said disclaimer was recorded of public record in the Blair
        County Records of Deeds Office on April 11, 2017, which preceded
        the June 1, 2017 agreed upon court order.

              5 The disclaimer included the specifically bequeathed
              properties of 601 5th Street and 5620 Pleasant Valley
              Boulevard rear, both of Tyrone only.

               8. The [E]state operated the WTRN radio station before its
        sale, at a loss, which required [E]state expenditures of the limited
        available cash.

              9. The disclaimer of [Barbara] created a critical cash infusion
        to the [E]state for expenditures.

             10. Ninety-four percent (94%) of the [E]state debt has not
        been paid for over 1 year, due to insufficient liquid funds.

Orphans’ Court Order, 12/19/17, at 3-5.

        On December 29, 2017, Appellant filed a motion for reconsideration,

which was not ruled on by the orphans’ court.           Appellant filed a notice of

appeal on January 18, 2018.2 The orphans’ court did not order the fling of a

Pa.R.A.P. 1925(b) statement. The orphans’ court filed a letter on March 2,

2018, indicating that it was relying on its opinion and order of December 19,

2017.

        Appellant presents the following issues for our review:

        I.     Did the [orphans’] court err and/or abuse its discretion in
        failing to effectuate the decedent’s intent as clearly set forth in his
____________________________________________


2 On January 23, 2018, the orphans’ court entered an order indicating that
the order signed January 8, 2018, granting Appellant’s motion for
reconsideration, was vacated as “improvidently entered.” Order, 1/23/18, at
1. There is no docket entry, however, reflecting a January 8, 2018 order.

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      Last Will and Testament when there was no justification or
      necessity for doing so?

      II.    Did the [orphans’] court err and/or abuse its discretion in
      ordering the sale of real estate specifically devised to the Appellant
      in the decedent’s Last Will and Testament when there were
      sufficient residuary assets in the Estate to satisfy all of the debts,
      obligations and expenses of the Estate within a reasonable period
      of time?

      III. Did the [orphans’] court err and/or abuse its discretion in
      failing to vacate the prior consent order that was entered into on
      a mutually mistaken belief that the sale of the property specifically
      devised to the Appellant was necessary for the proper
      administration of the decedent’s Estate?

      IV.    Did the [orphans’] court err and/or abuse its discretion in
      failing to vacate the prior consent order when the facts and
      circumstances of the case clearly established that the decedent’s
      intent was capable of being effectuated without requiring the sale
      of the property specifically devised to the Appellant?

Appellant’s Brief at 4-5.

      Our standard of review is well settled:

      The findings of a judge of the orphans’ court division, sitting
      without a jury, must be accorded the same weight and effect as
      the verdict of a jury, and will not be reversed by an appellate court
      in the absence of an abuse of discretion or a lack of evidentiary
      support. This rule is particularly applicable to findings of fact
      which are predicated upon the credibility of the witnesses, whom
      the judge has had the opportunity to hear and observe, and upon
      the weight given to their testimony. In reviewing the [o]rphans’
      [c]ourt’s findings, our task is to ensure that the record is free from
      legal error and to determine if the [o]rphans’ [c]ourt’s findings are
      supported by competent and adequate evidence and are not
      predicated upon capricious disbelief of competent and credible
      evidence.

In re Estate of Bechtel, 92 A.3d 833, 837 (Pa. Super. 2014).




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      Because they are interrelated, we address Appellant’s first two issues

together.   Appellant argues that the orphans’ court erred or abused its

discretion in failing to effectuate the decedent’s intent as set forth in his will.

Appellant’s Brief at 20. Appellant asserts that the will devised specific real

estate assets to each of his two children and provided for the division and

distribution of the residuary estate to each. Id. Moreover, Appellant posits,

the will stated that the Estate’s debts and expenses were to be paid from the

residuary estate. Id. at 21. Because the residuary assets were more than

sufficient to meet the Estate’s debts and obligations, Appellant contends, there

was no need or justification for selling the specifically devised properties and

deviating from Decedent’s will. Id. at 21-22, 22-32.

      In interpreting a will, this Court has stated: “The testator’s intent is the

polestar in the construction of every will and that intent, if it is not unlawful,

must prevail.” In re Estate of Davis, 128 A.3d 819, 821 (Pa. Super. 2015).

We are cognizant, however, of the following Probate, Estates and Fiduciaries

Code (“Code”) provisions:       “If the applicable assets of the estate are

insufficient to pay all proper charges and claims in full, the personal

representative, subject to any preference given by law to claims due the

United States, shall pay them [in particular order as outlined in the statute].”

20 Pa.C.S. § 3392. Further, “the costs delineated in Section 3392, are paid

prior to distribution to beneficiaries.” In re Estate of Davis, 128 A.3d at 822

n.2; see 20 Pa.C.S. § 3541 (delineating order of distribution to pay claimants


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J-A03022-19


and distributees if assets are insufficient to pay all claimants and distributees

in full).

       Furthermore, Section 3353 of the Code provides as follows:

       When the personal representative is not authorized to do so by
       this title or is denied the power to do so by the governing
       instrument, if any, or when it is advisable that a sale have the
       effect of a judicial sale, he may sell any real or personal property
       of the estate, including property specifically devised, at public or
       private sale, or may pledge, mortgage, lease, or exchange any
       such property, or grant an option for the sale, lease, or exchange
       of any such property, under order of the orphans’ court division of
       the county where letters testamentary or of administration were
       granted, upon such terms and upon such security and after such
       notice as the court shall direct, whenever the court shall find such
       sale, pledge, mortgage, lease, exchange, or option to be desirable
       for the proper administration and distribution of the estate.

20 Pa.C.S. § 3353.

       Thus, while Decedent’s intent as outlined in the will must be complied

with to the extent possible, compliance with all provisions herein was not

possible due to the shortfall in Estate assets. The evidence of record supports

the orphans’ court’s conclusion that there were insufficient funds in the

residuary estate to pay for the Estate’s costs and expenses, contrary to

Appellant’s claims. The orphans’ court made the following determinations:

       [T]he [c]ourt held [a] hearing on May 3, 2017 and the transcript
       of proceeding provides evidence that the [E]state had a shortfall
       of approximately $247,000.00 (hrg.tr. 5-3-17 p. 28-29) if they
       did not liquidate the unencumbered asset of [the Henderson
       Township Property].6 The testimony was not completed and
       another hearing was set for June 1, 2017.7

             6  Additionally the withdrawal by [Appellant] of
             $114,000.00 cash from [D]ecedent’s bank account
             one day after [D]ecedent’s death has deprived the

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            [E]state of that available cash without full
            development of the reason for such a transaction.

            7 The transcript reflects that the [E]state intended to
            call at the next hearing witnesses to testify that
            substantial cash deposits were made into a FNB
            checking account of [D]ecedent the week before
            [Decedent’s] death and the day after his death
            [Appellant] withdrew $114,000.00. This issue has
            been noted by both parties during proceedings and
            will undoubtedly lead to further litigation as
            [Appellant’s] counsel has stated [Appellant] had
            specific valid reasons for doing so. However, no
            evidence or testimony of those reasons is reflected
            through the direct or cross examination eventually
            given by FNB bank personnel as to the deposits and
            withdrawals by [Appellant], after the death of his
            father.

            At the June 1, 2017 hearing, counsel made clear to the court
      the parties had negotiated the agreed upon order. The terms were
      described on the record, the court conducted an extensive
      colloquy of both litigants, [Appellant] and Executor Thomas Hoyne
      and proceeded to dictate publicly the terms of the agreement
      entered by order of June 1, 2017.

Orphans’ Court Opinion, 12/19/17, at 6-7. The record supports the summary

of evidence as presented by the orphans’ court.

      Accordingly, pursuant to 20 Pa.C.S. § 3392, the costs and expenses of

the Estate must be paid before distributions are made to the beneficiaries.

Thus, although Decedent’s will provided for his intent to bequeath his property

to his children, the costs and expenses first must be paid.      Furthermore,

pursuant to Section 3353, the personal representative is authorized to sell the

real property specifically bequeathed when necessary to administer an estate.




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     In resolving Appellant’s issues, the orphans’ court explained:

     Both parties agree that a testator’s intent regarding a specific
     bequest must be highly regarded and honored and should only be
     disturbed when necessary for the “proper administration and
     distribution of the estate”. See 20 Pa.C.S.A. § 3353. In this
     instance the approximately $347,000.00 debt of this estate
     cannot be met without the sale of [the Henderson Township
     Property]. The pushed-out payments that inflate estate assets
     include an installment sale to Magnum Broadcasting which
     accounts for approximately $300,000.00 in the inventory of assets
     of this estate. The contract requires Magnum to pay the [E]state
     approximately $4,000/month and they only made one payment in
     2016 and only made two payments for the year 2017. Any efforts
     of debt collection will adversely affect the FCC license of Magnum,
     making any future collections virtually impossible with the closure
     of the business.

           These unique factual circumstances do not warrant a delay
     in creditors receiving their timely claims due from this estate. We
     are regrettably constrained to find the sale of [the Henderson
     Township Property] necessary.

           We acknowledge the strong emotional attachment
     [Appellant] has to the “cabin” or [the Henderson Township
     property]. For this reason he negotiated an opportunity to buy it
     and will continue to have right of first refusal with the
     reinstatement of our June 1, 2017 order. It is regrettable the
     estate planning of the [D]ecedent was not able to predict the
     effect of the push-out payments and its cash impact for the
     [E]state. We take note however, that [Appellant] will retain his
     other specifically bequeathed property at 201 Shelton Avenue,
     Alexandria.

            In summary, at the conclusion of the October 30, 2017
     hearing, the [E]state owed $347,000.00 in debt and had
     $36,000.00 in the [E]state bank account. The [E]state has met
     their burden of proof beyond all doubt as to the need to liquidate
     the only unencumbered property for the proper administration of
     this estate.

Orphans’ Court Opinion, 12/19/17, at 10-11 (emphasis in original).




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      We agree. The evidence of record was more than sufficient to establish

that the Estate had debts in excess of the assets of the residuary estate. The

expenses and costs were required to be paid before any assets were

distributed, and    Section 3353 of the Code authorizes             the personal

representative to    sell real property when necessary           for the proper

administration of the Estate. Thus, the orphans’ court did not err or abuse its

discretion in determining that the sale of the Henderson Township Property

was necessary in order for the Estate to be properly administered.

      We address Appellant’s remaining two issues together.              Appellant

asserts that the orphan’s court erred or abused its discretion in failing to

vacate the June 1, 2017, consent order. Appellant’s Brief at 33. Appellant

argues that at the May 3, 2017 hearing, the Executor of the Estate provided

a dismal portrayal of the Estate, indicating a significant shortfall of assets that

could not be met by future payments due the Estate.           Id.   Based on this

information, Appellant contends, when the parties appeared before the

orphans’ court on June 1, 2017, Appellant and the Executor entered into a

consent order whereby the properties specifically devised to Barbara, and the

Henderson Township property specifically devised to Appellant, would be

offered for sale.   Id.   According to Appellant, however, neither he nor his

counsel was aware that Barbara had previously disclaimed and renounced her

interest in the properties devised to her, thereby permitting the sale proceeds

to be added to the residuary estate. Id. at 33-34. Appellant further posits


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that there was no mention at the June 1, 2017 proceeding that the Estate had

already entered into a sales agreement for the WTRN radio station and

property two days earlier on May 30, 2017. Id. at 34. Appellant contends

that as a result of these transactions, there were sufficient assets in the

residuary estate to meet the Estate’s obligations without ordering the sale of

the Henderson Township property.        Id. at 34-36.     Accordingly, Appellant

contends, he agreed to sell the property due to his erroneous belief that the

sale of the Henderson Township property was necessary, and therefore, the

June 1, 2017 consent decree should be set aside. Id. at 34-37.

      Our Supreme Court has stated the following with regard to consent

decrees:

             A consent decree is not a legal determination by the court
      of the matters in controversy but is merely an agreement between
      the parties—a contract binding the parties thereto to the terms
      thereof[.] As a contract, the court, in the absence of fraud,
      accident or mistake, had neither the power nor the authority to
      modify or vary the terms set forth....

Lower Frederick Tp. v. Clemmer, 543 A.2d 502, 510 (Pa. 1988). “Since a

judgment by consent is regarded as a contract between the parties, it must

be construed the same as any other contract.” Id.

      The orphans’ court provided the following analysis on this issue:

             [Appellant] participated in the May 3, 2017 hearing which
      fully outlined the [cash] deficit of the [E]state and the [E]state[’s]
      intent to sell the radio station. He had full knowledge of the
      $12,500/month payments made by Forever of Pa., Inc. as he
      benefitted from half of that sum each month (and his sister
      received half) since 2009. Executor Hoyne testified that he
      continued to honor that practice of the [D]ecedent and was trying

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     to not call that cash back to the [E]state.9 (hrg. Tr. 5-3-17 p.
     17)[.]

           9 In fact, the half payment due to [Appellant,] the
           [E]state began to apply to the promissory note
           [Appellant] took against the Shelton Avenue home
           purchased by [Decedent]. This helped to reduce the
           $188,000.00 + debt owed by the [E]state since
           [D]ecedent co-signed for that note which also
           involved a concurrent mortgage against a property
           valued at only $120,000.00.

           The agreement of June 1, 2017 gave [Appellant] a 45-day
     window to purchase [the Henderson Township property] and have
     a right of first refusal thereafter. The fact that [Appellant] did not
     or could not purchase the property in that 45-day window (or over
     the last six months with any sale on hold due to this litigation)
     does not provide an opportunity for him to rewrite the agreement.
     Accordingly, [Appellant] has provided no basis of fraud or
     mistaken belief that rises to any level required to set aside his
     agreement: See, Lundy v Manchel, 865 A.2d 850 (Pa. Super.
     2004). Buyer’s remorse is not the equivalent of a legal basis to
     reverse an otherwise valid agreement which was confirmed by
     court order.

           Even should this court find a threshold basis to set aside the
     agreement, the outcome would be the same based upon the
     testimony and facts provided at the September and October
     hearings on the Petition to Set Aside the Agreement.

           [Appellant] presented a carefully calculated proposal for
     payment of [E]state debts within an additional 12-month period,
     assuming the “pushed out” payments were received and the
     $12,000/month consulting fee money would be paid to the
     [E]state and not the heirs as the decedent had done since 2009.11
     Unfortunately, such calculation did not take into account the
     pending personal representative fees and attorney fees which
     pursuant to 20 Pa.C.S.A.§ 3392 have first priority before any other
     claims.

           [11]  The testimony of executor Thomas Hoyne
           indicated the consulting fee money actually is the
           property of the [E]state but he has tried to honor the
           past practice of [Decedent] to provide income to the

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              children, heirs of the [E]state (hrg.tr. 5-3-17 p. 17)
              as stated previously.[3]

Orphans’ Court Opinion, 12/19/17, at 8-9. The orphans’ court’s determination

is supported by the evidence of record.

       Although Appellant appears to assert that the consent decree was

entered into as a result of his mistaken understanding of the status of various

Estate assets, Appellant has not proven fraud, accident, or mistake that would

permit the court’s intervention.          In fact, the orphans’ court stated that

Barbara’s disclaimer of the property specifically bequeathed to her was

recorded of public record in the Blair County Records of Deeds Office on

April 11, 2017, which preceded the June 1, 2017 agreed-upon consent order.

Orphans’ Court Opinion, 12/19/17, at 5. Accordingly, because Appellant has

failed to establish fraud, accident, or mistake, there was no basis to vacate

the order, and indeed, the orphans’ court lacked the power and authority to

modify the terms of the consent order. Lower Frederick Tp., 543 A.2d at

510.

       Further, although Appellant maintains that the sale of the property

bequeathed to Barbara and the sale of the WTRN radio station and property

would result in sufficient assets in the residual estate to cover the Estate’s

expenses and costs, thereby not necessitating the sale of the Henderson


____________________________________________


3 It appears from the context of the orphans’ court’s opinion, footnote 10 was
improperly labeled and was in fact footnote 11. The orphans’ court, although
indicating the existence of footnote 10, did not include related text.

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Township property, Appellant fails to establish that contention. Indeed, the

orphans’ court stated in its opinion, based on its findings following the

September and October hearings on Appellant’s petition to set aside the

agreement, that there were additional expenses for which Appellant did not

account. Orphans’ Court Opinion, 12/19/17, at 9.

     Additionally, assets that Appellant includes in his calculation of the

residual estate were not assets possessed by the Estate at the time of the

hearings.   During argument, Appellant claimed that monthly payments by

Magnum Broadcasting were outstanding and owing to the Estate, and that

those payments would be available to pay outstanding obligations.          N.T.,

9/11/17, at 13.    As the orphans’ court observed with regard to these

payments, however,

     [t]he pushed-out payments that inflate [E]state assets include an
     installment sale to Magnum Broadcasting which accounts for
     approximately $300,000.00 in the inventory of assets of this
     [E]state. The contract requires Magnum to pay the [E]state
     approximately $4,000/month and they only made one payment in
     2016 and only made two payments for the year 2017. Any efforts
     of debt collection will adversely affect the FCC license of Magnum,
     making any future collections virtually impossible with the closure
     of the business.

Orphans’ Court Opinion, 12/19/17, at 10.

     Furthermore, Appellant included in his calculation of Estate assets future

anticipated payments from Laurel Media Inc., which owed a total of

$120,000.00, paid at $30,000.00 per year.         N.T., 10/30/17, at 5, 27.




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Testimony provided at the hearing raised the uncertainty of receipt of those

anticipated future payments. Id. at 21.

       Thus, given the unaccounted-for expenses and potential lack of

anticipated assets, the sale of the properties bequeathed to Barbara4 and the

sale of the radio station and property, without the sale of the Henderson

Township property, would not necessarily have resulted in sufficient residuary

assets to cover the Estate’s expenses.             Accordingly, we cannot agree that

Appellant was mistaken in his belief that sale of the Henderson Township

property was necessary for proper administration of the Estate.              To the

contrary, the evidence of record supports the conclusion that at the time of

the hearing, without the sale of the Henderson Township property there was

a shortfall of residual assets.         Appellant’s reliance on anticipated future

payments in calculating Estate assets was insufficient to establish that the

Estate had sufficient assets to pay its expenses and debts without the sale of

the Henderson Township property. Thus, the orphans’ court did not err in

denying Appellant’s request to vacate the June 1, 2017 consent order.

Appellant’s claim lacks merit.

       Order affirmed.



____________________________________________


4 Again, we note the orphans’ court’s findings of fact indicating that Barbara’s
disclaimer of property specifically bequeathed to her was recorded of public
record in the Blair County Records of Deeds Office on April 11, 2017, which
preceded the June 1, 2017 agreed upon court order. Orphans’ Court Opinion,
12/19/17, at 5.

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     Judge Bowes joins this Memorandum.

     Judge Strassburger files a Concurring Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019




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