J-A29014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF JOHN J. THOMAS,           :   IN THE SUPERIOR COURT OF
    DECEASED                                   :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: TIMOTHY J. UNGAREAN             :
                                               :
                                               :
                                               :
                                               :   No. 522 WDA 2019

                 Appeal from the Order Dated March 28, 2019
       In the Court of Common Pleas of Beaver County Orphans' Court at
                           No(s): No. 04-14-1068


BEFORE:      BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MARCH 6, 2020

        Timothy J. Ungarean (“Appellant”) appeals from the order dated March

28, 2019, and entered on April 2, 2019, by the Court of Common Pleas of

Beaver County, Orphans’ Court Division, finding the will purportedly executed

by John J. Thomas, deceased (“Mr. Thomas”), invalid, and granting

Petitioners’ motion to revoke letters testamentary.1 After careful review, we

affirm.

        We glean the following facts and procedural history from the record.

Following the death of Mr. Thomas on October 12, 2014, Appellant offered for

probate a writing, dated July 7, 2014, which purported to be the last will and
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Petitioners are the eight surviving nieces and nephews of the deceased:
David George, Theresa A. Thomas, Carol L. Thomas, Norman J. Thomas, Anna
Marie Rheingrover, Alex C. George, Charles T. George, and James H. George
(collectively “Petitioners”).
J-A29014-19



testament of Mr. Thomas and named Appellant as the sole beneficiary of the

estate. On October 23, 2014, the Beaver County Register of Wills admitted

the will to probate and granted letters testamentary to Appellant. Alleging

forgery of the will, Petitioners challenged its validity and sought to have the

letters testamentary revoked with the filing of a petition for citation sur appeal

from probate on December 16, 2014. On December 31, 2014, the orphans’

court awarded a citation and directed Appellant to show cause why the letters

testamentary should not be revoked. Appellant filed a response to the petition

for citation on January 13, 2015.

      Following discovery and pre-trial proceedings, an evidentiary hearing

commenced before the Honorable John D. McBride, on June 27, 2016. On the

morning of the third scheduled hearing day, counsel for Petitioners stated that

he and Appellant’s counsel would like to put a settlement agreement on the

record. After extensive discussion before the court regarding the terms of the

alleged settlement, the agreement did not reach fruition and, at the request

of Petitioners, the hearing was continued to a later date.

      By August 2, 2016, no written settlement agreement had been entered,

and Appellant filed a petition to enforce an oral settlement agreement.

Petitioners filed an answer on August 11, 2016, in which they asserted that

the essential terms of an agreement were never reached and, thus, there was

no settlement agreement for the court to enforce.         On August 24, 2016,

Appellant’s petition was denied by the court.




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      On December 5, 2016, the court ordered and decreed that Judge

McBride must recuse himself from further proceedings in this case and it

subsequently appointed the Honorable Harry E. Knafelc to preside over this

matter.    Petitioners filed an application for emergency relief with the

Pennsylvania Supreme Court.        Our Supreme Court ultimately vacated the

order appointing Judge Knafelc and appointed the Honorable Paul F. Lutty, an

out-of-county judge, to preside over this case.      See Pa.R.J.A. 701(C)(2)

(explaining the process by which assignment of another jurist is made in order

“to serve the interest of justice”).

      A non-jury trial commenced in October of 2018, during which all of the

testimony previously made before Judge McBride was freshly presented to the

newly-appointed judge.     After the trial concluded, Judge Lutty entered the

following findings of fact and conclusions of law:

            Petitioners [] filed a challenge to the validity of a will
      purportedly executed by John J. Thomas, on July 7, 2014[,] at the
      Rochester Manor Nursing Home in Beaver County, Pennsylvania.
      The will specifies that John J. Thomas bequeathed all of his estate
      to [Appellant], his second cousin. [Appellant] has asserted that
      the signing if [sic] the will at issue was witnessed by William M.
      Braslawsce, Attorney at Law, and his son, Zeesha Braslawsce. It
      is not contended that any other individuals were present at the
      signing. The will was notarized sometime later by Lu Anne Cilli,
      who … was not present at the signing.

            Depositions were taken of all witnesses to the purported
      signing, as well as others. Hearings were held before [j]udges in
      Beaver County, Pennsylvania. This court was requested to make
      a final determination as to the validity of the will. Therefore,
      hearings were held in Allegheny County before this court on
      October 22-25, 2018, November 9, 2018[,] and closing
      arguments were heard on January 18, 2019. This court had


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      access to review the deposition transcripts of the witnesses,
      transcripts of the Beaver County proceedings and all proceedings
      before this court.

             Determination of the validity of the John J. Thomas will
      rested upon an evaluation of the credibility of the witnesses to the
      will, as well as other witnesses, and the credibility and
      qualifications of two (2) handwriting experts chosen by the
      parties.    After months of consideration, it is this court’s
      determination that the will purportedly executed by John J.
      Thomas on July 7, 2014, as well as all other documents
      purportedly executed by him on that date, are invalid. This court
      agrees with handwriting expert, J. Wright Leonard, that the
      signatures on the will and accompanying documents are not that
      of … [Mr.] Thomas. This court finds that the testimony of the only
      witnesses to the signing of the will is not credible.

             Finally, this court finds in favor of [] Petitioners that the
      letters testamentary must be revoked. Therefore, the late John J.
      Thomas, having made no will during his lifetime, died intestate.
      His estate shall legally pass on to his intestate heirs, who are the
      petitioners herein. Judgment is awarded in favor of Petitioners
      and against [Appellant].

Trial Court Order, 3/28/19, at 1-2 (unpaginated; unnecessary capitalization

omitted).

      On April 15, 2019, Appellant filed a timely appeal. The trial court did

not order the filing of a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).    Appellant now raises the following issues for

our review:

      A. Whether oral settlement agreements are enforceable under
         Pennsylvania law[?]

      B. Whether [Appellant] and [Petitioners] entered into an
         enforceable settlement agreement, which was placed on the
         record at a June 29, 2016 proceeding[?]

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      We begin by setting forth our scope and standard of review:

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          The enforceability of settlement agreements is determined
          according to principles of contract law. Because contract
          interpretation is a question of law, this Court is not bound
          by the trial court’s interpretation. Our standard of review
          over questions of law is de novo and to the extent
          necessary, the scope of our review is plenary as [the
          appellate] court may review the entire record in making its
          decision.

       Ragnar Benson, Inc. v. Hempfield Township Mun. Auth., 916
       A.2d 1183, 1188 (Pa. Super. 2007) (citations and quotation marks
       omitted). With respect to factual conclusions, we may reverse the
       trial court only if its findings of fact are predicated on an error of
       law or are unsupported by competent evidence in the record.
       Skurnowicz v. Lucci, 798 A.2d 788, 793 (Pa. Super. 2002)
       (citation omitted).

Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 517-18 (Pa. Super.

2009).

       In his first issue, Appellant properly asserts that oral settlement

agreements are enforceable under Pennsylvania law.

       Where a settlement agreement contains all of the requisites for a
       valid contract,[2] a court must enforce the terms of the agreement.
       McDonnell v. Ford Motor Co., … 643 A.2d 1102, 1105 ([Pa.
       Super.] 1994)…. This is true even if the terms of the agreement
       are not yet formalized in writing. Mazzella v. Koken, … 739 A.2d
       531, 536 ([Pa.] 1999); see Commerce Bank/Pennsylvania v.
       First Union Nat. Bank, 911 A.2d 133, 147 (Pa. Super. 2006)
       (stating “an agreement is binding if the parties come to a meeting
       of the minds on all essential terms, even if they expect the
       agreement to be reduced to writing but that formality does not
       take place[]”). Pursuant to well-settled Pennsylvania law, oral
       agreements to settle are enforceable without a writing.
____________________________________________


2  “There is an offer (the settlement figure), acceptance, and consideration (in
exchange for the plaintiff terminating his lawsuit, the defendant will pay the
plaintiff the agreed upon sum).” Mastroni-Mucker, 976 A.2d at 518 (internal
citations and quotation marks omitted).



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      Pulcinello[ v. Consolidated Rail Corp., 784 A.2d 122, 124 (Pa.
      Super. 2001)] (citing Kazanjian v. New England Petroleum
      Corp., … 480 A.2d 1153, 1157 ([Pa. Super.] 1984)).

Id. See also Step Plans Services, Inc. v. Koresko, 12 A.3d 401, 409 (Pa.

Super. 2010). Moreover, we recognize that “[f]amily settlement agreements

are favored in this Commonwealth because they are an attempt to avoid

potentially divisive litigation. Where a fair and valid agreement is present[,]

it will be upheld whenever possible; in the absence of fraud the agreement is

binding even though based on an error of law.” In re Estate of Boardman,

80 A.3d 820, 822 (Pa. Super. 2013) (internal citations and quotation marks

omitted).

      In order for an oral settlement agreement to be enforceable, however,

it is clear that all essential terms must be agreed upon.

      Our Supreme Court, in Woodbridge v. Hall, … 76 A.2d 205 ([Pa.]
      1950), held that an oral agreement to settle, which included the
      essential terms of the agreement between the parties, was
      enforceable, even though the parties were unable to agree,
      despite numerous drafts, to the terms of a written settlement
      agreement.

Compu Forms Control, Inc. v. Altus Group, Inc., 574 A.2d 618, 623 (Pa.

Super. 1990) (emphasis added). “[I]f parties agree on essential terms and

intend them to be mutually binding, a contract is formed even though the

parties intend to adopt a formal document later which will include additional

terms.” Id. at 624 (emphasis added). See also Luber v. Luber, 614 A.2d

771, 773 (Pa. Super. 1992) (stating that “[a]s long as the oral agreement

contained the essential terms of the … settlement, it could be enforced,” and



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the fact that they intend to reduce the agreement to writing does not prevent

enforcement) (emphasis added).

      Instantly, Appellant argues that the record supports the finding of a

settlement agreement between the parties and that the orphans’ court erred

in failing to enforce said agreement. Appellant’s Brief at 16. More specifically,

Appellant proffers that “the transcript of the lower court proceedings shows

that on June 29, 2016, in open court, counsel for the parties recited and

agreed upon the essential settlement terms.” Id. Appellant further states

that “[d]espite the terms recited and agreed upon in court, [Petitioners]

refused to execute a written settlement agreement, and Appellant was forced

to present a Petition to Enforce Oral Settlement Agreement, which was

denied.” Id.

      In contrast, Petitioners assert that no enforceable contract had yet been

formed at the June 29, 2016 hearing, as the parties had not yet agreed upon

all the essential terms necessary to form an agreement. In support of their

position, Petitioners note that counsel for Appellant stated on the record: “The

… next element of the settlement agreement … is that there shall be a

settlement agreement reduced to writing signed by all parties….”            N.T.

Hearing, 6/29/16,    at 11.   Petitioners argue that the requirement for the

parties to reduce a settlement agreement to writing indicates only that the

parties intended to reach an agreement “sometime in the future,” Petitioners’

Brief at 10, and that “it is clear that the parties had not agreed on essential

terms of settlement, but for the requirement of a written settlement

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agreement.” Answer to Petition to Enforce Settlement Agreement at 3-4 ¶11.

“Implicit in the requirement of a written settlement agreement is that the

parties would negotiate and agree upon the nature and scope of the release

and other specific terms of settlement, including requisite consideration, in

their written agreement.” Id. at 4 ¶11.

      Moreover, Petitioners point to written letters between counsel for both

parties following the evidentiary hearing, which illustrate a pattern of offers

and denials between the parties’ counsel, supporting their position that

negotiations of settlement terms were ongoing and that no enforceable

agreement had yet been reached. Petitioners’ Brief at 4. Petitioners further

argue that even if an oral contract had been formed at the hearing on June

29, 2016, “such alleged contract was rendered unenforceable and void due to

the unclean hands of [Appellant], who had offered for probate a forged will,

an instrument forming the basis for his supposed rights in the [e]state of [Mr.]

Thomas[.]” Id. at 4-5.

      The orphans’ court agreed with Petitioners that there was no settlement

to be enforced, see N.T. Hearing, 8/23/16, at 4, and denied Appellant’s

petition accordingly.   Judge Lutty noted that although he had no firsthand

knowledge of the alleged oral settlement agreement, he did have access to

the record made before the prior judge and, thus, he could specify where in

the record Judge McBride’s reasons for denying the petition to enforce an oral

agreement may be found. Trial Court Memorandum (“TCM”), 6/27/19, at 2.

Referencing the June 29, 2016 transcript, Judge Lutty opined:

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      Richard P. Joseph, Esquire, appeared on behalf of Petitioners and
      Kenneth Lewis and Richard Holzworth appeared on behalf of the
      estate and … Appellant[] herein.

            On page three (3) of the transcript, Attorney Joseph
      indicated that he would like to put a settlement agreement on the
      record. As counsel for the estate began to recite the oral terms
      of the agreement, Judge McBride interrupted and inquired at what
      point [Appellant] would file his first accounting….

            Attorney Lewis… responded, “We have not discussed that,
      your Honor.” Judge McBride expressed the importance of an
      accounting, stating, “I will tell both of you that Judge McBride
      wants to know that there is an appropriate and proper accounting
      for every cent that comes into any decedent’s estate in this
      County[,]” and “I’m telling you that I prefer an accounting.”

             Another element of the settlement was brought up by
      Attorney Lewis for [] Appellant[]. “The … next element of the
      settlement, your Honor, is that there shall be a settlement
      agreement reduced to writing signed by all parties, [Appellant,]
      as well as all clients[] represented by Mr. Joseph. The agreement
      will contain mutual releases running in favor of [Appellant], Esther
      Ungarean, their attorneys, Fox Rothchild[,] and running mutually
      in favor of Mr. Joseph and each of his clients.”

Id. at 2-3 (unnecessary capitalization and citations to record omitted).

      In further support of the orphans’ court’s denial of Appellant’s petition,

Judge Lutty stated:

             [Judge McBride] expected to have a signed settlement
      within the next thirty (30) days. However, no written and signed
      settlement agreement was submitted to Judge McBride within
      thirty (30) days. Instead, on August 2, 2016, another transcript
      was made of a hearing, entitled “Motion.” Only Richard Holzworth
      appeared on behalf of [Appellant], who intended to present a
      petition to enforce settlement. Mr. Holzworth explained, “There is
      a dispute in the negotiations of … the written settlement
      agreement,” to which the Judge responded, “I realize that there
      is … a dispute.”
                                       …

            At the final hearing regarding settlement, with both the
      parties’ attorneys present, a transcript was made on the argument

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      of Appellant’s motion to enforce oral settlement agreement, which
      argument took place on August 23, 2016. The court recognized
      that the parties had not reached a settlement to be enforced.
      Further, Judge McBride advised, “I will suggest to all three of you
      gentlemen, if you think there is any possibility of settling this case,
      you had better present a document signed to my chambers,
      signed by all three of you, and signed by your clients before I will
      consider any settlement proposal.”

            After much argument and personal confrontation, Judge
      McBride took the motion to enforce oral settlement, as well as
      other motions not relevant to this appeal, under advisement[,]
      and entered an order denying the motion [that] same day.

Id. at 3-4 (unnecessary capitalization and citations to record omitted). Judge

Lutty therefore concluded that, “[f]rom the record before Judge McBride, it is

clear that he recognized unresolved issues remaining in dispute that precluded

the parties’ completion of a written agreed settlement.” Id. at 4. Based on

our review, we deem the lower court’s finding that no oral settlement

agreement had been reached to be supported by the record. We discern no

error of law or abuse of discretion by the orphans’ court.

      We agree with Petitioners that the record merely reveals a negotiation

of proposed terms of a settlement agreement, and that no meeting of the

minds occurred at the June 29, 2016 hearing regarding all essential terms of

a contract. While listing some of the proposed terms of settlement on the

record, Appellant’s counsel stated that he would “welcome any corrections or

modifications.” N.T. Hearing at 4.     Judge McBride interrupted to inform the

parties that he would require as part of the settlement an accounting of the

estate by Appellant, to which Appellant’s counsel replied:         “We have not

discussed that, Your Honor.” Id. at 6. Additionally, the following dialogue


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between the court and the parties’ counsel supports the conclusion that a

settlement was expected but had not yet been reached:

      THE COURT:        Can I … expect that I am going to have some
      conclusion of this matter with signed settlement agreements …
      within the next 30 days?

      MR. JOSEPH:       I don’t see why not.

      MR. LEWIS:        Yes, Your Honor. That is reasonable.

Id. at 15-16.

      Moreover, the record contains correspondence between the parties’

counsel following the June 29, 2016 hearing, which further illustrates that

negotiations were ongoing and that no formal agreement had been reached.

For instance, by letter dated July 8, 2016, Mr. Lewis sent Mr. Joseph a “draft”

settlement agreement and indicated that he had not yet had an opportunity

to review it with Appellant and expressly reserved the right “to modify the

draft, should that be necessary.” Mr. Joseph replied by letter dated July 19,

2016, in which he informed Mr. Lewis that “we do not accept the terms that

you have set forth in your [s]ettlement and [r]elease [a]greement…. We will

prepare and forward to you a redline version identifying the areas of

disagreement.”   Answer to Petition to Enforce Oral Settlement Agreement,

Exhibit 2 (emphasis added).

      Appellant insists that he and Petitioner “agreed to the essential terms

necessary to form an enforceable settlement agreement[,]” and that “[a]side

from boilerplate and other non-essential terms sometimes found in settlement

agreements, the terms recited and agreed upon by counsel for both parties


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contain all of the substantive elements that one would expect to find in a

complete settlement agreement.” Appellant’s Brief at 24, 26 (citing Luber,

614 A.2d at 773-74 (finding that there was no evidence that “boilerplate”

language was essential to the settlement agreement or that it would materially

alter the terms of the agreement between the parties)). The record belies

Appellant’s claims.

      It is well-settled that,

      for an agreement to exist, there must be a “meeting of the minds,”
      …; the very essence of an agreement is that the parties mutually
      assent to the same thing…. The principal that a contract is not
      binding unless there is an offer and an acceptance is to ensure
      that there will be mutual assent….

Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super. 1993). Instantly,

the record clearly reflects that there was no meeting of the minds between

the parties sufficient to form an enforceable settlement agreement and that

the matters subject to disagreement consisted of more than mere boilerplate

language.

      For instance, one main issue of dispute between the parties is the matter

of releases—particularly, the release to be issued in favor of Appellant. The

parties stated on the record at the hearing that the settlement agreement “will

contain mutual releases running in favor of [Appellant], Esther Ungarean, their

attorneys, Fox Rothschild, and running mutually in favor of Mr. Joseph and

each of his clients.” N.T. Hearing at 11. According to Appellant, Petitioners

agreed to completely and unconditionally release Appellant of all claims.

Petition to Enforce Oral Settlement Agreement, 8/2/16, at 2 ¶ 9, 5 ¶¶ 20-21

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(emphasis added).        However, Petitioners aver that “[e]ssential terms of a

release were not discussed by Mr. Lewis and [Mr.] Joseph…, let alone agreed

upon by them.” Answer to Petition to Enforce Oral Settlement Agreement,

8/11/16, at 2. Petitioners admit that the parties agreed in principle to release

each other and their counsel from liability for claims relating to the validity of

the will and probate of the will. They deny, however, that they ever agreed

to grant an absolute and unconditional release to Appellant. Id. at 7 ¶ 18(e),

8 ¶ 20.3 It is evident that there was no meeting of the minds regarding the

essential term of the scope of the release to be granted to Appellant. Thus,

the orphans’ court properly denied Appellant’s petition to enforce oral

agreement.

       Finally, we note that even if we were to conclude that a valid,

enforceable settlement agreement was reached at the June 29, 2016 hearing,

we would deem Appellant’s forging of the will to be such conduct that

constitutes “unclean hands” which would bar him from relief in equity.

       In the exercise of the limited jurisdiction conferred on it by
       statute, it is plain that the [o]rphans’ [c]ourt must apply the rules
____________________________________________


3We further note that Mr. Joseph stated in his July 21, 2016 letter to Mr.
Lewis:

       You suggest that [Appellant] must be released immediately and
       unconditionally…. There was no discussion, let alone an oral
       agreement that he would be released in this fashion. He will be
       released, but only conditionally and when it is determined that his
       handling of … [e]state assets was not improper and that he did
       not harm the [e]state.

Answer to Petition to Enforce Oral Settlement Agreement, Exhibit 2.

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       and principles of equity. Thus, the familiar equity maxim “he who
       comes into a court of equity must come with clean hands” applies
       to matters within the [o]rphans’ [c]ourt’s jurisdiction.

       The maxim itself is derived from the unwillingness of a court to
       give relief to a suitor who has so conducted himself as to shock
       the moral sensibilities of the judge, and it has nothing to do with
       the rights or liabilities of the parties. Public policy not only makes
       it obligatory for the court to deny relief, once a party’s unclean
       hands are established, but to refuse the case.

       This maxim is far more than a mere banality. It is a self-imposed
       ordinance that closes the doors of a court of equity to one tainted
       with inequitableness or bad faith relative to the matter in which
       he seeks relief … that doctrine is rooted in the historical concept
       of equity as a vehicle for affirmatively enforcing the requirements
       of conscience and good faith. Thus[,] while equity does not
       demand that its suitors shall have led blameless lives[] … as to
       other matters, it does require that they shall have acted fairly and
       without fraud or deceit as to the controversy in issue….

In re Estate of Pedrick, 482 A.2d 215, 222 (Pa. 1984) (internal citations

and quotation marks omitted). “The clean hands doctrine does not bar relief

to a party merely because his conduct in general has been shown not to be

blameless; the doctrine only applies where the wrongdoing directly affects the

relationship subsisting between the parties and is directly connected with the

matter in controversy.” Id. at 222-23.4

       This Court recently determined in Morgan v. Morgan, 193 A.3d 999

(Pa. Super. 2018), that the trial court abused its discretion when it failed to

____________________________________________


4 Chief Justice Nix, in his concurring opinion, also acknowledged that “[t]he
proponent of a will cannot seek the aid of a court of equity to secure the
probate of a will, the execution of which was effectuated by his own
wrongdoing.” Id. at 224 n.1 (citing Cross’ Estate, 179 A. 38 (Pa. 1935);
Hays’ Estate, 28 A. 158 (Pa. 1893)).



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apply the doctrine of unclean hands. In Morgan, the husband petitioned the

trial court for a reduction of his alimony obligation, based on false

documentation and testimony regarding his income, including two sets of false

tax returns.     We concluded that the husband’s fraudulent production and

testimony was “within the purview of the unclean hands doctrine[,]” and

opined:

      In light of the fraud that [the] [h]usband committed not only on
      the court, but also to the parties and judicial system itself, the
      trial court should have invoked the doctrine of unclean hands and
      denied [the] [h]usband’s request to modify [his] alimony
      obligations.
                                        …

      This Court finds [the] [h]usband’s conduct to be appalling; it most
      certainly shocks the moral sensibilities of this Court.

Id. at 1006-7.

      Similarly, we conclude that the facts of the instant case fall within the

purview of the doctrine of unclean hands. Moreover, we deem Appellant’s

conduct of forging the will and naming himself as the sole beneficiary of the

estate, to the detriment of Petitioners, as shocking to the moral sensibilities

of this Court.    The only equitable result is to deny Appellant’s petition to

enforce the oral agreement.

      Accordingly, we affirm the March 28, 2019 order finding the purported

will of John J. Thomas invalid and revoking the letters testamentary granted

to Appellant.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2020




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