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HARRY W. FROWEN v. J. MARSHALL BLANK (05/10/79)

decided: May 10, 1979.

HARRY W. FROWEN, EXECUTOR OF THE ESTATE OF BLANCHE FROWEN, DECEASED, APPELLANT,
v.
J. MARSHALL BLANK



No. 486 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Westmoreland County, at No. 4191, in Equity.

COUNSEL

Robert J. Milie, Greensburg, for appellant.

Christ C. Walthour, Jr. and with him S. Wayne Whitehead, Greensburg, for appellee.

Van der Voort, Spaeth and Montgomery, JJ. Spaeth, J., files a dissenting opinion.

Author: Van Der Voort

[ 266 Pa. Super. Page 146]

The instant action was instituted by Blanche Frowen, now deceased, to rescind an agreement for the sale of realty to the appellee. The property in issue was a farm occupied by

[ 266 Pa. Super. Page 147]

    the decedent and the appellee was a neighbor. The lower court held a hearing, and thereafter dismissed the complaint, holding that the plaintiff failed to sustain her burden of proof on the issue of fraud. After appeal, our Court remanded [242 Pa. Super. 276, 363 A.2d 1267] to the lower court for a decision, including findings of fact and conclusions of law, on the issue of whether appellee had breached any confidential relationship with the appellant. The lower court carried out the remand instructions of this Court, concluded that no breach of a confidential relationship had been proven, and prepared an opinion containing findings of fact and conclusions of law in support of that result. This appeal followed by the executor of the estate of the deceased widow. We find no basis for reversal.

The standard of review by an appellate court in an equity case has been discussed many times. It has been held that the findings of the chancellor will not be reversed unless it appears that he has clearly abused his discretion or committed an error of law. Yuhas v. Schmidt, 434 Pa. 447, 258 A.2d 616 (1969). The chancellor's findings have the full force of a jury verdict, and if supported by sufficient evidence, and if affirmed by the court en banc, will not be disturbed on appeal. Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975); Girard Trust Bank v. Sweeney, 426 Pa. 324, 231 A.2d 407 (1967); Philadelphia Fresh Food v. M. Levin & Co., 239 Pa. Super. 288, 361 A.2d 886 (1976).

We believe there is clearly sufficient evidence to support the lower court's findings, which were affirmed by the court en banc, and find no abuse of discretion or error of law. The record, briefly stated, shows that the plaintiff, an elderly widow, became quite friendly with the appellee and his family, who were her neighbors. Over the course of several years, they showed the plaintiff numerous kindnesses and extended many favors to her. For instance, the appellees regularly included their neighbor in their social affairs and transported her to events she wished to attend. After several years as neighbors, the parties struck an agreement whereby the decedent agreed to sell the appellee

[ 266 Pa. Super. Page 148]

    her farm, in an arrangement that was clearly an excellent financial deal for the appellee. The decedent retained a life estate and other rights in the property. Before the agreement was signed by the widow, she had the papers explained to her by not only one, but by two attorneys. While these attorneys were the appellee's attorneys, there appears no basis whatsoever in the record to cast any doubt on the veracity of testimony offered by the one who testified before the lower court concerning the circumstances of his meeting and discussion with the decedent. Nor is there any evidence to give rise to any inference that these attorneys followed less than the highest standards of professional integrity in fully explaining the document to the decedent. The testimony offered by the attorney, in summary, was that the agreement was thoroughly explained in every detail to the decedent, who appeared to hear and understand all that was explained. She asked many questions about the agreement, especially the financial terms, and seemed well pleased that the agreement expressed her understanding and desire. Of course, the record also contained the testimony of the appellee, which also directly negated any argument of a breach of a confidential relationship.

Balanced against this evidence was the testimony of the decedent herself, who was still living at the time of trial. She essentially testified that she did not understand the agreement, and believed she was renting and not selling her property. We note just a few factors which create doubts as to the decedent's testimony. First, while the property had a market value clearly exceeding the price called for in the sales agreement, the appellee was bound to ultimately pay $15,000.00 for the property, plus interest on the unpaid balance until the sales price was fully paid. Such an arrangement sounds little like any common lease procedure with which we are familiar. Next, the instant action was not filed until over five years after the agreement between the parties was reached. This creates as great an inference of a change of mind by the decedent as it does an inference of any alleged discovery that the written agreement did not represent what the decedent intended.

[ 266 Pa. Super. Page 149]

As noted, we have only highlighted the evidence of record. Based upon the record as a whole, we find no ground for holding that the lower court clearly abused its discretion in its factfinding role or committed any error of law. Further, we endorse its conclusion that there was no evidence to support a claimed breach of a confidential relationship by appellee. As was stated by the Supreme Court in Masciantonio Will, 392 Pa. 362, 367, 141 A.2d 362, 365 (1958): "The test is not whether we, the appellate court, would have reached the same result had we been acting as the hearing judge who saw and heard the witness, '"but rather whether a judicial mind, on due consideration of the evidence, as a whole, could reasonably have reached the conclusion of the chancellor"'."

Affirmed.

SPAETH, Judge, dissenting:

In November 1973, appellant's decedent, Blanche Frowen, filed the present action in equity asking the lower court to rescind an agreement of sale. After a hearing, the lower court dismissed the complaint on the ground that appellant's decedent had failed to sustain her burden of proof with respect to the question of fraud. On appeal to this court the case was remanded to the lower court with instructions to decide whether there had been a breach of a confidential relationship by appellee, this decision to be accompanied by findings of fact and conclusions of law consistent with Rule 1517 of the Rules of Civil Procedure. Frowen v. Blank, 242 Pa. Super. 276, 363 A.2d 1267 (1976). The lower court has now filed an opinion containing findings of fact and conclusions of law in support of its original decision dismissing the complaint. The issue on this appeal is whether the lower court erred in holding that appellant's decedent did not prove a breach of a confidential relationship. The majority affirms; I should reverse.

On remand the lower court made the following findings of fact:

[ 266 Pa. Super. Page 1501]

. Plaintiff filed an action in equity seeking the recision of a written agreement of sale between the Plaintiff and the Defendant dated May 22, 1968, and duly recorded in the Office of the Recorder of Deeds of Westmoreland ...


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