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HomeMy WebLinkAbout01-2239 EquityROBERT W. FAILOR, JR., CO- : IN THE COURT OF COMMON PLEAS OF EXECUTOR AND ROSS H. : CUMBERLAND COUNTY, PENNSYLVANIA FAILOR, SR., BENEFICIARY, : Petitioners : 01-2239 EQUITY : vs. : CIVIL ACTION - EQUITY : GWEN A. HIPPENSTEEL, CO- : EXECUTOR AND STEVEN A. : FAILOR, BENEFICIARY, : Respondents : IN RE: PETITION FOR PRELIMINARY INJUNCTION BEFORE HESS, J. OPINION AND ORDER This equity action arises out of matters having to do with the estate of Robert W. Failor, Sr. The parties to this proceeding are his children and include both of his co-executors. The action was initiated by a pleading entitled “Complaint/Petition for Injunction.” The matter is not in the Orphans’ Court where these kinds of estate matters are more typically litigated. By the same token, the action in equity was not accompanied by a separate petition for preliminary injunction. Nonetheless, the court granted an expedited hearing. The respondents have lodged no objection to the procedures utilized in this case. We did not act sua sponte, realizing only in retrospect that the pleadings do not track traditional equity practice. The problem, of course, has to do with the standard of review which we must now apply. Given the nature of our most recent proceedings, we will treat the cu rrent posture of the case as a request for a preliminary injunction. The requirements for the issuance of a preliminary injunction in Pennsylvania are well established. First, that it is necessary to prevent immediate and irreparable harm which could not be compensated 01-2239 EQUITY by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct… Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that injunction issued is reasonably suited to abate such activity and unless the plaintiffs’ right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded. School District of Wilkinsburg v. Wilkinsburg Education Association , 542 Pa. 335, 338-39, 667 A.2d 5,6 (1995), fn 2, citing New Castle Orthopedic Association v. Burns , 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978). We are satisfied that the criteria for the issuance of a preliminary injunction have not been met in this case. As noted in the brief of the petitioners, the facts in this case are virtually undisputed. On November 6, 2000, Mr. Failor died testate, leaving seven beneficiaries. The bulk of his estate consisted of a salvage yard business, a house and other adjoining real estate. In settling the estate, the executors chose to use the law firm suggested in Mr. Failor’s Will, Irwin, McKnight and Hughes. An independent appraisal of the property was obtained; however, two mobile homes on the property were not included in the appraisal. Several meetings were held by the beneficiaries to discuss the administration of their father’s estate. Ultimately, on January 3, 2001, the seven beneficiaries met at the law offices of Irwin, McKnight and Hughes to discuss the disposition of the estate property. In addition to the seven beneficiaries, attorneys Roger B. Irwin and H. Kay Dailey were present. At the meeting, the beneficiaries agreed that, among other things, Steven A. Failor would purchase the estate property at the appraised value of $133,000. The understandings of the parties were 2 01-2239 EQUITY memorialized in a letter from Attorney Dailey to Attorney Irwin dated January 20, 2001. The letter reflects the specific agreement that Steven A. Failor would purchase the estate for the amount aforementioned and would pay all inheritance taxes and all costs of administration. The agreement further provided that two of the beneficiaries would remain on the property in the mobile homes. Correspondence implementing the agreement continued into late February of 2001. Subsequently, the petitioners came to discover that a recent reassessment, conducted by Cumberland County, set the value of the estate property at $150,000 more than the price which Steven Failor had agreed to pay. Relying on the county assessment, the respondents have repudiated their earlier agreements. They have offered to purchase the estate property for the sum of $250,000 though they have tendered no funds, secured no financing, nor have they demonstrated that such funds are in their possession. In the meantime, the appraiser, Steven Barrett, has stood by his earlier appraisal of $133,000. Interestingly, Mr. Barrett’s appraisal is based on the fact that vehicles and mobile homes would be removed from the property. Thus, his value is based on a property which is improved from its current condition. After the January 3, 2001, meeting of the parties, Steven A. Failor paid $35,500 towards the existing inheritance taxes and costs of administration. He has written checks to certain beneficiaries, each in the amount of $25,000. He has arranged for the continued residence of two other beneficiaries and their families on the property. He has, in addition, expended significant sums in cleaning up and improving the salvage yard business and in constructing a new residence on the land. 3 01-2239 EQUITY The relief requested in this particular matter seeks to enjoin Steven A. Failor from entry onto the estate property at 450, 452 Crossroads School Road in Carlisle. That would have the effect of ceasing all operations of the salvage yard business and would cease construction on Mr. Failor’s home, which structure is virtually completed. The proposed order, in addition, would direct the sale of the estate of Robert W. Failor, Sr. to the highest bidder among his seven children. We do not, in this proceeding, resolve finally the issues which separate these parties. The issue, today, is whether court intervention is warranted on a preliminary or emergency basis. We turn our attention again, therefore, to the criteria for the entry of a preliminary injunction. In that regard, we fail to see how Steven Failor’s continued clean-up and improvement of the salvage business results in a greater injury than would be the case if we enjoined his activity. Moreover, the plaintiffs’ right of recovery is far from clear and the wrong of the current situation is far from manifest. A central issue raised by t he petitioners is the application of the Statute of Frauds. Robert and Ross Failor contend that the agreement of January 3, 2001 is not enforceable because it was not sufficiently reduced to writing. We agree with the respondents, however, that the requirements of the Statute of Frauds are not as formal or demanding as the petitioners contend. As noted by our courts: The purpose of the Statute is to prevent the possibility of enforcing unfounded, fraudulent claims by requiring that contracts pertaining to interests in real estate be supported by written evidence signed by the party creating the interest…. Pennsylvania courts have emphasized that the Statute is not designed to prevent the 4 01-2239 EQUITY performance or enforcement of oral contracts that in fact were made. (emphasis in original) Long v. Brown , 399 Pa.Super. 312, 582 A.2d 359, 362 (1990), citing Hessenthaler v. Farzin , 388 Pa.Super. 37, 564 A.2d 990, 992 (1989). In this case, there appears to be little question that an oral contract was made. In fact, the respondents have admitted as much. In this regard, the case of Zlotziver v. Zlotziver , 355 Pa. 299, 49 A.2d 779 (1946) is instructive. In that case, a husband and wife reached an oral agreement in the presence of counsel for the transfer of certain real estate as part of a divorce settlement. In testimony, the husband admitted making the agreement, though he argued on appeal that the agreement was only “tentative.” Concerning this, the Supreme Court noted: The Statute of Frauds, however, does not absolutely invalidate an oral contract relating to land but is intended merely to guard against perjury on the part of the one claiming under the alleged agreement. Accordingly, if the title holder admits, either in his pleadings or his testimony, that he did in fact enter into the contract, the purpose of the Statute of Frauds is served and the oral agreement will be enforced by the court. Id. , at 302. Finally, we turn our attention to the request of the petitioners that the court order the sale of the estate of Robert W. Failor, Sr. to the “highest bidder.” We note, with interest, that there is no request that we direct the sale of the estate to the petitioners for the sum of $250,000. We reiterate that the petitioners have not established that they have those funds available or even agreed that that sum would serve as the baseline for the highest bid. Mr. Steven Failor has already, essentially, “bid” the sum of $133,000 and has made payment to some of the other heirs of their share of the proceeds. The proposed order in this case would require the sale of the 5 01-2239 EQUITY estate to Robert W. Failor, Jr., provided that he bids $1.00 more than his brother Steven. Such an injunctive order is not “reasonably suited” to abate any alleged wrongful activity in this case. ORDER AND NOW, this 2nd day of August, 2001, the petition of Robert W. Failor, Jr., co- executor, and Ross H. Failor, Sr., beneficiary, in the nature of a petition for preliminary injunction is DENIED. BY THE COURT, ________________________ _______ Kevin A. Hess, J. H. Kay Dailey, Esquire For the Petitioners Roger B. Irwin, Esquire Douglas G. Miller, Esquire For the Respondents : rlm 6 ROBERT W. FAILOR, JR., CO- : IN THE COURT OF COMMON PLEAS OF EXECUTOR AND ROSS H. : CUMBERLAND COUNTY, PENNSYLVANIA FAILOR, SR., BENEFICIARY, : Petitioners : 01-2239 EQUITY : vs. : CIVIL ACTION - EQUITY : GWEN A. HIPPENSTEEL, CO- : EXECUTOR AND STEVEN A. : FAILOR, BENEFICIARY, : Respondents : IN RE: PETITION FOR PRELIMINARY INJUNCTION BEFORE HESS, J. ORDER AND NOW, this 2nd day of August, 2001, the petition of Robert W. Failor, Jr., co- executor, and Ross H. Failor, Sr., beneficiary, in the nature of a petition for preliminary injunction is DENIED. BY THE COURT, ___________________________ ____ Kevin A. Hess, J. H. Kay Dailey, Esquire For the Petitioners Roger B. Irwin, Esquire Douglas G. Miller, Esquire For the Respondents : rlm