Opinion
J. A32012/16 No. 1796 EDA 2016
01-31-2017
ESTATE OF WILLIAM P. O'BRIEN, DECEASED APPEAL OF: DONNA WELLINGTON
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 5, 2016
In the Court of Common Pleas of Montgomery County
Orphans' Court at No.: 2014-X3488 BEFORE: DUBOW, RANSOM, AND PLATT, JJ. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge Assigned to the Superior Court.
The Estate of William P. O'Brien, through its executrix Donna Wellington ("Appellant"), appeals from the Order entered in the Court of Common Pleas of Montgomery County Orphans' Court on May 5, 2016, which granted Terry Terzuolo's objection to the first and final accounting of the Estate. After careful review, we affirm.
We adopt the facts as set forth by the trial court's May 5, 2016 Opinion. See Trial Court Opinion, filed 5/5/16, at 1-4. In summary, the decedent, William P. O'Brien, operated a business partnership with Terry Terzuolo starting in 1997. The partners maintained separate income accounts and capital accounts. Terzuolo primarily maintained the partnership's financial records, and an accountant, John Paciello, would prepare the annual tax returns based on this information.
Each partner initially contributed equally to their respective capital account. See Partnership Agreement, Plaintiff's Exhibit 1, at 1-2. Per the Agreement, upon dissolution of the partnership, once all debts were paid and assets converted to cash, each partner would receive a final disbursement of the amount in their respective capital account to bring the balance to zero. N.T., 3/3/16, at 34. There could be a disparity in the capital accounts based on a partner's capital contributions or profits and losses, and there may be a disparity in the amount each partner receives in this final disbursement of cash. Id. at 33-34.
Beginning in 2013, O'Brien and Terzuolo took steps to dissolve the partnership, including selling the partnership's sole asset, a parcel of real estate in Spring City, Pennsylvania. On February 28, 2014, the partners disbursed the proceeds of the property sale equally at $80,000 each.
O'Brien died testate on September 6, 2014. Appellant filed the first and final accounting of the Estate on September 25, 2015. Terzuolo, through counsel, filed one objection petitioning for payment of an outstanding debt of $64,905.31. Terzuolo claimed that the distribution of $80,000 to each partner in February 2014 was made in error because the partners failed to account for unequal capital accounts prior to distributing the cash proceeds from the property sale.
At a hearing, Terzuolo and the partnership's accountant testified. The court admitted the Partnership Agreement and other documents by stipulation. On May 5, 2016, the trial court sustained Terzuolo's objection and directed Appellant to pay $64,143 from the Estate to Terzuolo. Appellant filed a timely Notice of Appeal.
Appellant complied with Pa.R.A.P. 1925; the trial court did not prepare a Pa.R.A.P. 1925(a) Opinion responsive to Appellant's Concise Statement of Errors Complained of on Appeal.
Appellant presents two issues for our review:
1. Must a claim against an estate be established by clear, direct, precise and convincing evidence?Appellant's Brief at 5.
2. May the Dead Man's Act be contravened by presentation of the incompetent evidence through a third-party "expert[?"]
Our standard and scope of review are as follows:
When reviewing a decree entered by the Orphans' Court, this Court must determine whether the record is free from legal error and the court's factual findings are supported by the evidence. Because the Orphans' Court sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of that discretion. However, we are not constrained to give the same deference to any resulting legal conclusions. The Orphans' Court decision will not be reversed unless there has been an abuse of discretion or a fundamental error in applying the correct principles of law.In re Fiedler , 132 A.3d 1010, 1018 (Pa. Super. 2016) (citations and quotation marks omitted).
This Court's standard of review of questions of law is de novo, and the scope of review is plenary, as we may review the entire record in making our determination. When we review questions of law, our standard of review is limited to determining whether the trial court committed an error of law.
In her first issue, Appellant avers that, in sustaining Terzuolo's objection, the trial court "ignored the requirement of proof that is clear, direct, precise and convincing" because "[t]here is no mention of this standard of proof" in the trial court's May 5, 2016 Opinion. Appellant's Brief at 11-12. Before addressing the merits of Appellant's first issue raised on appeal, we must determine whether this issue was properly preserved and developed for review.
Our Pennsylvania Rules of Appellate Procedure and our case law lay out the well-established requirements for preserving a claim for appellate review. This Court will address only those issues properly presented and developed in an appellant's brief as required by our rules of appellate procedure. See Pa.R.A.P. 2101-2119. "Appellate arguments which fail to adhere to these rules may be considered waived, and arguments which are not appropriately developed are waived." Karn v. Quick & Reilly Inc , 912 A.2d 329, 336 (Pa. Super. 2006) (citation and quotation marks omitted). Thus, issues raised in a Brief's Statement of Questions Involved but not developed in the Brief's argument section will be deemed waived. Harkins v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992).
To properly develop an issue for our review, Appellant bears the burden of ensuring that his argument section includes citations to pertinent authorities as well as discussion and analysis of the authorities. See Pa.R.A.P. 2119(a); Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) ("[I]t is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record[,] and with citations to legal authorities." (citation omitted)).
As this Court has made clear, we "will not act as counsel and will not develop arguments on behalf of an appellant." Hardy , supra at 771. Where defects in a brief "impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived." Id.
In the instant case, Appellant seemingly attempts to draw several unsupported inferences from the trial court's May 5, 2016 Opinion. Although Appellant contends that the trial court ignored the applicable standard of proof, she fails to point to any evidence to which the trial court applied a different (inapplicable) standard of proof. Appellant also makes a vague and confusing reference to her second argument regarding the Dead Man's Act that appears to challenge the competency and weight given to the evidence. Appellant provides only a single case citation, four sentences of purported "argument," and a large block quotation of the trial court's Opinion. Appellant has simply failed to construct and develop a coherent first issue for appellate review.
Appellant's failure to adhere to the rules of appellate procedure and to develop this issue prevents this Court from conducting a meaningful appellate review. Therefore, we conclude Appellant has waived this issue.
Even if we did not find waiver, Appellant's claim would merit no relief. Our review of the certified record demonstrates that the trial court carefully, thoughtfully, and adequately explained the resolution of Terzuolo's claim in the May 5, 2016 Opinion and applied the proper burden of proof.
In her second issue, Appellant avers that the trial court erroneously applied the Dead Man's Act by permitting the partnership's accountant, John Paciello, to rely on financial documents during his testimony that Terzuolo prepared. Appellant's Brief at 12, 18.
"It is well settled that the admissibility of evidence is a determination left to the sound discretion of the trial court, and it will not be overturned absent an abuse of discretion or misapplication of law." In re Fiedler , supra at 1025. "For a ruling on the admissibility of evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party." Id.
The Dead Man's Act provides, in pertinent part:
§ 5930. Surviving party as witness, in case of death, mental incapacity, etc.
[I]n any civil action or proceeding, where any party to a thing or contract in action is dead, . . . and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such
thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased . . . party, shall be a competent witness to any matter occurring before the death of said party. . . .42 Pa.C.S. § 5930. The Dead Man's Act prohibits "surviving parties who have an interest which is adverse to decedent's estate [] from testifying as to any transaction or event which occurred before [the] decedent's death." Zigmantanis v. Zigmantanis , 797 A.2d 990, 995 (Pa. Super. 2002).
This court has held that "[t]he rationale behind the Dead Man's Act is that the law should not permit the surviving party to testify since he could lie and attempt to testify favorably to himself and adversely to the deceased party, knowing the other party is incapable of contradicting the fallacious testimony." Id. (citation and quotation omitted). "The theory is that because the decedent's representative is unable to present evidence regarding the transaction, the other party to the transaction should be similarly restricted." Visscher v. O'Brien , 418 A.2d 454, 458 (Pa. Super. 1980). "The rule is inapplicable, however, when the witness does not have an interest in the outcome of the proceeding, for in that case, the witness would have no reason to misrepresent his dealing with the decedent." Id.
The disqualification of testimony under the Dead Man's Act only applies to two classes of witnesses: surviving parties to a transaction, and any other person whose interest is adverse to the estate. In re Hendrickson's Estate , 130 A.2d 143, 146 (Pa. 1957). If a witness is not a surviving party and has no adverse interest, he or she is competent to testify. See , e.g., Visscher , supra (finding that a real estate broker and appraiser were both competent to testify regarding an oral contract for broker's commission allegedly made between a surviving party and decedent on the sale of a parcel of decedent's land); Estate of Grossman , 406 A.2d 726 (Pa. 1979) (Dead Man's Act did not prohibit the testimony of decedent's daughter's husband regarding an alleged oral contract the daughter had with the decedent to leave her one-half of his estate).
Moreover, this court has previously concluded that the Dead Man's Act only applies to witness testimony and does not apply to documentary evidence, including checks and receipts. See Larkin v. Metz , 580 A.2d 1150, 1153 (Pa. Super. 1990) (holding that "the trial court erred when it precluded the receipts and canceled checks offered [] to prove the existence of a contract for the sale of the property between themselves and the decedent.").
In the instant case, the trial court properly applied the Dead Man's Act. See Trial Court Opinion at 4-5. The court allowed Terzuolo to proffer checks, the partnership agreement, and other documentary evidence in accordance with Larkin , supra. See N.T. Hearing, 3/3/16, at 8-30. In addition, the accountant, John Paciello, a person with no interest in the outcome of the proceedings, also testified about the tax records and other documentary evidence. See id. at 31-62. Contrary to Appellant's contention, the Dead Man's Act does not preclude the admission of documentary evidence pertaining to the partnership and does not preclude Paciello's testimony.
After a careful review of the certified record and the parties' arguments, we discern no abuse of discretion or misapplication of law and affirm the trial court's May 5, 2016 Order.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/31/2017
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