Est. of Sinclair, G. v. Levin, H ( 2015 )

J-S69011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF GEORGE D. SINCLAIR C/O IN THE SUPERIOR COURT OF
GLENMEDE TRUST COMPANY PENNSYLVANIA
Appellant
v.
HARVEY LEVIN
Appellee No. 2649 EDA 2013
Appeal from the Judgment Entered January 6, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): May Term 2012, No. 01277
ESTATE OF GEORGE D. SINCLAIR C/O IN THE SUPERIOR COURT OF
GLENMEDE TRUST COMPANY PENNSYLVANIA
Appellee
v.
HARVEY LEVIN
Appellant No. 2832 EDA 2013
Appeal from the Judgment Entered January 6, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): May Term 2012, No. 01277
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 09, 2015
Appellant, Estate of George D. Sinclair c/o Glenmede Trust Company
(“Estate”), and Cross-Appellant, Harvey Levin (“Mr. Levin”), appeal and
cross-appeal from the judgment entered in the Philadelphia County Court of
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Common Pleas, in this breach of contract action. We affirm.
The relevant facts and procedural history of this case are as follows.
In December 2003, Mr. Sinclair loaned Mr. Levin $150,000.00 to finance Mr.
Levin’s purchase of real property located at 2009 Chestnut Street in
Philadelphia. Mr. Sinclair and Mr. Levin executed a promissory note on or
about December 3, 2003 (“2003 Note”),1 dictating the terms of the loan,
which provided that Mr. Levin would pay off the principal and all interest due
on the loan by December 31, 2004. Interest would accrue at a rate of eight
percent (8%) per year; in the event of a default, however, interest would
accrue at a rate of eleven percent (11%) per year. Despite requests for
payment, Mr. Levin made no payments toward the principal or interest
owed. To the best of our knowledge, Mr. Sinclair died sometime in 2005.
On May 10, 2006, the Estate sued Mr. Levin for nonpayment in the
Philadelphia County Court of Common Pleas, Civil Action, May Term, 2006
No. 1457.
On or about November 21, 2006, the Estate and Mr. Levin entered into
an agreement (“2006 Agreement”) concerning Mr. Levin’s repayment
obligations. Based on the parties’ new agreement, the Estate agreed to
terminate the 2006 lawsuit, which it discontinued without prejudice on
December 4, 2006. Under the terms of the 2006 Agreement, Mr. Levin
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1
The 2003 Note does not contain Mr. Levin’s signature. Mr. Levin raises this
issue in his first and second claims on cross-appeal.
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agreed to pay the $150,000.00 principal owed to the Estate in ninety (90)
consecutive monthly payments of $1,666.66, beginning November 1, 2006.
Regarding interest, the 2006 Agreement provided in relevant part:
7. No interest will be due the Estate…from [Mr. Levin]
provided that the principal monthly payments are paid
when due and in full.
8. In the event that [Mr. Levin] defaults in payment of the
principal payments due, hereunder, the [Estate] shall have
the right to accelerate and demand full payment of both
principal and accumulated interest, with interest to be
calculated as set forth in the terms of the attached
Promissory Note [(the 2003 Note)], with accumulated
interest to be calculated from the date of the original
[P]romissory [N]ote, and shall have the right to exercise
any and all rights provided in the Promissory Note,
including, but not limited to, an action in Confession of
Judgment.
9. The terms and provisions of said Promissory Note are
incorporated herein and made part hereof.
(2006 Agreement, 11/21/06, at 2 ¶¶ 7-9).2
According to the Estate, Mr. Levin made only twenty-seven (27)
payments between November 2006 and February 2011 (twenty-six
payments of $1,666.66 and one payment of $1,666.67,3 totaling
$44,999.83). After February 2011, Mr. Levin made no additional payments.
On May 15, 2012, the Estate filed a complaint against Mr. Levin alleging
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2
The parties dispute on appeal whether the 2003 Note is the “attached
Promissory Note” referenced in the 2006 Agreement.
3
The record discloses that Mr. Levin’s February 2011 payment was actually
$1,666.66.
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breach of contract. The Estate filed an amended complaint on July 12,
2012.4
A bench trial occurred on June 11, 2013, after which the court entered
its verdict (docketed on June 12, 2013) in favor of the Estate. Specifically,
based on the Estate’s admission in its amended complaint, the court decided
Mr. Levin made payments each month from November 2006 through August
2010 in the amount of $1,666.66, but stopped making payments in August
2010, with the exception of one payment of $1,666.66 in February 2011
(totaling $78,333.02 paid toward the $150,000.00 principal owed under the
2003 Note). Thus, the court concluded Mr. Levin owed a balance of
$71,666.98 on the principal. Additionally, the court assessed an eight
percent (8%) interest rate for all monies owed under the 2003 Note prior to
entering the 2006 Agreement; the court assessed no interest on any of Mr.
Levin’s payments made after entry of the 2006 Agreement; and the court
assessed an eleven percent (11%) interest rate for all monies owed after Mr.
Levin stopped making payments under the 2006 Agreement. In total, the
court ordered Mr. Levin to pay $130,003.19 to the Estate.
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4
In its amended complaint, the Estate stated: “[Mr. Levin] did make
monthly payments of $1,666.66 from November, 2006 until August, 2010
but has made only one payment…since then, on February 11, 2011.”
(Estate’s Amended Complaint, filed July 12, 2012, at 2 ¶8). The trial court
decided this statement constituted a judicial admission that Mr. Levin made
consecutive payments every month from November 2006 to August 2010,
for a total of forty-six (46) payments during that timeframe. The Estate
challenges this ruling in its first issue on appeal.
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Both parties timely filed post-trial motions; the court denied all post-
trial motions on August 27, 2013. The Estate filed a notice of appeal on
September 10, 2013, and Mr. Levin filed a cross-appeal on September 24,
2013. On November 7, 2013, the court ordered (by separate orders) both
parties to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) within twenty-one (21) days of the court’s
order. Mr. Levin timely complied on November 25, 2013. On January 3,
2014, the Estate filed its concise statement. On January 6, 2014, the Estate
filed a praecipe for entry of final judgment on the verdict, which the court
entered that day.5
At No. 2649 EDA 2013, the Estate raises the following issues for our
review:
WHETHER THE SENTENCE IN THE AMENDED COMPLAINT
“[MR. LEVIN] DID MAKE MONTHLY PAYMENTS OF
$1,666.66 FROM NOVEMBER, 2006 UNTIL AUGUST, 2010
BUT HAS MADE ONLY ONE PAYMENT OF $1,666.67 SINCE
THEN, ON FEBRUARY 11, 2011” IS TO BE CONSTRUED AS
AN ADMISSION AGAINST THE ESTATE THAT MR. LEVIN
MADE ALL 46 PAYMENTS FROM NOVEMBER, 2006 UNTIL
AUGUST, 2010, DESPITE THE FACT THAT (1) THE
AMENDED COMPLAINT MAKES NO REFERENCE TO
CONSECUTIVE PAYMENTS (AND IN FACT ATTACHES AS AN
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5
The Estate and Mr. Levin’s notices of appeal relate forward to January 6,
2014, the date final judgment was entered and copies of the judgment were
distributed to all appropriate parties. See Pa.R.A.P. 905(a)(5) (stating
notice of appeal filed after court’s determination but before entry of
appealable order shall be treated as filed after such entry and on date of
entry). Thus, the timeliness of these appeals as well as this Court’s
jurisdiction are not in question.
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EXHIBIT PAYMENT HISTORY WHICH CLEARLY SHOWS
THAT MR. LEVIN ONLY MADE 26 PAYMENTS IN THAT TIME
FRAME), (2) THE EVIDENCE AT TRIAL WAS THAT MR.
LEVIN MISSED NUMEROUS PAYMENTS IN THAT
TIMEFRAME, (3) A LETTER FROM MR. LEVIN’S OWN
ATTORNEY CORROBORATED HIS CLIENT’S PAYMENT
HISTORY, AND (4) THE TESTIMONY AT TRIAL WAS
UNCONTRADICTED BECAUSE MR. LEVIN DID NOT APPEAR
AT TRIAL AND DID NOT PUT ON ANY OF HIS OWN
EVIDENCE?
DID THE [TRIAL] COURT COMMIT ERROR BY
MISCALCULATING THE INTEREST DUE ON THE
AGREEMENT AND NOTE, WHERE THE AGREEMENT
PROVIDES THAT, UPON A DEFAULT, INTEREST WOULD BE
CALCULATED AS SET FORTH IN THE ATTACHED
PROMISSORY NOTE “WITH ACCUMULATED INTEREST TO
BE CALCULATED FROM THE DATE OF THE ORIGINAL
PROMISSORY NOTE”?
DID THE [TRIAL] COURT COMMIT ERROR BY EXCLUDING
THE PAYMENT HISTORY FROM EVIDENCE ON THE BASIS
OF PENNSYLVANIA RULE OF EVIDENCE 1006?
(Estate’s Brief at 2) (emphasis in original).
At No. 2832 EDA 2013, Mr. Levin raises the following issues for our
review:
WHETHER THE TRIAL COURT ERRED BY CALCULATING
INTEREST BASED UPON A PROMISSORY NOTE WHICH
WAS NOT SIGNED BY [MR. LEVIN] IN THE ABSENCE OF
ANY EVIDENCE THAT [MR. LEVIN] EVER AGREED TO OR
EVEN SAW THE UNSIGNED PROMISSORY NOTE?
WHETHER, IN THE ABSENCE OF ANY EVIDENCE OF THE
AMOUNT OF INTEREST AGREED TO BY THE PARTIES, THE
TRIAL COURT SHOULD HAVE SUPPLIED THIS TERM OR
WHETHER THE TRIAL COURT SHOULD HAVE REFUSED TO
ORDER [MR. LEVIN] TO PAY ANY INTEREST?
WHETHER THE TRIAL COURT SHOULD BE PERMITTED TO
AMEND ITS ORDER IN ORDER TO CORRECT A
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MATHEMATICAL ERROR?
(Mr. Levin’s Brief at 2).
As a preliminary matter, we observe that appellants must timely
comply whenever the trial court orders them to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). Regarding
civil cases,
Our Supreme Court intended the holding in Lord to
operate as a bright-line rule, such that failure to comply
with the minimal requirement of Pa.R.A.P. 1925(b) will
result in automatic waiver of the issues raised. Given
the automatic nature of this type of waiver, [this Court is]
required to address the issue once it comes to [this
Court’s] attention. Indeed, our Supreme Court does not
countenance anything less than stringent application of
waiver pursuant to Rule 1925(b): A bright-line rule
eliminates the potential for inconsistent results that existed
prior to Lord, when appellate courts had discretion to
address or to waive issues raised in non-compliant
Pa.R.A.P. 1925(b) statements. Succinctly put, it is no
longer within this Court’s discretion to ignore the internal
deficiencies of Rule 1925(b) statements.
* * *
[Additionally], it is no longer within this Court’s discretion
to review the merits of an untimely Rule 1925(b)
statement based solely on the trial court’s decision to
address the merits of those untimely raised issues. Under
current precedent, even if a trial court ignores the
untimeliness of a Rule 1925(b) statement and addresses
the merits, those claims still must be considered waived….
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224-25 (Pa.Super. 2014) (en banc) (internal citations and
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quotation marks omitted) (emphasis in original) (holding appellant waived
all issues on appeal where appellant submitted untimely Rule 1925(b)
statement three days late; record showed no evidence that appellant sought,
and trial court granted, extension of time for filing concise statement). In
civil cases, under Rule 1925(b): (1) the trial court must issue an order
directing an appellant to file a concise statement of errors complained of on
appeal within twenty-one (21) days of that order; (2) the trial court must file
the order with the prothonotary; (3) the prothonotary must enter the order
on the docket; (4) the prothonotary must give written notice of the entry of
the order to each party, pursuant to Pa.R.C.P. 236; and (5) the prothonotary
must record Rule 236 notice on the docket. See Pa.R.A.P. 1925(b); Forest
Highlands Community Ass’n v. Hammer, 879 A.2d 223 (Pa.Super.
2005).
Instantly, the Estate filed its notice of appeal on September 10, 2013.
On November 7, 2013, the trial court entered an order (recorded on the
docket) directing the Estate to file a concise statement of errors complained
of on appeal within twenty-one (21) days of the court’s order. The docket
expressly indicates the court issued Rule 236 notice to the Estate on
November 7, 2013. Additionally, the court’s order clearly states that any
issue not properly included in the timely filed and concurrently served
concise statement, will be deemed waived. Notwithstanding the clear
language of the court’s order (which also appears in its entirety on the
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docket), the Estate did not file its concise statement until January 3, 2014.
The certified record contains no indication that the Estate sought, or that the
trial court granted, an extension of time for the Estate to file its concise
statement. Additionally, the Estate provides no excuse on appeal for its
untimely filing. The fact that the trial court addressed some of the Estate’s
appellate issues is of no moment.6 See Presque Isle Downs, Inc., supra.
Thus, the Estate’s failure to file a timely Rule 1925(b) statement in
accordance with the court’s order compels waiver of the Estate’s issues on
appeal.7 See id.
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6
The trial court’s opinion did not address the Estate’s second issue on
appeal because the Estate did not include that issue in its untimely concise
statement. Consequently, had the Estate filed a timely Rule 1925(b)
statement, we would have deemed the second issue waived in any event.
See Pa.R.A.P. 1925(b)(4)(vii) (stating issues not included in concise
statement are waived). Further, regarding the Estate’s third issue on
appeal, the Estate claims that even if the court properly excluded the
Estate’s summary of Mr. Levin’s payment history under Pa.R.E. 1006
(governing summaries to prove content), the summary of Mr. Levin’s
payment history constitutes an admissible business record under Pa.R.E.
803(6) (governing records of regularly conducted activity). The Estate
raises this claim for the first time on appeal, so even if the Estate had timely
filed its concise statement, this particular argument would also be waived.
See id. See also Pa.R.A.P. 302(a) (stating issues not raised in trial court
are waived and cannot be raised for first time on appeal).
7
Rule 1925(b) provides for limited instances in which appellate courts may
remand in civil cases to cure defects in Rule 1925 practice. See Pa.R.A.P.
1925(c)(1) (stating appellate court may remand in civil or criminal case for
determination as to whether concise statement had been filed and/or served
or timely filed and/or served); Pa.R.A.P. 1925(c)(2) (explaining upon
application of appellant and for good cause shown, appellate court may
remand in civil case for filing nunc pro tunc of concise statement or for
(Footnote Continued Next Page)
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For purposes of disposition of the cross-appeal, we combine Mr.
Levin’s first and second issues. Mr. Levin admits he signed the 2006
Agreement, which obligated him to make payments of $1,666.66 to the
Estate each month for a total of ninety (90) months. Mr. Levin argues that
the 2006 Agreement does not expressly delineate the amount of interest
owed in the event of a default. Rather, Mr. Levin explains the 2006
Agreement refers to an “attached Promissory Note” for purposes of
calculating interest in the event of a default. Mr. Levin emphasizes that the
document referred to in the 2006 Agreement does not contain his signature.
Mr. Levin avers the 2006 Agreement provides at ¶10, that Mr. Levin “shall
re-sign the copy of the attached Promissory Note.” Mr. Levin insists the
Estate failed to produce evidence that Mr. Levin ever signed the original
2003 Note or re-signed the 2003 Note. Mr. Levin maintains the Estate
similarly did not provide evidence that the 2003 Note was attached to the
_______________________
(Footnote Continued)
amendment or supplementation of timely filed and served concise
statement). Neither circumstance is present in the instant case because the
record makes clear the Estate filed its concise statement after the twenty-
one day deadline set forth in the court’s Rule 1925(b) order; and the Estate
has not filed an application based on “good cause” for nunc pro tunc relief.
See Presque Isle Down, Inc., supra at 227 n.7 (explaining limited
remand provisions under Rule 1925(c)(1) and (c)(2) did not afford appellant
relief where record unequivocally established filing date and content of trial
court’s Rule 1925(b) order, as well as filing date and content of appellant’s
concise statement; remand per Rule 1925(c)(1) would consume additional
judicial and litigant resources to no apparent purpose; remand per Rule
1925(c)(2) is also improvident because appellant did not file application for
nunc pro tunc relief and has not demonstrated, or sought to demonstrate,
“good cause” related to late filing).
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2006 Agreement at the time Mr. Levin signed the 2006 Agreement. Mr.
Levin highlights that none of the Estate’s witnesses were present when Mr.
Levin signed the 2006 Agreement. Mr. Levin submits the 2006 Agreement
contains no identification of the “attached Promissory Note” to support the
Estate’s position that the 2003 Note is the document referred to in the 2006
Agreement. In the absence of a copy of the 2003 Note actually signed by
Mr. Levin, he contends the Estate failed to establish that it is entitled to any
interest. Mr. Levin concludes the trial court’s interest calculation was
erroneous, and this Court must remand for reduction of the judgment,
without any interest. We disagree.
Our standard of review is as follows:
The interpretation of any contract is a question of law and
this Court’s scope of review is plenary. Moreover, we need
not defer to the conclusions of the trial court and are free
to draw our own inferences. In interpreting a contract, the
ultimate goal is to ascertain and give effect to the intent of
the parties as reasonably manifested by the language of
their written agreement. When construing agreements
involving clear and unambiguous terms, this Court need
only examine the writing itself to give effect to the parties’
understanding. This Court must construe the contract only
as written and may not modify the plain meaning under
the guise of interpretation.
Southwestern Energy Production, Co. v. Forest Resources, LLC, 83
A.3d 177, 187 (Pa.Super. 2013), appeal denied, ___ Pa. ___, 96 A.3d 1029
(2014) (quoting Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 509-
10 (Pa.Super. 2013)).
Additionally:
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It is a general rule of law in this Commonwealth that
where a contract refers to and incorporates the
provisions of another, both shall be construed
together. It is well-settled that clauses in a contract
should not be read as independent agreements thrown
together without consideration of their combined effects.
Terms in one section of the contract, therefore, should
never be interpreted in a manner which nullifies other
terms of the same agreement. Furthermore, the specific
controls the general when interpreting a contract.
Southeastern Energy Production, supra at 187 (quoting Trombetta v.
Raymond James Financial Services, Inc., 907 A.2d 550, 560 (Pa.Super.
2006)) (emphasis added).
Instantly, the trial court addressed Mr. Levin’s complaints as follows:
At trial, both parties stipulated that [Mr.] Levin signed the
2006 Agreement. The 2006 Agreement explicitly refers to
the [2003 Note] in the following paragraphs:
[2]. In addition to the principal balance due, interest
has accumulated and is due and owing by [Mr.]
Levin to the Estate…, the terms and calculation of
which are more fully set forth in a Promissory
Note attached hereto and made part hereof.
[* * *]
8. In the event that [Mr.] Levin defaults in
payment of the principal payments due hereunder,
the [Estate] shall have the right to accelerate and
demand full payment of both principal and
accumulated interest, with interest to be
calculated as set forth in the terms of the
attached Promissory Note, with accumulated
interest to be calculated from the date of the
original [P]romissory [N]ote, and shall have
the right to exercise any and all rights provided
in the Promissory Note, including, but not
limited to, an action in Confession of Judgment.
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9. The terms [and] provisions of said Promissory
Note are incorporated herein and made part hereof.
10. [Mr.] Levin shall re-sign the copy of the attached
Promissory Note.
See The 2006 Agreement ¶¶ 2, 8, 9, 10 (Exhibit A)
(emphasis added).
The Estate has proven that it was more likely than not that
[Mr.] Levin agreed to the [2003 Note] because its terms
were incorporated into the signed 2006 Agreement.
(Trial Court Opinion, filed May 21, 2014, at 5) (emphasis in original). We
accept the trial court’s analysis.
Significantly, Mr. Levin was not present at trial; and the defense
proffered no testimony or evidence to support Mr. Levin’s “suggestions” that
he did not agree to the terms of the 2003 Note or that the 2003 Note was
not attached to the 2006 Agreement at the time Mr. Levin signed it. 8 As the
trial court explained, the 2006 Agreement refers to and incorporates by
reference the provisions of an attached promissory note in four (out of
fifteen) paragraphs of the 2006 Agreement. The 2006 Agreement and 2003
Note both refer to the same principal amount of $150,000.00 loaned to Mr.
Levin. Additionally, the Estate highlighted at trial that the 2003 Note
contains an initialed signature next to the last paragraph of the 2003 Note
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8
Mr. Levin does not actually claim that he did not agree to the terms of the
2003 Note or that the 2003 Note was not attached to the 2006 Agreement at
the time he signed it. Rather, Mr. Levin argues the Estate failed to prove
otherwise.
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(providing the confession of judgment clause). The Estate argued the initials
(which are illegible) are Mr. Levin’s initials. Further, the Estate argued that
the facsimile designation at the top of the 2006 Agreement and 2003 Note
demonstrated the documents were attached because the facsimile denotes a
transmission of fifteen (15) pages.9
The parties stipulated that Mr. Levin signed the 2006 Agreement, so
Mr. Levin knew at the time of signing that the 2006 Agreement referred to
and incorporated by reference the terms of another agreement. The
language of the 2006 Agreement evidences Mr. Levin’s intent to be bound by
the terms of “the attached Promissory Note.” See Southeastern Energy
Production, supra. The record supports the trial court’s decision that the
“attached Promissory Note” referred to and incorporated by reference in the
2006 Agreement is the 2003 Note, and that Mr. Levin agreed to its terms.
Because Mr. Levin’s challenge to the court’s interest calculation turns on
whether he agreed to the terms of the 2003 Note, Mr. Levin is entitled to no
relief on this claim. See id.
In his third issue, Mr. Levin argues the trial court made a
mathematical error when calculating the amount of payments Mr. Levin
made to the Estate. Specifically, Mr. Levin claims the trial court counted
forty-six (46) payments (from November 2006 through August 2010) in
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9
The 2006 Agreement is five (5) pages. The 2003 Note is nine (9) pages.
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making its calculation, but the court omitted the payment Mr. Levin made in
February 2011. Mr. Levin submits this error also led the trial court to
calculate incorrectly the amount of interest Mr. Levin owed to the Estate.
Mr. Levin concludes this Court should remand for correction of the trial
court’s mathematical error. We disagree.
Preliminarily, “the filing of post-trial motions is mandatory if a litigant
wishes to preserve issues for appellate review. … If an issue has not been
raised in a post-trial motion, it is waived for appeal purposes.” Diamond
Reo Truck Co. v. Mid-Pacific Industries, Inc., 806 A.2d 423, 428
(Pa.Super. 2002). “The importance of filing post-trial motions cannot be
overemphasized.” Id. “This is not blind [insistence] on a mere technicality
since post-trial motions serve an important function in adjudicatory process
in that they afford the trial court in the first instance the opportunity to
correct asserted trial error and also clearly and narrowly frame issues for
appellate review.” Id. (quoting Fernandes v. Warminster Mun. Auth.,
442 A.2d 1174, 1175 (Pa.Super. 1982)). See also Pa.R.C.P. 227.1
(governing post-trial relief). Further, inclusion of an issue in a Rule 1925(b)
statement does not cure the failure to preserve that issue in a timely filed
post-trial motion.10 Diamond Reo Truck Co., supra at 429.
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10
Mr. Levin seems to acknowledge this legal principle because he claims the
Estate waived its second issue on appeal for failure to include it in the
Estate’s post-trial motion. (See Mr. Levin’s Brief at 16.)
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Instantly, Mr. Levin did not raise his challenge to the court’s alleged
mathematical error in his post-trial motion. Thus, Mr. Levin’s third issue is
waived. See id.
Moreover, in the trial court’s findings of fact and conclusions of law,
the court stated Mr. Levin made aggregate payments in the amount of
$76,666.36, leaving a balance owed on the principal of $73,333.64. This
statement omitted a calculation for Mr. Levin’s February 2011 payment.
Nevertheless, when actually calculating the amount owed, the court later
stated in its findings of fact and conclusions of law that Mr. Levin owed only
$71,666.98. Thus, the court properly credited Mr. Levin with the February
2011 payment when making its calculation concerning the balance owed on
the principal. (See Findings of Fact and Conclusions of Law, filed 6/12/13,
at 1-2.) The only potential for error concerns the court’s assessment of
interest as to this payment. The trial court suggests it should not have
assessed Mr. Levin interest for February 2011. Assuming without deciding
that the court’s interest calculation for February 2011 was erroneous, the
record makes clear Mr. Levin has already received a huge windfall based on
the trial court’s procedural ruling concerning the Estate’s judicial admission.
The Estate claimed Mr. Levin made only twenty-six (26) payments between
November 2006 and August 2010, but based on the court’s procedural
ruling, it credited Mr. Levin for forty-six (46) payments during that
timeframe. The court’s ruling necessarily impacted the interest calculation,
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further benefitting Mr. Levin. Nothing in the record indicates that Mr. Levin
actually made the forty-six (46) payments to the Estate between November
2006 and August 2010. Based on our disposition of waiver of Mr. Levin’s
third issue, and under the circumstances of this case, we decline Mr. Levin
and the trial court’s invitation to remand for correction of any minor
mathematical error. Accordingly, we affirm.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2015
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