Novak, W. v. Novak, M. ( 2014 )

J-A16030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM N. NOVAK AND STACY NOVAK, IN THE SUPERIOR COURT OF
HIS WIFE PENNSYLVANIA
Appellee
v.
MARY PAULINE NOVAK
Appellant No. 1521 WDA 2013
Appeal from the Judgment Entered October 31, 2013
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 4095 of 2011
BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 16, 2014
Mary Pauline Novak (Novak) appeals from the judgment entered in
favor of William N. and Stacy Novak (Son)1 in the Court of Common Pleas of
Westmoreland County on October 31, 2013.2 Judgment was entered
following a non-jury trial regarding a contract between Novak and Son,
requiring Novak to repay a loan. In this timely appeal, Novak claims the
trial court erred in (1) rejecting the unequivocal and unambiguous testimony
____________________________________________
1
For ease of reference, we will refer to William N. and Stacy Novak (son and
daughter-in-law) as Son.
2
The appeal in this matter was filed on September 17, 2013, 44 days prior
to the entry of judgment. However, pursuant to Pa.R.A.P. 905(a)(5), we
accept the appeal as properly filed. See also America and Foreign Ins.
, 948 A.2d 843 (Pa. Super. 2008), ,2
A.3d 526 (Pa. 2010); Thomas v. Elash, 781 A.2d 170 (Pa. Super. 2001).
J-A16030-14
on the contract was a forgery, and (3) ascribing a lack of credibility to
certain statements made by Novak. After a thorough review of the
submissions by the parties, the certified record, and relevant law, we affirm.
We adopt the factual and procedural history of this matter is set forth
in the Decision and Order of May 21, 2013, at pages 1 through 10, authored
by the Honorable Gary P. Caruso, President Judge.
At trial Novak produced the expert testimony of Michelle Dresbold, a
forensic handwriting analyst, who opined that the signature purporting to be
234.
After considering all of the evidence presented, the trial court found in
favor of Son and ordered Novak to repay Son the amount of $34,450.31 and
additionally directed Novak to devise the property to Son upon her death,
further enjoining her from otherwise transferring or conveying the property
during her lifetime.
The relevant standard of review of a court's decision in a non-
jury trial is as follows:
[We are] limited to a determination of whether the findings
of the trial court are supported by competent evidence and
whether the trial court committed error in the application
of law. Findings of the trial judge in a non-jury case must
be given the same weight and effect on appeal as a verdict
of a jury and will not be disturbed on appeal absent error
of law or abuse of discretion. When this Court reviews the
findings of the trial judge, the evidence is viewed in the
light most favorable to the victorious party below and all
-2-
J-A16030-14
evidence and proper inferences favorable to that party
must be taken as true and all unfavorable inferences
rejected.
Croyle v. Dellape, 832 A.2d 466, 470 (Pa. Super. 2003) (citing
Behar v. Frazier, 724 A.2d 943, 946 (Pa. Super. 1999)). The
court's findings are especially binding on appeal, where they are
based
that the court abused its discretion or that the court's findings
lack evidentiary support or that the court capriciously disbelieved
Fudula v. Keystone Wire & Iron Works, Inc.,
283 Pa. Super. 502, 424 A.2d 921, 927 (1981).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa. Super.
court's findings are predicated on errors of law, we review the
court's findings de novo. John B. Conomos, Inc. v. Sun Co.,
Inc. (R & M), 831 A.2d 696, 704 (Pa. Super. 2003), appeal
denied, 577 Pa. 697, 845 A.2d 818 (2004).
Hart v. Arnold, 884 A.2d 316, 330-31 (Pa. Super. 2005).
Novak
the trial court erred in concluding the loan agreement was not forged.
evidence. The weight assigned to expert testimony lies within the sole
province of the jury, and it is free to believe all, part or none of the
evidence. Potochnick v. Perry, 861 A.2d 277, 286 (Pa. Super 2004)
-3-
J-A16030-14
(citation omitted).3
forged. Son presented no opposing expert testimony and Novak claims
pinion. Therefore, she
Initially, we note that the trial court based its determination that
Novak agreed to repay Son on other evidence and did not make a
determination regarding the authenticity of the signature. However, the
opined the signature was forged. She noted there were some similarities
between the contested signature and exemplars, but the significant
differences outweighed the similarities. Nevertheless, Dresbold also
admitted that a true signature, found on a check that Novak admitted
writing, was also significantly different, thereby indicating Novak signed her
name in a variety of manners. In addition, Son testified he witnessed his
of forgery. Therefore, there was an evidentiary basis for the trial court to
ision
evidence, and not at all on the authenticity of the signed agreement. The
____________________________________________
3
This rule applies generally to a fact-find
and determine the weight given to all witnesses, not just experts. Carroll v.
Avallone, 939 A.2d 872, 874 (Pa. 2007).
-4-
J-A16030-14
trial court was presented with evidence of the history of payments by Novak,
the testimony of Pauline Howell (testifying Novak admitted owing Son the
money) and Attorney Duffy (testifying to the overall circumstances of the
transaction), and the debt incurred by Son to obtain the house payment, all
the money from
Son was a loan, not a gift, and required repayment. As noted, the trial
court, sitting as fact-finder, was entitled to believe all, some or none of
s conclusion, there is no error to be ascribed.
finding the document was a forgery, was based entirely on the assertion that
Because the trial
court did not err in that regard, this argument must fail. 4 Therefore, Novak
is not entitled to relief on these issues.
In her final issue, Novak argues the trial court erred in determining
she was incredible based upon certain statements she made that were
otherwise contradicted by competent evidence. Specifically, the number of
times she visited the attorney, whether the attorney was present at the
____________________________________________
4
to the contract le
forged. Written document notwithstanding, the trial court found sufficient
evidence to explicitly determine that Novak and Son entered into a valid
agreement to repay Son.
-5-
J-A16030-14
closing, and her failure to recall signing the deed or where she signed the
Will.
As noted above, the fact-finder is free to believe all, some or none of a
Carroll v. Avallone, supra. However, Novak claims it
was incorrect to discredit her credibility as a whole when her failures to
recall certain facts were simply instances of the failing memory of a 73 year-
old woman. See
inability to recall accurately salient facts, no matter the reason, is a central
aspect of credibility. See Commonwealth v. Boich, 982 A.2d 102, 105
(Pa. Super. 2009) (inability to recall material facts affects credibility). The
determination that her testimony was incredible does not necessarily mean
that the trial court thought she fabricated her testimony. If the details
surrounding her testimony were unreliable, either intentionally or by reason
of failing memory, the trial court was within its rights to discount that
testimony. Novak has not claimed, nor is there any indication that the trial
court based its determination of credibili
Carroll, supra. Accordingly, we find no abuse of discretion
Judgment affirmed.
-6-
J-A16030-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
-7-
Circulated 09/03/2014 11:58 AM
Circulated 09/03/2014 11:58 AM
Circulated 09/03/2014 11:58 AM
Circulated 09/03/2014 11:58 AM
Circulated 09/03/2014 11:58 AM
Circulated 09/03/2014 11:58 AM