Estate of: John Leslie Rupert ( 2016 )

J-S40015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF: JOHN LESLIE RUPERT, IN THE SUPERIOR COURT OF
A/K/A JOHN L. RUPERT, LATE OF PENNSYLVANIA
PENNSBURY, DECEASED
APPEAL OF: BRYAN J. BOARDMAN
No. 2924 EDA 2015
Appeal from the Order June 25, 2015
In the Court of Common Pleas of Chester County
Orphans' Court at No(s): 1513-0131
BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 18, 2016
On appeal, Bryan J. Boardman challenges the propriety of the orphans’
court’s denial of a claim that he made against the Estate of John Leslie
Rupert. We affirm.
On January 11, 2013, John Leslie Rupert died testate. On January 23,
2013, the Register of Wills of Chester County probated his last will and
testament and issued letters testamentary to C. Barry Buckley. At the time
of his death, Mr. Rupert owned a one-half interest in property located at 137
McFadden Road, Pennsbury Township, Chadds Ford (“the real estate”).
Appellant possessed an option to purchase the decedent’s one-half interest
in the real estate, and it had to be exercised within six months of Mr.
J-S40015-16
Rupert’s death. After the six-month period expired, and the option was not
exercised, Mr. Buckley deeded Mr. Rupert’s interest in the real estate to the
beneficiaries under the will.
Appellant, who has proceeded pro se throughout these proceedings,
thereafter filed a claim against the estate, petitioning for payment of
$217,572.89. His claim encompassed these four positions: 1) Appellant was
the sole owner of the real estate; 2) the estate was liable to Appellant for
rental paid to Mr. Rupert by two people who had trailers on the property as
well as for rental that Mr. Rupert owed Appellant based upon the fact that
Mr. Rupert alone occupied the real estate while he lived; 3) the estate was
liable to Appellant for waste occasioned by Mr. Rupert’s use of the real
estate; and 4) Appellant owned all of the personal property of decedent by
virtue of an agreement of sale executed by Mr. Rupert. After a hearing, the
claim was denied in its entirety.
Mr. Buckley filed an account, and Appellant filed exceptions. After
those exceptions were denied, Appellant filed the present appeal wherein he
raises these issues:
1. Did the Orphans’ Court commit an error of law or
otherwise abuse its discretion when it found, at the time of
Property purchase, Mr. (“Boardman”) and Mr. (“Rupert”) held
equal shares in the Property and that after Rupert’s demise,
Boardman and the Rupert Estate held the same equal shares in
the Property and that the Deed’s reddendum clause granting
Rupert a life estate, transferred “very little” or zero Property
ownership interest to Rupert and that “the Executor properly
distributed Mr. Rupert's share to his testamentary beneficiaries.”
-2-
J-S40015-16
2. Did the Orphans’ Court commit an error of law or otherwise
abuse its discretion when it found Mr. Rupert was not the tenant
in possession of the Property even though the Deed states
“Under and subject to the right of John L. Rupert to live in the
property for the term of his natural life” and the Agreement of
Sale (“AOS”) states “JOHN L. RUPERT SHALL ENJOY LIFE
RIGHTS TO THE PROPERTY.”
3. Did the Orphans’ Court commit an error of law or otherwise
abuse its discretion when it found any waste of the real Property
during occupation and use by deceased Rupert did not incur
liability against Rupert and that if any waste did occur then
Boardman is as liable as Rupert.
4. Did the Orphans’ Court commit an error of law or otherwise
abuse its discretion when it found Rupert’s personal property
was not included in the sale of the property even though the
AOS specifically states all personal property of deceased Rupert
was included in the sale. The Orphans’ Court found the only
personal property included in the sale was valueless items
scattered about the property.
5. Did the Orphans’ Court commit an error of law or otherwise
abuse its discretion when it found the Dead Man’s Statute
applies to Mr. Boardman’s testimony and therefore Appellant’s
relevant testimony should be ignored but then relies on
testimony of Appellant concerning matters between the
Appellant and the deceased Mr. Rupert, to form conclusions, for
example, to conclude Mr. Rupert did not enjoy exclusive
possession of the Property due to Mr. Boardman’s testimony he
visited with Mr. Rupert approximately five times a year.
Appellant’s brief at 8-9 (emphasis omitted).
Our standard of review in this matter is 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
-3-
J-S40015-16
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.
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 re Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016) (citations and
quotation marks omitted).
Resolution of Appellant’s contentions revolves around the
interpretation of two documents and the circumstances surrounding their
execution. The first instrument is an agreement of sale dated August 20,
2005. At that time, the real estate was in the joint names of Mr. Rupert,
who was elderly and infirm, and his wife, Nancy A. Rupert. The Ruperts
were separated, and Mr. Rupert told Appellant, a neighbor, that he wanted
to sell her share of the house in order to satisfy her credit card debt. On
August 20, 2005, John L. Rupert and Nancy A. Rupert executed an
agreement of sale, as sellers, and John L. Rupert and Appellant executed
that document, as buyers. In the agreement of sale, Appellant agreed to
pay $115,000 for Mrs. Rupert’s share of the property. The Ruperts also
indicated that the agreement of sale encompassed certain personal property,
as follows:
-4-
J-S40015-16
(A) INCLUDED in this sale and purchase price are all
existing items permanently installed in the Property free of liens,
including plumbing, heating, lighting fixtures (including
chandeliers and ceiling fans), water treatment systems, pool and
spa equipment, garage door openers and transmitters, television
antennas, shrubbery, plantings and unpotted trees, any
remaining heating and cooking fuels stored on the Property at
the time of settlement, wall to wall carpeting, window covering
hardware, shades and blinds, built-in air conditions, built-in
appliances, and the range/oven unless otherwise stated. Also
included: ALL PERSONAL PROPERTY OF JOHN L. RUPERT.
(B) LEASED items (not owned by Seller):
NONE
(C) EXCLUDED fixtures and items:
TRACTORS, BACKHOE, EXTRANEOUS OTHER EQUIPMENT,
TRAILER.
Estate’s Exhibit 1 at 2.
The agreement of sale contained an addendum, which set forth that
Mr. Rupert, following the sale, would retain “life rights to the property and
shall not vacate property upon settlement. Both Buyers shall hold title as
tenants in common without rights of survivorship and both parties interest
shall become part of their individual estates.” Id. at Addendum. The
Addendum accorded Appellant the right to purchase Mr. Rupert’s share of
the property, upon Mr. Rupert’s death, for $115,000, for a period of six
months.
On September 28, 2005, in accordance with the terms of the
agreement of sale and addendum, the real estate was deeded by John L.
-5-
J-S40015-16
Rupert and Nancy A. Rupert, as grantors, to “Bryan J. Boardman and John L.
Rupert,” as grantees and as “tenants in common.” Estate’s Exhibit 2 at 1.
The consideration was $115,000. The grant to Appellant as a tenant in
common of the real estate was made, “Under and subject to the right of
John L. Rupert to live in the property for the term of his natural life.” Id. at
2. A corrective deed altering the legal description of the property was
executed on October 14, 2005. That deed omitted reference to Mr. Rupert’s
retention of a life estate in the property, as outlined in the agreement of sale
and initial deed.
Although the agreement of sale and initial deed unequivocally set forth
that Appellant purchased a one-half interest in the real estate that was
subject to Mr. Rupert’s life estate, Appellant suggests that he purchased the
real estate in its entirety in 2005 rather than a one-half interest.
When construing a deed, a court's primary object must be
to ascertain and effectuate what the parties themselves
intended. Mackall v. Fleegle, 801 A.2d 577, 581 (Pa.Super.
2002). The traditional rules of construction to determine that
intention involve the following principles. First, the nature and
quantity of the interest conveyed must be ascertained from the
deed itself and cannot be orally shown in the absence of fraud,
accident or mistake. Id. We seek to ascertain not what the
parties may have intended by the language but what is the
meaning of the words they used.
Consolidation Coal Co. v. White, 875 A.2d 318, 326 (Pa.Super. 2005).
The language of the agreement of sale and deed is not subject to any
interpretation other than Appellant purchased a one-half interest in the real
-6-
J-S40015-16
estate and held that interest in the property as a tenant in common with Mr.
Rupert. In addition, his one-half share of the property was subject to Mr.
Rupert’s life estate. Appellant’s position is that he must have bought the
entire piece of real estate since a one-half interest subject to a life estate
was of little or no value whereas he paid the Ruperts $115,000. Appellant,
however, did not present an appraisal of the property as of 2005 so that his
proposition is unsupported by any proof. While there are pictures of the
house, which was dilapidated, in the record, there was no appraisal of the
value of acreage in Chadds Ford.
In addition, Appellant did not level any claim that he was defrauded.
In the agreement of sale, he assented to the purchase of the interest in the
land outlined in the deed for $115,000. Appellant is bound by the terms of
his arrangement, even if it represented a poor financial decision. We
therefore reject Appellant’s first position.
The second averment herein is that Mr. Rupert was obligated to pay
Appellant fair rental value during the term of his occupation of the real
estate. Since Mr. Rupert allowed two people to park their trailers on the
property, Appellant also seeks rental that they paid or owed to Mr. Rupert
for exercising that privilege.1 In resolving this position, the orphans’ court
____________________________________________
1
It is not clear that the two women who lived in the trailers on the real
estate actually paid rent to Mr. Rupert.
-7-
J-S40015-16
observed that Appellant presented no proof of any agreement by Mr. Rupert
to pay rent to Appellant while Mr. Rupert lived on the property or that
anyone paid rent to Mr. Rupert. It thus denied this claim.
We note the following. Mr. Rupert retained a life estate in the real
estate in the agreement of sale and first deed. The corrective deed, which
was filed solely to properly describe the land purchased, mistakenly omitted
mention of the life estate. It is established that the owner of a life estate is
legally entitled to all rental from the property in question during the term of
his or her life. See Guthrie v. Guthrie, 7 A.2d 137, 139 (Pa.Super. 1939).
Mr. Rupert, as life tenant of the real estate, owed Appellant no rental income
either himself or from anyone else who resided on the property. Hence,
Appellant’s second position on appeal lacks merit.
We address together Appellant’s third averment, that he was entitled
to waste occasioned by Mr. Rupert’s occupancy of the real estate, and his
fourth contention, that he was entitled to all of Mr. Rupert’s personal
property under the agreement of sale. We observe that it is established that
a claimant against an estate has the burden of proving his claim by direct
and positive evidence. In re Schleich's Estate, 134 A. 442, 443 (Pa.
1926).
On the issue of waste, the orphans’ court made two pertinent factual
findings. First: “Insufficient credible evidence was provided for the fair
market value of the Property at the time of the August 2005 [agreement of
-8-
J-S40015-16
sale,] Mr. Rupert’s death or any other time.” Trial Court Opinion, 6/24/15 at
¶ 10. Second: “No credible evidence was presented establishing that Mr.
Rupert materially damaged or allowed material damage to the Property, that
the condition of the Property had materially deteriorated after the
[agreement of sale] was signed, or that the market value of the Property
had materially declined as a result of waste from the August 2005 sale until
Mr. Rupert’s death.” Id. at ¶ 29.
As to the personal property question, the orphans’ court noted: “No
credible evidence was presented as to what personal property Mr. Rupert
owned in August, 2005 and conveyed in the [agreement of sale].” Id. at ¶
13. It observed that the agreement of sale was a standard one for the
purchase of real estate. Thus, when referring to personal property, the
agreement’s intent most probably was that Mr. Rupert sold his furniture and
other tangible personal property in his home to Appellant. In light of the
orphans’ court’s factual findings as to the lack of evidence of waste and the
personalty encompassed by the agreement of sale, it is evident that
Appellant failed to meet his burden of proof on these two claims. No relief is
due.
Finally, after consideration of the facts, briefs, and applicable law, we
affirm the orphans’ court’s application of the Dead Man’s Rule on the basis of
its June 25, 2015 opinion.
Order affirmed.
-9-
J-S40015-16
Judge Mundy did not participate in the consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
- 10 -
Circulated 07/27/2016 10:13 AM
Orphan's Court June 24th 2015 DECISION- ORDER---- Appendix A Pg 1
APPENDIX A Orphan's Court DECISION -ORDER June 24th, 2015 by John L. Hall, J,
IN THE COVRT OF" COJ\'fMON PLltt\S
c
CHESTER COCNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ESTATE OF JOHN LESL1E, RUPERT} a/k/a
JOHNL RUPERT, DECEASED
DECISlON
II. Proce487 Pa. 473~ 475, 409 /\.2d
1358. l 359 {I 979). This exception applies to HilX matter or Iact occurring prior to the decedent's
i I death, See Schroeder v. Jacquiss, 861 A .2d 885, 887 (Pa. 2004); se.t also Estate of Petro, 694
it
!· A.2d 627 (Pa. Super. 1997); Estate ofCecchine, 336 Pa.Super 11 l, 485 A.2d 4$4 (1984).
l
j However, the Dead Man's Rule does not upply to written documents signed by the decedent
II prior to his/her death. Lark en v.. Metz, 3 98 Pa. Super. 23 5, 2 4 2. 580 A .2 d I I SO, J 15 3 ( 1990),
il Three conditions must exist before the surviving party or witness is disqualified under the
11jt Dead Man's Act: "the deceased must have had an actual rinht or interest in the. matter at issue,
-
ii
! i i. e
:
an interest in the immediate result of the suit; (2) the interest of the witness - .not simply the
;
i testimony - must be adverse; (3) u right of the deceased must have passed to a party of record
who represents the deccaseds interests." Id. at 240, 580 A .2d l l 50, J 152, quo ling In Re.
[
j Hendrickson's Estate, 338 Pa. 39, 45, lJO A.2d 143, 146"147 (1957); see also in Re: Rider's
11 Estate, 487 Pa. 3 73, 3 77, 409 A.2d 397, 3 99 (.l 979), The burden of proving the incompetency is
n on the party challenging competency. Id.
There are three exceptions lo the application of this rule: ( 1) an action involving
surviving partners ot joint promisers: (2) possessory actions in which one of the defendants
disclaims and pays costs into the court or gives security: and (3) where the controversy over the
property of the decedent is between parties respectively claiming such property "by devolution
on the death of the owner." (devtsavtt vel non). This applies to situations in which the decedent's
property passes by will or intestacy. See Estate of Janoskv, 827 A.2d 512, 516 (Pa.Super. 2003).
8
Brief Page 67
Orphan's Court June 24th 2015 DECISION - ORDER---- Appendix A Pg 9
Applying the law to the case sub Judice, this court finds that the Dead Man's Statute is
applicable. Here, Mr. Rupert had an interest and a right in the property per the AOS and the
Deed. The interest of Mr. Boardman is clearly adverse lo Mr. Rupert. Mr, Boardman seeks
damages/monies allegedly resulting from Mr. Rupert's actions and Mr. Rupert's rights have
passed to his Estate, The Estate timely and properly raised the objection to Mr. Boardman's
resumony.
--i
i
!
Man's Statute is in error and Mr. Boardman were competent to testify, this court finds that Mr. :
j
!
;
Boardman is not credible in any of his testimony which is adverse to the Estate. Consequently, ;
;
:
;
such error would be harmless. In light of Mr, Boardman 's lack of admissible
-s..
and credible
evidence, hr:. bas failed to establish and prove hls Claim against the Estate by clear, direct;.
II
....
precise and convincing evidence, Estate of Allen, ABS Pa. 415, 412 A.2d 833 (J 980).
!
i
i
Ii
•I
l
;
1. How was the suqjectproperty owned at the time ofMr. Rupert 's death?
l
I
I The AOS (Estate Exhibit J) was executed on August 20, 2005 and provided for a transfer
ofthe Property from John and Nancy Rupert, as Sellers, to John Rupert and. Bryan Boardman, as
Buyers. The Addendum/Endorsement to the AOS provided: (l) Mr. Rupert the right lo live on
the Property for his life: (2) Buyers (Mr. Rupert and Mr, Boardman) to hold title as tenants in
common without rights of survivorship and for both parties' interest to become part of their
individual estates; and (3) Mr, Boardman the right to purchase from Mr. Rupert's estate. his
l
j interest in the Property for $115,000 within six months following Mr. Rupert's death, 1v1L !'
j !-
[Boardman argues that his interest is superior to Mr. Rupert's because he made a "superior ii
i
i !
u j
ii
!f
I! 9
I
Brief Page 68
Orphan's Court June 24th 2015 DECISION - ORDER---- Appendix A Pg 10
l contribution to the purchase price" and that he purchased Mr. and Mrs, Rupert's entire interest in
'!
i the Property,
I The court rejects l\,fr. Boardmans arguments. The credible evidence establishes that
I Mrs. Ru pen's half interest in the Property was purchased hy J\1(r. Boardman for an amount which
I the parties contemplated would be equal to Mr. Rupert's half interest at his death. Consistent
l with the court's conclusion arid contrary to Mr, Boardman' s position, the Deed equally listed
l
j both Mr. Boardman and Mt. Rupert as tenants in common. Where "[tjhe' language of.a deed is
! I dear [and] unambiguous
j!
], .. .J the intent of the grantees must be gleaned solely from Its
ti
i( ll lanzuaue
v "'
... , In the absence of fraud.' accident or mistake .t'carol evidence is inadmissible to varv..l
! ;~·
l for
(
limit the scope of a deed's express covenants and the nature and quantity of the interest
l!
!i !r conveyec. I must b e ascertume
, d. b,y tIre mstrurnent
' ' 1 l·' an· 5 Pa. 4 8(>, 486, 76
I A. 2d 191 199 ( 19 >O). Here, there w~s'nn credibl e "'.''.enee of fraud, accident or mistake,
, Neither the Deed nor Deed ot to1Tet.t1011 specify tho percentages of the. Property owned
by each tenant in common. Rather, they indicate only that Mr. Rupert and Mr .. Boardman have
equal status as tenants in common. This is consistent with the terms of the AOS, In accordance
with its 0"''11 terms (AOS, ~26) and contract la\\;, the :<\()S ca~iiiofbc changed'BY\jflf't'fsHmBnY,
Where a contract "is dear and unequivocal, its meaning must be determined by its contents
alone." Welroth v. Harvey, 912 A.2d 863, 866 (Pa.Super, 2006). It is presumed that, unless
· stated otherwise, the ownership interest is equal. The amount of money contribuled by one of
the owners in the purchase of real property does 1101 dictate the percentage of ownership. Moore
.-~. l
}
l v. Mtller, 910 A.2 I
Clauses explaining the transfer of personal property that had been arfixed to the
: I
I I real property were included in agreements in former times. Today, fixture
I\
clauses may be included in the section of the agreement that explain which
!i personal property, if any, is beingtransferred to the buyer as part of the
! transaction. Fixtures, having become part of the real estate, are inducted in the
sale unless specifically excluded.
l Ladner Pennsylvania Real Estate Law § l 4.04(f) (Ronald M, Friedman, ed.,
George T, Bisel Company, Inc. 61ll ed. 2013).
In addition to this clause, paragraph 26(B) of the AOS represents that Mr, Boardman, as Buyer,
I;
'f
had inspected ull fixtures and personal property specifically scheduled within the AOS or waived
i · the right to do so.
In the context of mi A.OS of real estate and the localkm of the phrase "ALL PERSONA.L
PROPERTY OF JOHN L RUPBRT'l under paragraph 4(a), it is evident to this court that the
parties were referencing tangible personal property attached to or used 1)1:'l the real property itself.
Even if this phrase. were to he considered ambiguous and extraneous evidence were considered,
there is no credible evidence as to what other personal property was conveyed by Mr. Rupert to
12
Brief Page 71
Orphan's Court June 241h 2015 DECISION - ORDER---- Appendix A Pg 13
I Mr. Boardman beyond that attached to or, HS described by AOS ~4(A), "installed In" the
j
i,i Property. Although the parties included a list pf excluded tangible personal property1 no $UCh list I
l
I ofincluded Property was provided, In accordance with the AOS, Mr. Boardman had the right to !
/ inspect the included personal property _b\lt there fa up credible evidence that lie viewed anythiug I,
. \ other than the Property. This court declines to construe this phrase to mean all of Mr, Rupert 's
'! personal property, including the bank accounts and stocks which Mr. Boardman now seeks,
I located anywhere in the world \Vith whichhe died seized some nine yeais after th¢ AOS, 11
I I
Ii-·, Does the Estate pwe Mr. Bom·dmcmjor rental value ofthe subject property?
i
Mr, Boardman argues he is owed (he rental value of the Property for Mr. Rupert's
occupancy until Mr, Rupert died. This court finds this claim to be merirless and looks to the
1 AOS and the Deed, neither of which req uire, nor even mention, rent. Mr, Rupert was a tenant in
i
j common with the right to live on the Property for his life, Pursuant to the AOS, (43(h)), Mr.
Rupert was obligated to p,1y the property taxes but nothing else, If Mr, Rupert was obligated ro
I pay rent to Mr. Boardman, for hi~ occupancy, or the occupancy of others, the AOS 'would have
stated as such. This court may not add a new term to tht'.AOS,11
Mr: Boardma::i' s alleg~tion that ~1r.- Rupert !·~a~ e``lusi ve possession of the Property
1
i because he was permitted to live there tor the rest ot his Me docs not equate to a duty to pay rent l I
) Consistent with the court's rejection that Mr. Rupert had exclusive possession of the Property,
generally. each tenant in common. is deemed to hold an undivided right of possession, allowing
I!
See The fork Group, Inc l'. Yorktown Caskets, Inc., 924 A.2d 1234 .. 124 7 (Pa.Super. 2 Q 07)
(" .. writ!ng cousritutes the agreement between the parties, and its terms and agreements cannot be added
to or subtracted from b>' parol evidence." (citations omitted) See also Welroth , •. Harvey, 912 A.2d at
866.
13
Brief Page 72
Orphan's Court June 24th 2015 DECISION -ORDER---- Appendix A Pg 14
each to occupy the whole in common with the other tenants in co min on. See Estate of Engel,
413 Pa. 475, 478, 198 A.2d 505, 507 (1964) (well established that tenants in common "own and
possess in equal shares an undivided interest in the whole property. ") See gmerally 86 C..J .S.
l I Tenancy in Common §§kt Thai. Mr. Rupert had his right lo possession extended through his
II
l I
lifetime provided him very little rights that he did not otherwise own as a tenant in common.
i j This additional right might only have provided him a material benefit if, in response to ~1
I'
1 partition action, he had sought to remain on the Property as a life tenant. P<1.R.C:P. l 564. No
such action was ever instituted. Moreover, outside the context of partition, even ifMr, Rupert
were deemed to have exclusive possession, such possession was implicitly agreed to by Mr.
! .
l j Boardman, and neither the A OS. the Deed, the Deed of Correction nor any credible evidence
!i .
l I supports a duty by Mr. Rupert to pay rent. Consequently, rent cannot Jl £he
H
! i Property. Generally, co-tenants in connnon have a ·right and au equal duty to make repairs to the I
1
common property. See generally 86 CJ.S. Tenancy in Common §86, There is 110 evidence that
i:_i,
i :
Mr. Rupert ever denied his neighbor. Mr. Boardman.eccess rothe Property. Indeed Mr.
I . . .
Boardman often entered onto the Property. Consequently, the allegation Uw1 Mr, Rupert owed !
money to Mr. Boardman for waste fa unproven. I
u
ti!t
I
l
j
!I
i.
I
15
Brief Page 74
Orphan's Court June 24th 2015 DECISION - ORDER ---- Appendix A Pg 16
I>
l l
di j ORDER
: f
j: !
: I
I A ND NOW, this 24tb day of June, 2015, following consideration of the evidence
! I
iitI adduced during the April 8, 2015 hearing, it is hereby ORDERED and DECREED that the
I! Claim and Objections are DENIED and OVERRULED us merirless, the Petition for
fI Accounting is DENI ED as moot 12 and the Motion is GRANTED. 13
iql BY THE COURT:
I!
!,
!!
i:
q
I!
: f
;t .
\.C
~
l " -~_._,N,_JJ•J~IH--.HH••••••••·~---,....,.....,.,...
12
I The parties agreed that the Estate could file the informal Account to which .M.r. Boardman could
j tile his Objections,
l i~ The court is kH with the distinct impression that Mr. Boardman has been contemplating and
<-rafting his arguments lo acquire Mr. Rupert's sham of the Property Jong before Mr. Rupert died, His
efforts to utilize his well thought out positions to his advantage began :50. 27'14.
I
'
I
!
l
j
i
I
i 16
i
Brief Page 75
Circulated 07/27/2016 10:13 AM
Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 1
APPENDIX C - Orphan's Court October 28, 2015 MEMORANDUM OPINION
IN TIIR COlJl{T OF COMMON PLl~AS
CIIESTIW. COUNTY, Pl~NNSYLVANIA
Ol{PIIANS' COlJRT DIVISION
RSTATJ'l: NO. 1513-0131
Ji:STATti: OF .JOHN LESLIE nUPP:RT, n/1783 A.2d 296, 297 (Pa. Super. 200 I), appeal denied,
568 Pa. 23, 797 A.2d 915 (2002). The trial court is "free lo reject even uncontradicted
evidence that it finds lacking in credibility." Boro Construction, Inc. v. Ridley School District,
992 A.2d 208, 218 n.16 (Pa.Cmwlth. 20 I 0), citing D 'Emilto v. Boord of Supervisors of the
Township ofBensalem, 157 Pa.Cmwlth, 64, 628 A.2d 1230 ( 1993).
In any event, as explained in the Decision, the amount of money contributed by one of
the owners in the purchase of' real estate does not dictate the percentage of ownership. It is
presumed that, unless stated otherwise, the ownership interest is equal. Moore v. Miller, 910
A.2d 704, 708 (Pa. Super. 2006). Contrary lo Mr. Boardrnan's proffered legal theory, this is
the law which controls this issue. The credible evidence did not rebut the presumption
described within Moore,
Alleged Ir.nor No. 2
"2. Waste of Properly. The court found Mr. Rupert's estate is not liable for waste of
the property. In this finding the court erred."
4
Although Mr. Boardman hedged 011 the purchase amount, he did not .it that time deny he had
the option clause included in the AOS. Even if the $1 I 5,000 figure were random ly picked, as
unpersuasivcly implied hy Mr. Boardman, the balance of I hat clause also supports the court's conclusion
of equal ownership. When he inserted the clause in the J\OS, Mr. Boardman chose not to define Mr.
Rupert's interest as any less than his own, and specified that each of them held as tenants in common
with their interests eventually flowing to their individual estates.
4
Brief Page 81
Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 5
As described within the Decision, Mr. Boardman did not carry his burden of proving
that the Estate owes him damages for waste. When purchased by Mr. Boardman, the house
located on the Property was dilapidated and in poor condition (N.T. 4/8/15, at 87-88). At the
time of the purchase, Mr. Rupert, the Property occupant, was so physically disablcd5 that it was
very difficult for him to walk, he was unable to shop and he was unemployed. (N.T. 4/8/15, al
52-53.) In fact, Mr. Boardman did not think Mr. Rupert had long to live. (N.T. 4/8/15, at 22.)
A Iler the purchase, as a co-tenant in common, Mr. Boardman held an equal right of possession
lo the Property, Estate ofEngel, 413 Pa. 4 75, 478, 198 A.2d 505, 507 (1964 ), as well as an
equal right and duty to make repairs to it. 86 C ..1.S. Tenancy in Common §86. No credible
evidence was presented that Mr. Rupert ever denied Mr. Boardman access to the Property and
in foci Mr. Boardman, as an adjacent landowner and purported friend or Mr. Rupert, often
entered onto the Property and had continuous opportunities to observe, inspect and repair the
house. No credible evidence was offered that the parties ever discussed how repairs and
maintenance for the Property would be shared. Mr. Boardmau's decision to wait until after Mr.
Rupert's death to claim that Mr. Rupert alone was obligated to repair the Property is legally
unsupportable, and further appears, on its face, to be unconscionable.
In any event, Mr. Boardman's testimony in opposition lo the Estate was properly
excluded by the court pursuant to the Dead Man 's Statute and even if admitted, was not
credible. Consequently, there was 110 credible evidence that waste occurred, that Mr. Rupert
was responsible alone to avoid waste, or what damages should be awarded even if waste were
proven. Mr. Boardman "s invocation of partition Jaw is equally unpersuasive. Mr. Boardman
never instituted a partition net ion against Mr. Rupert. Mr. Boardman cannot now claim the
npplication of partition law remedies in this account proceeding. The use of a master for
Mr. Boardman described him as "crippled." (N.T. '1/X/15, at 52.)
5
Brief Page 82
Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 6
example, is a partition, not an account adjudication procedure. Mr. Boardman never requested
a master and therefore waived that right, even if it existed.
Alleged Ji:rrn,· No. J
"3. Rent or Property. The court found Mr. Rupert's estate is not liable for rental
value ofthe property during co-ownership with Mr. Boardman. In this finding
the court erred."
Mr. Boardmans claim for rent against the Estate is unpersuasive for a number of
reasons. Fundamentally, there is no record evidence that Mr, Boardman and Mr. Rupert ever
agreed that Mr. Rupert would pay rent. In fact, the record evidence, as described within the
AOS and Property deed, (Estate Exhibit 2), implies that the parties contemplated the right of
Mr. Rupert to live on his Property without payment of rent. Mr. Rupert's only agreed upon
ongoing monetary requirement was lo pay the Property taxes (Estate Exhibit l, p, 2).
furthermore, like Mr. Boardmau's waste argument, his exclusive possession argument rests on
partition law. Even if exclusive possession were proven, which it was not, this is not a partition
action. As previously staled, Mr, Boardmau's post-hearing suggestion that a partition master
should have been appointed is similarly without merit or waived,
Mr. Boardman and Mr. Rupert were co-tenants, deemed to each hold an undivided right
of possession in the Property. Each had a right to occupy the whole in common with the other.
Estate of Engle, 41 J Pa. al 478, 198 /\.2d al 507. That Mr. Rupert was provided the right to
live on the Properly for his lifetime, did not exclude Mr. Boardman from sharing occupancy.
No evidence was presented, credible or not, which even suggested Mr. Boardman had a desire
to occupy the Property, including that part of the Property eventually occupied by Mrs. Rupert
6
Brief Page 83
Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 7
and I littel Patrice Gimbel ("Ms. Gimbel"}. Although Mr. Boardman knew that Mrs. Rupert
and Ms. Gimbel resided on the Property to care for Mr. Rupert, there is no record evidence that
Mr. Boardman ever sought to eject them or ask them to pay rent. Indeed, Mr. Boardman
declared at the hearing that they do not owe him rent (N.T. 4/8/15, at 26). Furthermore, the law
docs not prevent a property owner in need of care from inviting guests to live with and care for
him.
Ulrimutcly, there are no credible facts of record to support Mr. Boardrnarr's claim of
rent. His many allegations of fact dehors the n.zcord within his Statement cannot change that
circumstance. The AOS required Mr. Rupert to pay only taxes during his occupancy. No
written evidence of a lease or other requirement to pay rent was presented. No evidence was
presented that Mr. Rupert required or collected rent from Mrs. Rupert or Ms. Gimbel. No
evidence was presented establishing rent damages, as apparently acknowledged by Mr.
Boardman. (See Statement, p. 16.) Consequently, the court did not err when it refused to
award Mr. Boardman rental damages.
Alleged Et·1·01· No. 4
"4. Personal Property, The court found Mr. Rupert's estate is not liable to Mr.
Boardman for Mr. Rupert's personal property. In this finding the court erred."
No error was caused by the court when it determined that the personal property included
in the AOS consisted of personal property attached to or used on the Property itself. On this
issue, Mr. Boardmnu's testimony, including his testimony that Mr. Rupert intended to provide
him with all of his personal property anywhere in the world due to Mr. Rupert's "sentiment
7
Brief Page 84
Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 8
towards and friendship with" him, was excluded by the court, and even if considered, was not
credible.
Mr. Bonrdmau's lack or credibility on this issue is disturbingly apparent. For example,
Mr. Boardman outrageously suggests in his Statement (p. 20) that the personal property he
purchased from Mr. Rupert included 50% of the $115,000 (or $57,500) consideration lhnt Mr.
Boardman paid at settlement. Essentially, Mr. Boardman suggests that he continues to own
half of the money he paid to the Rupcrts, nut the logical conclusion or this suggestion is that
the $57 ,500 in personal property he allegedly purchased from Mr. Rupert at the execution of
the /\OS did not even exist at that lime among Mr. Rupert's assets. Instead, at the time the /\OS
was executed in August, 2005, the money was Mr. Boardmnu's personal property, or that of his
lending institution. Second, there was no credible evidence presented that Mr. Rupert even
received $57,500 from the transaction. Mrs. Rupert could well have received all of the
consideration. Third, even if Mr. Rupert received $57,500 or the $115,000 purchase price, it
makes no sense that Mr. Rupert would have contracted to give it back to Mr. Boardman via the
fixtures and personal property clause of the AOS. If he did, Mr, Rupert, in effect, would have
become a bailee of the $57,500, holding it for Mr. Boardman and without authority to use it.
Fourth, if the parties had actually intended in the AOS for Mr. Boardman to buy back his own
$57,500 as part of Mr. Rupert's "personal properly", they would simply have listed the total
sales price as $57,500, rather than $1 l 5,000, and paid half of the taxes. This argument is really
beyond the pale and says much about Mr. Boardman. ''
Further, Mr. Boardman alternatively acknowledges that he did not even know what Mr.
Rupert's personal properly consisted or: other than that which Mr. Boardman had observed on
the Property itself. His ongoing post-hearing suggestion of a master, in this instance to
6
It also supports the bad faith referenced in footnote 2.
8
Brief Page 85
Orphan's Court October 28, 2015 MEMORANDUM OPINION ----Appendix C Pg 9
determine the existence of such other personal property, confirms this lack of knowledge.
(Statement, p. 20.) Certainly the only personal property that Mr. Boardman purportedly
inspected, pursuant to paragraph 26(B) of the AOS, was on the Property.
Additionally, as described within the Decision, the only examples of "fixtures and
personal property," described within paragraph 4 of the AOS, were tangible personal properly
attached to or used on the Properly. Contrary to Mr. Bourdrnau's representation within his
7
Statement, those items include personal property which arc not fixtures. Paragraph 4(/\) of the
AOS includes "pool and spa equipment", for example, which could include removable pool
covers, skimmers and the like, while garage door "transmitters" are normally portable devices
carried within motor vehicles garaged on the subject real estate. The Pennsylvania Supreme
Court has specifically defined "chandeliers" as personal property which, even when attached to
a dwelling, arc not fixtures. Holthouse v, Rynd, 155 Pa. 43, 25 A. 760 ( I 893); Vaughen v.
Haldeman, 33 Pa. 522 ( 1859). Tellingly, when Mr. Boardman and Mr. Rupert listed items to
be excluded under the fixtures and personal property clause, they only included personal
property, not fixtures, used on the Property, i.e. "tractors, backhoe, extraneous other equipment,
trailer." (Estate Exhibit I, p. 2, il4(C)).
Finally, even if the court erred, the error is harmless. Mr. Boardman foiled to prove
what other personal property Mr, Rupert owned at the lime the AOS was executed. Like his
failure to prove damages related to waste and rent, the record is void of credible evidence
defining the type and value of personal property owned in 2005 by Mr. Rupert which was not
attached to or used on the Property. As previously described, Mr. Boardman appears to
concede this deficiency.
Pixtures are usua 1 ly defined as items pennaneutly a nixed to and which have become pnrl of the
real estate. Clay/on v. Lienhard, 312 Pa. 433, 1135-1\J 7, 167 /\. 321, 322 ( 1933).
9
Brief Page 86
Orphan's Court October 28, 2015 MEMORANDUM OPINION ---- Appendix C Pg 10
Alleged E1Tor Number S
"5. Dead Man's Statute. The court found that Rupert estate's motion to apply the
Dead Man's Statute is carried. In this finding the court erred."
The only issue concerning the Dead Man's Statute that was preserved on appeal by Mr.
Boardman was that of waiver by the Estate, caused by the Estate 's counsel cross examination
of Mr. Boardman at the April 8, 2015 hearing. Mr. Boardman ignores the fact that counsel for
the Estate raised and preserved the issue of the Dead Man's Statute in the Estate's February 25,
20 I 5 Motion in Limine ("Motion"). At the April 8, 2015 hearing, the Estate continued to assert
the Statute. In response, this court deferred ruling on the Motion, thereby compelling the
Estate's attorney, properly, to cross examine Mr. Boardman in case the Motion were denied.
There is no waiver or the Dead Man's Statute where the trial judge "expressly reserved the
right to pass on the questions legitimately arising under the objection when he came to the final
decision of the case .... " DeSilver 's Estate, 32 Pa. Super. 174 ( l 906). Consequently, this
court correctly found that "[tjhe Estate timely and properly raised the objection to Mr.
Boardmau's testimony." (Decision at p. 9.)
Additionally, no prejudice to Mr. Boardman resulted from the Estate's cross
examination. Mr. Boardman also had the opportunity lo testify fully in his own direct
testimony. When the court eventually applied the Dead Man's Statute, it excluded all material
answers, whether provided on direct or cross, which were in violation of the Statute. Lastly, as
previously described, even if the Dead Man's Statute is inapplicable and Mr. Boardman's
testimony considered by the court, he was simply not credible in opposing the interests of Mr.
Rupert and his Estate. Much of his testimony was self-serving, improbable and unsupported by
the written documentation.
10
Brief Page 87
Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 11
Conclusion
Accordingly, it is respectfully suggested that the Order be affirmed.
l3Y THE COURT:
__ _,(:.,e_)c"'"'t,obcr
21!..,_Jfil,i _
Date
·,
,;.,·.
I'..)
c:» '
:·J"; :1
;7; •
'"~'-
,"~-;. I
..
:.t1( ....
{")-;
c;.·J ..
:
!;:; :i .
---, ..
...... J
-<''
~o <-
(fl ?.,. <:
~D :t
Brief Page 88