Baudendistel, N. v. Macking, H. ( 2020 )

J-A24028-19 & J-A24029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NANCY BAUDENDISTEL, AS : IN THE SUPERIOR COURT OF
EXECUTRIX OF THE ESTATE OF : PENNSYLVANIA
TIMOTHY O'SULLIVAN, SR. :
:
:
v. :
:
:
HAROLD MACKING AND RAELENE : No. 8 EDA 2019
MACKING :
:
Appellants :
Appeal from the Judgment Entered January 29, 2019
In the Court of Common Pleas of Wayne County Civil Division at No(s):
339-CIVIL-2016
NANCY BAUDENDISTEL, AS : IN THE SUPERIOR COURT OF
EXECUTRIX OF THE ESTATE OF : PENNSYLVANIA
TIMOTHY O'SULLIVAN, SR. :
:
:
v. :
:
:
HAROLD MACKING AND RAELENE : No. 9 EDA 2019
MACKING :
:
Appellants :
Appeal from the Judgment Entered January 29, 2019
In the Court of Common Pleas of Wayne County Civil Division at No(s):
339-CIVIL-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 13, 2020
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A24028-19 & J-A24029-19
In these consolidated appeals,1 Appellants, Harold and Raelene Macking,
appeal from the Judgment entered on January 29, 2019, in the Wayne County
Court of Common Pleas following a bench trial in this action arising from a
breach of a loan agreement. After careful review, we affirm.
The facts and procedural history, as gleaned from the record, are as
follows. On July 21, 2009, Appellants entered into a typewritten loan
agreement (the “Agreement”) with Timothy O’Sullivan, Sr., in which Mr.
Sullivan agreed to loan Appellants $31,380 at 5 percent interest and
Appellants agreed to repay Mr. O’Sullivan in monthly installments of $500. Mr.
O’Sullivan then provided Appellants with a check for $31,380, which Ms.
Macking cashed. Appellees thereafter made sporadic payments on the loan.
In November 2014, Mr. O’Sullivan died testate. Appellants made no payments
after his death.
In December 2014, the Register of Wills issued Letters Testamentary to
Appellee, Nancy Baudendistel, Mr. O’Sullivan’s daughter. Appellee discovered
the Agreement and record of partial payment while going through the
decedent’s papers. She contacted Mr. Macking, who acknowledged that he
and his wife still owed money under the Agreement, but he and Appellee could
not agree as to the remaining balance.
____________________________________________
1 We have consolidated the appeals sua sponte.
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In June 2016, Appellee commenced this action against Appellants,
alleging that Appellants had defaulted on the Agreement and owed the balance
of the loan plus interest. Discovery proceeded, with, inter alia, Appellants
providing disposition testimony.
On April 20, 2018, a bench trial commenced at which Appellants,
Appellee, and Appellee’s brother testified. Appellee entered the Agreement
into evidence, and Appellants entered Timothy J. O’Sullivan, Sr. 2016
Inheritance Tax Return (“Tax Return”) into evidence. The parties stipulated
that Appellees repaid Mr. O’Sullivan $5,650 via checks between July 2009 and
November 2014.
Ms. Macking testified that she did not sign the Agreement. She claimed
she signed a similar document that was handwritten, not typed, which did not
contain terms regarding interest. She also testified that she and her husband
repaid approximately $25,000 of the loan in cash, and repaid the loan in full
during the summer of 2014.
In contrast, Mr. Macking testified that he signed the Agreement. He
acknowledged that it was possible that he and his wife still owed money under
the Agreement. Mr. Macking recalled making the following limited cash
payments: $2,400 from the sale of his camper; $1,000 from the sale of his
snowmobile; $700; $500; $200 in May 2014; $300 in June 2014; and $200
in July 2014.
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On July 16, 2018, the court issued its Findings and Decision, concluding
that Appellants breached the terms of the Agreement by not paying the loan
as agreed, and determined that the remaining balance of the Agreement was
$20,330.
The court found Mr. Macking’s testimony credible, but found Ms.
Macking’s testimony incredible. The court specifically noted her inability to
recall making cash payments and inconsistencies between her deposition and
trial testimonies.
Appellants filed two Post-Trial Motions. On November 20, 2018, the
court denied the Motions.
This timely appeal followed. Both Appellants and the trial court complied
with Pa.R.A.P. 1925.
Appellants raise the following nine issues on appeal, reordered for ease
of disposition:
I. The [c]ourt allowed testimony not permitted under the Dead Man’s
Statute.
II. The alleged written loan document should not have been admitted
into evidence for the sole reason there was clearly a chain of title
issue which made the document inadmissible.
III. The [c]ourt did not hear opening or closing arguments, nor did the
[c]ourt even address the issue.
IV. The [c]ourt did not permit [Appellants] to fully and completely
answer the questions of [Appellee’s] trial counsel and, thereby,
denied [Appellants] due process.
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V. The [c]ourt[’]s [r]uling in favor of Appellees and against the
Appellants goes against the weight of the evidence.
VI. The Inheritance Tax Return concerning the Estate of Timothy J.
O’Sullivan, Sr. is devoid of any mention of the alleged debt of
[Appellants] to the Estate of Timothy J. O’Sullivan, Sr. and, as such,
is a [j]udicial [a]dmission.
VII. The failure to list the Appellants[’] alleged debt on the Timothy J.
O’Sullivan, Sr. Inheritance Tax Return was a Statement Against
Interest which the [c]ourt failed to recognize and address in [its]
Findings of Fact and subsequent ruling.
VIII. The Appellee’s failure to list the alleged debt of the Appellants on the
Inheritance Tax Return of Timothy J. O’Sullivan, Sr., never filing a
Supplemental Inheritance Tax Return and receiving Pennsylvania
Department of Revenue’s Notice of Inheritance Tax Appraisement,
Allowance or Disallowance of Deductions and Assessment of Tax is
clear evidence of perjury.
IX. The signed Verification attached to the Complaint in this matter is
clearly erroneous and false as demonstrated by the trial testimony of
[Appellee], Executrix of the Estate of Timothy J. O’Sullivan.
Appellant’s Br. 29 at 4-8.
In their first four issues, Appellants contend that the trial court
committed numerous errors during the trial. Specifically, they assert the court
improperly (1) permitted testimony excluded under the Dead Man’s Statute;
(2) admitted the written loan agreement document; (3) failed to hear opening
or closing arguments; and (4) precluded Appellants from fully and completely
answering Appellee’s counsel’s questions. Appellants’ Br. at 25-31. Based on
the following settled law, we conclude Appellant failed to preserve these issues
for appellate review and they are, thus, waived.
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It is axiomatic that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). In order to
preserve an issue for review, a party must make a contemporaneous objection
at the appropriate stage of the proceedings before the trial court.
Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016); State
Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015). See
also Pa.R.A.P. 2119(e) (requiring an appellant to identify where in the record
he preserved an issue for appellate review). Failure to assert a
timely objection will result in waiver of that issue. Dill, 108 A.3d at 885.
Additionally, an appellant must file post-trial motions to preserve issues
for appellate review; issues not raised in post-trial motions are waived.
Lenhart v. Cigna Cos., 824 A.2d 1193, 1996 (Pa. Super. 2003). See
Chalkey v. Roush, 757 A.2d 972, 975 (Pa. Super. 2000) (en banc) (noting
the purpose of requiring issues to be raised in a post-trial motion is “to provide
the trial court the first opportunity to review and reconsider its earlier rulings
and correct its own error”).
Our review of the record reveals that Appellants did not object to any of
the four issues during the trial and did not raise any of them in a post-sentence
motion. Accordingly, Appellants failed to preserve these issues for appeal,
and, thus, the issues are waived.
In their fifth issue, Appellants challenge the weight of the evidence. The
weight of the evidence is exclusively for the finder of fact, who “is free to
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believe all, part, or none of the evidence and to determine the credibility of
the witnesses.” Haan v. Wells, 103 A.3d 60, 70 (Pa. Super. 2014) (citation
omitted). We review a trial court’s ruling on a post-trial motion challenging
the weight of the evidence for an abuse of discretion; we do not review the
underlying question of whether the verdict is against the weight of the
evidence. Brown v. Halpern, 202 A.3d 687, 703 (Pa. Super. 2019).
“Because the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest consideration to
the findings and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the evidence.”
Gold v. Rosen, 135 A.3d 1039, 1041-42 (Pa. Super. 2016) (citation omitted).
An appellant is not entitled to a new trial where the evidence is conflicting and
the finder of fact could have decided either way. Brown, supra at 703. This
Court will grant a new trial only where the verdict is so contrary to the
evidence that it shocks one’s sense of justice. Betz v. Erie Ins. Exch., 957
A.2d 1244, 1252 (Pa. Super. 2008).
Appellants essentially challenge the court’s finding that Ms. Macking’s
testimony—that the original loan agreement was handwritten—was incredible.
See generally Appellants’ Br. at 18-20. They contend that because the
parties did not present a handwritten document at trial, the original
handwritten loan agreement must have been destroyed by Mr. O’Sullivan
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J-A24028-19 & J-A24029-19
because he considered the loan satisfied. Id. at 20-21. This argument is
warrants no relief.
As noted above, the trial court found Ms. Macking’s testimony regarding
the handwritten agreement incredible. Significantly, the court also noted that
at her deposition, Ms. Macking had testified that she had also signed the
Agreement. Trial Ct. Op., dated 7/16/18, at 4. Further, the court determined
that the parties had entered into the Agreement that Appellee presented at
trial, and noted that Mr. Macking testified that he had signed that Agreement.
Id. at 4-5.
Appellants essentially ask this Court to reweigh the evidence. This we
cannot and will not do. In addition, we cannot conclude that the verdict
“shocks one’s sense of justice.” Accordingly, Appellants are not entitled to
relief on this weight claim. Brown, supra at 703.
Appellants’ next three issues arise from Timothy J. O’Sullivan, Sr.’s 2016
Inheritance Tax Return filed by Appellee. In essence, Appellants assert that
the trial court erred in finding they owed a balance on the Agreement because
Appellee had not claimed the outstanding loan debt as an asset on Mr.
O’Sullivan’s Inheritance Tax Return. See generally Appellant’s Br. at 31-43.
When reviewing a trial court’s decision after a bench trial, our standard
of review is well established. “We may reverse the trial court only if
its findings of fact are predicated on an error of law or are unsupported by
competent evidence in the record. As fact finder, the [court] has the authority
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to weigh the testimony of each party’s witnesses and to decide which are most
credible.” Parker Oil Co. v. Mico Petro and Heating Oil, LLC, 979 A.2d
854, 856 (Pa. Super. 2009) (citation omitted). We must give the court’s
findings the same weight and effect as a jury verdict, and we will not disturb
the findings unless they are not supported by competent evidence in the
record. Levitt v. Patrick, 976 A.2d 581, 589 (Pa. Super. 2009).
“Furthermore, our standard of review demands that we consider the evidence
in the light most favorable to the verdict winner.” Id. (citation omitted).
Appellants assert that Appellee’s failure to indicate an outstanding debt
on the Inheritance Tax Return is a “judicial admission” that there was no
outstanding balance on the Agreement. Appellants’ Br. at 32. This argument
has no merit.
A “judicial admission” is “an express waiver made in court or
preparatory to trial by a party or his attorney, conceding for the purposes of
trial, the truth of the admission.” Nasim v. Shamrock Welding Supply Co.,
563 A.2d 1266, 1267 (Pa. Super. 1989). To qualify as a judicial admission,
the averment must be a “clear and unequivocal admission of fact.” Coleman
v. Wyeth Pharm., Inc., 6 A.3d 502, 524 (Pa. Super. 2010) (citation
omitted).
In its 1925(a) Opinion, the trial court noted Appellee did not make or
file the Tax Return in preparation for the instant litigation. Trial Ct. Op., dated
2/14/19, at 8. Additionally, it found that Appellee filed the Tax Return while
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actively litigating the instant matter and could file an amended return once
the litigation concluded. Id. Therefore, the court concluded that the fact that
Mr. O’Sullivan’s Tax Return did not mention Appellants’ debt was not a “judicial
admission.” Id.We agree with the trial court’s analysis. Appellee did not make or file
the Tax Return “in court or preparatory to trial.” Nasim, 563 A.2d at 1267.
Further, because the ligation involving the debt was ongoing, the amount of
Appellants’ debt was indeterminate at the time Appellee filed the Tax Return.
Therefore, the omission of the debt from the Tax Return cannot be considered
an expressed admission of fact. Coleman, supra at 524. This claim has no
merit.
In their next issue, Appellants present an alternate theory by asserting
that Appellee’s filing of Mr. O’Sullivan’s Inheritance Tax Return was a
Statement Against Interest. They contend that Appellee’s failure to note the
alleged debt on the Tax Return demonstrates that Appellee did not legitimately
believe they had an outstanding debt on the Agreement. Appellants’ Br. at 36-
37. They argue that if the trial court had considered this factor in its analysis,
it would have found that Appellants had repaid the loan in full. Id. at 38.
A Statement Against Interest is a “statement that . . . a reasonable
person in the declarant’s position would have made only if the person believed
it to be true because, when made, it was so contrary to the declarant's
proprietary or pecuniary interest or had so great a tendency to invalidate the
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declarant’s claim against someone else or to expose the declarant to civil or
criminal liability.” Pa.R.E. 804(b)(3)(A). A Statement Against Interest is an
exception to the rule against hearsay, but is applicable only when the
declarant is unavailable as a witness. Id. at 803(b).
Here, the declarant, Appellee, was available and testified as a witness.
Accordingly, the Statement Against Interest hearsay exception is not
applicable. Therefore, this argument has no merit.
In their next issue, Appellants contend that Appellee committed perjury
in verifying Mr. O’Sullivan’s Inheritance Tax Return as true because she failed
to claim Appellants’ alleged outstanding debt on the return. Appellants’ Br. at
39-40. They assert the trial court erred in failing to consider this alleged
perjury in rendering its verdict. Id.
A person is guilty of perjury “if in any official proceeding [s]he makes a
false statement under oath or equivalent affirmation, or swears or affirms the
truth of a statement previously made, when the statement is material and
[s]he does not believe it to be true.” 18 Pa.C.S. § 4902(a).
Appellee’s failure to include Appellants’ debt in the tax return was not a
“false statement . . . that she did not believe to be true.” As noted above, the
Appellee filed the tax return while actively litigating the instant matter; thus,
the validity of the debt was uncertain and Appellant’s failure to report it does
not rise to the level of a false statement. As the trial court observed, once the
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litigation concluded, Appellee could then file an amended tax return reporting
the outstanding debt as an asset. Trial Ct. Op., dated 2/14/19, at 8.
In addition, the record shows that Appellee testified at trial that she had
informed her accountant of Appellants’ outstanding debt, would inform her
accountant of the outcome of the litigation, and would then file an amended
tax return after seeking her accountant’s advice. N.T. Trial at 102, 104-05.
Therefore, the trial court properly concluded Appellee did not commit perjury
in verifying the Tax Return as true.
In their final issue, Appellants contend that Appellee’s testimony that
“[she] didn’t really know much about [the alleged debt]” contradicted the
Complaint’s verification pursuant to Pa.R.C.P. 1024(a), which stated that
Appellee “verified that the statements made in the . . . Complaint are true and
correct.” Appellants’ Br. at 44 (quoting N.T. Trial at 87 and Complaint). They
assert that the trial court, therefore, erred by failing to sua sponte dismiss the
Complaint as untruthful. Id. This claim has no merit.
Pursuant to Pa.R.C.P. 1024(a)
Every pleading containing an averment of fact not appearing of
record in the action or containing a denial of fact shall state that
the averment or denial is true upon the signer’s personal
knowledge or information and belief and shall be verified. The
signer need not aver the source of the information or expectation
of ability to prove the averment or denial at the trial. A pleading
may be verified upon personal knowledge as to a part and upon
information and belief as to the remainder.
Pa.R.C.P. 1024.
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In its 1925(a) Opinion, the trial court acknowledged that Appellee stated
that she did not know much about the alleged debt and the Agreement
between Appellants and Mr. O’Sullivan. Trial Ct. Op., dated 2/14/19, at 10.
However, the court found that Appellee’s lack of knowledge did not negate the
existence of the Agreement or contradict the substance of the Complaint,
emphasizing that Rule 1024(a) states that “a pleading may be verified upon
personal knowledge as to a part and upon information and belief as to the
remainder.” Id. (emphasis in original) (citing Pa.R.C.P. 1024(a)). The court
determined the existence of the Agreement based on, inter alia, (1) Appellee’s
testimony that she found the Agreement in the decedent’s papers; (2)
Appellants’ testimony that they had entered into the loan agreement with Mr.
Sullivan; and (3) Mr. Macking’s testimony that it was his signature on the
Agreement that the court entered into evidence. Id. Thus, the court found
this issue meritless.
We agree with the trial court’s analysis. Rule 1024 does not require a
plaintiff to have personal knowledge of all of the averments of fact contained
in the Complaint as long as the plaintiff has information and belief on the
remainder of the averments. See Pa.R.C.P. 1024(a). Moreover, as the trial
court noted, the Appellee and Appellants’ testimony verified the averments in
the Complaint. Accordingly, the trial court did not err by failing to dismiss the
Complaint as false.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/20
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