In Re: Estate of Donald Keith Birchard ( 2017 )


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  • J. S42032/17
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: ESTATE OF                        :     IN THE SUPERIOR COURT OF
    DONALD KEITH BIRCHARD                   :           PENNSYLVANIA
    A/K/A KEITH BIRCHARD                    :
    :          No. 141 MDA 2017
    APPEAL OF: JANET BIRCHARD               :
    Appeal from the Order Entered December 28, 2016,
    in the Court of Common Pleas of Susquehanna County
    Orphans’ Court Division at No. OC048-2015
    BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 18, 2017
    Janet Birchard appeals the order of the Court of Common Pleas of
    Susquehanna    County   that   denied   her   counterclaim   that   sought   an
    accounting from the estate of Donald Keith Birchard (“Decedent”) 1 for
    personal property taken from the 116 High Street property (“Property”), and
    the return of that personal property or reimbursement for any property sold
    by the estate as the claim was barred by equitable estoppel; her
    counterclaim that sought rental income for the use of the Property by
    Decedent and her counterclaim that sought reimbursement for accounts
    receivable collected by Diana Birchard (“appellee”) for work performed by
    1
    Decedent was the son of Donald and Janet Birchard and the husband of
    Diana Birchard.
    J. S42032/17
    B & D Plumbing, Heating, and Electrical (“B & D”).2 After careful review, we
    affirm.
    The relevant facts and procedural history, as found by the trial court,
    are as follows:
    On October 27, 2014, Donald Keith Birchard
    a/k/a Keith Birchard (hereinafter referred to as
    [D]ecedent) died. On November 4, 2014, [appellee],
    [D]ecedent’s      widow,     was     granted    letters
    testamentary appointing her as the Executrix of
    [D]ecedent’s estate. On June 9, 2015, [appellee]
    filed a petition seeking access to a business property
    located at [the Property]. [Appellee] contended that
    some of [D]ecedent’s assets were stored at that
    premises and that the assets were necessary to
    conclude the administration of the Estate.         The
    person in control of the [Property] was [D]ecedent’s
    mother, [appellant].
    On June 22, 2015, [appellant] filed an answer
    to the petition seeking access to the [Property].
    [Appellant] did not consent to [appellee] having
    access to the [Property] except “as part of a ‘global’
    resolution of issues between the parties.” In this
    answer, [appellant] included a “new matter” and a
    “counterclaim” through which she contended that
    assets     belonging     to  her    late    husband,
    Donald Birchard, had been misappropriated by
    [D]ecedent’s estate. [Appellant] claimed damages
    relating to (1) rental income for the period of time
    that [D]ecedent utilized the [Property] for his
    business operations; (2) reimbursements for any
    accounts receivable relating to the former business
    2
    The trial court also denied Diana Birchard’s petition that sought to seize
    personal property from the Property.          The trial court found that
    Diana Birchard’s counterclaim that sought reimbursement for her work
    collecting accounts receivable for B & D and her work resolving outstanding
    accounts payable of B & D was moot. The trial court denied Diana Birchard’s
    counterclaim that sought compensation for Decedent’s unpaid wages for
    work performed for B & D. Diana Birchard did not appeal these rulings.
    -2-
    J. S42032/17
    operated by [appellant’s] late husband, but which
    were collected by [D]ecedent’s estate; and (3) an
    accounting of any assets or inventory of her late
    husband’s business taken by [D]ecedent’s estate
    (and reimbursement for any of her late husband’s
    assets or inventory sold by [D]ecedent’s estate).
    On July 13, 2015, [appellee] filed an answer to
    [appellant’s]    new     matter    and    counterclaim.
    [Appellee] also filed her own new matter asserting
    the    affirmative    defenses    of   (1)    estoppel;
    (2) impossibility of performance; (3) justification;
    (4) statute of limitations; and (5) unclean hands.
    ....
    On February 23, 2016, [appellant’s] counsel
    wrote to the Court requesting a trial date on
    [appellant’s] counterclaim. On February 26, 2016,
    [appellant] filed a formal petition seeking a hearing
    on her counterclaim. On March 1, 2016, this Court
    scheduled a hearing date for May 23, 2016.
    On May 11, 2016, [appellee] filed an amended
    answer to [appellee’s] counterclaim in which
    [appellee] then asserted additional claims against
    [appellant].     While [appellee] maintained the
    position that [D]ecedent had taken over the business
    operations in total in April 2014, [appellee] raised
    the following claims in the event that it was
    determined that no formal transfer of the family
    business occurred: (1) quantum meruit relating to
    work performed by [appellee] in collecting the
    accounts receivable; (2) quantum meruit relating
    to work performed by [D]ecedent for [appellee’s]
    business for which he was never compensated; and
    (3) quantum meruit for [appellee’s] work in
    resolving debt owed by respondent in connection
    with the former business entity.
    A hearing was held on May 23, 2016. Each
    party has submitted supporting briefs and the matter
    is now ripe for disposition.
    -3-
    J. S42032/17
    II.   Findings of Fact
    1.    [Appellant] and    Donald   I.   Birchard   were
    married in 1958.
    2.    During the parties’ marriage, Donald I.
    Birchard owned and operated a business
    known as [B & D] which had a business
    location and building at [the Property].
    3.    Donald I. Birchard initially owned and operated
    [B & D] with Charles C. Dietrich, Jr., as
    partners.
    4.    In 1974, Donald I. Birchard bought out
    Charles C. Dietrich, Jr.’s interest in the
    partnership and [B & D] became a sole
    proprietorship.
    5.    Decedent was born on April 1, 1959. Decedent
    is the son of Donald I. Birchard and
    [appellant]. Decedent spent most of his adult
    life as an employee of [B & D].        Decedent
    worked with his father at [B & D] for 30 years.
    6.    On October 9, 2010, Donald I. Birchard died
    testate leaving all of his estate to his wife,
    [appellant], which included [B & D].
    7.    Prior to his death in October 2010, Donald I.
    Birchard had been sick and [D]ecedent had
    been running the family business.
    8.    Aside from [D]ecedent, Gary Travis was the
    only other employee of the family business.
    9.    After the death of Donald I. Birchard,
    [D]ecedent continued to run the family
    business and [appellant] continued to assist
    with the bookwork, answering the phone,
    making deposits and writing out checks for
    payroll and other expenses. Decedent began
    sending out the bills and invoices for the work
    performed by [B & D].
    -4-
    J. S42032/17
    10.   From 2010 through April 2014, [D]ecedent
    remained an employee of [B & D] and was paid
    an hourly wage of $23 per hour based upon a
    40 hour week.
    11.   [Appellant] continued to report the income
    from [B & D] on her income tax return.
    12.   On March 31, 2014, [appellant] closed [B & D].
    13.   On April 1, 2014, [D]ecedent formally took
    over his father’s business and began operating
    it as his own business under the name of
    Birchard Plumbing.
    14.   Terry Cooper, an employee at NBT Bank,
    testified that she assisted [D]ecedent in
    starting up his new business entity. Initially,
    [D]ecedent simply wanted to use the pre-
    existing business name of [B & D], but was
    unable to do so because he was not an owner
    of that business entity. Decedent discovered
    that he needed to start a separate business
    entity, Birchard Plumbing.
    15.   Decedent opened up a new business account
    and [appellant’s] name was placed on the new
    account. Decedent was the sole proprietor of
    Birchard Plumbing.
    16.   Decedent also purchased a new truck for
    Birchard Plumbing.
    17.   [Appellant] continued to assist in the transition
    of the business and transferred monies
    ($800.00) in April 2014 from the Birchard
    Plumbing business account into [B & D]
    account to cover expenses for unemployment
    compensation     fund   payments      and     tax
    payments.
    18.   At the time that [D]ecedent created the new
    business of Birchard Plumbing, there was still
    -5-
    J. S42032/17
    outstanding work that had been contracted out
    through [B & D]. Gary Travis completed this
    prior work and the payments were received by
    Birchard Plumbing -- not [B & D] -- and placed
    in the Birchard Plumbing business account.
    19.   Decedent was making deposits into the
    Birchard Plumbing account of payments
    received from work performed by [B & D].
    [Appellant] never demanded that [D]ecedent
    remit any monies to her for the work
    performed by [B & D].
    20.   After March 31, 2014, when a payment was
    received for work previously performed by
    [B & D], [appellant] turned this money over to
    [D]ecedent for deposit into the account of
    Birchard Plumbing.
    21.   Birchard Plumbing operated out of the same
    address as [B & D], namely [the Property].
    22.   Decedent never paid respondent any rent for
    the [Property], and [D]ecedent and [appellant]
    never discussed any rental arrangement.
    23.   [Appellant]  admitted that she   allowed
    [D]ecedent to use [the Property] without
    paying any rent.
    24.   [Appellant] closed out all of the former
    business accounts and took no efforts
    whatsoever to collect on any accounts
    receivable relating to [B & D].
    25.   After the creation of Birchard Plumbing,
    [appellant] was turning over checks received
    for work performed by [B & D] to [D]ecedent
    for deposit into the Birchard Plumbing business
    account.      [Appellant] did not seek any
    reimbursement for these monies except to the
    extent necessary to pay any outstanding
    obligations of [B & D] debts and obligations.
    -6-
    J. S42032/17
    26.   On October 27, 2014, [D]ecedent died.
    27.   On November 4, 2014, [appellee] probated
    [D]ecedent’s will and was appointed as the
    Executrix of [D]ecedent’s estate.
    28.   As part of her duties to the Estate, [appellee]
    attempted to obtain [D]ecedent’s assets,
    collect   outstanding    monies     owed     to
    [D]ecedent’s business, Birchard Plumbing, and
    pay the outstanding debts owed by Birchard
    Plumbing.
    29.   [Appellee] discovered that suppliers had
    continued to bill [B & D] even after Birchard
    Plumbing had been formally created.
    30.   [Appellee] made arrangements with some of
    the suppliers to return the inventory in order to
    pay off outstanding bills even where those bills
    were in the name of [B & D], not Birchard
    Plumbing.
    31.   [Appellee] sent out bills for unpaid work
    associated    with    [B & D] based  upon
    [D]ecedent’s records.
    32.   [Appellee] was able to identify $164,092.13 in
    outstanding accounts receivable for work
    performed by [D]ecedent (or Gary Travis)
    while they worked for [B & D] prior to April 1,
    2014. As of the date of the hearing in this
    matter, [appellee] had collected $95,691.40 in
    accounts receivable for work performed prior
    to April 1, 2014.
    33.   [Appellant] has never personally taken any
    steps whatsoever to collect on any outstanding
    accounts receivable associated with [B & D].
    34.   [Appellant] never made any claim to the
    revenues generated from collection of accounts
    receivable from [B & D] until [appellee] filed
    her request to gain access to [the Property] in
    -7-
    J. S42032/17
    order to seize personal Property she believed
    belonged to [D]ecedent’s estate. [Appellant’s]
    assertion that she was entitled to the former
    accounts receivable associated with [B & D]
    was made 8 months after [D]ecedent’s death,
    and 14 months after [B & D] ceased operation
    and Birchard Plumbing took over all of its work
    and accounts.
    35.     [Appellee] has never paid [appellant] any
    monies in connection with the collection efforts
    that related to work (and materials) that
    occurred prior to April 1, 2014 while
    [D]ecedent was working for [B & D].
    Trial court opinion, 12/27/16 at 1-8 (footnote and citations omitted).
    The trial court determined that appellant made a gift of B & D to
    Decedent which became the property of Decedent’s estate under the
    administration of appellee.     As a result, the trial court ruled that none of
    appellant’s claims had merit. On January 16, 2017, appellant filed a timely
    notice of appeal.
    On appeal, appellant raises the following issues for this court’s review:
    [1.]    Did the [trial court] err in determining that
    [a]ppellant “gifted to [D]ecedent on April 1,
    2014, the business entity known as [B & D]
    together with its supplier accounts, accounts
    receivable and use of [the Property]”?
    [2.]    Did the [trial court] misapply the law of “gift”
    with respect to the creation of a “presumption”
    with respect to an alleged gift of the business
    entity known as [B & D] together with its
    supplier accounts, accounts receivable and use
    of [the Property]?
    [3.]    Did the [trial court] err in its application of the
    law of “gift” to the facts of this case?
    -8-
    J. S42032/17
    [4.]   Did the [trial court] err in failing to determine
    that the amounts of “accounts receivable”
    owned by [B & D] that were collected by
    [a]ppellee actually belonged to [a]ppellant to
    whom these amounts should have been paid?
    [5.]   Did the [trial court] err in its interpretation of
    actions taken by [a]ppellant concerning
    [D]ecedent’s business started April 1, 2014?
    [6.]   Did the [trial court] err in failing to recognize
    that the [D]ecedent acted as an employee of
    [a]ppellant at all times prior to April 1, 2014?
    [7.]   Did the [trial court] err in dismissing the
    counterclaim of [a]ppellant seeking payment of
    monies due from [a]ppellee to [a]ppellant as
    owner of [B & D]?
    Appellant’s brief at 2-3.
    Initially, appellant contends in the argument section of her brief that
    until March 31, 2014, Decedent was an employee of B & D.3
    This court’s review of a decision of an Orphans’ Court is as follows:
    Our standard of review of the findings of
    an [O]rphans’ [C]ourt is deferential.
    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,
    3
    Appellant has presented her issues in a different sequence in the argument
    section of her brief than she did in her “Questions Raised on Appeal.”
    -9-
    J. S42032/17
    on review, we will not reverse
    its credibility determinations
    absent an abuse of that
    discretion.
    However, we are not constrained to give
    the same deference to any resulting legal
    conclusions.
    In re Estate of Harrison, 
    745 A.2d 676
    , 678-679,
    appeal denied, 
    758 A.2d 1200
    (Pa. 2000).
    (internal citations and quotation marks omitted).
    “[T]he Orphans’ [C]ourt decision will not be reversed
    unless there has been an abuse of discretion or a
    fundamental error in applying the correct principles
    of law.” In re Estate of Luongo, 
    823 A.2d 942
    ,
    951 (Pa.Super. 2003), appeal denied, 
    847 A.2d 1287
    (Pa. 2003).
    In re Estate of Whitley, 
    50 A.3d 203
    , 206-207 (Pa.Super. 2012) (internal
    citations and quotation marks omitted).
    Appellant agrees with the trial court’s findings that Decedent spent
    most of his adult life as an employee of B & D and that from 2010 through
    March 31, 2014 Decedent remained an employee at B & D.             It is not in
    dispute that Decedent was an employee of B & D through March 31, 2014.
    However, appellant raises this issue because the trial court referred to
    Decedent as the “de facto” owner of B & D. While Decedent did perform a
    wide variety of tasks for B & D after the death of his father and was in
    charge of the day-to-day operations of the business, he was not the owner.
    However, the resolution of this issue does little to resolve the central
    question of whether the trial court erred or abused its discretion when it
    determined that appellant made a gift of B & D to Decedent.
    - 10 -
    J. S42032/17
    Appellant next contends that since the death of her husband in 2010,
    she has been the owner of B & D and continued to report the income from
    B & D until March 31, 2014, on her income tax return as the trial court found
    in Finding of Fact No. 11. However, she questions the accuracy of Finding of
    Fact No. 12 that she closed B & D because, according to her, she never
    closed it. She just stopped operating a plumbing business. Again, it is not
    clear whether this difference is significant.     B & D did not operate as a
    plumbing business after April 1, 2014.       It is also not clear that the term
    “closed” is different than “stopped doing plumbing business.”      (Appellant’s
    brief at 10.)
    Appellant also asserts that Decedent was never the “real owner” of
    B & D. Appellant takes issue with the trial court’s description of Decedent’s
    role in B & D after the death of her husband, i.e., “there would have been no
    [B & D] after October 9, 2010 but for [D]ecedent’s work, long hours and
    efforts to keep the family business afloat.” (Trial court opinion, 12/27/16 at
    9-10.)   Appellant asserts that there is no evidence that B & D would not
    have survived without Decedent’s efforts as other plumbers could have been
    employed. The record does not indicate that the business would not have
    survived without Decedent.     The record does reflect that he worked very
    long hours at a variety of tasks.
    - 11 -
    J. S42032/17
    Appellant next contends that the concept of “gifts” was not pled or
    argued before the trial court by appellee. However, other than stating this
    point, appellant does not really raise an issue for this court’s review.
    Appellant next contends that the trial court erred when it found that
    there was donative intent on the part of appellant to give the accounts
    receivable of B & D to Decedent.
    In order to be considered a valid inter vivos gift, a gift:
    requires donative intent, delivery, and acceptance.
    There must be evidence of an intention to make a
    gift accompanied by delivery, actual or constructive,
    of a nature sufficient not only to divest the donor of
    all dominion over the property, but to invest the
    donee with complete control.              All of the
    circumstances must be considered in determining
    whether a gift was made. Donative intent can be
    inferred from the relationship between the donor and
    donee.
    In re Estate of Moskowitz, 
    115 A.3d 372
    , 386 (Pa.Super. 2015), appeal
    denied, 
    130 A.3d 1291
    (Pa. 2015) (internal citations and quotation
    omitted).
    Appellant asserts that with respect to the accounts receivable,
    appellant possessed neither donative intent nor delivery. As of the date of
    the hearing before the trial court, the trial court found that appellee had
    collected $95,691.40 in accounts receivable for work performed prior to
    April 1, 2014, or in other words, for work performed for or by B & D.
    Appellant argues that it is very unlikely that appellant, who was 74 years old
    at the time with no other means of support, would just give this money
    - 12 -
    J. S42032/17
    away.     Appellant also adds that there is no evidence that she gave the
    business (B & D) to Decedent either in 2014 or ever.
    With respect to this issue, the trial court determined:
    The record in this case clearly demonstrates that
    [appellant] made an inter vivos gift of the family
    business to [D]ecedent on April 1, 2014. Given the
    familial nature of the gratuitous transfer of this
    business, the evidentiary burden is slight and it has
    been overwhelmingly met. Decedent had worked for
    the family business for 30 years. Decedent had run
    the family business when his father became ill.
    Decedent continued to run the family business after
    his father died. Upon learning that [D]ecedent could
    not continue to operate under the business name of
    [B & D], [D]ecedent started his own business,
    Birchard Plumbing, on April 1, 2014. [Appellant] was
    involved in the creation of this business entity.
    [Appellant] closed out the business accounts of
    [B & D] and took no steps whatsoever to collect on
    any accounts receivable. When checks came in for
    work performed by [B & D], [appellant] personally
    turned them over to [D]ecedent for deposit into the
    new business account. [Appellant] never sought any
    reimbursement for these payments from Birchard
    Plumbing.     The new business also paid off the
    outstanding debt of the old business account. After
    April 1, 2014, [appellant] demonstrated no
    ownership interest whatsoever in any aspect of the
    family business now known as Birchard Plumbing.
    [Appellant] never even discussed any rent for the
    use of [the Property] by Birchard Plumbing. As of
    April 1, 2014, [D]ecedent had total control over the
    family business and [appellant] had withdrawn
    herself to simply being a signatory on the new
    business account.      Thus, there is overwhelming
    evidence that [appellant] intended to give her son
    the family business and that she delivered and
    transferred the family business over to him.
    Given this evidence, there is a presumption
    that [appellant] gifted to [D]ecedent on April 1, 2014
    - 13 -
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    the business entity known as [B & D] together with
    its supplier accounts, accounts receivable and use of
    [the Property]. Not only was [D]ecedent that natural
    object of [appellant’s] bounty, but [D]ecedent ha[d]
    spent nearly his entire adult life working for the
    family business and it would have simply terminated
    but for his efforts to keep it up and running through
    his father’s illness and after his father’s [death]. In
    order to rebut the presumption that the family
    business was gifted to [D]ecedent, [appellant]
    needed to present clear and convincing evidence that
    she had a contrary intent. [Appellant] has failed to
    present any evidence that she had a contrary intent.
    [Appellant] has failed to present any evidence at all
    that would suggest a contrary intent. Rather, the
    evidence points to but one conclusion, [appellant]
    intended for [D]ecedent to take over the family
    business in its entirety as of April 1, 2014 and she
    actively assisted [D]ecedent in making the transition
    to Birchard Plumbing.
    For this reason, [appellant] has failed to
    sustain her burden of proof as it relates to her claims
    for (1) rental income in connection with the use of
    [the Property] between April and October 2014, and
    (2) reimbursement for the collection of any accounts
    receivable recovered by the Estate for any work
    performed prior to April 1, 2014.
    Trial court opinion, 12/27/16 at 14-15 (footnote omitted).
    Appellant argues that the factors cited by the trial court as evidence of
    a gift of the accounts receivable are, instead, consistent with appellant
    making it easier for Decedent, her son, to start his new business. While it is
    true that these factors could indicate just that appellant was helping her son,
    they also support the alternate determination made by the trial court that
    appellant gave the business of B & D to her son.
    - 14 -
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    Appellant also argues that there was no delivery of the accounts
    receivable because appellee removed the records containing the accounts
    receivable from the Property. However, the trial court found that appellant
    had given the use of the Property to the Decedent for the business, so it
    would logically follow that the records of the business would be located at
    the Property. This argument does not persuade this court.
    Appellant next contends that the trial court incorrectly applied the
    burden of proof and presumptions in this case.
    “Initially, the burden is on the alleged donee to prove a gift inter vivos
    by clear, precise and convincing evidence. Once prima facie evidence of a
    gift is established, a presumption of validity arises and the burden shifts to
    the contestant to rebut this presumption by clear, precise and convincing
    evidence.”   Hera v. McCormick, 
    625 A.2d 682
    , 686 (Pa.Super. 1993)
    (citations omitted). Further, where the transfer is from a parent to a child,
    the action of the donor is viewed as natural and less evidence is needed to
    establish the intent to give a gift. See Brightbill v. Boeshore, 
    122 A.2d 38
    , 41-42 (Pa. 1956).
    Appellant asserts that, even given the reduced burden of proof for a
    parental transfer, that appellee did not establish that appellant made an
    inter vivos gift.
    A review of the record reveals that appellee testified that appellant and
    Decedent had a conversation after appellant’s husband’s death that it was
    - 15 -
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    not fair for Decedent to resume all the responsibilities of the business and it
    not be his. (Notes of testimony, 8/29/16 at 57.) Appellee also explained
    that appellant took $800 from the Birchard Plumbing bank account to pay
    taxes for the first quarter of 2014 for B & D.     (Id. at 60.)   Appellee also
    testified that appellant was aware that appellee was collecting accounts
    receivable for amounts owed to B & D.        (Id. at 61-65.)   In fact, appellee
    reported that appellant filled out the deposit slips and did not demand any of
    the money. (Id. at 66-67.) Appellee also handled the return of inventory
    and payments to suppliers for goods that were purchased by B & D. (Id. at
    71-72.)   Appellee further explained that, after the creation of Birchard
    Plumbing, Decedent continued to purchase inventory under the B & D
    account. (Id. at 74.)
    This testimony supports the findings and conclusions of the trial court
    that appellant transferred the assets and liabilities of B & D to Birchard
    Plumbing when Decedent commenced operating as Birchard Plumbing. This
    court finds no abuse of discretion or error of law by the trial court in the
    application of the burden of proof and that appellee met her burden of
    proof.4
    4
    Appellant concedes that there were gifts from her to Decedent but that the
    whole business and the accounts receivable were not given to Decedent.
    Appellant further argues that there was no evidence that she was aware that
    work that had been contracted out through B & D was completed by Birchard
    Plumbing and placed in the Birchard Plumbing account. Similarly, there was
    no evidence that deposits were made into the Birchard Plumbing account
    with appellant’s knowledge.      However, appellee entered into evidence
    - 16 -
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    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/18/2017
    deposit slips in appellant’s handwriting from this period. Appellant also
    seeks rental payments of $1,000 per month for the six months that
    Decedent operated Birchard Plumbing. There is no record of appellant ever
    requesting rent from Decedent. Given that the trial court found that
    appellant gave the business to Decedent, that presumably included the use
    of the Property.
    - 17 -
    

Document Info

Docket Number: In Re: Estate of Donald Keith Birchard No. 141 MDA 2017

Filed Date: 8/18/2017

Precedential Status: Precedential

Modified Date: 8/18/2017