Gall, C. v. Gall, P.

J-A22044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINE A. GALL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER D. GALL :
:
Appellant : No. 1092 WDA 2021
Appeal from the Order Entered August 12, 2021
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-18-7148
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: MARCH 27, 2023
Peter D. Gall appeals from the order, titled as a non-jury verdict, that
found in favor of Christine A. Gall and against Mr. Gall in the aggregate amount
of $118,547.32. In reaching that figure, the lower court determined that Mr.
Gall did not disclose $55,000 in assets prior to the consummation of the
marriage settlement agreement (“MSA”) between the parties. Accordingly,
pursuant to the MSA, Ms. Gall was entitled to sixty percent of those non-
disclosed assets, and in its ruling, the court also awarded interest, attorney’s
fees, and court costs/expenses. On appeal, Mr. Gall challenges the
applicability of the statute of limitations to this matter, contests Ms. Gall’s
expert report/testimony, and asserts that Ms. Gall failed to prove, inter alia,
that Mr. Gall failed to accurately disclose marital assets when the MSA was
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 Retired Senior Judge assigned to the Superior Court.
J-A22044-22
executed. Additionally, Ms. Gall has filed a motion to quash this appeal. 1 We
deny Ms. Gall’s motion as moot and affirm.
In summary,2 the parties married in 1996, became parents of twin
daughters in 1998, separated in 2004, entered into the at-issue MSA in 2005,
and divorced that same year. The MSA was incorporated by reference into the
corresponding divorce decree3 and, by its very language, established that both
parties had fully disclosed all of their assets:
Each party asserts that that party has made to the other party a
full and complete disclosure of each item of property of every
nature owned by each of them, both marital property and non-
marital property as defined in the Divorce Code, and the fair
market value thereof, and a full and complete disclosure of each
debt and/or encumbrance on each item of property, both marital
and non-marital as defined in the Divorce Code, and the fair value
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1 In her motion to quash, Ms. Gall chiefly avers that Mr. Gall’s appeal should
be quashed because despite being ordered to do so, he has not posted a
supersedeas bond in the present appeal. See Motion to Quash Appeal,
6/10/22, at 6. While the supersedeas issue is more fully detailed in the
companion Gall v. Gall case at 22 WDA 2022, given our ultimate disposition
that Mr. Gall is not entitled to any relief, any determination addressing this
motion is necessarily moot. However, despite the motion’s mootness, we note
that Ms. Gall has not identified any specific authority mandating quashal based
on Mr. Gall’s inability to post a supersedeas bond.
2 As Mr. Gall’s statement of the case includes argumentative components,
delving into discovery issues, alleged infirmities with Ms. Gall’s complaint, and
claims we have been asked to adjudicate in this appeal, see Appellant’s Brief,
at 9-17, that section of his brief is violative of Pennsylvania Rule of Appellate
Procedure 2117(a)(4) and (b). See Pa.R.A.P. 2117(a)(4), (b) (specifically
excluding argument from the statement of the case, requiring a balanced
presentation of the case’s history and proceedings in narrative form).
3There was, however, no merger of the two documents. See Divorce Decree,
9/21/05 (“Said [MSA] shall not merge with, but shall survive this Decree and
Order.”).
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thereof. In the event that one party has failed to make full
disclosure, the value of the non-disclosed property shall be divided
40% to the party who failed to disclose and 60% to the other
party.
Marriage Settlement Agreement, ¶ 8.
In 2010, Mr. Gall petitioned for modification of his child support
payments. Correspondingly, Ms. Gall conducted discovery, which led to her
becoming aware of certain assets that Mr. Gall did not disclose prior to the
MSA’s execution.
Armed with this information, Ms. Gall filed a two-count complaint,
asserting both a default in the MSA’s terms as well as fraud. While Ms. Gall
filed her initial complaint in the Allegheny County Court of Common Pleas’
Family Division, the case was eventually transferred to the County’s Civil
Division, due to its complex nature. Following three amendments to the
complaint, extensive discovery that ultimately necessitated the appointment
of a discovery master, and a failed mediation attempt, the case eventually
proceeded to a non-jury trial, which featured several pre-trial motion in limine
rulings and resulted in the aforementioned award to Ms. Gall. Following the
court’s verdict against him, Mr. Gall did not file a post-trial motion, but instead
filed a timely notice of appeal to this Court and thereafter complied with the
dictates of Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Mr. Gall raises four issues4:
1. Was Mr. Gall required to file a post-trial motion?
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4 For ease of disposition, we have reordered Mr. Gall’s fourth claim as his first.
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2. Did the trial court err in failing to dismiss both of Ms. Gall’s
claims as the record establishes that she knew or had reason
to know that Mr. Gall did not make a full disclosure of his
marital assets at the time when the MSA was entered into and
that her 2013 complaint well exceeded the applicable statutes
of limitation?
3. Did the trial court err by both allowing Ms. Gall’s expert to
testify and further admitting into evidence that expert’s report?
4. Did the trial court err by finding in favor of Ms. Gall when she
failed to prove that Mr. Gall did not accurately disclose marital
assets at the time of the MSA’s execution or that Mr. Gall
fraudulently concealed/transferred marital assets?
Appellant’s Brief, at 7-8.
In addressing the post-trial motion matter first, the lower court believes
that Mr. Gall’s failure to file a post-trial motion should result in quashal as
“this dispute … involves claims for default or breach of the [MSA] and fraud.”
Trial Court Opinion, 11/15/21, at 2. The court bolsters its belief by noting that
the complaint, which demanded a judgment of over $25,000, was identified
as a complaint in civil action, jurisdiction under Pennsylvania’s Divorce Code
was never invoked, and the case was handled by Allegheny County’s Civil
Division for over three years prior to trial. See id., at 2-3.
Pennsylvania Rule of Civil Procedure 227.1 “requires parties to file post-
trial motions in order to preserve issues for appeal,” and “[i]f an issue has not
been raised in a post-trial motion, it is waived for appeal purposes.” Board of
Supervisors of Willistown Twp. v. Main Line Gardens, Inc., 155 A.3d 39,
44 (Pa. 2017) (quoting Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d
54 (Pa. 1998)). However, Rule 1930.2 expressly prohibits “motions for post-
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trial relief in any domestic relations matter[.]” Pa.R.C.P. 1930.2(a) (emphasis
added). In addition, Rule 1920.52 states that “[a] motion for post-trial relief
may not be filed to orders with” claims that involve “enforcement of marital
property [and/or] martial agreements[.]” Pa.R.C.P. 1920.52(a)(1)-(2); see
also Drissel v. Drissel, 686 A.2d 1352, 1353 (Pa. Super. 1996) (“As a
general rule, post-trial motions may not be filed from a claim involving
enforcement of marital agreements.”).
While there are some indications that this action is of a civil nature,5
thus requiring Mr. Gall to have filed a post-trial motion, there are
countervailing elements identifying this matter as a domestic relations case.6
In light of this ambiguity, and in the absence of any clear authority compelling
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5 For example, Ms. Gall’s initial filing is called a “Complaint in Civil Action,”
and the matter was ultimately decided by Allegheny County’s Civil Division.
Moreover, notwithstanding any rights an individual may have under
Pennsylvania’s Divorce Code, “a party … still preserves his or her right to file
a civil or equitable action on [a marital] settlement agreement[.]” Peck v.
Peck, 707 A.2d 1163, 1164 (Pa. Super. 1998).
6 Ms. Gall filed her complaint in Allegheny County’s Family Division, where it
remained for over five years before being transferred due to its complexity.
Additionally, this Court has held that, pursuant to section 3105 of the Divorce
Code, see 23 Pa.C.S.A. § 3105(a), a party can seek enforcement of a marriage
settlement agreement in family court. See Annechino v. Joire, 946 A.2d
121, 123 (Pa. Super. 2008) (establishing that a party “may use a remedy or
sanction set forth in the Divorce Code to enforce the agreement to the same
extent as though the agreement had been an order of court”) (citation
omitted); id. (writing that the legislature, through a statutory amendment,
intended to encourage “the resolution of economic claims by agreement
[rather than] send economic claims relating to divorce over to the civil division
as a breach of contract claim[]”).
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waiver, we decline to find that Mr. Gall has waived his right to review based
upon his failure to file a post-trial motion. Accordingly, we proceed to evaluate
the substantive components of his appeal.
Mr. Gall contends that Ms. Gall’s claims against him are barred by their
respective statutes of limitation. Ms. Gall’s first count alleges a default of the
MSA’s terms, i.e., breach of contract, and is therefore subject to a four-year
statute of limitations. See 42 Pa.C.S.A. § 5525(a)(8). Ms. Gall’s second count
is fraud, which has a two-year statute of limitations. See 42 Pa.C.S.A. §
5524(7).
We emphasize that “[w]hen interpreting a marital settlement
agreement, the trial court is the sole determiner of facts and absent an abuse
of discretion, we will not usurp the trial court’s fact-finding function.”
Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. Super. 2005) (quotation
marks and citation omitted). As such, we are bound by the court’s credibility
determinations. See id. at 1257-58. We apply contract principles to our
review of marriage settlement agreements, and to the extent the issues
present questions of law, our standard of review is de novo, and our scope of
review is plenary. See id., at 1257; see also Kraisinger v. Kraisinger, 928
A.2d 333, 339 (Pa. Super. 2007). “A question regarding the application of the
statute of limitations is a question of law.” See Commonwealth v. Riding,
68 A.3d 990, 993 (Pa. Super. 2013) (citation omitted).
The lower court determined that the MSA was a “continuing contract,”
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as it contained an indefinite obligation, seemingly lasting in perpetuity, for the
parties to have fully disclosed both pre-execution marital and non-marital
assets. Trial Court Opinion, 11/15/21, at 4 (citation omitted).
Continuing contracts have been defined as follows: “[i]f services are
rendered under an agreement which does not fix any certain time for payment
or for the termination of the services, the contract will be treated as
continuous, and the statute of limitations does not begin to run until the
termination of the contractual relationship between the parties.” Thorpe v.
Schoenbrun, 195 A.2d 870, 872 (Pa. Super. 1963) (citation omitted). In
Crispo v. Crispo, this Court approvingly cited a Court of Common Pleas
decision, which indicated that “in the case of continuing contracts … the
statute of limitations generally does not run.” 909 A.2d 308, 315 (Pa. Super.
2006) (citations omitted) (stating, further, that “the statute of limitations is
not an applicable defense” when such a breach is claimed). Based on these
precepts, if the present MSA is, in fact, a continuing contract, Mr. Gall’s statute
of limitations assertions would be, according to the lower court, “inapplicable.”
Trial Court Opinion, 11/15/21, at 4 (citation omitted).
A continuing contract has been found when a husband did not pay the
mortgage, taxes, and insurance on a marital residence, pursuant to a marriage
settlement agreement. See Miller v. Miller, 983 A.2d 736, 742-43 (Pa.
Super. 2009). In particular, the agreement in Miller did not contain deadlines
for those debts to be paid and did not identify specific amounts that were
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owed. See id., at 743. Resultantly, “the statute of limitations had not begun
to run on [h]usband’s continuing payment obligations.” Id. In Crispo, this
Court found that a property settlement agreement containing a schedule of
payments and marital debts was a continuing contract as there were no
specific dates assigned to when those payments would start or conclude. See
909 A.2d at 313-15.
Conversely, the marriage settlement agreement in K.A.R. v. T.G.L.
specified that the wife would receive a percentage of husband’s named
business “if and when it would be sold”. 107 A.3d 770, 777 (Pa. Super. 2014).
That “if and when” language, this Court concluded, “provided that the date
that [h]usband sold the [b]usiness[’] stock … was the specific date when
[h]usband became obligated to make payment to [w]ife for the [b]usiness
sale. Moreover, the parties’ agreement identifies the amount owed to [w]ife,
in terms of percentages of net proceeds received by [h]usband.” Id., at 778.
Accordingly, the contract was not continuing because its constituent
components were known or would be specifically defined at some point in the
future.
Based on existing case law, it is unclear whether the parties’ post-
execution duty to disclose pre-execution assets constitutes a continuing
contract: the MSA obligates, without any time limitation, the parties to identify
previously undisclosed pre-execution assets to be then formulaically divided,
but that duty, at least facially, appears to be distinct from Miller and Crispo,
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which both featured ongoing, yet undefined, payment obligations. With all of
that said, Mr. Gall does not substantively analyze or refute the court’s
continuing contract finding. However, because we find that the lower court did
not abuse its discretion in its application, in the alternative, of the discovery
rule, discussed infra, we need not conclusively make this determination.
Under normal circumstances:
The Judicial Code provides in pertinent part that limitations
periods are computed from the time the cause of action accrued.
42 Pa.C.S. § 5502(a). In Pennsylvania, a cause of action accrues
when the plaintiff could have first maintained the action to a
successful conclusion. Thus, we have stated that the statute of
limitations begins to run as soon as the right to institute and
maintain a suit arises. Pocono International Raceway, Inc. v.
Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983).
Generally speaking, in a suit to recover damages for personal
injuries, this right arises when the injury is inflicted. See Ayers
v. Morgan, 154 A.2d 788, 791 (1959). Mistake,
misunderstanding, or lack of knowledge in themselves do not toll
the running of the statute. Nesbitt v. Erie Coach Co., 204 A.2d
473, 475 (1964). Pocono International, 468 A.2d at 471. Once
a cause of action has accrued and the prescribed statutory period
has run, an injured party is barred from bringing his cause of
action. Id.Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005) (some citations and parallel
citations omitted). However, as a way to toll the statute of limitations,
when a court is presented with the assertion of the discovery rule’s
application, it must address the ability of the damaged party,
exercising reasonable diligence, to ascertain that he has been
injured and by what cause. Since this question involves a factual
determination as to whether a party was able, in the exercise of
reasonable diligence, to know of his injury and its cause,
ordinarily, a jury is to decide it. Where, however, reasonable
minds would not differ in finding that a party knew or should have
known on the exercise of reasonable diligence of his injury and its
cause, the court determines that the discovery rule does not apply
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as a matter of law.
Id., at 858-59 (excluding time from the statute of limitations calculation
where an injured party is reasonably unaware of the injury).
Here, the court, after personally observing Ms. Gall, determined that she
was a credible witness. See Trial Court Opinion, 11/15/21, at 3. “[Ms. Gall]
was suspicious that [Mr. Gall] was hiding money, but in marriages where one
spouse is kept in the dark about investments, having such suspicion is
common. Ms. Gall testified credibly it was not until around 2011 when she saw
Mr. Gall cash[] a $100,000 treasury bond reissued in 2005 that Ms. Gall had
reason to know of Mr. Gall’s nondisclosure.” Id. (record citation omitted).
“Before then, Ms. Gall did not know or have reason to know of the
nondisclosure because she knew nothing about the margin trading, option
trading and/or short sales that Mr. Gall did in the stock market.” Id. (record
citation omitted). The court also noted that Mr. Gall, throughout the prior
divorce litigation, made it difficult for Ms. Gall to ascertain what marital assets
were available. See id., at 3-4. In conclusion, the court found that Ms. Gall
“exercised reasonable diligence to determine if she was injured and
determined she was injured no earlier than 2011 during the discovery process
following Mr. Gall’s request for a child support reduction.” Id., at 4-5 (record
citation omitted). Separately, the court found that Mr. Gall fraudulently
concealed marital property, which further militated a finding that Ms. Gall only
became actionably aware of Mr. Gall’s nondisclosure of pre-execution assets
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in 2011. See id., at 5; see also Kingston Coal Co. v. Felton Min. Co., Inc.,
690 A.2d 284, 291 (Pa. Super. 1997) (“[I]n order for fraudulent concealment
to toll the statute of limitations, the defendant must have committed some
affirmative independent act of concealment upon which the plaintiff[]
justifiably relied.”).
Nevertheless, Mr. Gall avers that Ms. Gall discovered his alleged
nondisclosure of assets well beyond any applicable statute of limitations. In
essence, Mr. Gall argues that, based on the evidence of record, Ms. Gall
reasonably knew or should have known about Mr. Gall’s undisclosed assets
closer in time to the execution of the MSA. See Appellant’s Brief, at 20-21
(citing Fine, 870 A.2d at 861). Mr. Gall then goes on to cite Ms. Gall’s
testimony, wherein she indicated that, contemporaneous with the MSA’s
execution, she felt that Mr. Gall had stocks and money that he did not disclose,
knew that he engaged in stock trading, and had access to the parties’ tax
returns and account statements. See id., at 22-23 (record citations omitted).
Mr. Gall further writes that Ms. Gall had, at some point prior to the MSA’s
execution, access to his diary, wherein there was a passage that illuminated
the fact that he wanted to protect a $500,000 investment account known to
Ms. Gall. See id., at 23 (remarking that while Ms. Gall knew about that
account, she did not know how much was in it) (record citation omitted). In
summary, Mr. Gall believes that she did not uncover any post-execution
evidence of his alleged concealment or nondisclosure and that any asset-
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related information she is now using against him would have, or should have,
been known to her at a much earlier point in time. See id., at 24.
“[T]he question as to when a party’s injury and its cause were
discovered or discoverable is for the [factfinder].” Fine, 870 A.2d at 859; see
also Hollock v. Erie Ins. Exchange, 842 A.2d 409, 414 (Pa. Super. 2004)
(citation omitted) (prohibiting an appellate court from substituting its
judgment for that of the factfinder, as it is the exclusive province of the
factfinder to assess witness credibility and evidence). While there might be
indicia that Ms. Gall had some level of awareness as to potential assets that
Mr. Gall had not disclosed prior to the MSA’s execution, reasonable minds
could differ as to when Ms. Gall, in fact, knew she had become injured to any
degree of certainty, especially in light of the much more recent discovery
conducted related to an attempted modification of Mr. Gall’s child support
payments. This reasonable disagreement puts this case squarely within the
domain of the discovery rule.
Looking to her testimony, Ms. Gall acknowledged, pre-MSA, that she
copied, for her own recordkeeping, at least some of Mr. Gall’s diary as well as
a few of Mr. Gall’s financial records. See N.T., 7/27/21, at 56-57. Ms. Gall also
admitted that she knew Mr. Gall’s stock trading led to a margin call. See id.,
at 57-58. Additionally, Ms. Gall did not believe Mr. Gall provided an accurate
list of his inventory before the MSA had been executed. See id., at 60, 68
(“[Ms. Gall felt there was stocks and money and everything that [Mr. Gall] did
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not disclose.”). However, Ms. Gall also stated that, while she believed Mr. Gall
did not make a full disclosure of his assets, she was “not on the stocks” and
further indicated that she “was not a broker and [she] knew nothing about
margins[.]” Id., at 67-68. Moreover, “[t]here were accounts that [Mr. Gall]
had in his own name that he had that [Ms. Gall was not] privy to[.]” Id., at
69. Ms. Gall also conveyed that her former attorney had “asked for information
from [Mr. Gall about the potential existence of other accounts] and he didn’t
give it.” Id.
Ms. Gall emphasized that her awareness of Mr. Gall’s nondisclosed
assets, described by her as a “red flag,” came when discovery was performed
when Mr. Gall “wanted to lower [her] child support.” Id., at 98. At that
juncture, she asked for “stocks and bank accounts, and things didn’t add up.”
Id. Specifically, Ms. Gall asked Mr. Gall “to go get some paperwork from the
IRS. And [she] compared it to his 2008 tax return, and he had cashed in [a]
$100,000 Treasury bond that was reissued in 2005. That was a red flag. It
said it was … reissued. That meant it was issued when we were married and
he cashed it in.” Id., at 100. This discovery caused Ms. Gall to “hire[] the
[financial expert] that [she] did to explain it all to [her].” Id., at 101. Ms. Gall
then remarked that she does not “understand all the things with his trading
and all the things that he does.” Id.
While Mr. Gall has shown that Ms. Gall had at least an inkling, pre-
execution, that he had not been forthright in accounting for all of his assets,
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Mr. Gall has failed to show that the court abused its discretion in determining
that Ms. Gall’s awareness, for discovery rule purposes, came at or around the
time she conducted discovery in the child support matter. Mr. Gall cites to
K.A.R., supra, and highlights that an email in that case, sent from the wife to
the husband, provided objective evidence of the “latest date for application of
the discovery rule, as evidenced by her belief at the time that she had suffered
harm[.]” Appellant’s Brief, at 27 (citation omitted). A review of that email
establishes that the wife, at that specific moment in time, had objective
knowledge of husband’s business deal and believed that she stood to benefit
pursuant to the terms of the parties’ marriage settlement agreement. See
K.A.R., 107 A.3d at 780 (finding that wife ran afoul of the statute of limitations
in filing a late enforcement of marriage settlement agreement petition).
Here, while Ms. Gall clearly had some pre-execution idea that Mr. Gall
failed to completely report his marital assets, the court determined that Ms.
Gall had no objective basis to know that he, in fact, did until 2011, when she
received the tranche of Mr. Gall’s financial information in the child support
matter. Because the date she learned this information was within four years
of the date upon which Ms. Gall filed her breach of contract claim in March
2013, that claim would then be timely under the discovery rule. 42 Pa.C.S.A.
§ 5525(a)(8) (four-year statute of limitation applies to breach of contract
cause of action). While Ms. Gall did not state in her testimony when in 2011
she became aware of her ex-husband’s previously undisclosed assets and her
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fraud claim only has a two-year statute of limitations, 42 Pa.C.S.A. § 5524(7),
we need not address the ambiguity in the application of the discovery rule to
the fraud claim because the trial court held that its verdict was based equally
on the breach of contract and fraud claims. See Trial Court Opinion, 11/15/21,
at 7.
As the lower court was the factfinder, tasked with determining when Ms.
Gall knew or should have known she had been injured, and with Mr. Gall
having failed to illuminate any authority showing that mere suspicion of a lack
of forthrightness is enough to defeat the discovery rule, we find no abuse of
discretion in the court’s determination that Ms. Gall was not time-barred from
pursuing her suit to enforce the terms of the MSA.
Mr. Gall next asserts that Ms. Gall’s expert, Donna Cheswick, should not
have been allowed to testify. Mr. Gall believes that Ms. Cheswick, identified
as a certified divorce financial analyst, “should have been precluded from
testifying based on her lack of qualifications and/or expertise as her curriculum
vitae confirms her lack of qualifications and/or expertise.” Appellant’s Brief, at
30. In addition, Mr. Gall argues that Ms. Cheswick failed to set forth an opinion
predicated on “specialized knowledge” and “recognized methodology” in
violation of Pennsylvania Rule of Evidence 702. Id. In blunderbuss-like
fashion, Mr. Gall utilizes this section to: (1) challenge whether it was
appropriate for Ms. Cheswick to opine as to Mr. Gall’s credibility; (2) highlight
that Ms. Cheswick’s opinion was based on conjuncture; (3) emphasize the
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unscientific analysis/methodology underpinning her conclusions; and (4) note
that Ms. Cheswick did not identify any marital asset that Mr. Gall failed to
disclose. See Appellant’s Brief, 30-35.
Although it is hard to parse and compartmentalize precisely what Mr.
Gall is arguing, we first note that he did not present an expert himself.
Secondly, although Mr. Gall claims that Ms. Cheswick’s opinion “is nothing
more than an application of circular reasoning,” Appellant’s Brief, at 33, it is
unclear what he means.
The lower court cogently summarized Mr. Gall’s allegations and
adequately refuted them. We see no salient basis to depart from its
conclusions, and we therefore adopt them as our own:
Mr. Gall first argues that Ms. Cheswick impermissibly opines as to
his credibility. However, [the lower court] sustained the only
objection on this basis made during the trial and struck the related
portion of Ms. Cheswick’s report. Mr. Gall next argues Ms.
Cheswick’s opinion is based on possibilities and/or conjecture. But
this is incorrect since she testified that she reached her
“conclusion with a reasonable degree of professional certainty.”
Mr. Gall next argues Ms. Cheswick’s opinion is not based on expert
analysis and/or methodology. While Pennsylvania Rule of
Evidence 702(c) mandates that “the expert’s methodology is
generally accepted in the relevant field,” guidance on the subject
properly may come from “experts retained by the parties in the
case[.]” Walsh v. BASF Corporation, 234 A.3d 446, 458 (Pa.
2020). In any event, trial judges should not question an expert’s
methodology absent a showing that the expert’s opinion is based
on novel scientific evidence. See Commonwealth v. Bonnett,
239 A.3d 1096, 1105 (Pa. Super. 2020). Mr. Gall, however,
presented no evidence that Ms. Cheswick’s opinion is based on
novel scientific evidence. Mr. Gall’s final argument concerning Ms.
Cheswick’s expert opinion testimony and report is that she fails to
identify any marital asset that he failed to disclose. However, Ms.
Cheswick identifies a U.S. Treasury note that Mr. Gall failed to
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disclose. Even if this had not been identified, [the lower court is]
unaware of any case law, statute, rule or other authority that
requires identification of a specific asset in order to opine that
money was hidden. Such a requirement would be nonsensical as
it would provide a reward for successfully destroying assets,
consuming them or hiding them somewhere they cannot be found.
There was abundant circumstantial evidence that Mr. Gall failed to
disclose all of his money, and it would be inappropriate to reward
him for putting it in a place where Ms. Gall could not find it.
Trial Court Opinion, 11/15/21, at 5-6 (record citations omitted) (cleaned up).
Germane to Mr. Gall’s concerns over the expert’s conclusions and
methodology, we note that “trial courts may not question the merits of the
expert’s scientific theories, techniques or conclusions, and it is no part of the
trial court’s function to assess whether it considers those theories, techniques
and/or conclusions to be accurate or reliable based upon the available facts
and data.” Walsh, 234 A.3d at 458. The factfinder, however, may “attempt
to determine whether it agrees with the expert’s application of those
methodologies or whether the expert’s conclusions have sufficient factual
support.” Id.
Mr. Gall does not acknowledge that the court sustained an objection to
the expert’s testimony, wherein she impermissibly opined as to Mr. Gall’s
credibility. See N.T., 7/27/21, at 148. Furthermore, Mr. Gall does not
reference the fact that the court, in effect, struck that corresponding portion
of Ms. Cheswick’s report. Additionally, Mr. Gall does not discuss the Frye test
in his brief, which is the standard that governs the ability for expert
qualification and the admission of scientific evidence. See Frye v. United
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States, 293 F. 1013 (D.C. Cir. 1923); see also Commonwealth v. Bonnett,
239 A.3d 1096, 1101 n.4 (Pa. Super. 2020) (“Under Frye, novel scientific
evidence must be generally accepted in the relevant scientific community
before it will be admitted.”); Pa.R.E. 702.
Other than arguing that Ms. Cheswick’s “opinion does not constitute
proof of anything,” Appellant’s Brief, at 32, the actual crux of Mr. Gall’s
contention is that the expert opinion “offers nothing more than a ‘cherry
picked’ selection of supposed deposits over two to four years after the parties
separated and cursory conclusions.” Id., at 35 (cleaned up).
To the extent that Mr. Gall’s statement carries any amount of accuracy,
Mr. Gall has simply not demonstrated any clear reason to reverse as it relates
to alleged infirmities associated with Ms. Gall’s expert. Other than bald
allegations, in the absence of, inter alia, any kind of expert report proffered
by himself, Mr. Gall has not shown that Ms. Cheswick utilized an unscientific
or novel scientific theory, and to the extent that Mr. Gall contests the expert’s
application of her methodologies to the events presently in question, it was
for the factfinder to determine whether her conclusions have factual support.
In seeing no obvious merit to Mr. Gall’s challenges against Ms. Gall’s expert,
Mr. Gall is due no relief.
In his final issue, Mr. Gall contends that the lower court’s verdict was
not supported by competent evidence. Specifically, Ms. Gall “failed to offer
competent evidence of any undisclosed asset at the time of the execution of
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[the MSA].” Appellant’s Brief, at 36. Mr. Gall then highlights Ms. Cheswick’s
testimony, wherein she agreed that it was possible Mr. Gall could have funded
an account in question via non-marital/post-execution sources of money. See
id., at 36-37. Accordingly, Mr. Gall asserts that there was no “clear, precise
and indubitable” evidence that Mr. Gall’s undisclosed assets were marital. See
id., at 40.
Our review in a non-jury case is limited to “whether the findings of the
trial court are supported by competent evidence and whether the trial court
committed error in the application of law.” Bonenberger v. Nationwide
Mut. Ins. Co., 791 A.2d 378, 380 (Pa. Super. 2002). The corresponding test
we apply is “not whether we would have reached the same result on the
evidence presented, but rather, after due consideration of the evidence which
the trial court found credible, whether the trial court could have reasonably
reached its conclusion.” Bergman v. United Servs. Auto. Ass'n, 742 A.2d
1101, 1104 (Pa. Super. 1999).
It appears that Mr. Gall is primarily challenging whether Ms. Gall proved
that he committed fraud. See Appellant’s Brief, at 36 (“Fraud must be proven
by clear, precise and indubitable evidence.”) (citation omitted), 40 (arguing
that “there is no ‘clear, precise and indubitable’ evidence to support the [t]rial
[c]ourt’s decision”). However, as noted above, the trial court based its verdict
on both the fraud and breach of contract claims. See Trial Court Opinion,
11/15/21, at 7 (“Even if Mr. Gall were correct [that Ms. Gall did not prove her
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fraud claim], [the court’s] verdict was also based on Ms. Gall’s breach of
contract claim.”). Therefore, we need not address the sufficiency of the
evidence as to the fraud claim.
To the extent Mr. Gall challenges the evidentiary support for the trial
court’s ruling that he breached the MSA, we find no merit to this argument.
In its opinion, the lower court found that Ms. Cheswick proved Mr. Gall’s
nondisclosure of marital assets in the MSA based upon her testimony “that the
investment account disclosed in the [MSA] was valued at $45,555 in May of
2004 and fell to $19,720 shortly after the [execution of the MSA], primarily
due to agreed payments to Ms. Gall.” Id., at 6 (record citations omitted). Ms.
Cheswick then noted that Mr. Gall’s post-execution “income and expenses …
did not provide any funding sources for the new account opened in May of
2006 with a value of $80,000.” Id. (record citation omitted). The court
concluded that “[t]his testimony and other credible circumstantial evidence
[was] proof that Mr. Gall hid around $60,000 or more from Ms. Gall[.]” Id.,
at 6-7.
As Ms. Gall highlights, Ms. Cheswick conveyed that the hypothetical
questions on cross-examination that related to possible alternative funding
explanations were in the context of Mr. Gall having not “provided” the relevant
financial information in the first place to establish these possibilities. N.T.,
7/21/21, at 181. Ms. Cheswick also stated that, in reaching her conclusions,
she was “just looking at information that [she] kn[e]w and information that
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was disclosed.” Id., at 182. Notwithstanding what appears to be yet another
attack on Ms. Gall’s expert, Mr. Gall has not shown that the court’s finding in
favor of Ms. Gall on her breach of contract claim was not supported by a legally
sufficient amount of evidence.
In finding no basis to reverse the lower court’s non-jury verdict, we
affirm the award in favor of Ms. Gall in the amount of $118,547.32.
Order affirmed. Motion to quash denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2023
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