McCloskey, W. v. Talarico, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM C. MCCLOSKEY, FAMILY : IN THE SUPERIOR COURT OF
LIMITED PARTNERSHIP : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 235 WDA 2021
JOSEPH TALARICO, TDBA TALARICO, :
PALADINO, AND BERG :
Appeal from the Judgment Entered April 29, 2021
In the Court of Common Pleas of Washington County
Civil Division at No(s): No. 2014-6538
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED: MARCH 18, 2022
The William C. McCloskey Family Limited Partnership (“McCloskey FLP”)
appeals from the judgment entered in favor of Attorney Joseph Talarico in this
action based upon McCloskey FLP’s claim that Attorney Talarico, acting as a
closing agent, miscalculated the realty transfer tax1 due on McCloskey FLP’s
sale of a vacant lot. On appeal, McCloskey FLP contends the trial court, in its
non-jury verdict, misconstrued both the applicable law and the evidence
presented. After careful review, we affirm.
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1 “The realty transfer tax is a tax upon the transaction, the transfer of title to
real estate as evidenced by a document that is presented to be recorded.”
Exton Plaza Assocs. v. Commonwealth, 763 A.2d 521, 523 (Pa. Cmwlth.
2000); 72 P.S. § 8102-C.
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The following facts are undisputed, except where noted. Attorney
Talarico acted as closing agent for McCloskey FLP’s sale of a vacant lot to
Shaka and Denise Walker. Since the Walkers executed a contract with Eddy
Homes to construct a new home on the lot on that same day, Attorney Talarico
and his law firm, Talarico, Paladino, and Berg, determined that the realty
transfer tax due on the transaction was required to be based on the value of
the improved lot instead of the sale price of the vacant lot. The difference in
the tax amount was more than $7,000.
Susan Brunko, who is a limited partner in McCloskey FLP, acted as the
realtor for McCloskey FLP during this transaction. Prior to the initial scheduled
closing, Attorney Talarico and another employee of his law firm, Attorney
Elizabeth Shovlin, told Susan their opinion that the realty transfer tax due was
based on the value of the improved lot. Susan disagreed and canceled the
scheduled closing.
However, after speaking with her mother, Nancy Brunko McCloskey,
who was the managing general partner of McCloskey FLP,2 Susan sent an e-
mail to Attorney Talarico indicating that her mother was willing to pay the
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2Nancy managed the partnership until she passed away during the pendency
of this litigation. See N.T., Non-Jury Trial, 9/30/20, at 66. The remaining
general partner is William McCloskey. See id. at 50. Susan Brunko and her
brother are limited partners with “no say in how the partnership is run.” Id.
at 67. At the time of trial, William McCloskey lived in an assisted living home
and was not active in managing the partnership. See id. at 67.
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realty transfer tax on the improved lot. At the rescheduled closing, Nancy
Brunko McCloskey signed all the necessary documents, including the
settlement statement that listed the realty transfer tax due as the amount
based on the value of the improved lot.
After the transaction was consummated, McCloskey FLP filed this action
against Attorney Talarico. McCloskey FLP raised claims of breach of contract,
negligence, and negligent misrepresentation, based on McCloskey FLP’s
allegation that Attorney Talarico miscalculated the realty transfer tax due.
Attorney Talarico filed an answer with new matter and a counterclaim for
abuse of process. After substantial litigation over pretrial motions, including
the joinder and subsequent dismissal of Eddy Homes, the case proceeded to
an arbitration.
The arbitration panel found in favor of McCloskey FLP in the amount of
$4,512.21 on McCloskey FLP’s claims and against Attorney Talarico on his
counterclaim. Attorney Talarico filed a timely appeal from the arbitrator’s
award. After more motions were litigated, the case proceeded to a bench trial.
The witnesses at trial were Susan Brunko, Attorney Talarico, and
McCloskey FLP’s trial counsel.3 While both testified at length, the primary
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3 McCloskey FLP’s trial counsel testified to a factual issue relevant to Attorney
Talarico’s counterclaim for abuse of process. Since Attorney Talarico has not
appealed from the verdict in favor of McCloskey FLP on his counterclaim, this
testimony is not relevant to any issue in this appeal.
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dispute was the legal issue of whether Attorney Talarico was correct in his
belief that the realty transfer tax was required to be assessed on the value of
the improved lot. The primary factual dispute concerned Susan’s allegation
that her mother had acquiesced on the increased realty transfer tax
assessment due to a threatened lawsuit.
The trial court found in favor of Attorney Talarico on McCloskey FLP’s
claims, and in favor of McCloskey FLP on Attorney Talarico’s counterclaim.
After the trial court denied McCloskey FLP’s post-trial motion, McCloskey FLP
filed this timely appeal.4
Our review of a challenge to a non-jury verdict is limited:
Our standard of review in non-jury trials is to assess whether the
findings of facts by the trial court are supported by the record and
whether the trial court erred in applying the law. Upon appellate
review, the appellate court must consider the evidence in the light
most favorable to the verdict winner and reverse the trial court
only where the findings are not supported by the evidence of
record or are based on an error of law. Our scope of review
regarding questions of law is plenary.
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4 This Court issued a rule to show cause why the appeal should not be
quashed, as final judgment had not been entered on the trial court docket.
See Croyle v. Dellape, 832 A.2d 466, 470 (Pa. Super. 2003) (explaining that
an appeal lies from the entry of judgment, rather than the entry of post-trial
motions). In response, McCloskey FLP provided this Court with the praecipe
for entry of judgment and a copy of the trial court docket indicating that
judgment was entered on April 29, 2021. Accordingly, we will treat the notice
of appeal as properly filed from the entry of judgment. See El-Gharbaoui v.
Ajayi, 260 A.3d 944, 949 n.1 (Pa. Super. 2021).
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Woullard v. Sanner Concrete & Supply, 241 A.3d 1200, 1207 (Pa. Super.
2020) (citation and brackets omitted). Further, we will not disturb the trial
court’s credibility determinations. See Gutteridge v. J3 Energy Grp., Inc.,
165 A.3d 908, 916 (Pa. Super. 2017).
Initially, we note that McCloskey FLP did not specifically raise any
challenge to the verdict on its breach of contract claim in its Rule 1925(b)
concise statement, nor has McCloskey provided any argument for such claim
on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not included
in the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”). Similarly, McCloskey FLP’s appellate brief
does not discuss the nature of Attorney Talarico’s relationship to McCloskey
FLP beyond the mere assertion that he was the closing agent for the
transaction.
The term “closing agent” does not appear to be defined in Pennsylvania
law. Based on the testimony presented at the bench trial, we surmise that
Attorney Talarico acted as the escrow agent for the parties in this transaction.
An escrow agent “is generally considered to be an agent (or trustee) for both
parties—a special agency whose authority must be strictly construed, and who
is bound by the terms of the escrow agreement.” Janson v. Cozen &
O’Connor, 676 A.2d 242, 247 (Pa. Super. 1996) (citations omitted). In other
words, any duty Attorney Talarico owed McCloskey as closing agent emanated
from the escrow agreement.
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There is no written escrow agreement in the certified record. Nor is there
any evidence of the terms of an oral escrow agreement. In light of this
absence, our ability to review McCloskey FLP’s claims on appeal is severely
hampered. While Attorney Talarico conceded he owed a fiduciary duty to
McCloskey FLP at closing, it is impossible to determine the scope of the duty
without some indication of the terms of the escrow agreement.
However, we conclude this defect in the record does not prevent us from
concluding that Attorney Talarico correctly argues that McCloskey FLP failed
to prove necessary elements of its negligence and negligent misrepresentation
claims. McCloskey FLP’s fundamental factual assertion in these two causes of
action is that it detrimentally relied on Attorney Talarico’s calculation of the
realty transfer tax.
Our review of the record confirms that prior to the settlement, the
parties discussed the terms identified on the settlement statement, including
the realty transfer tax. In a February 26, 2014 email to Attorney Shovlin,
Brunko stated, “[o]ther than the $1000 escrow which the Sellers will not agree
to, it looks good.” See Response to Motion for Summary Judgment, 5/3/18,
Exhibit C (emphasis added). The following day, Attorney Shovlin stated the
realty transfer tax “gets paid on the whole package,” and asked Brunko who
would pay and how the tax should be listed on the settlement statement. See
id. Brunko replied, “OK. Seller is responsible for the lot portion which would
be 2000. Eddy Homes would be responsible for the amount … of the loan for
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the house.” Id. Attorney Shovlin explained that Eddy Homes would not pay
the balance, and “[t]he sales contract states that the parties shall split the
transfer taxes equally.” Id. In response, Brunko stated McCloskey FLP had
“agreed to pay the full stamp.” Id.The parties then proceeded to settlement, with Attorney Talarico acting
as the closing agent. The settlement statement identified McCloskey FLP as
the “sellers” and included the purchase price of $160,000.00 for the lot. See
Brief Contra Plaintiff’s Petition for Judgment on the Pleadings, 7/10/17, Exhibit
A (HUD-1).5 The section labeled “Summary of Borrower’s Transaction”
includes the price of the lot, the Walkers’ settlement charges, and the
construction contract with Eddy Homes, priced at $635,798.00. See id. After
the addition of taxes and assessments, the settlement statement provides for
a gross amount of $821,214.38 due from the Walkers. See id.Importantly, the settlement statement explicitly provided McCloskey FLP
would be assessed the realty transfer tax in the amount of $9,947.47. See id.Susan Brunko testified that, prior to the initial scheduled closing, she advised
McCloskey FLP not to close the deal, as she believed it was only liable for the
transfer tax on the unimproved lot. See N.T., Non-Jury Trial, 9/30/20, at 10,
57-59. Ultimately, her advice was overruled by her mother, the managing
general partner in McCloskey FLP, Nancy Brunko McCloskey. Nancy Brunko
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5 Eddy Homes is not identified anywhere on the settlement statement.
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McCloskey signed the settlement statement on behalf of McCloskey FLP
against Susan’s advice. See id. at 48.
This testimony established that McCloskey FLP did not rely on Attorney
Talarico’s calculation of the realty transfer tax. To avoid this conclusion,
McCloskey FLP claims that Nancy Brunko McCloskey signed the settlement
statement under duress. Specifically, Susan Brunko testified that Nancy told
her that if she did not sign the settlement statement, “he would threaten me
with a lawsuit.” See id. at 57-58.
McCloskey FLP offers no more than a bald allegation that Attorney
Talarico threatened to sue McCloskey FLP if Nancy Brunko McCloskey did not
proceed with the closing as scheduled. McCloskey FLP fails to support this
claim with any evidentiary proof of the alleged threat, and we decline to
develop this argument on McCloskey FLP’s behalf. See Coulter v. Ramsden,
94 A.3d 1080, 1088 (Pa. Super. 2014). This record is wholly devoid of any
evidence capable of establishing the use of improper threats capable of
overriding Nancy Brunko McCloskey’s free will.
Finally, while there is some evidence of record that Attorney Talarico (or
his firm) billed McCloskey FLP for legal services related to this transaction, see
id. at 105-06, McCloskey FLP did not present any evidence that Attorney
Talarico was acting as McCloskey FLP’s attorney in calculating the transfer tax.
In fact, Susan Brunko testified that Attorney Talarico was not acting as an
attorney for McCloskey FLP at the closing. See id. at 69-70. Furthermore,
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McCloskey FLP did not present any evidence to rebut Attorney Talarico’s
testimony that the billing was based on a deed correction performed by
Attorney Shovlin. See id. at 106. Coupled with Susan Brunko’s testimony that
she counseled her mother to reject Attorney Talarico’s calculation, McCloskey
FLP could not establish that it employed Attorney Talarico as an attorney to
calculate the transfer tax, and accordingly, cannot establish legal malpractice
on this record.6 See Kituskie v. Corbman, 714 A.2d 1027, 1029-30 (Pa.
1998).
Under these circumstances, even if McCloskey FLP established it was not
represented by separate counsel at the closing, it would not be entitled to
relief on any of its claims. The testimony of Susan Brunko established that
McCloskey FLP was well aware of the difference between the transfer tax due
on the unimproved lot versus the transfer tax due on the improved lot.
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6 We observe that McCloskey FLP’s argument concerning legal malpractice is
largely underdeveloped. See Pa.R.A.P. 2119(a) (requiring the argument to
include “such discussion and citation of authorities as are deemed pertinent.”).
Further, McCloskey FLP’s complaint and appellate brief do not specifically
allege professional negligence or set forth the requirements of such claim.
However, the general averments sound in professional negligence. See
generally Complaint, 10/22/14, ¶ 6 (stating, “Attorney Talarico was in fact a
learned professional and skilled legal scholar employed by a prestigious law
firm and was the closing agent on said transaction under a fiduciary obligation
to all parties in the proper handling of funds”), ¶ 26 (arguing “[Attorney
Talarico] failed to exercise reasonable care or competence as an attorney”).
McCloskey FLP did not file a certificate of merit, and Attorney Talarico did not
object or seek entry of a judgment of non pros. See Pa.R.Civ.P. 1042.3(a)
(requiring a plaintiff alleging a professional negligence claim to file a certificate
of merit within 60 days after filing the complaint); Pa.R.Civ.P. 1042.6.
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McCloskey FLP attempted to get Eddy Homes to pay the difference, but when
Eddy Homes refused, Nancy Brunko McCloskey signed the settlement
statement anyway. McCloskey FLP presented no evidence that the presence
of counsel at the closing would have changed this decision.
In summary, we find it is undisputed that McCloskey FLP was aware that
the transfer tax on the unimproved lot would be approximately $2,000.00.
Further, it is undisputed that McCloskey FLP was aware that its realtor
disagreed with Attorney Talarico’s conclusion that the transfer tax should be
assessed against the value of the improved lot. Nevertheless, McCloskey FLP
agreed to pay the realty transfer tax based upon the value of the improved
lot, and willingly signed the settlement statement. McCloskey FLP cannot now
seek a reduction of the transfer tax under the guise of a claim the closing
agent negligently miscalculated the tax due.7
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2022
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7 To the extent our analysis differs from that of the trial court, we note “this
Court is not bound by the reasoning of the trial court, and we may affirm the
trial court’s order on any valid basis.” Dockery v. Thomas Jefferson Univ.
Hosps., Inc., 253 A.3d 716, 721 (Pa. Super. 2021) (citation omitted).
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