J-A26018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SANDRA G. RUTKOWSKI                        :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CHARLES W. STENGER                         :   No. 121 WDA 2018

             Appeal from the Judgment Entered February 12, 2018
      In the Court of Common Pleas of Allegheny County Civil Division at
                            No(s): GD 10-007363


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                           FILED NOVEMBER 30, 2018

       Appellant, Sandra G. Rutkowski (“Rutkowski”), appeals from the

February 12, 2018 judgment entered in favor of Appellee, Charles W. Stenger

(“Stenger”) following a non-jury trial.1 After review, we affirm.

       The trial court set forth the relevant factual background of this matter

as follows:


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1  We point out that after a non-jury trial, an appeal lies not from the decision
of the trial court, but from a judgment entered after the disposition of post-
trial motions. Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d
511, 514 (Pa. Super. 1995). Here, Rutkowski’s post-trial motion was denied
on December 22, 2017, and she filed her notice of appeal on January 18,
2018. This was premature. On February 8, 2018, this Court filed an order
directing Rutkowski to praecipe for the entry of judgment, and we noted that
once judgment was entered, the premature appeal would be treated as filed
after the entry of judgment. Judgment was entered on February 12, 2018.
Accordingly, this appeal is timely and ripe for disposition.
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             This novel case grew out of a personal relationship between
       [Rutkowski] and [Stenger]. Indeed they co-habitated for
       apparently 20 years until their relationship dissolved in 2009. At
       that point Rutkowski filed a complaint in our Family Division at
       Docket Number FD-09-001894 averring a common law marriage.
       While that case was pending Rutkowski filed another complaint at
       Docket Number GD-10-007363 and that is the one herein: This
       case was held in abeyance while the common law marriage case
       proceeded. It was heard in Family Division before my colleague,
       the Honorable Jennifer Satler. Judge Satler denied relief by her
       order of March 19, 2015. Rutkowski appealed that order to the
       Superior Court where it was [affirmed2]. Satler then ruled that the
       case here was to be heard in the Civil Divis[i]on.

              In [the instant] case, Rutkowski asserted that she and
       Stenger had a partnership in real estate investments made over
       the period of their co-habitation. To that end, Rutkowski on April
       10, 2009, had filed a multi-count complaint against Stenger
       alleging 1) Claims in equity to give her an interest in certain
       specified real estate; 2) requested a Preliminary Injunction to
       prevent sale of any such real estate; 3) Breach of contract in
       regard to the alleged oral contract to be partner in the specified
       real estate. [Rutkowski] also filed a lis pendens with respect to all
       said real estate. One parcel of real estate had been sold and the
       net proceeds therefrom were placed in escrow.

             The issue of the money in escrow from the sale of certain
       real estate came before me in Motions Court. Later, I held a
       conference on that issue on May 2, 2017 and Counsel for
       Rutkowski pointed out that the common-law marriage
       determination did not dispose of the case and the equity claim and
       the breach of contract claims were still viable. I agreed and
       scheduled a Trial for September 8, 2017 which was ultimately
       heard, non-jury, before me on September 8 and 9, 2017.

Trial Court Opinion, 12/6/17, at 1-2.




____________________________________________


2Rutkowski v. Stenger, 151 A.3d 1133, 506 WDA 2015 (Pa. Super. filed
May 3, 2016) (unpublished memorandum).

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       Following trial, the trial court concluded there was no partnership. The

trial court found that Stenger was credible, concluded that Rutkowski was not

credible, opined that Rutkowski’s claims were barred by the statute of frauds

and statute of limitations, and dismissed Rutkowski’s complaint on all counts.

Additionally, the trial court struck the lis pendens and ordered all funds held

in escrow to be paid to Stenger. Rutkowski’s post-trial motions were denied,

and this timely appeal followed. Both Rutkowski and the trial court complied

with Pa.R.A.P. 1925.

       On appeal, Rutkowski raised the following issues for this Court’s

consideration:

       1. Whether the trial court erred as a matter of law in finding that
       Rutkowski’s claims for breach of the oral partnership agreement
       or her claim in equity were barred by the statute of limitations?

       2. Whether the trial court erred as a matter of law in finding that
       Rutkowski’s claims of a partnership for investment into parcels of
       real estate with Stenger were barred by the Statute of Frauds?

       3. Whether the trial court’s finding that Rutkowski was not credible
       in her claim of a partnership agreement because of the tax liens
       filed against her by the Internal Revenue Service is an abuse of
       discretion by the trial court, and an error of law?

Rutkowski’s Brief at 4.3

       Our standard of review of a decision made following a non-jury trial is

well settled:



____________________________________________


3For purposes of our disposition, we have renumbered Rutkowski’s issue on
appeal.

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      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.”
      We must grant the court’s findings of fact the same weight and
      effect as the verdict of a jury and, accordingly, may disturb the
      non-jury verdict only if the court’s findings are unsupported by
      competent evidence or the court committed legal error that
      affected the outcome of the trial. It is not the role of an appellate
      court to pass on the credibility of witnesses; hence we will not
      substitute our judgment for that of the factfinder. Thus, the 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.”

Kennedy v. Consol Energy Inc., 116 A.3d 626, 640 (Pa. Super. 2015)

(citation and quotation marks omitted).

      The rules for determining the formation of a partnership provide as

follows:

      (a) General rule.--Except as provided in subsection (b), the
      association of two or more persons to carry on as co-owners a
      business for profit forms a partnership, whether or not the persons
      intend to form a partnership.

      (b) Excluded associations.--An association formed under a
      statute other than this chapter, a predecessor statute or a
      comparable statute of another jurisdiction is not a partnership
      under this chapter.

      (c) Rules for determining formation of partnership.--In
      determining whether a partnership is formed, the following rules
      apply:

           (1) Joint tenancy, tenancy in common, tenancy by the
           entireties, joint property, common property or part
           ownership does not by itself establish a partnership, even if
           the co-owners share profits made by the use of the
           property.




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          (2) The sharing of gross returns does not by itself establish
          a partnership, even if the persons sharing them have a joint
          or common right or interest in property from which the
          returns are derived.

          (3) A person who receives a share of the profits of a
          business is presumed to be a partner in the business, unless
          the profits were received in payment:

              (i) of a debt by installments or otherwise;

              (ii) for services as an independent contractor or of
              wages or other compensation to an employee;

              (iii) of rent;

              (iv) of an annuity or other retirement or health benefit
              to a deceased or retired partner or a beneficiary,
              representative or designee of a deceased or retired
              partner;

              (v) of interest or other charge on a loan, even if the
              amount of payment varies with the profits of the
              business, including a direct or indirect present or
              future ownership of the collateral, rights to income,
              proceeds or increase in value derived from the
              collateral; or

              (vi) for the sale of the goodwill of a business or other
              property by installments or otherwise.

15 Pa.C.S. § 8422(a)-(c).4         Moreover, “No formal or written agreement is

required in determining whether a partnership exists.”          In re Estate of

Caruso, 176 A.3d 346, 349 (Pa. Super. 2017) (citation omitted).              “A




____________________________________________


4Relevant portions of current 15 Pa.C.S. § 8422 were previously set forth in
15 Pa.C.S. §§ 8311 and 8312, which were repealed and replaced on November
21, 2016, by 15 Pa.C.S. § 8422, effective February 21, 2017.

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J-A26018-18


partnership may be found to exist by implication from the circumstances and

manner in which the business was conducted.” Id. (citation omitted).

      In Rutkowski’s first issue, she avers that the trial court erred in finding

that the statute of limitations barred her claims for breach of an oral

partnership agreement. Generally, the statute of limitations for a breach-of-

contract claim is four years. Steiner v. Markel, 968 A.2d 1253, 1255, n.5

(Pa. 2009) (citing 42 Pa.C.S. § 5525). However, the trial court provided no

discussion as to when the statute of limitations began to run and when

Rutkowski should have filed a claim in order for it to have been timely. Rather,

the trial court merely stated: “Stenger also testified that their relationship,

even spanning 20 years, was a stormy one and he frequently evicted her from

their abode, which he owned. Obviously the Statute of Limitation has run on

all the properties purchased by Stenger.” Trial Court Opinion, 12/6/17, at 4.

After review, we are constrained to agree with Rutkowski that the trial court’s

cursory reference to the statute of limitations fails to explain or support the

conclusion that her claim was barred. Nevertheless, we may affirm the trial

court’s decision on any proper basis. Bienert v. Bienert, 168 A.3d 248, 254

n.7 (Pa. Super. 2017) (citation omitted). Accordingly, although we cannot

agree that Rutkowski’s claim is necessarily barred by the statute of limitations,

this conclusion does not end our analysis.

      In her second and third issues, Rutkowski argues that the trial court

erred in finding that her claims of a partnership were barred by the Statute of


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J-A26018-18


Frauds and in concluding that she was not credible because of the tax liens

filed against her by the Internal Revenue Service. After review, we discern

no error.

       Initially, we point out that the trial court found Stenger’s argument “that

the Statute of Frauds bars [Rutkowski’s] claim[,] to be persuasive.”         Trial

Court Opinion, 12/6/17, at 4. After review of the certified record and the trial

court opinion, we agree with the trial court and conclude the Statute of Frauds

militated against Rutkowski in her attempt to prove the existence of a

partnership. In other words, the Statute of Frauds requires transfers of real

estate to be in writing,5 and there is no evidence that any of the transfers of

land in this case bore her name or referred to her in any fashion.         If the

relevant real estate transactions involved “the partnership” and referred to

Rutkowski in any manner, it could have been perhaps, some evidence of her

involvement in what could be construed as a partnership. Instead, the real

estate transactions involved Stenger only, and this fact worked against a

finding that a partnership existed.

       Additionally, the trial court did not decline to find the existence of a

partnership based solely on the issue of the tax liens; rather, the tax liens


____________________________________________


5 The Statute of Frauds requires that the transfer of an ownership interest in
real property must be in writing and signed by the parties granting the
interest. Nolt v. TS Calkins & Associates, LP, 96 A.3d 1042, 1047 (Pa.
Super. 2014); 33 P.S. § 1.



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were merely one aspect the trial court used to assess Rutkowski’s credibility.

In this non-jury trial, the trial court, sitting as the finder of fact, determined

the credibility of the witnesses. Kennedy, 116 A.3d at 640. The trial court

made the following findings:

             The parties did not dispute the fact of co-habitation for many
      years until 2009. The issue of an oral contact or a business
      partnership was hotly disputed. … Rutkowski, testified that shortly
      after she met … Stenger they agreed to enter into a course of
      business in which they would buy Real Estate and she would have
      an unspecified part interest in that property. Stenger vigorously
      disputed this assertion. Rutkowski said the first property to be
      bought was at 27-29 Cedricton Street, Pittsburgh, PA 15210 and
      to which she contended she had contributed $4,000 which she had
      borrowed from her father. While a closing statement for this
      purchase, held on August 5, 1988, was produced, it was barely
      legible and it showed a hand money deposit but [the trial court
      was unable to discern if the amount listed] was $4,000 or $1,000.
      Further, it makes no reference as to [whether it was Rutkowski or
      Stenger] who provided that money (Exhibit 21A). Stenger averred
      that he contributed that $4,000 and said Rutkowski never made
      any contribution at any time. Rutkowski offered a barely legible
      copy of a closing statement for the property.

            There is no written documentation to support this claimed
      partnership with the exception of a brief time in 1990 when
      Rutkowski’s name was on Stenger’s checking account. See
      Exhibits B and 35. He said he removed her name because of her
      abuse of the account and her profligate spending and continued
      to deny any contract or partnership.

            [The trial court inquired of] Rutkowski why her name was
      not on any of the properties that were purchased over a significant
      period of years. She offered the bizarre explanation that she did
      not want her name on any real estate because of her ongoing
      problems with the IRS. Rutkowski was a real estate agent and
      apparently made a significant income but she never paid taxes or
      enough taxes. As a result, she had significant Federal Tax Liens
      and as of the hearing on September 13, 2017, she had a Federal
      Tax Lien of $300,000.


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             [Rutkowski] offered no reasonable or even plausible reasons
      for this conduct and continued to accumulate tax liens for many
      years and apparently never sought to get her problem with the
      IRS corrected, or to pay taxes as they accrued.

Trial Court Opinion, 12/6/17, at 2-3.

      The trial court explicitly stated that it found Stenger credible while

finding Rutkowski not credible. Trial Court Opinion, 12/6/17, at 4. Although

the parties at one time had a personal relationship, there is no evidence that

the parties formed a partnership for conducting business. After review, we

discern no error of law or abuse of discretion in the trial court’s decision.

Accordingly, we affirm the judgment entered in favor of Stenger.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




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