J-A02009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF CALEEM L.                 :   IN THE SUPERIOR COURT OF
    JABBOUR                                    :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: ARLENE JABBOUR AND              :
    TERRI L. VARGO                             :
                                               :
                                               :
                                               :   No. 75 WDA 2017

               Appeal from the Order Entered December 15, 2016
      In the Court of Common Pleas of Allegheny County Orphans' Court at
                             No(s): 02-15-01692

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                                     FILED JULY 17, 2018

        Co-Executrix Terri L. Vargo, the stepdaughter of Caleem L. Jabbour

(“Decedent”),1 and her mother, Arlene Jabbour, Decedent’s second wife

(collectively “Petitioners”), appeal from the December 15, 2016 order

dismissing the citation directed to Emmett Pais, Maura Nicotra, and Donna

Genes (collectively “Respondents”).            Petitioners alleged that Respondents

removed assets of Decedent’s accounting business,2 and they sought
____________________________________________


1 The record reflects that the underlying petition for citation was filed solely
by Co-Executrix Terri L. Vargo. Co-Executrix Maura Nicotra also filed a
petition for citation directed to Arlene Jabbour challenging her exercise of a
power of attorney. Both citations were disposed of by the order entered
December 15, 2016, and the parties filed separate appeals to this Court.
The Nicotra appeal is listed at No. 1952 WDA 2016. We declined to
consolidate the appeals, but listed them consecutively for oral argument
before the same panel.

2 The petition purportedly sought a citation directing an accounting, a denial
of which would not have been a final order for purposes of appeal. However,
(Footnote Continued Next Page)
J-A02009-18



compensation on behalf of the Estate for the income allegedly received by

Respondents therefrom. After thorough review, we affirm.

      Decedent had a public accounting business trading under the name

“C.L. Jabbour, PA.” He was a sole practitioner and his office was located in

the home he shared with his second wife, Arlene.      Decedent prepared tax

returns for approximately 400 clients, and provided additional accounting

services for another twenty to thirty business clients. N.T, 10/12-13/16, at

34. Maura is Decedent’s daughter from his first marriage, and Co-Executrix

of his estate. Mr. Pais is a CPA whom Decedent knew professionally, and to

whom Maura turned for assistance in winding up Decedent’s accounting

practice. Ms. Genes was Decedent’s secretary for thirty years.

      In early August of 2014, Decedent suffered a stroke and was

hospitalized for one month. During that time, Mr. Pais went to Decedent’s

office and performed services for Decedent’s clients.   When Decedent was

still unable to work upon returning home, Decedent referred his clients in

need of assistance to Mr. Pais and another accountant, Bill Knight.

      In December 2014, Decedent sent a letter to each of his business

clients informing them that he would be unable to prepare their personal and


(Footnote Continued) _______________________

Petitioners was actually seeking compensation either from Mr. Pais for his
alleged misappropriation/conversion of Decedent’s business and/or from
Maura Nicotra for breach of fiduciary duty in failing to obtain payment from
Mr. Pais for the business. As such, it is an order determining an interest in
real or personal property, appealable pursuant to Pa.R.A.P. 342(6).



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corporate tax returns. He stated therein that he would provide them with

their income and expense information to enable them to prepare the

returns.   He told them he would continue to do their monthly work and

prepare W-2s until they retained another accountant.       Decedent thanked

them for being loyal clients, and expressed his pleasure working with them

over the years.   At approximately the same time, at Decedent’s direction,

Ms. Genes cancelled his prior order for a $2,000 computer tax preparation

program.

        Decedent died on December 22, 2014.        Shortly thereafter, clients

began calling the office about their fourth quarter payroll taxes and files.

Arlene had a difficult time returning the calls. In early January, she began

to pack up Decedent’s files.    Decedent’s former attorney, Gary Kalmeyer,

advised her that Decedent’s daughter, Maura, wanted to close her father’s

business, which she was entitled to do as Co-Executrix under Decedent’s

Will.    Shortly thereafter, Arlene left a message on Maura’s answering

machine asking that she and her husband help with the transition of

Decedent’s files. Maura returned the call and arranged with Arlene to stop

by with Mr. Pais on January 17, 2015, to collect the files in order to contact

the clients.

        When Maura and Mr. Pais arrived with their spouses, Arlene and her

grandson were present.         Many of the files were boxed and “pretty

organized.” Id. at 127. Several telephone calls were made to Ms. Genes to

ask for assistance in locating certain items.   At Mr. Pais’s direction, Maura

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removed the hard drives from the computers, which contained confidential

client information that needed to be secured. Maura subsequently returned

the hard drives to Arlene after they had been wiped clean.

      Mr. Pais contacted all of Decedent’s former clients and arranged for

the return of their files. Where there were outstanding balances owing for

accounting services rendered by Decedent, he collected those sums and

forwarded the checks to the Estate.

      On April 6, 2015, letters testamentary issued to Maura and Terri

Vargo, as co-executrices for the Decedent’s estate. On December 22, 2015,

Ms. Vargo filed the within petition for citation directed to Respondents in

which she alleged that Decedent died testate possessed of personal property

in the nature of his accounting practice, C.L. Jabbour, PA.        Petition for

Citation, 12/22/15, at 1.       She charged that Respondents removed the

business property of Decedent without legal authority and prior to the official

opening of the Estate, and that the Estate was owed compensation for Mr.

Pais’s “impromptu and informal assumption of decedent’s accounting

practice.” Id. at ¶21. She alleged further that the removal of Decedent’s

business property, without compensation, “constitute[d] theft, breach of

contract, assumpsit, trespass, unjust enrichment and unlawful conversion of

estate property.” Id. at ¶23.

      Mr. Pais filed an answer admitting that he took possession of the files

in the presence of and with the permission of Maura and Arlene to assist the


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Estate in releasing records necessary for clients to prepare fourth quarter

and year-end payroll tax returns.     Mr. Pais denied engaging in any illegal

activity, and averred that he had provided to the Estate an accounting of all

of his business revenues on March 9, 2015, together with copies of checks

payable to the Estate that he had turned over. He denied that he removed

the hard drives from the office computers and averred that he never agreed

to purchase the business. He alleged that Decedent terminated his business

with the mailings on December 10, 2014.           Pais Answer to Petition for

Citation, 2/2/15, at 3 ¶14.

      Ms. Genes filed an answer stating that she was not present when the

files were removed, and denying that she supplied any passwords to Mr. Pais

and Maura to enable them to gain access to the computers. Maura averred

that she had been advised by her late father’s attorney that, as co-executrix,

it was her responsibility to windup Decedent’s practice. Nicotra Answer and

New Matter, 1/28/16, at ¶26.       She became involved upon learning from

former clients that Arlene was not responding to their requests for their files,

and that at least two clients had complained to the district justice about the

situation. Id. at ¶¶27-28. She enlisted Mr. Pais’s assistance in contacting

Decedent’s former clients to inform them that they could retrieve their files

from him, and to enable him to collect outstanding balances owing to the

Estate for services performed by Decedent’s business.        Id. at ¶17.    She




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denied that she received any financial remuneration from the business. Id.

at ¶29.

       After a two-day evidentiary hearing, the orphans’ court dismissed the

citation, finding no proof of any agreement between the Estate and Mr. Pais

for the purchase of the business.              Orphans’ Court Opinion, 3/7/17, at

unnumbered 3. In addition, the court found that Mr. Pais assisted Maura in

winding up the business and returning files to clients.          Finally, the court

noted that without competent expert testimony from a valuation expert, it

could not ascertain the fair market value of the business. Id. at 4.

       Petitioners timely appealed and they raise three issues for our review,

which we have re-ordered for ease of disposition: 3

       I.     Did the lower court err when it held that Emmet Pais did
              not owe any money to the Estate when there was
              absolutely no evidence that the accounting practice was a
              gift?

       II.    Did the lower court err when it found it would have to
              speculate as to the value of [Decedent’s] practice when
              Mr. Pais’[s] own testimony was sufficient to establish a
              value on the business when he testified that he had billings
              of $53,060.00 of income in 2015 and $30,140.00 from
              January 1 to August 23, 2016[,] from [Decedent’s] clients?

       III.   Did the lower court err when it disallowed Michael Wilson,
              a CPA, from testifying as an expert witness when he met
              the criteria under Pa.R.E. 702 and demonstrated that he

____________________________________________


3 Petitioners’ first issue, and to a certain extent their second issue, involve
the orphans’ court’s findings as to liability. Since the third issue is an
evidentiary one affecting damages only, we will address it last.



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              possessed the appropriate knowledge[,] skill, training[,]
              and education?

Appellants’ brief at 4.       Essentially, Petitioners allege that Mr. Pais either

agreed to purchase Decedent’s business or that he converted its assets, and

that Maura breached her fiduciary duty when she did not demand

compensation from him for the business assets.4

       “Our standard of review of an orphans’ court’s decision is deferential.”

In re Estate of Strahsmeier, 54 A.3d 359, 362 (Pa.Super. 2012). Viewing

the record in the light most favorable to the appellee, we must determine

whether the record is free from legal error and whether the findings are

supported by the record. Id. at 362-63. Since the orphans’ court sits as the

factfinder and determines the credibility of witnesses, we “will not reverse its

credibility decisions absent an abuse of discretion.” Id. at 363. “[A]n abuse

of discretion is not merely an error of judgment. . . . [I]f in reaching a

conclusion, the court overrides or misapplies the law, or the judgment

exercised is shown by the record to be manifestly unreasonable or the

product of partiality, prejudice, bias, or ill will, discretion has been abused.”

Id. The same deference is not afforded to the orphans’ court’s conclusions

of law.    “Where the rules of law on which the orphans' court relied are




____________________________________________


4Petitioners speak generally in terms of the value of the business and do not
define the assets or ascribe value to particular assets.



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palpably wrong or clearly inapplicable, we will reverse the court’s decree.”

Id.

      Petitioners allege that the orphans’ court erred when it found that Mr.

Pais did not owe money to the Estate. They argue that absent evidence of a

gift of the practice, Mr. Pais must compensate the Estate for the business

assets he either agreed to purchase, or that he misappropriated and

converted.

      We find no merit in Petitioners’ position. The orphans’ court found that

Mr. Pais did not agree, either orally or in writing, to buy the practice. Thus,

he owed no compensation on a contract theory. Furthermore, it rejected the

notion that Mr. Pais converted or misappropriated the business. Rather, the

court found that Mr. Pais assisted in winding up the practice and collecting

outstanding receivables on behalf of the Estate at Maura’s behest. We find

that the record supports those findings.

      In early January 2015, after Decedent’s death, Arlene left a recorded

message on Maura’s answering machine that “clients are calling here crazy

that they want to pick up their stuff.” N.T., 10/12-13, at 66. Arlene asked

for Maura’s help in “getting the office cleared up.”       Id.   When Maura

returned the call and asked whether she could bring Emmett Pais with her,

Arlene agreed. Arlene testified further that Ms. Vargo also knew that “Maura

and Emmett were going to come over, and the business files were going to




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be returned to people.”    Id. at 62.   Arlene acknowledged that one client,

Auto Addiction, intended to sue to get its file back. Id. at 63.

      Mr. Pais removed and retained the files at Maura’s request for

purposes of winding up the practice. Maura removed the hard drives from

the computers, took them to be wiped clean, and returned them to Arlene.

Decedent’s former clients were directed both by letter and by a message on

Decedent’s answering machine to contact Mr. Pais for their files.

      In the process of returning client files, Mr. Pais collected balances

owing to the Estate for work, totaling approximately $5,000, performed by

Decedent, and turned over the checks to the Estate.        The Estate did not

compensate him for the services he provided in winding up the business.

However, as a consequence of Decedent’s referrals to Mr. Pais during his

lifetime, as well as Mr. Pais’s contact with Decedent’s clients regarding the

files, approximately sixty of Decedent’s 420 former clients opted to retain his

services. As the orphans’ court observed, someone was going to have to do

the work for these clients.    Id. at 147.    Even Arlene conceded that the

clients were free to go wherever they wanted, and that some chose to retain

Mr. Pais. Id. at 50.

      Based on the foregoing, the orphans’ court found no evidence that

Respondents misappropriated or converted Decedent’s business assets. We

agree. “The classic definition of conversion under Pennsylvania law is ‘the

deprivation of another's right of property in, or use or possession of, a


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chattel, or other interference therewith, without the owner's consent and

without lawful justification.’”   HRANEC Sheet Metal, Inc. v. Metalico

Pittsburgh,    Inc.,   107    A.3d   114,     119   (Pa.Super.   2014)   (quoting

McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 659 n.3 (Pa.Super.

2000)). Even Arlene acknowledged that the Decedent’s client files were the

property of the clients. Furthermore, Mr. Pais’s removal and retention of the

client files was with the consent of Arlene and Ms. Vargo, and at the request

of Maura, one of the designated personal representatives. The purpose for

removing the files was a legitimate one: to facilitate the expeditious return

of client files and stave off threatened lawsuits for failing to do so. Mr. Pais

also collected for the Estate outstanding accounts receivables, which were

assets of the Estate. We agree with the orphans’ court that Mr. Pais assisted

Maura in winding up the business, returning files, collecting outstanding

receivables for the Estate, and avoiding threatened lawsuits.        We find no

breach of fiduciary duty on Maura’s part, or theft or conversion by Mr. Pais.

      Nor do we find any merit in Petitioners’ premise that money is owing

unless the business was a gift to Mr. Pais. Appellant’s brief at 25. As we

explained supra, Petitioners failed to prove that Mr. Pais acquired Decedent’s

business either contractually or through misappropriation. Petitioners do not

allege on appeal that the equitable doctrine of unjust enrichment provided a

basis for liability herein.   “Where unjust enrichment is present, the law

implies the existence of a contract requiring the defendant to pay to the


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plaintiff the reasonable value of the benefit conferred.”     Temple Univ.

Hosp., Inc. v. Healthcare Management Alternatives, Inc., 832 A.2d

501, 508 (Pa.Super. 2003) (citing Mitchell v. Moore, 729 A.2d 1200

(Pa.Super. 1999)).   In order to prevail on such a claim, the plaintiff must

prove: (1) benefits conferred on defendant by plaintiff; (2) appreciation of

such benefits by defendant; and (3) acceptance and retention of such

benefits under such circumstances that it would be inequitable for defendant

to retain the benefit without payment of value.      Id. at 508.     The most

important factor to be considered in applying the doctrine is whether the

enrichment of the defendant is unjust, and only upon such a finding will the

law require a party to pay the value of the benefit conferred. Id.

     The orphans’ court found that Mr. Pais assisted in winding up

Decedent’s practice and collecting outstanding receivables for the Estate.

The Estate paid him no compensation for these valuable services.       In the

process, some of Decedent’s former clients chose to retain Mr. Pais to

perform accounting or tax services, which they were free to do. On these

facts, we find no unjust enrichment.

     Petitioners contend that the trial court should have used Mr. Pais’s

gross revenues from Decedent’s former clients to arrive at a value for the

business. The orphans’ court rejected that approach, finding Mr. Pais’s 2015

and 2016 “gross revenues are not equivalent to the fair market value of the

business.” Orphans’ Court Opinion, 3/7/17, at unnumbered 3.


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       Again, we agree. Petitioners did not prove that Mr. Pais received the

business.     Rather, the evidence revealed only that some of Decedent’s

former clients chose to retain Mr. Pais to perform accounting services.

Indeed, only sixty of Decedent’s 420 clients, who were given a choice as to

which accountant to use after their files were returned to them, decided to

utilize Mr. Pais. Nor were Mr. Pais’s revenues from those clients probative of

the value of Decedent’s practice.5             Assuming that the value of the

Decedent’s business was relevant, competent expert testimony using an

accepted valuation method was required to establish its value at the

appropriate time.6

       Moreover, the evidence indicated that Decedent had started to

liquidate the business prior to his death.         In the fall of 2014, he was

referring clients to Mr. Pais and Mr. Knight.       Ms. Genes explained that on

December 10, 2014, Decedent sent letters to each of his business clients

____________________________________________


5 The revenue figures may have had some probative value if it had been
determined that Mr. Pais was unjustly enriched. However, since that basis
for liability was not proved below, and Petitioners do not argue on appeal
that reversal is warranted on that theory, we find no merit in Petitioners’
claim.

6 Notably, on appeal, Petitioners list several methods for valuing a business,
to wit: investment value; going-concern value; fundamental or intrinsic
value; fair market value; book value; and liquidation value. See Appellants’
brief at 28-29. Absent from that list is the gross revenues approach
advocated by Mr. Wilson. Furthermore, Petitioners cite no valuation method
that would look to Mr. Pais’s revenues in the years after Decedent’s
practice closed to calculate the date of death value of the business.



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advising them that he was unable to prepare their individual and corporate

tax returns, but that he would provide them with the income and expense

information to enable them to prepare the returns.      He directed them to

obtain another accountant, without specifying Mr. Pais, and thanked them

for their loyalty.   Id. at 137.   Ms. Genes testified further that Decedent

asked Mr. Pais to prepare tax returns in December 2014 because he realized

that he could not do them. At that same time, Decedent also directed Ms.

Genes to cancel the tax program that he purchased, explaining that he could

not do the work. Id. at 141.

      Hence, we find ample support for Mr. Pais’s contention that Decedent

was in the process of liquidating his business when he died.       While the

business may have had some assets in January 2015, they consisted largely

of office furniture, computers, and accounts receivables. As this Court noted

in Beasley v. Beasley, 518 A.2d 545, 552 (Pa.Super. 1986), which involved

the value of a law practice operated as a sole proprietorship for purposes of

equitable distribution, there may be some good will value based on

professional reputation. Nonetheless, we observed:

      When a sole proprietor terminates his activity, the lights go out,
      the value of the sole proprietorship is extinguished and is non-
      transferable; the clients in the law firm cannot be sold, they can
      only be transferred and they have the absolute right to select
      their own future representation; nothing remains in residue
      which could be determined of value aside from tangible physical
      property, or work performed on partially completed cases, which
      may entitle the lawyer or his heirs to a quantum meruit
      payment.


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Id. at 552. Those same considerations are relevant herein in determining

what value, if any, should be assigned to Decedent’s sole proprietorship.

      We turn now to the evidentiary issue raised by Petitioners. “When we

review a trial court ruling on admission of evidence, we must acknowledge

that decisions on admissibility are within the sound discretion of the trial

court and will not be overturned absent an abuse of discretion or

misapplication of law” Phillips v. Lock, 86 A.3d 906, 920 (Pa.Super. 2014)

(citation omitted). “In addition, for a ruling on evidence to constitute

reversible error, it must have been harmful or prejudicial to the complaining

party.” Id. (citation omitted); see also Mitchell v. Shikora, 161 A.3d 970,

972 (Pa.Super. 2017).

      The specific ruling at issue herein involved the court’s determination

that Mr. Wilson was not qualified to provide expert valuation testimony

under Pa.R.E. 702. The question whether a witness is qualified to testify as

an expert rests within the sound discretion of the trial court.     Miller v.

Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995). Where a proffered

expert has any reasonable pretension to specialized knowledge on the

subject, generally he will be permitted to testify. The weight to be given the

testimony is for the factfinder to determine. Id. The admissibility of expert

testimony is not based solely on academic credentials. Id. An expert may

possess sufficient knowledge based on his experience and training to qualify.

Id.


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     Petitioners listed Mr. Wilson as her valuation expert in her pretrial

statement and later supplemented it with his expert report.      Mr. Wilson’s

report consisted of one paragraph:

           Our firm has acquired tax and accounting practices over
     the past several years. The common method for valuation of
     accounting practices is based on the annual revenues for the
     practice. Typically, the value is based upon the most recent
     year’s    gross   revenue,  with    adjustments   for   varying
     circumstances relative to the particular practice.    Based on
     information that has been provided to me, the gross revenues
     for Mr. Jabbour’s practice for the year ended 12/31/13 were
     $38,250, as reported on Pa. Schedule C – Profit or Loss from
     Business on his Pa 40 Individual Income Tax Return. I believe
     that this amount is an appropriate value to be used to establish
     the value of his practice.

Expert Report of Michael C. Wilson CPA, 3/2/16, at 1.

     Prior to trial, Respondents moved to strike the expert report, citing its

lack of detail, the absence of supporting documentation, and the fact that

the opinions contained therein were not stated to a reasonable degree of

accounting certainty.     The orphans’ court declined to rule, noting that

Respondents could explore the inadequacies on cross-examination.             It

concluded, “If you feel and I feel at the end of that that there’s some

substance,    we’ll   grant   your   motion.”   N.T.,   10/12-13/16,   at   13.

Respondents added that the report should be stricken on the additional basis

that valuation of the business was not relevant. The only issue was whether

an accounting should be done.

     During voir dire as to qualifications, Petitioners established that Mr.

Wilson had a master’s degree in accounting, had been a CPA for twenty-one


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years, and that he was currently a member of the tax practice of Donnelly-

Boland and Associates.          Mr. Wilson’s experience in valuing accounting

practices came from Donnelly-Boland’s acquisition of three practices from

deceased or retiring practitioners, as well as client engagements that

involved business acquisitions or divestitures.      He maintained that he had

experience in the field although he had never testified as a valuation expert.

        On cross-examination as to his qualifications, Mr. Wilson acknowledged

that he was not accredited or certified as a business valuator, and that he

had never taught any courses or written any articles or books on the

subject. He did not refer to any AICPA7 guidelines in authoring his report or

in arriving at his opinion. He had never prepared a valuation report before,

although he stated that his firm had purchased practices based on the same

type of information that was provided in his letter report.       The witness

testified that if one was to “ask any CPA that has acquired practices, they

will tell you that the common method used to value accounting practices is

gross revenues.” Id. at 27. When asked if there was any way to check his

figures, the witness stated that “[i]f we had a copy of the 2013 tax return,

they can verify the gross revenues reported.”8 Id.


____________________________________________


7   The American Institute of Certified Public Accountants.

8   The tax return is not contained in the certified record.




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       Counsel for Respondents renewed his objection to the qualifications of

Mr. Wilson and argued that his report did not meet the standards for a

valuation report under the AICPA principles. The orphans’ court agreed and

excluded the proffered expert testimony, but left the door open to revisiting

its ruling later. The court also was receptive to the possibility of Mr. Wilson

testifying as a fact witness regarding Decedent’s tax returns.      Petitioners

made a proffer of the witness’ proposed factual testimony: “The proffer

would be that he has an opinion on the basis of the business.” Id. at 31.

The court rejected the proffer as opinion testimony.9

       In its Rule 1925(a) opinion, the orphans’ court further explained the

rationale for its decision.        The court found that Mr. Wilson had never

performed a business valuation, and he had no knowledge of the

methodologies used in the field to value businesses.          Thus, the court

concluded that he was not qualified to offer expert testimony regarding the

value of Decedent’s business.

       Petitioners contend herein that the orphans’ court abused its discretion

in excluding the expert testimony of Mr. Wilson. They maintains that he is a

CPA by education, and his experience and practical training qualified him to
____________________________________________


9  A brief discussion occurred during which Petitioners represented to the
court that the witness’s accounting firm “examined the business to
potentially purchase it and decided not to.” N.T., 10/12-13/16, at 31. The
court found the testimony irrelevant in the “constellation upon which
[Petitioners were] bringing this,” and sustained Respondents’ objection. Id.
at 31-32. That ruling is not challenged on appeal.



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testify as a valuation expert. Thus, they contend, he had the pretension to

specialized knowledge on the valuation of Decedent’s business to qualify as

an expert under Pa.R.E. 702.

      Respondents counter that, in a non-jury proceeding, the trial court’s

discretion is even broader as it is “the finder of fact and the sole judge of

credibility.” Costa v. City of Allentown, 153 A.3d 1159, 1168 (Pa.Cmwlth.

2017).   In addition, they cite Ramalingam v. Keller Williams Realty

Group, Inc., 121 A.3d 1034, 1047 (Pa.Super. 2015), and Pa.R.C.P. 1038,

for the proposition that “in a non-jury trial, the trial judge has the dual

function of making rulings of law, and weighing the evidence as a fact-

finder.” They suggest that the court’s ruling was part and parcel of its larger

credibility determination, and that the court rejected Mr. Wilson’s premise

that the fair market value of the business was equivalent to its gross

revenues from the most recent year. Respondents contend that the decision

should not be reversed absent an abuse of discretion, which was not

demonstrated herein.

      We agree with Petitioners that Mr. Wilson had sufficient pretension to

specialized knowledge and/or experience to offer his expert opinion of the

value of [Decedent’s] practice. However, even though the trial court erred

in this respect, we affirm the exclusion of the proffered expert on the two

alternative bases argued by Respondents, namely, that his expert report

was inadequate, and that the value of the business was irrelevant.


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      Pennsylvania Rule of Civil Procedure 4003.5 requires parties “to state

the substance of the facts and opinions to which the expert is expected to

testify and a summary of the grounds for each opinion.”                  Pa.R.C.P.

4003.5(a)(1)(b). The reports must be specific and fully disclose the basis for

the   opinions.   Walsh    v.   Kubiak,      661   A.2d   416,   422   (Pa.Super.

1995); Wilkes Barre Iron & Wire Works, Inc. v. Pargas Wilkes Barre

Inc., 502 A.2d 210, 213 (Pa.Super. 1985).

      The report herein was barebones and conclusory. Mr. Wilson did not

even identify the relevant date for valuation purposes.          Apparently, he

reviewed only a tax return showing gross revenues for 2013.            His opinion

was simply that the gross revenues reported for the year ending December

31, 2013 on PA Schedule C appended to Decedent’s PA 40 individual income

tax return for 2013 was an appropriate value for Decedent’s business. The

tax return was not in evidence.    Although his methodology contemplated

“adjustments for varying circumstances relative to the particular practice,”

he did not identify or consider any circumstances.

      We find the report wholly inadequate under Pa.R.C.P. 4003.5.              It

lacked foundation and specificity. Moreover, it was apparent from the face

of the report that Mr. Wilson did not actually apply the gross revenues

method he described therein. Despite Mr. Wilson’s representation that the

method typically references the most recent year of gross revenues, he used

the 2013 figure instead of the gross revenues from most recent year, 2014,


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and offered no explanation for the departure. Nor did he identify or consider

any other information peculiar to Decedent’s practice to determine whether

adjustments were warranted. Nevertheless, Mr. Wilson concluded that the

2013 gross revenues figure was “an appropriate value to be used to

establish the value of [Decedent’s] practice.”    Simply stated, the expert

report, on its face, did not establish that he applied the valuation method

that he advocated. Furthermore, although his opinion need not be rendered

with the magic words “reasonable accounting certainty,” Mr. Wilson’s belief

that the 2013 gross revenue figure was “appropriate,” without more, did not

meet the requisite certainty for expert testimony. On this basis, we find the

expert’s proffered testimony was properly excluded.

      Finally, since we have concluded that Petitioners failed to prove that

Respondents were liable to the Estate for the value of Decedent’s business,

we find any valuation of the business irrelevant.     Since we may affirm on

any basis supported by the record, we affirm the trial court’s decision to

exclude Mr. Wilson’s proffered expert testimony on these alternative

grounds.   See Skiff re Business, Inc. v. Buckingham Ridgeview, LP,

991 A.2d 956, 963 n.9 (Pa.Super. 2010) (this Court may affirm on an

alternative basis from the trial court).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2018




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