J-A30028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FABRIZIO SPAGNOLO AND ELISA D.                          IN THE SUPERIOR COURT OF
SPAGNOLO, CO-ADMINISTRATORS OF                                PENNSYLVANIA
THE ESTATE OF LUIGI SPAGNOLO



                         v.

JOHN F. RAGANO, EXECUTOR OF THE
ESTATE OF CATALDO VASAPOLLI

IN RE: A.P.S. RECYCLING, INC.

APPEAL OF: JOHN F. RAGANO,
                                                           No. 1030 EDA 2014
EXECUTOR OF THE ESTATE OF CATALDO
VASAPOLLI AND A.P.S. RECYCLING, INC.



                Appeal from the Judgment Entered June 4, 2014
                In the Court of Common Pleas of Monroe County
                      Civil Division at No(s): 4294 CV 2010


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                                    FILED APRIL 30, 2015

        Appellant, John F. Ragano, executor of the Estate of Cataldo Vasapolli,

deceased, appeals from the June 4, 2014 judgment granting the petition

filed   by   Appellees,       Fabrizio   Spagnolo   and   Elisa   D.    Spagnolo,    co-

administrators      of    the    Estate    of   Luigi   Spagnolo,      deceased,    (Co-




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A30028-14



Administrators) for the involuntary dissolution of the deceased parties’

corporation, A.P.S. Recycling, Inc.1 After careful review, we affirm.

        A summary of the factual and procedural history of this case follows.

In June 2004, brothers-in-law Cataldo Vasapolli and Luigi Spagnolo entered

into an agreement regarding the purchase of certain real estate at 2 Katz

Road in the Borough of Stroudsburg, Monroe County, which was the site of a

scrap metal and recycling business.2             Specifically on June 29, 2004, the

subject property, including a bill of sale for personal property connected with

the recycling business and a junkyard-operating license, was sold by Unity

Bank to Spagnolo for a purchase price of $1,012,500.00. Vasapolli paid the

purchase price and closing costs.3 At the same time, Spagnolo executed a

promissory note and mortgage for the amount of the purchase price in favor

of Vasapolli. The note and mortgage contained no provision for interest or

periodic payment, the note being payable on demand. On or about July 19,

____________________________________________


1
  The judgment and the trial court’s January 28, 2014 order involve two
distinct matters that were tried together. Only paragraphs four and five of
the January 28, 2014 order and the portion of the June 4, 2014 judgment
referencing them are pertinent to this appeal.       We, therefore, treat
paragraphs four and five as a separate order and final judgment, which is
the subject of this appeal. See Moyer v. Gresh, 904 A.2d 958, 961 (Pa.
Super. 2006) (treating distinct matters contained in a single order as
separate orders).
2
 A dispute over the nature and extent of that agreement is at the heart of a
separate appeal at 1026 EDA 2014.
3
    The purchase price and closing costs totaled $1,036,283.10.



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2004, Attorney Joseph Wiesmeth, Esquire, incorporated A.P.S. Recycling,

Inc. as a Pennsylvania subchapter “S” corporation with Spagnolo and

Vasapolli each obtaining a 50% share.         The corporation was formed to

operate a recycling and scrap-yard business at the 2 Katz Road property,

with Spagnolo handling the management of the operations.

      By late 2005, an apparent dispute arose over the status of the real

estate. On October 31, 2008, Vasapolli filed a complaint against Spagnolo

alleging breach of an oral, or alternatively an implied, contract to convey the

2 Katz Road property. Spagnolo continued to manage the daily operation of

A.P.S. Recycling, Inc.     From 2004 to 2008, Spagnolo and Vasapolli

contributed capital to the corporation as reflected in shareholder loans

totaling $475,333.00.    By March of 2009, the business was in financial

distress. On March 3, 2009, Attorney Wiesmeth drafted a letter on behalf of

Spagnolo addressed to Appellant, as attorney for Vasapolli, outlining the

financial position of A.P.S. Recycling, Inc. and proposing remedial actions.

      On March 6, 2009, Vasapolli filed a praecipe for a lis pendens against

the real estate. On March 11, 2009, Spagnolo committed suicide. Vasapolli

died on June 9, 2009.     Estates were raised for both decedents and their

respective personal representatives, Appellant and Co-Administrators, were

substituted as parties in the October 31, 2008 action.

      Business   operations   of   A.P.S.   Recycling,   Inc.   ceased   following

Spagnolo’s death, when his heirs paid the employees and shuttered the

premises.     In December 2009, Appellant, on behalf of the estate of

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Vasapolli, resumed operation of A.P.S. Recycling, Inc. On May 7, 2010, Co-

Administrators filed an application to dissolve the A.P.S. Recycling, Inc.,

corporation.       Co-Administrators       averred   general   non-cooperation   by

Appellant regarding the business, including excluding them from its

operation and records. Appellant opposed dissolution, and in an answer and

new matter filed June 15, 2010, averred Vasapolli was the sole owner of all

shares in A.P.S. Recycling, Inc. at the time of his death by virtue of

Spagnolo’s March 3, 2009 letter wherein he purportedly “requested to be

relieved from his ownership in the business.” Appellant’s Answer and New

Matter, 6/15/10, at 6, ¶ 27.

       Trial on the matter was held on September 24-25, 2013. On January

28, 2014, the trial court determined, “A.P.S. Recycling, Inc. shall be

dissolved, and its assets liquidated to pay creditors and shareholders.” Trial

Court Opinion and Order, 1/28/14, at 27, ¶ 5. The trial court also directed

Appellant to prepare an accounting for the period commencing April 2009 to

the date of the order. Id. at 26, ¶ 4.

       On February 14, 2014, Appellant filed a post-trial motion, which the

trial court denied on March 3, 2014.4            Appellant filed a timely notice of

appeal on April 2, 2014.5

____________________________________________


4
  We note Appellant untimely filed his post-trial motion. Appellant asserted
the motion was timely pursuant to Pennsylvania Rule of Civil Procedure
227.1(c), providing, “[i]f a party has filed a timely post-trial motion, any
(Footnote Continued Next Page)


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      On appeal, Appellant raises the following issues for our review.

             [I.]      Whether the trial court erred by ordering the
                       dissolution and liquidation of A.P.S. Recycling,
                       Inc. when the Vasapolli Estate owned 100% of
                       the shares in the corporation by virtue of
                       Spagnolo’s intentional relinquishment of his
                       50% interest?

                       [A.]   Whether the trial court erred when it
                              held the March 3, 2009 letter constituted
                              a settlement offer as opposed to an
                              intentional relinquishment of Spagnolo’s
                              50% interest in A.P.S. Recycling, Inc.?

                       _______________________
(Footnote Continued)

other party may file a post-trial motion within ten days after the first post-
trial motion.” However, Co-Administrators did not file a post-trial motion in
the instant case. They filed a post-trial motion in the companion, but
distinct, case at 10539 CV 2008, which, although heard at the same time
and disposed of in a common order, was not consolidated with the instant
case. Thus, Co-Administrators’ post-trial motion did not provide Appellant
with additional time to file his post-trial motion in the instant case under
Pa.R.C.P. 227.1(c). However, Co-Administrators have not objected and the
trial court has addressed Appellant’s issues. See Trial Court Order, 6/4/14,
at 2 (finding on joint motion of the parties that all post-trial motions are
deemed timely).

             Whenever a party files post-trial motions at a time
             when the court has jurisdiction over the matter but
             outside the ten-day requirement of Pa.R.C.P. 227.1,
             the trial court’s decision to consider the motions
             should not be subject to review unless the opposing
             party objects.

Watkins v. Watkins, 775 A.2d 841, 845 n.1 (Pa. Super. 2001) (internal
quotation marks and citation omitted).
5
   Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In its May 8, 2014 Rule 1925(a) opinion, the trial
court referenced its January 28, 2014 opinion as containing the reasons for
its decisions.



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                     [B.]   Whether the trial court erred in limiting
                            the admissibility of the March 3, 2009
                            letter when it was neither a settlement
                            offer nor inadmissible hearsay?

              [II.] Whether the trial court erred when it held
                    Vasapolli did not accept the offer in the March
                    3, 2009 letter prior to Spagnolo’s death?

Appellant’s Brief at 4.

       We review a trial court’s determination of whether to order dissolution

of a for-profit corporation for an abuse of discretion.    Cerami v. Dignazio,

424 A.2d 881, 889 (Pa. Super. 1980) (citations omitted). “It is well-settled

that dissolution of a solvent corporation is a drastic measure to be invoked

only in extreme circumstances. In the absence of a clear abuse of discretion

or error of law, the chancellor’s decision will not be disturbed on appeal.”

Id. (citations omitted).6 Appellant’s first issue charges the trial court with

error for determining that Attorney Wiesmeth’s March 3, 2009 letter sent on

behalf of Spagnolo was an offer to settle. Appellant’s Brief at 12. Rather,

Appellant asserts the letter “was a unilateral transfer and/or relinquishment



____________________________________________


6
  Appellant challenges the trial court’s dissolution order based only on its
preliminary determination that the parties each retain a 50% share in A.P.S.
Recycling, Inc., in contrast with his position that Vasapolli was the sole
shareholder at the time of his death. Appellant does not alternatively claim
that dissolution is improper if the parties are ultimately deemed equal
shareholders. See generally 15 Pa.C.S.A. § 1981 (setting forth a trial
court’s authority to order involuntary dissolution of a corporation upon
application of a shareholder or director).



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J-A30028-14


by Spagnolo of his shares in [A.P.S. Recycling, Inc.].” Id. at 14. Relative to

this issue, the trial court determined as follows.

                  We find the letter from Attorney Wiesmeth was
            a proposal for settlement. … We also note that
            Attorney Wiesmeth’s letter included the language of
            other “remuneration” for Spagnolo’s time and
            investment that Vasapolli felt appropriate. This is an
            open term subject to different interpretation.
            Therefore, we find there was no offer and acceptance
            as to the transfer of Spagnolo’s shares in A.P.S. to
            Vasapolli and the respective Estates still maintain a
            50% interest each in the business.

Trial Court Opinion, 1/28/14, at 21-22.

      In reviewing the trial court’s legal conclusions regarding whether the

March 3, 2009 letter evidenced a relinquishment, an offer and acceptance,

or a mere proposal, we are guided by the following.

            Abandonment involves an intention to abandon,
            together with an act or omission to act by which
            such intention is apparently carried into effect. In
            determining whether one has abandoned his
            property or rights, the intention is the first and
            paramount object of inquiry, for there can be no
            abandonment without the intention to abandon. The
            intent to abandon is to be determined from all of the
            facts and circumstances of the case. The question of
            whether a particular act amounts to an abandonment
            is generally one of intention. When deciding whether
            an object has been abandoned, we must consider the
            nature of the property, the acts and conduct of the
            parties in relation thereto and the other surrounding
            circumstances.

J.W.S. Delavau, Inc. v. Eastern America Transport & Warehousing,

Inc., 810 A.2d 672, 684-685 (Pa. Super. 2002) (citations omitted), appeal

denied, 827 A.2d 430 (Pa. 2003).

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           [T]he question of whether an undisputed set of facts
           establishes a contract is a matter of law. It is also
           well settled that in order for an enforceable
           agreement to exist, there must be a “meeting of the
           minds,” whereby both parties mutually assent to the
           same thing, as evidenced by an offer and its
           acceptance. It is equally well established that an
           offer may be accepted by conduct and what the
           parties do pursuant to the offer is germane to show
           whether the offer is accepted. In cases involving
           contracts wholly or partially composed of oral
           communications, the precise content of which are
           not of record, courts must look to the surrounding
           circumstances and course of dealing between the
           parties in order to ascertain their intent. We must,
           therefore, look to the parties’ course of conduct to
           ascertain the presence of a contract.

Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 609 (Pa. Super.

2014) (citations omitted).

     We set forth Attorney Wiesmeth’s March 3, 2009 letter below in full.

           Dear Attorney Ragano:

                  I had a long meeting with Mr. Spagnolo
           recently whereat he explained the rather dire
           situation of the recycling facility (A.P.S.). In short,
           the company is in need of an immediate infusion of
           capital.

                 Currently, the company owns approximately
           $700,000.00 to $1,000,000.00 of heavy equipment.
           The financial balance is approximately $90,000.00.
           Due to the severe economic turndown coupled with
           the low prices for scrap, the loan is in default and the
           equipment is subject to repossession.

                 Mr. Spagnolo has never taken more than
           $200.00 per week in salary, despite working in
           excess of 40 hours per week. In addition, he has
           infused over $300,000.00 of his own money to date.
           He simply has no more available funds. In Mr.

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J-A30028-14


            Spagnolo’s estimate, it will take a capital injection of
            approximately $100,000.00 to weather the current
            financial storm, after[]which, both the property and
            the company should be sold. Without such a capital
            injection, the real property will most likely be sold
            and the equipment lost. Obviously, such a drastic
            result would benefit no one.

                  My client proposes to deed the property to Mr.
            Vasapolli, as well as all of the shares in A.P.S. in
            return for Mr. Vasapolli addressing the financial woes
            of the company. Mr. Spagnolo would be willing to
            stay on to manage the salvage operation until such
            time as the economy improves and the real property
            and company can be sold. At the sale, Mr. Spagnolo
            would accept whatever remuneration Mr. Vasapolli
            would be willing to give him in return for his personal
            investments of time and money over the past years.

                  It should also be noted that Mr. Spagnolo
            contacted the $3,000,000.00 purchaser that was
            rejected by Mr. Vasapolli last year. He made inquiry
            as to whether or not he was still interested. The
            response was negative.

                  Kindly review this offer with Mr. Vasapolli and
            advise of his position. Thank you.

N.T., 9/25/13, at 8, Appellant’s exhibit 18.

      We agree with the trial court that a plain reading of the letter belies

Appellant’s claim that it evidenced an abandonment by Spagnolo of his

shares in A.P.S. Recycling, Inc. in favor of Vasapolli. First, there is no “act

or omission to act by which such intention is apparently carried into effect.”

J.W.S. Delavau, Inc., supra.         Rather, the letter speaks to a future

proposed transfer of shares and property. Additionally, as noted by the trial

court, the proposal is conditional, calling for reciprocating action by



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J-A30028-14


Vasapolli, including sale of the business and property with reimbursement to

Spagnolo in an amount to be determined.            See N.T., 9/25/13, at 8,

Appellant’s exhibit 18.

      Appellant’s argument relies less on the terms of the letter than on the

circumstances surrounding the writing of the letter, i.e., the financial straits

of the business and Spagnolo’s subsequent suicide. Appellant’s Brief at 15.

“These findings demonstrate a course of conduct by the parties that

reinforces the argument that Spagnolo abandoned his interest in A.P.S.[

Recycling, Inc.]”   Id.   These conclusions require pure speculation.       The

reasons for Spagnolo’s suicide are not knowable from the evidence

presented, and we conclude the record supports the trial court’s finding, that

the intent to abandon is not apparent from the attendant circumstances.

Accordingly, we conclude the trial court did not err in its legal determination

that the March 3, 2009 letter and Spagnolo’s subsequent suicide did not

effect a relinquishment or abandonment by Spagnolo of his shares in A.P.S.

Recycling, Inc., but rather the letter was an offer to settle the parties

business relationship. See J.W.S. Delavau, Inc., supra.

      Appellant next argues the trial court erred in holding the letter was

inadmissible as an offer to settle under Pennsylvania Rule of Evidence

408(a).    Appellant’s Brief at 16.      Appellant does not challenge the

inadmissibility of an offer to settle but the treatment of the March 3, 2009

letter as an offer to settle. Id. “[T]he letter was not a "settlement offer"


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J-A30028-14


nor did it constitute inadmissible hearsay, and therefore the trial court

should not have found the letter inadmissible on those bases.” Id.

            The general rule is that an offer to compromise is not
            admissible in evidence at trial as an admission that
            what is offered is rightfully due or that liability exists.
            Our threshold inquiry, then, is whether the
            correspondence [] can be fairly characterized as
            relating to an offer of compromise. Although this
            Court has not, heretofore, defined an offer to
            compromise, it is generally defined as the settlement
            of differences by mutual concessions; an adjustment
            of conflicting claims.

Rochester Mach. Corp. v. Mulach Steel Corp., 449 A.2d 1366, 1368 (Pa.

1982) (citations omitted).      Appellant’s real claim, however, is not the

admissibility of the letter.   Rather, Appellant challenges the trial court’s

characterization of the letter, which we affirmed above, as well as the trial

court’s limitation of the relevance of the letter.       Appellant’s Brief at 16.

Appellant asserts the letter was not offered to prove or disprove a claim but

“to show why [] Ragano, as Executor of the Vasapolli Estate, undertook all

financial responsibility for A.P.S.[ Recycling, Inc.]” Id. at 17-18. Appellant

also claims the letter is admissible as a statement against interest under

Pa.R.E. 804(B)(3). The trial court explained at trial the purposes for which

the letter was admitted.

            [] I think there are some other issues raised in that
            letter that are admissible and relevant, and I’ll admit
            it only for those purposes; such as, the belief that
            there was a difficult economic time at the recycling
            center, also that both parties had, apparently, put
            money into the -- or at the very least, Mr. Spagnolo
            had put money into the business at that point in

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J-A30028-14


            time. Obviously, I’ve heard other testimony that so
            did Mr. Vasapolli. I will consider it for those other
            reasons, but not for any offer of compromise or
            settlement of the proceedings.

N.T., 9/25/13, at 6.

      Appellant’s attorney responded as follows.

            Your Honor, I appreciate the ruling. Just for the
            record, I just want to put on the record, it’s our
            position that we briefed this issue previously; that
            the letter is not an offer of settlement; and
            therefore, would not be admissible in that purpose.
            It’s, rather than an offer of settlement, a capitulation
            saying, Here’s my shares. Here’s the real estate. I
            can’t afford it anymore. I just wanted that noted on
            the record.

Id. at 7.

      Therefore, at trial Appellant did not provide an offer of proof seeking

admission on the specific grounds now espoused on appeal, and the trial

court never ruled on the same.      The issues are, therefore, not preserved.

See Pa.R.E.103 (requiring specific objection to admitted evidence or offer of

proof to refused evidence in order to preserve the issue on appeal).

Accordingly, we conclude Appellant’s first issue lacks merit.

      In his final issue, Appellant claims that if the March 3, 2009 letter is an

offer to settle, then the trial court erred in concluding Vasapolli did not

accept the offer through his subsequent conduct.       Appellant’s Brief at 19.

Specifically, Appellant claims the fact that the Vasapolli Estate bore all

expenses related to the continuing operation of A.P.S. Recycling, Inc.




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supports a conclusion Vasapolli accepted Spagnolo’s offer to transfer his

shares. Id. at 20; see Prieto Corp., supra.

      To the contrary, the trial court found as follows.

                   We do not find the offer was accepted. [] We
            also find that even if the letter was a bona fide offer
            to settle, Spagnolo died before the offer was
            accepted by Vasapolli. Furthermore, the Vasapolli
            Estate alleges that Vasapolli accepted the offer by
            immediately paying all of the expenses of A.P.S., and
            this conduct evidences acceptance.           However,
            whether this conduct was sufficient or not is
            irrelevant, as any such conduct was undertaken after
            Spagnolo died. We do not believe there can be
            acceptance of an offer made, after the person
            making the offer has died.

Trial Court Opinion, 1/28/14, at 22; see First Home Sav. Bank, FSB v.

Nernberg, 648 A.2d 9, 15 (Pa. Super. 1994) (citing Section 36 of the

Restatement (Second) of Contracts (1981) for the proposition that “[a]n

offeree’s power to accept is so terminated by: … death or incapacity of either

party), appeal denied, 657 A.2d 491 (Pa. 1995).

      Appellant claims the trial court’s own specific finding belies its

conclusion that Vasapolli did not act prior to Spagnolo’s death. Appellant’s

Brief at 20.   Specifically, Appellant cites the trial court’s finding of fact

number 55, which the trial court expressed as follows. “Following receipt of

the March 3, 2009 letter, Vasapolli, and subsequently Vasapolli’s Estate bore

all expenses related to the property as well as A.P.S. Recycling, Inc.” Trial

Court Opinion, 1/28/14, at 8. We disagree.




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      “When reviewing the findings of a court in equity, an appellate court’s

review is limited to a determination of whether the chancellor committed an

error of law or abused his discretion.    A final decree in equity will not be

disturbed unless it is unsupported by the evidence or demonstrably

capricious.” T.W. Phillips Gas and Oil Co. v. Jedlicka, 42 A.3d 261, 266–

267 (Pa. 2012) (internal quotation marks and citation omitted).       Here the

trial court’s finding that Vasapolli bore all expenses following the March, 3,

2009 letter, is not incompatible with its finding that he did not do so until

after Spagnolo’s March 11, 2009 suicide.      As the trial court’s findings are

supported by the record, we will not disturb them on appeal. See. Id. For

these reasons, Appellant’s second issue also fails.

      In sum, we discern no error in the trial court’s conclusion that the

March 3, 2009 letter from Attorney Wiesmeth on behalf of Spagnolo was not

a relinquishment of his shares in A.P.S. Recycling, Inc. We further discern

no abuse of discretion in the trial court’s evidentiary ruling pertaining to

limiting the admissibility of the letter and Appellant’s specific issues waived.

Finally, we discern no error or abuse of discretion in the trial court’s finding

that Vasapolli did not take sufficient action prior to Spagnolo’s suicide as

could constitute an acceptance of an offer to transfer the shares.

Accordingly, we affirm the portion of June 4, 2014 judgment pertaining to

paragraphs four and five of the trial court’s March 3, 2014 order.

      Judgment affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2015




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