J-A16030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM N. NOVAK AND STACY NOVAK,                    IN THE SUPERIOR COURT OF
HIS WIFE                                                   PENNSYLVANIA

                            Appellee

                       v.

MARY PAULINE NOVAK

                            Appellant                    No. 1521 WDA 2013


             Appeal from the Judgment Entered October 31, 2013
            In the Court of Common Pleas of Westmoreland County
                     Civil Division at No(s): 4095 of 2011


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 16, 2014

       Mary Pauline Novak (Novak) appeals from the judgment entered in

favor of William N. and Stacy Novak (Son)1 in the Court of Common Pleas of

Westmoreland County on October 31, 2013.2                 Judgment was entered

following a non-jury trial regarding a contract between Novak and Son,

requiring Novak to repay a loan.           In this timely appeal, Novak claims the

trial court erred in (1) rejecting the unequivocal and unambiguous testimony

____________________________________________


1
 For ease of reference, we will refer to William N. and Stacy Novak (son and
daughter-in-law) as Son.
2
  The appeal in this matter was filed on September 17, 2013, 44 days prior
to the entry of judgment. However, pursuant to Pa.R.A.P. 905(a)(5), we
accept the appeal as properly filed. See also America and Foreign Ins.
                                   , 948 A.2d 843 (Pa. Super. 2008),   ,2
A.3d 526 (Pa. 2010); Thomas v. Elash, 781 A.2d 170 (Pa. Super. 2001).
J-A16030-14




on the contract was a forgery, and (3) ascribing a lack of credibility to

certain statements made by Novak.           After a thorough review of the

submissions by the parties, the certified record, and relevant law, we affirm.

       We adopt the factual and procedural history of this matter is set forth

in the Decision and Order of May 21, 2013, at pages 1 through 10, authored

by the Honorable Gary P. Caruso, President Judge.

       At trial Novak produced the expert testimony of Michelle Dresbold, a

forensic handwriting analyst, who opined that the signature purporting to be



234.

       After considering all of the evidence presented, the trial court found in

favor of Son and ordered Novak to repay Son the amount of $34,450.31 and

additionally directed Novak to devise the property to Son upon her death,

further enjoining her from otherwise transferring or conveying the property

during her lifetime.

       The relevant standard of review of a court's decision in a non-
       jury trial is as follows:

          [We are] limited to a determination of whether the findings
          of the trial court are supported by competent evidence and
          whether the trial court committed error in the application
          of law. Findings of the trial judge in a non-jury case must
          be given the same weight and effect on appeal as a verdict
          of a jury and will not be disturbed on appeal absent error
          of law or abuse of discretion. When this Court reviews the
          findings of the trial judge, the evidence is viewed in the
          light most favorable to the victorious party below and all


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J-A16030-14


        evidence and proper inferences favorable to that party
        must be taken as true and all unfavorable inferences
        rejected.

     Croyle v. Dellape, 832 A.2d 466, 470 (Pa. Super. 2003) (citing
     Behar v. Frazier, 724 A.2d 943, 946 (Pa. Super. 1999)). The
     court's findings are especially binding on appeal, where they are
     based
     that the court abused its discretion or that the court's findings
     lack evidentiary support or that the court capriciously disbelieved
                     Fudula v. Keystone Wire & Iron Works, Inc.,
     283 Pa. Super. 502, 424 A.2d 921, 927 (1981).

        Judicial discretion requires action in conformity with law on
        facts and circumstances before the trial court after hearing
        and consideration. Consequently, the court abuses its
        discretion if, in resolving the issue for decision, it
        misapplies the law or exercises its discretion in a manner
        lacking reason.

     Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa. Super.

     court's findings are predicated on errors of law, we review the
     court's findings de novo. John B. Conomos, Inc. v. Sun Co.,
     Inc. (R & M), 831 A.2d 696, 704 (Pa. Super. 2003), appeal
     denied,     577    Pa.    697,    845    A.2d    818    (2004).

Hart v. Arnold, 884 A.2d 316, 330-31 (Pa. Super. 2005).

     Novak




the trial court erred in concluding the loan agreement was not forged.



evidence.    The weight assigned to expert testimony lies within the sole

province of the jury, and it is free to believe all, part or none of the

evidence.    Potochnick v. Perry, 861 A.2d 277, 286 (Pa. Super 2004)

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J-A16030-14



(citation omitted).3

forged.    Son presented no opposing expert testimony and Novak claims

                                                           pinion.   Therefore, she



       Initially, we note that the trial court based its determination that

Novak agreed to repay Son on other evidence and did not make a

determination regarding the authenticity of the signature.           However, the



opined the signature was forged.           She noted there were some similarities

between the contested signature and exemplars, but the significant

differences    outweighed the        similarities.   Nevertheless, Dresbold also

admitted that a true signature, found on a check that Novak admitted

writing, was also significantly different, thereby indicating Novak signed her

name in a variety of manners.           In addition, Son testified he witnessed his



of forgery. Therefore, there was an evidentiary basis for the trial court to

                                                                              ision



evidence, and not at all on the authenticity of the signed agreement. The


____________________________________________


3
 This rule applies generally to a fact-find
and determine the weight given to all witnesses, not just experts. Carroll v.
Avallone, 939 A.2d 872, 874 (Pa. 2007).



                                           -4-
J-A16030-14



trial court was presented with evidence of the history of payments by Novak,

the testimony of Pauline Howell (testifying Novak admitted owing Son the

money) and Attorney Duffy (testifying to the overall circumstances of the

transaction), and the debt incurred by Son to obtain the house payment, all

                                                                  the money from

Son was a loan, not a gift, and required repayment.             As noted, the trial

court, sitting as fact-finder, was entitled to believe all, some or none of



              s conclusion, there is no error to be ascribed.



finding the document was a forgery, was based entirely on the assertion that

                                                                  Because the trial

court did not err in that regard, this argument must fail. 4 Therefore, Novak

is not entitled to relief on these issues.

       In her final issue, Novak argues the trial court erred in determining

she was incredible based upon certain statements she made that were

otherwise contradicted by competent evidence. Specifically, the number of

times she visited the attorney, whether the attorney was present at the


____________________________________________


4

to the contract le
forged. Written document notwithstanding, the trial court found sufficient
evidence to explicitly determine that Novak and Son entered into a valid
agreement to repay Son.



                                           -5-
J-A16030-14



closing, and her failure to recall signing the deed or where she signed the

Will.

        As noted above, the fact-finder is free to believe all, some or none of a

                         Carroll v. Avallone, supra. However, Novak claims it

was incorrect to discredit her credibility as a whole when her failures to

recall certain facts were simply instances of the failing memory of a 73 year-

old woman.      See

inability to recall accurately salient facts, no matter the reason, is a central

aspect of credibility.    See Commonwealth v. Boich, 982 A.2d 102, 105

(Pa. Super. 2009) (inability to recall material facts affects credibility). The

determination that her testimony was incredible does not necessarily mean

that the trial court thought she fabricated her testimony.        If the details

surrounding her testimony were unreliable, either intentionally or by reason

of failing memory, the trial court was within its rights to discount that

testimony. Novak has not claimed, nor is there any indication that the trial

court based its determination of credibili

                  Carroll, supra. Accordingly, we find no abuse of discretion



        Judgment affirmed.




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J-A16030-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2014




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