J-A12027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANNE B. COVALESKY A/K/A ANNE B.           : IN THE SUPERIOR COURT OF
KAVALIAUSKAS, INDIVIDUALLY AND            :      PENNSYLVANIA
AS EXECUTRIX OF THE ESTATE OF             :
SYLVESTER    COVALESKY    A/K/A           :
SYLVESTER E. KAVALIAUSKAS AND             :
BERNARD COVALESKY,                        :
                                          :
                    Appellee              :
                                          :
            v.                            :
                                          :
RUTH   COVALESKY          AND     PHILLIP :
COVALESKY,                                :
                                          :
                                          :
                    Appellants            : No. 340 MDA 2014

                 Appeal from the Order entered January 14, 2014,
                   Court of Common Pleas, Lackawanna County,
                        Civil Division at No. 60069 of 2003

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED JUNE 10, 2015

      Appellants, Ruth Covalesky (“Ruth”) and Phillip Covalesky (“Phillip”)

(collectively “Appellants”), appeal from the order entered on January 14,

2014 by the Court of Common Pleas of Lackawanna County. For the reasons

that follow, we affirm.

      We summarize the relevant facts and procedural history underlying

this appeal as follows.     Sylvester Covalesky (“Sylvester”) and his brother

Joseph Covalesky (“Joseph”) were the joint owners of approximately

$450,000 worth of U.S. Savings Bonds (“bonds”).        When Joseph died on

March 7, 2001, Sylvester became the sole owners of the bonds.        Prior to
J-A12027-15


Joseph’s death, Sylvester and Joseph’s sister, Anne Covalesky (“Anne”),

gave the bonds to Ruth, who was Sylvester’s, Anne’s, and Joseph’s sister-in-

law,1 for safekeeping. At that time, Joseph was in the hospital, Anne was

having surgery and would likewise be in the hospital, and Sylvester’s health

was deteriorating following his diagnosis with Parkinson’s disease.        The

bonds remained in Ruth’s possession after Joseph’s death.

     At some point in 2001, Sylvester executed a durable power of attorney

appointing Anne as his attorney-in-fact and Ruth as Anne’s secondary

successor.   Ruth was to serve as Sylvester’s attorney-in-fact only if Anne

was no longer competent to serve in that capacity. On August 7, 2003, after

Ruth had taken Sylvester to the hospital, Ruth cashed Sylvester’s bonds and

deposited the money in a joint account in her and Sylvester’s name, despite

Anne being competent to serve as Sylvester’s attorney-in-fact at that time.

     On August 21, 2003, Sylvester executed a will bequeathing his entire

estate to Anne, and in the event she pre-deceased him, to his nephew,

Bernard Covalesky, Jr. (“Bernard”), Anne’s son. In that will, Sylvester also

named Anne the executor of his estate.

     In   late   August   2003,   Attorney   Douglas   P.   Thomas   (“Attorney

Thomas”), Anne’s lawyer, learned from PNC Bank that Ruth had liquidated

Sylvester’s bonds and deposited the proceeds in Ruth and Sylvester’s joint



1
   Ruth was the wife of Victor Covalesky (“Victor”).        Victor predeceased
Sylvester, Anne, and Joseph.


                                     -2-
J-A12027-15


bank account. Anne was able to recover all of the roughly $450,000 worth

of liquidated bond money and placed it into a bank account in her name.

Anne testified that she spent all of the bond money, though it is unknown

exactly how she spent it. N.T., 6/19/12, at 97.

      Because Ruth liquidated the bonds in 2003, Sylvester incurred

approximately $320,480 worth of taxable income from the redeemed bonds,

resulting in an $89,691 tax liability on his 2003 tax return.       See N.T.,

6/20/12, at 254; Plaintiff’s Exhibit 6.    Both parties agreed that the tax

liability that resulted from Ruth’s liquidation of the bonds was $89,691. See

N.T., 6/20/12, at 254-55.

      Sylvester and Anne filed a complaint against Ruth and Phillip, Ruth’s

son, on October 15, 2003.      Sylvester subsequently died on October 30,

2003. On January 7, 2005, Anne amended the complaint to add herself as

the executor of Sylvester’s estate and to add Bernard as a party to the suit.

In the complaint, Anne and Bernard sought, inter alia, damages for the tax

liability Sylvester incurred resulting from Ruth liquidating his bonds.     On

June 19 and 20, 2012, the trial court held a nonjury trial on the case.

Following trial, but prior to the trial court’s decision, Anne died on December

28, 2012. On September 6, 2013, the trial court issued a nonjury decision

pursuant to Rule 1038 of the Pennsylvania Rules of Civil Procedure finding,

inter alia, that Ruth illegally and improperly liquidated Sylvester’s bonds

because Ruth had no power to act as Sylvester’s power of attorney so long



                                     -3-
J-A12027-15


as Anne was competent to do so. Nonjury Decision, 9/6/13, at 22-24. The

trial court further found that because of Ruth’s conversion of the bonds,

Sylvester incurred an $89,691 tax liability, which the court ordered

Appellants to return to Sylvester’s estate. Id. at 24, 26.

      On September 12, 2013, Appellants timely filed post-trial motions

pursuant to Rule 227.1 of the Pennsylvania Rules of Civil Procedure. In their

post-trial motions, Appellants argued that the trial court erred in determining

the amount of damages that they owed Sylvester’s estate stemming from

the liquidation of his bonds and the resulting tax liability. See Defendant’s

Motion for Post-Trial Relief, 9/12/13, ¶¶ 36-50; N.T., 12/10/13, at 5.      On

January 10, 2014, the trial court denied Appellants’ post-trial motions. On

February 6, 2014, Appellants filed a timely notice of appeal.

      On appeal, Appellants raise the following four issues for our review and

determination:

            1. Whether the trial court committed an error of law
            and/or abuse of discretion by disregarding all of the
            expert’s testimony regarding tax liability related to
            the income from the bonds, including, but not limited
            to that based upon the trial court’s hypothetical
            question, when the expert’s testimony was the only
            testimony or evidence presented regarding income
            taxes associated with liquidating bonds.

            2. Whether the trial court committed an error of law
            and/or abuse of discretion by requiring Appellant[s]
            to return the entire $89,691.00 in tax loss for the
            income from the bonds to the Appellee[s] when
            [Anne] actually received and spent all bond income.




                                     -4-
J-A12027-15


              3. Whether the trial court committed an error of law
              and/or an abuse of discretion when it applied the
              increased risk of harm standard in an equity action
              where negligence was not claimed or established.

              4. Whether the trial court committed an error of law
              and/or an abuse of discretion when it applied the
              unclean hands doctrine to the Appellants in this case
              and basing its decision requiring Appellant to
              reimburse the entire $89,691.00 tax loss, at least in
              part, on the misapplied doctrine.

Appellants’ Brief at 4.2

       We begin by acknowledging our standard of review for a nonjury

proceeding:

              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 fact[-]finder. 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.




2
    We reordered the issues Appellants raise on appeal for ease of review.


                                      -5-
J-A12027-15


Agostinelli v. Edwards, 98 A.3d 695, 704 (Pa. Super. 2014) (quoting

Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super.

2012)).

     For their first issue on appeal, Appellants argue that the trial court

erred by disregarding the expert testimony of Paul Murphy (“Murphy”), a

certified public accountant, regarding the tax liability associated with the

liquidation of U.S. Savings Bonds.   Id. at 11-18.   Murphy testified that if

Ruth had not cashed the bonds in August 2003 and they had remained in

Sylvester’s estate when he died two months later in October 2003, there

would have been two tax options.      N.T., 6/20/12, at 240-41.     The first

option would have been for Sylvester’s estate to report the income upon

redeeming the bonds and to pay the resulting tax. Id. The second option,

and the one most people choose, would have been to pass the bonds along

to Anne, the beneficiary of Sylvester’s estate, have her cash the bonds, and

then she would have to report the income on her individual tax return and

pay the tax. Id. at 241. Murphy stated that the second option creates the

lesser tax burden because when the estate redeems the bonds and pays tax

on them, that income is taxed in the highest tax bracket when the estate

has $9,350.00 or more in income for the year. Id. at 241-42, 251. When

the beneficiary redeems the bonds and pays the resulting tax liability, the

income is taxed in the beneficiary’s tax bracket, and an individual does not




                                     -6-
J-A12027-15


fall within the highest tax bracket until that person’s income reaches

$311,950 for the year. Id.

     Murphy further testified, through a hypothetical question asked by the

trial court, that if the bonds had not all been cashed in one year, the tax

consequences would have been different.        See id. at 248-49.      The

hypothetical questioning was as follows:

           Q. Assume for purposes of discussion, I am going to
           give you a hypothetical, you have so many variables,
           to be honest with you, I am going to be the fact
           finder in this case and your testimony is not helping
           me.

           A. Okay.

           Q. So I am going to try to ask you a [hypothetical]
           and it may help.

           A. Sure.

           Q. Let’s assume, for purposes of my [hypothetical],
           that these bonds were not liquidated in August of the
           year of Sylvester’s death 2003 when he died in
           October of 2003.

           So let’s assume that he dies in October and these
           bonds are as they originally were; could you have
           cashed half in 2003 and half in 2004 because the
           estate could be open for the calendar years, kept
           yourself below the [$311,000] [sic] made the pass
           through more tax advantageous to the recipients?

           A. That’s correct.

Id. at 248-49.




                                    -7-
J-A12027-15


     Based on the hypothetical question posed by the trial court, Murphy

stated that the tax loss, assuming Anne fell in the same tax bracket as

Sylvester, would have been less than the $89,691 Sylvester actually paid if

Anne, as Sylvester’s beneficiary, had been able to cash the bonds over a

two-year period following Sylvester’s death.   See id. at 249-60.    Murphy

estimated the tax liability in that scenario to be $78,562, which was an

$11,135 difference between what Sylvester actually paid as a result of Ruth

improperly redeeming the bonds in August 2003 ($89,691) and what would

have been paid if the bonds if Anne had been able to cash them over a two-

year period following Sylvester’s death. See id. at 259-60.

     Because Sylvester died only two months after Ruth improperly

redeemed his bonds, Appellants argue that they should only have to pay the

difference between the $89,691 Sylvester actually owed and the amount

Anne would have paid in taxes, assuming she would have redeemed the

bonds over a two-year period following Sylvester’s death. See Appellants’

Brief at 11-18.   Because Anne’s income from 2003 is unknown, and as a

result, so is her tax bracket, Appellants ask us to vacate the portion of the

trial court’s order requiring Appellants to return all of the $89,691 and

remand the matter to the trial court to determine the actual income tax

Anne would have incurred if she had redeemed the bonds over the course of

a two-year period following Sylvester’s death. See id. at 13-14.




                                    -8-
J-A12027-15


        The trial court found not credible the conclusion reached by Murphy as

to how Sylvester’s bonds would have been taxed if they had been redeemed

following his death.    Final Decision and Order on All Motions for Post-Trial

Relief, 1/14/14, at 10-11. The trial court explained:

             [The] expert testimony by CPA Murphy is factually
             inadequate because his testimonial assumptions are
             unsupported by the evidence presented and found to
             be credible. Mr. Murphy speculated that either the
             estate or the beneficiary in receipt of the bonds
             would ultimately have had to pay taxes.           He
             speculated that the flow through method directly to
             the beneficiary would be most economical but we are
             without guidance as to what that ultimate beneficiary
             tax bracket actually was.       There is simply no
             evidence of record of the recipient’s tax bracket nor
             is there evidence of whether that receipt did take
             place over one year or two.

Id. We agree.

        “It is beyond argument that the fact-finder is free to accept or reject

the credibility of both expert and lay witnesses, and to believe all, part or

none of the evidence.”        Brown v. Trinidad, 111 A.3d 765, 771-72

(Pa. Super. 2015).     Regarding expert testimony, our Supreme Court has

held:

             An expert cannot base his opinion upon facts which
             are not warranted by the record. No matter how
             skilled or experienced the witness may be, he will
             not be permitted to guess or to state a judgment
             based on mere conjecture. … To endow opinion
             evidence with probative value it must be based on
             facts proven or assumed, sufficient to enable the
             expert to form an intelligent opinion. The opinion
             must be an intelligent and reasonable conclusion,



                                      -9-
J-A12027-15


           based on a given state of facts, and be such as
           reason and experience have shown to be a probable
           resulting consequence of the facts proved. The basis
           of the conclusion cannot be deduced or inferred from
           the conclusion itself. In other words, the opinion of
           the expert does not constitute proof of the existence
           of the facts necessary to support the opinion.

Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968) (quotations and citations

omitted). Thus,

           expert testimony is incompetent if it lacks an
           adequate basis in fact. See Viener v. Jacobs, 834
           A.2d 546, 558 (Pa. Super. 2003). “While an expert’s
           opinion need not be based on absolute certainty, an
           opinion based on mere possibilities is not competent
           evidence. This means that expert testimony cannot
           be based solely upon conjecture or surmise.” Id.
           Rather, “[an expert’s] assumptions must be based
           upon such facts as the [factfinder] would be
           warranted in finding from the evidence.” Id.

Helpin v. Trustees of Univ. of Pennsylvania, 969 A.2d 601, 617 (Pa.

Super. 2009), aff’d, 10 A.3d 267 (Pa. 2010).

     The trial court committed no abuse of discretion in determining that

the conclusion Murphy reached through responding to the trial court’s

hypothetical was speculative and unsupported by the record.        Murphy’s

conclusion was reliant on the assumption that Anne, once she received

Sylvester’s bonds as his beneficiary, would have redeemed Sylvester’s bonds

in two equal amounts in 2003 and 2004.3        Murphy’s conclusion did not



3
    Appellants make a bald assertion that Sylvester’s bonds were non-
transferable and that his estate would have had to redeem the bonds to pass
the money to Anne. See Appellants’ Brief at 7. This argument is waived as


                                   - 10 -
J-A12027-15


account for any of the other different scenarios in which Anne may have

ultimately chosen to redeem the bonds.         During his testimony, Murphy

acknowledged that rather than immediately redeeming the bonds, Anne

could have chosen to redeem the bonds incrementally. See N.T., 6/20/12,

at 246.     For example, Murphy conceded that Anne could have liquidated

$50,000 in 2003, $50,000 in 2004, and $50,000 in 2005, etc., or in any

other increments over the course of the rest of her life. See id. at 246-48.

Additionally, Murphy admitted that the tax consequences of incrementally

redeeming the bonds would have been entirely different from the $78,562

figure he adduced in response to the trial court’s hypothetical and that he

could    not   determine   what   those   amounts   would   be   without   more

information. Id. at 246-47.

        Moreover, there is no evidence of Anne’s income for 2003 and 2004

and thus, there is no evidence as to what her tax bracket was for 2003 and

2004.     Id. at 249.   Based on our review of the record, Murphy based his

conclusion on the assumption that Anne, like Sylvester, had little to no

income in 2003. See id. Consequently, there is no record support for the

$78,562 figure Murphy came up with in response to the trial court’s

hypothetical.




Appellants did to raise the argument before the trial court. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”)


                                     - 11 -
J-A12027-15


         Murphy’s testimony with regard to what was, in his opinion, the most

tax efficient way to immediately redeem Sylvester’s bonds was speculative

and did not account for the many ways in which Sylvester or Anne could

have redeemed the bonds had Ruth not improperly done so. Thus, we can

find no error in the trial court’s decision not to rely on Murphy’s conclusion

on this issue. Therefore, Appellants are not entitled to relief for their first

issue.

         For their second issue on appeal, Appellants argue that the trial court

erred in ordering Appellants to reimburse Sylvester’s estate for the total tax

liability Sylvester incurred resulting from Ruth’s improper liquidation of

Sylvester’s bonds when Anne was able to recover all of the approximately

$450,000 that Ruth liquidated.      Appellants’ Brief at 13.   Appellants assert

that requiring them to pay all of the income tax when Anne recovered all of

the money was “manifestly unreasonably and has no basis in the law.” Id.

Appellants complain that the trial court’s decision gave Anne a windfall

because she did not have to pay any tax on the redeemed bond money. Id.

         The trial court found that Ruth had converted Sylvester’s bonds and

consequently, ordered Appellants to reimburse the $89,691 tax loss that

Sylvester incurred due to Ruth converted the bonds. See Nonjury Decision,

9/6/13, at 23-24.      Regarding the tort of conversion, this Court has stated

the following: “The classic definition of conversion under Pennsylvania law is

‘the deprivation of another’s right of property in, or use or possession of, a



                                      - 12 -
J-A12027-15


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)). Appellants’ do not contest the trial court’s determination that Ruth

converted Sylvester’s bond’s and therefore, we find no error with the trial

court’s decision to order Appellants to pay the damages Sylvester incurred

from the conversion, i.e., the $89,691 tax liability.

      Additionally, Appellants’ argument that the trial court’s decision

allowed Anne to take the bond money tax-free is unavailing.          There is no

support in the record for Appellants’ argument that Anne received the

approximately $450,000 worth of Sylvester’s redeemed bond money tax-

free. Anne did admit to recovering the liquidated bond money and putting it

in an account in her name around October 2003. See N.T., 6/19/12, at 97;

Defendant’s Exhibit 17. The record indicates, however, that Anne wrote a

check for $80,000 towards paying the $89,691 tax liability stemming from

Ruth’s liquidation of Sylvester’s bond funds. Plaintiff’s Exhibit 7. 4 Therefore,

Appellants’ argument that Anne received Sylvester’s redeemed bond money

tax-free is not supported by the record.


4
  Sylvester’s estate filed an extension for his 2003 tax return and along with
the filing was a check, written by Anne, for $80,000, which was the amount
estimated at that time for Sylvester’s 2003 tax liability. See Plaintiff’s
Exhibit 7. The record does not contain any evidence of how the remaining
$9,691 worth of tax liability was paid.


                                      - 13 -
J-A12027-15


      Based on our conclusion that the trial court did not err in ordering Ruth

to reimburse Sylvester’s $89,691 tax liability because Ruth caused the tax

liability by converting Sylvester’s bonds, we do not need to address

Appellants third and fourth issues on appeal, which argue that the trial court

erred in applying the increased risk of harm standard and doctrine of

unclean hands to support ordering Appellants to pay the tax liability. As the

trial court did not err by requiring Appellants to pay the $89,691 tax liability

incurred when Ruth improperly redeemed Sylvester’s bonds, we have no

basis on which to afford Appellants any relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015




                                     - 14 -
