J-A06023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRANK A. BARONE                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellant

                    v.

GILMA POSADA BARONE A/K/A MARIA G.
BARONE, INDIVIDUALLY, AS OFFICER
AND SHAREHOLDER OF J.P. BARONE
PROPERTIES, INC., AS OFFICER AND
SHAREHOLDER OF BARONE
PROPERTIES, INC., AND AS OFFICER
AND SHAREHOLDER OF BARONE
PROPERTIES II, INC.

                                                       No. 1772 EDA 2014


              Appeal from the Judgment Entered August 6, 2014
               In the Court of Common Pleas of Wayne County
                      Civil Division at No(s): 394 of 2012


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                FILED MARCH 24, 2015

      Frank A. Barone appeals from the judgment entered on August 6,

2014, in the Wayne County Court of Common Pleas, in favor of Gilma

Posada   Barone   a/k/a    Maria   G.   Barone,   individually,   as   officer   and

shareholder of J.P. Barone Properties, Inc., and as officer and shareholder of

Barone Properties II, Inc. (collectively, “Gilma Barone”), following a non-jury

trial in this unjust enrichment action, commenced on May 29, 2012. For the

reasons below, we affirm on the basis of the trial court opinion.
J-A06023-15


       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. See Trial Court Opinion, 2/6/2014,

at 2-4. Therefore, we have no reason to restate them herein.

       Frank Barone presents the following two issues for our review:

             I. Did the lower court err and abuse its discretion when it
       ruled the Dead Man’s Act[1] precluded [Frank Barone’s]
       testimony regarding the existence of a partnership between
       [Frank Barone] and his late brother[, Joseph Barone
       (“Decedent”)]?

              II. Did the lower court err and abuse its discretion in
       ruling that [Gilma Barone] was not unjustly enriched by
       unlawfully terminating [Frank Barone] from the real estate
       business and refusing to pay [Frank Barone] his fair share of the
       profits[?]

Frank Barone’s Brief at 10 (some capitalization removed).

       After a thorough review of the record, the briefs of the parties, the

applicable law and standard of review,2 and the well-reasoned opinion of the


____________________________________________


1
    42 Pa.C.S. § 5930.
2
    We observe:

          Our appellate role in cases arising from non-jury trial
          verdicts is to determine whether the findings of the trial
          court are supported by competent evidence and whether
          the trial court committed error in any application of the
          law. The findings of fact of the trial judge must be given
          the same weight and effect on appeal as the verdict of a
          jury. We consider the evidence in a light most favorable to
          the verdict winner. We will reverse the trial court only if
          its findings of fact are not supported by competent
          evidence in the record or if its findings are premised on an
(Footnote Continued Next Page)


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J-A06023-15


Honorable Raymond L. Hamill, we conclude Frank Barone’s issues merit no

relief.     The trial court’s opinion comprehensively discusses and properly

disposes of the questions presented. See Trial Court Opinion, 2/6/2014, at

4-6 (finding: (1) the only evidence in this case that a partnership existed

between Frank Barone and his deceased brother, Joseph Barone (Decedent)

was the testimony of Frank Barone; (2) Frank Barone’s testimony is

precluded pursuant to the Dead Man’s Act because he was incompetent to

testify based on the fact that Decedent had an actual interest in the matter
                       _______________________
(Footnote Continued)

             error of law. However, as the issue … concerns a question
             of law, our scope of review is plenary.

          The trial court’s conclusions of law on appeal originating from a
          non-jury trial are not binding on an appellate court because it is
          the appellate court’s duty to determine if the trial court correctly
          applied the law to the facts of the case.

Atlantic LB, Inc. v. Vrbicek, 905 A.2d 552, 557-558 (Pa. Super. 2006)
(internal citations and quotation marks omitted). Moreover,

          our standard of review in assessing the trial court’s evidentiary
          rulings is extremely narrow. Such decisions are referred to the
          court’s discretion, and will not be disturbed absent both error
          and harm or prejudice to the complaining party. Potochnick v.
          Perry, 2004 PA Super 393, 861 A.2d 277, 282 (Pa. Super.
          2004). When legal issues such as the interpretation of a rule are
          concerned, “our standard of review is de novo and our scope of
          review is plenary.” Krebs v. United Refining Co. of Pa., 2006
          PA Super 31, 893 A.2d 776, 787 (Pa. Super. 2006). We further
          note that “[t]he object of all interpretation and construction of
          rules is to ascertain and effectuate the intention of the Supreme
          Court.” Pa.R.C.P. 127(a).

Kopytin v. Aschinger, 947 A.2d 739, 744 (Pa. Super. 2008), appeal
denied, 964 A.2d 2 (Pa. 2009).



                                            -3-
J-A06023-15


at issue, Frank Barone’s interest was adverse to Decedent’s interest, and the

right of Decedent passed to Gilma Barone as she succeeded to his interest in

accordance with his will; (3) Frank Barone did not fall within the “surviving

partner” exception to the Dead Man’s Act because as the alleged surviving

partner, Frank Barone, had an interest adverse to the other alleged partner,

Decedent; (4) Frank Barone failed to offer any competent testimony or

evidence that a partnership existed between himself and Decedent and

because there was no partnership, the property at issue could not be

considered partnership property; (5) Frank Barone did not provide the court

with any competent testimony or evidence that the property at issue was

purchased with funds other than those belonging solely to Decedent; and (6)

any alleged partnership that may or may not have existed between Gilma

Barone and Frank Barone was not relevant to this action because in order for

the property to have been considered partnership property, Frank Barone

needed to establish that a partnership existed between himself and

Decedent but the evidence at trial established that the property was

conveyed to Gilma Barone individually by Frank Barone as executor of the

Estate of Joseph Barone on March 31, 1995, and thereafter, she personally

paid the expenses and taxes with regard to the property.). Accordingly, we

affirm on the basis of the trial court’s opinion.

      Judgment affirmed.




                                      -4-
J-A06023-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




                          -5-
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       IN THE COURT OF COMMON PLEAS OF THE 22ND JUDICIAL DISTRICT
                   COMMONWEALTH OF PENNSYLVANIA
                          COUNTY OF WAYNE

FRANK A. BARONE,
               Plaintiff

VS.

GILMA POSADA BARONE alk/a MARIA :
G. BARONE, Individually, as Officer and
Shareholder of J,P. BARONE
PROPERTIES, INC., and as Officer and
Shareholder of BARONE PROPERTIES
II, Inc.,
                      Defendant                        NO.     394-2012-CIVIL


                                  OPINION and VERDICT


        Presently before the Court is Plaintiff Frank Barone's Civil Complaint asserting a

claim of unjust enrichment and requesting this Court impose a constructive trust or an

equitable lien on a piece of property. A non-jury trial was held on August 26, 2013 . At the

non-jury trial, the parties agreed to offer into evidence the deposition of Plaintiff Frank

Barone. Defendant was given until September 10,2013, to submit a Syllabus of Objections,

and Plaintiff was given until September 20, 2013 to respond to Defendanfs Syllabus. The

Court ruled upon the objections on November 26, 2013. Counsel stipulated to extend the

time for filing post-trial findings of fact and conclusions of law from December 16, 2013

until January 3,2014.

        After consideration of all the testimony and evidence, the Court issues the foHowing:



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                                                                      Circulated 02/27/2015 04:27 PM




                                FINDINGS OF FACT

1. Plaintiff, Frank A, Barone, is the brother of the deceased Joseph Barone.

2. Defendant, Gillha Posada Barone a/kIa Maria G. Barone, is the widow of Joseph

    Barone.

3. By deed dated December 4, 1985, and recorded in Wayne County Deed Book 436,

    page 182, Howard Bomze granted and conveyed approximately 400 acres of land

    (hereinafter "Subject Property") in Manchester Township, Wayne County,

   Pennsylvania, to Joseph P. Barone.

4. The Subject Property was deeded to Joseph Barone individually.

5. Joseph Barone died testate December 12, 1992.

6. Plaintiff Frank Barone was appointed and served as Executor of the Last Will and

   Testament of Joseph Barone's Estate in accordance with the Last Will and Testament

   of Joseph Barone, dated April 16, 1992.

7. The Last Will and Testatment of Joseph Barone provided that the executor, Plaintiff

   Frank Barone, "as soon as cash is available for the purpose, ... purchase an annuity

   for my brother, Frank Barone, which will pay him the sum of$50,000.00 per year for

   the rest of his life." The rest, residue, and remainder of the Estate of Joseph Barone

   was devised and bequeathed to his wife, Defendant Maria G. Barone.

8. At the time of his death, Joseph Barone owned 31 pieces ofreal property, including

   the Subject Property.




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9. By deed dated March 13, 1995, and recorded in Wayne County Record Book 1019,

    page 288, Plaintiff Frank: Barone acting as Executor, granted and conveyed the

    Subject Property to Defendant Mafia G. Barorie.

10. Additionally, two other pieces of real property in Joseph Barone's estate were

    granted and conveyed to Defendant Maria G. Barone, individually.

11. The remaining pieces of real property, the income producing properties~ in the Estate

   of Joseph Barone were conveyed to Barone Properties, Inc.

12. All conveyances were conducted by Plaintiff Frank Barone acing as the Executor of

   the Estate of Joseph Barone.

13. There is no evidence that Plaintiff Frank Barone objected to the conveyance of the

   Subject Property to Defendant Maria Barone individually.

14. The Subject Property has never been titled in the name or names of any of the

   corporations: J.P. Barone Properties, Inc., Barone Properties, Inc., and Barone

   Properties II, Inc.

IS. From the date of the conveyance to Defendant Maria G. Barone, all taxes and

   expenses for the Subj ect Property were paid by Defendant Maria G. Barone from her

   personal accounts and not from the corporation account.

16. Any income deriv.ed from the Subject Property has accrued to Maria G. Barone,

   personally.

17. On the same date that Plaintiff Frank Barone conveyed the income producing

   properties to Barone Properties, Inc., Plaintiff Frank Barone signed an employment


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        agreement to work as an employee for Barone Properties, Inc. (Plaintiffs Exhibit

        26).

    18. The only evidence as to Ii partnerShip existing between Plaintiff Frailk Barorie and

        the deceased Joseph Barone came from the testimony of Plaintiff Frank Barone.

    19. On January 4, 2012, Defendant Maria G. Barone terminated the employment of

        Plaintiff Frank Barone from Barone Properties~ Jnc.

    20. Barone Properties, Inc. had nothing to do with the Manchester Township, Wayne

        County, Pennsylvania property.

                                          DISCUSSION

        The burden of establishing that a partnership existed is on the party alleging a

partnership. Kirshon v. Friedman, 36 A,2d 647,650 (Pa. 1944). In this case, Plaintiff Frank

Barone has failed to meet that burden. The only evidence in this case that a partnership

existed between Plaintiff Frank Barone and the deceased Joseph Barone was the testimony

of Plaintiff Frank Barone. Plaintiff's testimony however must be excluded pursuant to the

Dead Man's Act (42 Pa.C.S. § 5930).

         The Dead Man's Act (or "Act") provides that when a "party to a thing or contract in

action is dead ... neither any surviving or remaining party to such thing or contract, nor any

other person whose interest shall be adverse to the said right of such deceased ... shall be a

competent witness to any matter occurring before the death of said party." 42 Pa.C.S. §

5930. The Act operates "to prevent the injustice that might flow from pennitting a

surviving, adverse party to give testimony that is favorable to himself and illlfavorable to the

decedeht'lfinteresr,-r.rlit which the decedent's representative is in rio position to rebut"
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Schroeder v. Jaquiss, 861 A.2d 885, 889 (pa. 2004)(citing In re Estate of Hall, 535 A.2d 47,

 53 (Pa. 1987). Three conditions must be met before a witness is disqualified: 1) the

deceased had an actual rignt or iriterest itithe matter at issue; 2) the interest of the witness is

adverse to the decedent; and, 3) the right of the deceased passed to a party of record who

represents the deceased's interest. In re Hendrickson's Estate, 130 A.2d 143, 146-47 (pa.

1957).

         Applying the three conditions to the testimony of Plaintiff clearly indicates that

Plaintiff Frank Barone is incompetent to testify as to the existence of a partnership between

Plaintiff Frank Barone and the deceased Joseph Barone. The deceased Joseph Barone

clearly had an actual interest in the matter at issue; Joseph Barone purchased and titled the

Subject Property in his name. The interest of Plaintiff Frank Barone is adverse to the

interest of the deceased Joseph Barone; Plaintiff Frank. Barone is attempting to have the

Subject Property placed in a constructive trust for his benefit. Finally, the right of the

deceased Joseph Barone passed to the Defendant Maria Barone as she succeeded to his

interest in accordance with Joseph Barone's Last Will and Testament. It is clear to this

Court that Plaintiff Frank Barone is incompetent to testify as to the existence of a

partnership between Plaintiff and the deceased Joseph Barone.

         At trial, Plaintiff alleged that he fell within the "surviving partner" exception to the

Act. Plaintiff, however, has misconstrued that exception. The exception provides that a

surviving partner is not excluded from testifying when the matter involves the surviving

partner and the other party on the record or when the matter involves a surviving partner and

a' pergon-ha:ving~tmlverseLCi th-e'-gUNivingpaftfier:            A2 ·Pa.c:S:-§J93D. Tf;l the
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instant case, the alleged surviving partner, Plaintiff Frank Barone, has an interest adverse to

the other alleged partner, Joseph Barone. As such, the Plaintiff does not fall within the

surviving partner exception.

        Plaintiff Frank Barone failed to offer any competent testimony or evidence that a

partnership existed between the Plaintiff and the deceased Joseph Barone. Because there

was no partnership between the Plaintiff and Joseph Barone, the Subject Property was not

partnership property. Furthermore, Plaintiff Frank Barone has not provided this Court ¥lith

any competent testimony or any evidence that the Subject Property was purchased with   I




funds other than those belonging solely to the deceased Joseph Barone.

       Any alleged partnership that mayor may not have existed between Defendant Maria

G. Barone and the Plaintiff is not relevant to tins action. In order for the Subject Property to

have been considered partnership property, Plaintiff Frank Barone needed to establish that a

partnership existed between Plaintiff Frank Barone and the deceased Joseph Barone. The

evidence at trial established that the Subject Property was conveyed to Defendant

individually. The Subject Property was never included in Defendant's corporations, nor did

any of the corporations pay for the expenses or taxes of the Subject Property.

       Based upon the foregoing findings of fact, this Court must find that Plaintiff Frank

Barone has failed to meet his burden of establishing that a partnership existed and that the

Subject Property was purchased with partnership funds. Accordingly, the Court enters the

following:




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                                         VERDICT

               AND NOW, to wit, this   -?--       day of February, 2014, after a non-jury trial,

this Court finds in 'FAVOR 'ofDefehdaht~ Gilma Posada Barone, aJkla -Marla G. Barone,

individually, as Officer and Shareholder of J.P. Barone Properties, as Officer and

Shareholder of Barone Properties, Inc., and as Officer and Shareholder of Barone Properties,

II, Inc., and AGAINST Plaintiff, Frank: A. Barone.




cc:    Howard M. Levinson, Esq.
       Mark Zimmer, Esq.
NH




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