J-A18014-17

                             2017 PA Super 390

IN RE: ESTATE OF PETER J. CARUSO, III,           IN THE SUPERIOR COURT OF
DECEASED                                               PENNSYLVANIA




APPEAL OF: GERALDINE CARUSO

                                                     No. 1711 WDA 2016


              Appeal from the Order Entered October 18, 2016
             In the Court of Common Pleas of Allegheny County
                   Orphans' Court at No(s): 3623 of 2015


BEFORE: BOWES, LAZARUS, AND OTT, JJ.

OPINION BY BOWES, J.:                          FILED DECEMBER 12, 2017

      Geraldine Caruso appeals from the October 18, 2016 order granting

summary judgment in favor of Sandra A. Caruso, the Executrix of the Estate

of Peter J. Caruso, III, (“Executrix”) in this equity action.   After thorough

review, we reverse the grant of summary judgment and remand for further

proceedings consistent with this opinion.

      Geraldine commenced this action against Executrix in the Court of

Common Pleas of Allegheny County.           In her complaint, she alleged the

following. Hays Land Company (“HLC”) was a general partnership formed on

or before December 12, 1983. The original partners were Mary Ann Caruso

and her sons, Peter J. Caruso, III, and John D. Caruso, Geraldine’s deceased

husband.    On December 31, 1997, Mary Ann sold her interest in the

Partnership to the remaining partners in equal shares, and Peter and John
J-A18014-17



operated it until John’s death in 2003. Geraldine pled that, thereafter, she

and Peter were general partners each owning a fifty percent interest in HLC.

      Peter died on May 18, 2015.      Geraldine averred that at the time of

Peter’s death, the 1983 Partnership Agreement was in full force and effect.

In accordance with the Agreement’s buy-sell provision governing dissolution

upon the death of a partner, Geraldine notified Executrix that she intended

to purchase Peter’s partnership interest.   That provision stated that, upon

dissolution due to the death of a partner, the “remaining Partner shall have

the obligation within ninety (90) days from the date of death of the

deceased Partner to purchase the interest of the deceased Partner in the

Partnership and to pay to the personal representative of such deceased

Partner the value thereof . . .” Complaint, at ¶20.

      Geraldine calculated that the sum of $117,762.50 was due for Peter’s

interest, and she tendered the first of nine payments towards the purchase

on August 12, 2015.      On that same date, counsel for Executrix advised

Geraldine’s counsel that the 1983 Partnership Agreement was not in effect at

Peter’s death, and returned the check. Geraldine pled that she was “ready,

willing, and able to purchase the partnership interest of Peter,” as required

under the terms of the Partnership Agreement, but that Executrix “has

refused, and continues to refuse to honor” the duty to sell. Id. at ¶¶ 34, 35.

Geraldine asked the court to order Executrix “to perform specifically the




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provisions of the Partnership Agreement as they relate to the sale and

purchase of the deceased Partner’s interest.” Id. at ¶ 36.

      At count II, Geraldine pled that Peter formed a limited liability

company known as Hays Land Company-Pittsburgh, LLC. Id. at ¶40.             On

or about April 30, 2015, without her knowledge, he executed a Joint Written

Consent of Partner and Member in Lieu of Meeting on behalf of the

Partnership, purporting to merge the Partnership with the newly-formed LLC.

She alleged that Peter did not have the authority under the law or the

Partnership Agreement to cause the merger, and she asked the court to

declare the merger null and void.   Id. at ¶¶49, 50, 51.

      Executrix filed an answer and new matter in which she averred that

the original partnership was dissolved upon the death of John D. Caruso, and

that Geraldine and Peter formed a new partnership that was not governed by

any agreement. Answer, ¶ 7. She alleged that the Partnership Agreement

and, specifically, the buy-sell provision, had no application to the second

partnership formed by Peter and Geraldine. Moreover, she pled that when

Peter merged the HLC partnership into the LLC on or about April 30, 2015,

Geraldine’s fifty percent interest in the partnership was exchanged for a fifty

percent interest in the LLC.    As a result of the merger, all assets of the

Partnership were held by the LLC as of Peter’s death. Finally, Executrix pled

that Peter was within his rights to execute the Joint Consent and to merge

the Partnership into the LLC.

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      Executrix filed a motion for summary judgment on September 1, 2016,

in which she asserted the Dead Man’s Act prevented Geraldine from offering

oral testimony regarding the nature of her agreement with Peter, and thus

effectively precluded Geraldine from proving her case.         Geraldine opposed

the motion, but the court granted summary judgment on October 17, 2016,

without a hearing. Geraldine timely appealed and raises two questions for

our review:

      I.      Did the trial court abuse its discretion and commit an error
              of law in granting the Estate’s motion for summary
              judgment when there was substantial evidence, including
              admissions by the Decedent, that the partnership
              agreement remained in full force and effect?

      II.     Did the trial court abuse its discretion and commit an error
              of law in deciding that one partner, having 50% ownership
              interest in the partnership, could make fundamental
              changes to the partnership unilaterally, without the other
              50% partner’s knowledge or consent?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      Summary judgment can be entered “only in those cases where the

record clearly demonstrates that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.”

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (quoting

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa.

2002). When the trial court considers such a motion, it must view “all facts

of record and all reasonable inferences therefrom in a light most favorable to

the non-moving party[,]” and “resolve all doubts as to the existence of a

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genuine issue of material fact against the moving party.” Id.        Summary

judgment is properly granted only “where the right to such judgment is clear

and free from all doubt.” Id.

      Our scope of review of an order “granting or denying summary

judgment is plenary, and our standard of review is clear: the trial court's

order will be reversed only where it is established that the court committed

an error of law or abused its discretion." Universal Health Services, Inc.

v. Pennsylvania Property and Casualty Insurance Guaranty Assoc.,

884 A.2d 889, 892 (Pa.Super. 2005) (citation omitted). “We examine the

record, which consists of all pleadings, as well as any depositions, answers

to interrogatories, admissions, affidavits, and expert reports, in a light most

favorable to the non-moving party, and we resolve all doubts as to the

existence of a genuine issue of material fact against the moving party.” LJL

Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009)

(citations omitted).

      Since the issue of whether there are genuine issues of material fact is

a question of law, our standard of review on that issue is de novo, and we

need not defer to the determination of the trial court in this regard. Id.

Furthermore, in resolving a question of law, we review the issue in the

context of the entire record.   Weaver v. Lancaster Newspapers, Inc.,

926 A.2d 899, 903 (Pa. 2007).




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       Certain principles regarding general partnerships inform our review.

Under the Uniform Partnership Act (“UPA”), whether a partnership exists

depends upon whether the parties intended to be parties.                No formal or

written agreement is required. Murphy v. Burke, 311 A.2d 904 (Pa. 1973).

A partnership may be found to exist by implication from the circumstances

and manner in which the business was conducted. DeMarchis v. D'Amico,

637 A.2d 1029 (Pa.Super. 1994). Furthermore, under Pennsylvania’s UPA, a

partnership was not a legal entity separate from its partners and had no

residence or domicile distinct from that of its partners. 1            “It is rather a

relation or status between two or more persons who unite their labor or

property to carry on a business for profit.” Svetik v. Svetik, 547 A.2d 794,

797-798, (Pa.Super. 1988) (quoting Tax Review Board of the City of

Philadelphia v. D.H. Shapiro Co., 185 A.2d 529, 533 (Pa. 1962)).

       Preliminarily, we note the following. There is no dispute that Geraldine

and Peter were partners in HLC at the time of the purported merger on or

about April 30, 2015.        Geraldine maintained that neither the UPA nor the

Partnership     Agreement      authorized      Peter’s   unilateral   merger   of   the

____________________________________________


1
  The Pennsylvania Uniform Partnership Act, 15 Pa.C.S. § 8301 et seq., was
in effect at all relevant times herein. The General Assembly subsequently
repealed the statute by Act 2014-172, effective July 1, 2015, known as the
Association Transactions Act, and the Associations Code, 2016, Nov. 21, P.L.
1328, No. 170, § 25, effective February 21, 2017. The Uniform Partnership
Act of 2016, is located at 15 Pa.C.S.§ 8411 et seq.



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Partnership into the LLC, and hence, the merger was null and void. The trial

court concluded that, since partners “have equal rights in the management

and conduct of the partnership business[,]” the Dead Man’s Act would bar

Geraldine from producing any evidence that Peter could not have legally

merged the partnership into the LLC unilaterally, and thus, summary

judgment was appropriate on this issue.      Since a finding that the merger

was valid would render moot Geraldine’s claim for specific performance, we

will address the merger issue first.

      The Dead Man's Statute is codified at 42 Pa.C.S. § 5930, and provides

in pertinent part:

      Except as otherwise provided in this subchapter, in any civil
      action or proceeding, where any party to a thing or contract in
      action is dead, or has been adjudged a lunatic and his right
      thereto or therein has passed, either by his own act or by the act
      of the law, to a party on the record who represents his interest
      in the subject in controversy, 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 or
      lunatic party, shall be a competent witness to any matter
      occurring before the death of said party or the adjudication of his
      lunacy unless the action or proceeding . . . [exceptions
      inapplicable herein].

42 Pa.C.S. § 5930.    This Court has stated that “The purpose of the dead

man's act is to prevent the injustice that would result from permitting a

surviving party to a transaction to testify favorably to himself and adversely

to the interest of the decedent when the representative of the decedent

would be hampered in attempting to refute the testimony by reason of the



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death of the decedent.” In re Estate of Petro, 694 A.2d 627, 632

Pa.Super. 1997); in accord In re Fiedler, 132 A.3d 1010, 1013 (Pa.Super.

2016) (“the law should not permit the surviving party to testify since he

could lie and attempt to testify favorably to himself and adversely to the

deceased party, knowing the other party is incapable of contradicting the

fallacious testimony.”).

       As Geraldine points out, Executrix admitted in her Answer and New

Matter that Peter acted unilaterally in merging the HLC partnership into the

LLC. According to Executrix, however, Peter’s April 30, 2015 merger of the

partnership into the LLC without Geraldine’s knowledge or consent was

authorized under §§ 83212 and 83313 of the UPA. Geraldine counters that

____________________________________________


2
  15 Pa.C.S. § 8321, entitled “Partner agent of partnership as to
partnership business,” provides:

       (a)    General rule.-Every partner is an agent of the partnership
              for the purpose of its business and the act of every
              partner, including the execution in the partnership name of
              any instrument, for apparently carrying on in the usual
              way the business of the partnership of which he is a
              member binds the partnership unless the partner so acting
              has in fact no authority to act for the partnership in the
              particular matter and the person with whom is dealing has
              knowledge of the fact that he has no such authority.
                    ....

       (b)    Limitations on authority of individual partners.-
              Unless authorized by the other partners or unless they
              have abandoned the business, one or more but less than
              all the partners have no authority to:
(Footnote Continued Next Page)


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J-A18014-17



Peter’s unilateral action without her knowledge and consent was not
                       _______________________
(Footnote Continued)


                       (1)   Assign the partnership property in trust
                             for creditors or on the promise of the
                             assignee to pay the debts of the
                             partnership.

                       (2)   Dispose of the goodwill of the business.

                       (3)    Do any other act which would make it
                             impossible to carry on the ordinary
                             business of a partnership.
                             ....

15 Pa.C.S. § 8321 (repealed).
3
 15 Pa.C.S. § 8331 (repealed by Act 2016-170, approved November
21, 2016, effective February 21, 2017), provides in pertinent part:

      (8) Any difference arising as to ordinary matters connected with
      the partnership business may be decided by a majority of the
      partners but no act in contravention of any agreement between
      the partners may be done rightfully without the consent of all
      the partners.

The subject matter of the former § 8331(8) is contained in § 8441(j) of the
new Associations Code, which provides: “A difference arising as to a matter
in the ordinary course of business of a partnership may be decided by a
majority of the partners. An act outside the ordinary course of business of a
partnership and an amendment to the partnership agreement may be
undertaken only with the affirmative vote or consent of all the partners.”
The 2016 Committee Comment to § 8441(j) explains that “the prior law
required majority consent for ordinary matters and unanimous consent for
amending the partnership agreement, but was silent regarding extraordinary
matters. This subsection requires unanimous consent for extraordinary
matters.”




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authorized under the UPA or the 1983 Partnership Agreement, and thus,

there was no merger. Hence, the Partnership was ongoing at Peter’s death.

She argues that restructuring the general partnership and transferring the

interests of the general partnership to an LLC is not conduct consistent with

mere “management and conduct of the partnership business,” which

partners have equal rights to do under § 8331 of the UPA. Rather, Geraldine

contends that Peter’s purported merger was not an act undertaken in the

ordinary course of business, and thus, it required the consent of all the

partners.    15 Pa.C.S. § 8331(8). She maintains that her testimony was

unnecessary to substantiate her claim for declaratory relief.

       We find that the validity of Peter’s purported merger of the Partnership

into the LLC did not hinge on Geraldine’s ability to testify. First, in order to

be entitled to summary judgment based on the merger, Executrix bore the

burden of proving that a merger took place.        The documents supplied by

Executrix fall short of conclusive proof that a merger was consummated on

or about April 30, 2015.4

       Second, whether a merger is an act contemplated within the term

“carrying on of the business of the partnership” is a question of law.       15
____________________________________________


4
  Executrix’s documentation of the alleged April 30, 2015 merger consisted
of merely a plan for merger and a docketing statement, neither of which
established that a merger was approved. Absent such evidence, Executrix is
not entitled to summary judgment on the issue of its validity.




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J-A18014-17



Pa.C.S. § 8321. The purported merger terminated the ordinary business of

the Partnership, an act that arguably would fall within the scope of actions

requiring the consent of all partners under § 8321(b). Nor do we agree with

the trial court that § 8331(5), which provides that “partners have equal

rights in the management and conduct of the partnership business,” permits

one partner to unilaterally merge the partnership into an LLC without the

consent of the other. In any event, there are numerous factual and legal

issues surrounding the validity of the purported merger herein, and

Executrix’s right to judgment as a matter of law is not “clear and free from

doubt.” LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647

(Pa. 2009).5 The trial court erred in utilizing the Dead Man’s Act to grant

summary judgment in favor of Executrix on the validity of the merger.

____________________________________________


5
  The parties assume that a general partnership could be merged into an LLC
in April 2015, a premise we find legally faulty. A general partnership formed
pursuant to the UPA was not an “entity,” but rather “an association of two or
more persons to carry on as co-owners a business for profit.” 15 Pa.C.S. §
8301(a). Recently, Act 2014-172, effective July 1, 2015, known as the
Association Transactions Act, defined an association as “A corporation, a
partnership, a limited liability company, a business trust or two or more
persons associated in a common enterprise or undertaking.” 15 Pa.C.S. §
102 Historical and Statutory Notes. The Act “integrat[ed] the law on
corporations and other associations by enacting provisions applicable to all
forms of associations and authorizing transactions involving any form of
association.” Sections 1 and 1.1 of 2014, Oct. 22, P.L. 2640, No. 172,
effective July 1, 2015.

Until the effective date of this legislation, which was after Peter’s death,
general partnerships were not “entities” that could be merged into other
(Footnote Continued Next Page)


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J-A18014-17



      Having concluded that it was error to grant summary judgment on the

merger issue, we turn now to Geraldine’s first issue regarding the propriety

of the trial court’s reliance upon the Dead Man’s Act to grant summary

judgment on her specific performance claim.         The court concluded that

Geraldine was incompetent to testify as to the nature of her partnership

agreement with Peter under the Dead Man’s Act, and that without her

testimony, she could not produce clear and convincing evidence that the

Partnership continued after John’s death and that the 1983 Partnership

Agreement’s buy-sell provisions governed.

      Geraldine counters that dissolution upon the death of a partner is not

automatic, and that there was no liquidation and buy-out when John died.

She points out that partners, or a deceased partner’s legal representative,

may agree not to dissolve a partnership upon the death of a partner.     13

Summ. Pa. Jur. 2d Business Relationships § 16:14 (2d ed.).         Geraldine

contends that she, as John’s legal representative, and Decedent agreed to

continue the Partnership pursuant to the Partnership Agreement. Geraldine

                       _______________________
(Footnote Continued)

entities. Under the new partnership laws, a partnership agreement cannot
vary statutory rules governing the right of a partner to approve a merger.
See 15 Pa.C.S. §8415 and provisions cited therein.

Since the purported merger of the HLC general partnership into the LLC
occurred on or about April 30, 2015, which pre-dated the effective date of
the legislation that would permit such a merger, it may have been null and
void for this reason as well.



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J-A18014-17



argues that the Dead Man’s Act only bars oral testimony about pre-death

events from a person adverse to the decedent.           While she may be

incompetent to testify regarding her agreement with Peter, Geraldine

contends that she is not precluded from offering testimony from non-

adverse witnesses.

     In addition, she relies upon In re Rider’s Estate, 409 A.2d 397, 400

(Pa. 1979), for the proposition that the Dead Man’s Act does not bar the

introduction of documents, and “[w]ritten testimony offered by an adverse

surviving party is not rendered incompetent by the” Act. See also Larkin

v. Metz, 580 A.2d 1150 (Pa.Super. 1990) (holding in dispute over existence

of contract involving a deceased party that the Dead Man’s Act did not bar

written evidence or preclude incompetent witness from testifying for purpose

of identifying documents).    Geraldine contends that she has produced

sufficient competent evidence to raise a genuine issue of material fact that

the 1983 Partnership Agreement governed her partnership with Peter.

     In support of her position that the original partnership continued,

Geraldine offered admissions in the pleadings from an equity case she filed

against Peter, HLC, and Peter J. Caruso & Sons, Inc. at No. G.D. 13-6302,

hereinafter the “prior case.” In that prior case, Geraldine pled that she and

Peter each owned fifty percent interest in the Hays Land Company

partnership.   Complaint, “Prior Case,” ¶¶ 6-9.   Peter Caruso admitted the

truth of this allegation in a verified answer. He also admitted that the Hays

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J-A18014-17



Land Company general partnership was formed on or before December 1983

and that “[t]he original general partners of Defendant Hays Land Company

were Mary Ann Caruso, Peter J. Caruso, III and John D. Caruso (Plaintiff

Geraldine Caruso’s deceased husband).” Id. at ¶¶ 16, 17. Appended to the

complaint in the prior case was the 1983 Partnership Agreement for Hays

Land Company, which Geraldine pled was controlling. Peter did not

specifically deny that the Agreement governed.           According to Geraldine, one

could reasonably infer from these admissions that the partnership of Peter

and Geraldine was the continuation of the original partnership governed by

the 1983 Partnership Agreement.6

       As additional evidence that the 1983 Partnership Agreement governed

their partnership, Geraldine pointed to the pattern of conduct.           Paragraph

three of the Agreement, “Term of Partnership,” provided that the Partnership

“shall continue until dissolved by mutual agreement of the parties or

terminated as herein provided.”                Partnership Agreement, at ¶3.    She

supplied financial documents of HLC that she maintains prove that the

____________________________________________


6
  In the prior case, Geraldine charged, inter alia, that Peter had excluded her
from meaningful involvement in the business of the Partnership, denied her
access to the books, and made substantial business decisions without
seeking her input or permission. Prior Case, Complaint at ¶¶ 34, 36, 38.
She sought a formal accounting and monetary damages, as well as
injunctive relief barring Peter from excluding her from meaningful
participation in the Partnership. The status of that litigation is not clear from
the record.



                                          - 14 -
J-A18014-17



process outlined in paragraph twelve of the Partnership Agreement for the

dissolution of the Partnership upon the death of a partner was not followed

when her late husband John died.     Thus, she contends, she is entitled to the

inference that the Partnership continued since it was not terminated upon

John’s death as provided in the Agreement.         At the very least, Geraldine

argues that the Partnership financial and business records were sufficient to

establish a genuine factual dispute as to whether the Partnership continued

after John’s death.

      Finally, Geraldine maintains that, even if HLC automatically dissolved

upon John’s death, the Partnership Agreement continued to govern the

partnership between herself and Peter.         She avers that the foregoing

documents and course of dealing reveal an intent on the part of Peter and

herself that the Partnership remain subject to the terms of the 1983

Partnership Agreement.

      Executrix   counters   that   continuation   of   the   business   was   not

conclusive of whether Peter intended to make Geraldine a partner in the

original partnership.   She contends that Geraldine and Peter formed a new

partnership that, in the absence of a new partnership agreement, was

governed by the UPA, not the 1983 Agreement. Under the UPA, Executrix

maintains that there was no mandatory buy-out provision such as the one

contained in the 1983 Agreement.




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J-A18014-17



       It is undisputed that the 1983 Partnership Agreement governed the

HLC partnership of John and Peter.             Although Executrix contends that the

Partnership dissolved as a matter of law upon John’s death, the language of

the Agreement suggests the contrary.               The Agreement provided that the

Partnership “shall continue until dissolved by mutual agreement of the

parties or terminated as herein provided.” Partnership Agreement, at ¶ 3.7

The financial documents do not reflect that there was a settlement or

liquidation of John’s interest as outlined in Paragraph fourteen of the

Partnership Agreement.

       Geraldine concedes that she is incompetent to offer testimony

regarding her agreement with Peter prior to his death.             However, she is

correct that non-party witnesses are permitted to offer testimony that would

shed light on the terms of the agreement. Although she did not supply

affidavits or deposition excerpts from those witnesses setting forth the




____________________________________________


7
  Paragraph eleven provided for withdrawal of a partner at the end of any
accounting period with notice. Paragraph twelve authorized the remaining
partners to continue the Partnership business by purchasing the interest of a
partner “[o]n dissolution of the Partnership by the withdrawal or other act of
a Partner.” Id. at ¶ 12. Paragraph thirteen set forth the manner in which
the purchase price of a withdrawing or terminated partner would be
calculated. Executrix relied solely on the death of John as the basis for
dissolution of the Partnership.




                                          - 16 -
J-A18014-17



substance of their anticipated testimony,8 she is not precluded from offering

non-adverse witnesses at trial.        The question is whether Geraldine, the non-

moving party, provided sufficient evidence not barred by the Dead Man’s

Act, to raise a genuine issue of material fact as to whether the 1983 General

Partnership continued after John’s death with Geraldine stepping into her

late husband’s shoes. We answer that question in the affirmative.

       We find support in the record for Geraldine’s contention that

dissolution of the Partnership was not automatic upon John’s death. The

Partnership was not terminated in accordance with the Agreement following

John’s death, i.e., there was no buy-out of John’s share that would have

been mandatory following dissolution due to death of a partner.       Partnership

Agreement, ¶14. Such a course of conduct is compelling evidence that the

parties intended to continue the partnership.

       This inference is bolstered by the tax returns from 1998 through 2014,

signed by Peter, that recite that HLC was formed in 1979, and reflect the
____________________________________________


8
  Although a motion for summary judgment is premature until the close of
discovery, it does not appear that the parties engaged in extensive
discovery. The absence of interrogatory answers and deposition testimony
herein is likely due to the fact that a decedent’s representative relying upon
the Dead Man’s Act waives the protection of the Act when he or she takes a
deposition or serves written interrogatories. See Olson v. North Am.
Indus. Supply, 658 A.2d 358, 364-65 (Pa.Super.1995); see also Estate
of Kofsky, 409 A.2d 1358 (Pa. 1979) (finding waiver where a claimant
proceeding against the decedent’s representative testifies as to facts
occurring after decedent’s death, and is cross-examined regarding matters
occurring during decedent’s lifetime).



                                          - 17 -
J-A18014-17



same employer identification number for HLC for more than three decades.

In addition, Peter’s admissions in the prior case that he and Geraldine were

partners in the Hays Land Company, a Pennsylvania General Partnership,

formed on or before December 12, 1983, which was the same partnership

formed by John, Peter, and Mary Ann, is powerful evidence that the original

partnership continued. While technically these are extra-judicial admissions,

rather than judicial admissions that would eliminate the need for proof of

these facts, they were unequivocal and made in circumstances where they

were legally binding. See Durkin v. Equine Clinics, Inc., 546 A.2d 665,

670 (Pa.Super. 1988) (explaining distinction between judicial admissions

that withdraw a fact from issue and “informal judicial admissions” consisting

of testimony by a party at a prior trial or deposition that may dispense with

the     need   for   proof   where   they     are   “unequivocal   and   clear”);

C.f. Intili v. Salak, 589 A.2d 761 (Pa.Super. 1991) (verified pleadings in a

prior action between the parties, which culminated in a decree or final

judgment, acted as res judicata or collateral estoppel in the subsequent

proceedings).

        In addition to finding that summary judgment was not proper on the

merger issue, we find that there was sufficient competent evidence that

Geraldine and Peter’s partnership was governed by the 1983 Partnership

Agreement at the time of his death to present a genuine issue of material

fact.   Peter’s admissions in the prior case, the tax returns, Schedule Ks,

                                     - 18 -
J-A18014-17



Peter’s representations in the merger plan, as well as Executrix’s admissions

herein, taken in the light most favorable to Geraldine, the non-moving party,

were   sufficient   without   Geraldine’s   testimony   to   withstand   summary

judgment. The trial court’s grant of summary judgment based on the Dead

Man’s Act was improper.

       Order reversed. Case remanded for further proceedings consistent

with this adjudication. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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