Opinion
J-A05006-17 No. 1104 WDA 2016
03-14-2017
WADE M. POLITES, ADMINISTRATOR OF THE ESTATE OF TIMOTHY J. POLITES Appellee v. DAVID CONTORCHICK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment June 29, 2016
In the Court of Common Pleas of Cambria County
Civil Division at No(s): No. 2009-3148 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, David Contorchick, appeals from the judgment entered in the Cambria County Court of Common Pleas, in favor of Timothy J. Polites, now deceased, in the amount of $48,635.20, following a bench trial in this action for breach of a partnership agreement, conversion, and unjust enrichment. We affirm.
By order of this Court, on January 25, 2017, we granted the motion to substitute Wade M. Polites, Administrator of the Estate of Timothy J. Polites, as Appellee. --------
In its opinions, the trial court correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add only the following fact: the parties agreed to use December 31, 2006 as the date of the partnership dissolution, with the winding up of operations occurring in 2007. Procedurally, Appellant timely filed his notice of appeal on July 27, 2016. On August 1, 2016, the trial court ordered Appellant to file a Rule 1925(b) statement, which Appellant timely filed on August 17, 2016.
Appellant raises three issues for our review:
WHETHER THE TRIAL COURT ERRED BY ALLOWING APPELLEE'S ASSET VALUATIONS INTO EVIDENCE WHEN THE OUT OF COURT STATEMENTS WERE NOT SUPPORTED OR ANALYZED BY QUALIFIED VALUATION EXPERT?(Appellant's Brief at 4).
WHETHER THE TRIAL COURT'S VALUATION METHOD OF ASSETS WAS MADE IN ERROR AND IN CONTRAVENTION OF THE PARTIES' PARTNERSHIP AGREEMENT?
WHETHER THE [TRIAL] COURT COMMITTED SPECIFIC ACCOUNTING ERRORS IN ITS DECISION?
Preliminarily, we observe that appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Rosselli v. Rosselli , 750 A.2d 355 (Pa.Super. 2000), appeal denied, 564 Pa. 696, 764 A.2d 50 (2000) (citing Pa.R.A.P. 2101). See also Pa.R.A.P. 2114-2119 (addressing specific requirements of each subsection of brief on appeal). Regarding the argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.Pa.R.A.P. 2119(a). Importantly:
The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities. This Court will not consider the merits of an argument which fails to cite relevant case or statutory authority. Failure to cite relevant legal authority constitutes waiver of the claim on appeal.In re Estate of Whitley , 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied, 620 Pa. 724, 69 A.3d 603 (2013) (internal citations and quotation marks omitted). See also Lackner v. Glosser , 892 A.2d 21 (Pa.Super. 2006) (explaining appellant's arguments must adhere to rules of appellate procedure, and arguments which are not appropriately developed are waived on appeal; arguments not appropriately developed include those where party has failed to cite any authority in support of contention); Estate of Haiko v. McGinley , 799 A.2d 155 (Pa.Super. 2002) (stating rules of appellate procedure make clear appellant must support each question raised by discussion and analysis of pertinent authority; absent reasoned discussion of law in appellate brief, this Court's ability to provide appellate review is hampered, necessitating waiver of issue on appeal).
Instantly, Appellant failed to cite relevant legal authority to support any issue he raises on appeal. In addition, Appellant's third argument merely lists six alleged accounting errors in bullet point fashion, two of which are duplicative, but Appellant does not explain how the court erred in these regards. Appellant's failure to develop any of his claims on appeal precludes meaningful review and constitutes waiver of all issues on appeal. See Pa.R.A.P. 2119(a); Pa.R.A.P. 2101; Estate of Whitley , supra.
Moreover, even if Appellant had properly preserved his issues on appeal, his claims would merit no relief, and we would affirm based on the trial court opinion. ( See Trial Court Opinion, filed September 22, 2016, at 4-26) (finding: expert testimony was necessary for analysis of partnership financial records and certain aspects of asset valuation; Appellee's expert is licensed CPA and practicing since 1964; Appellee's expert was properly qualified to ascertain value of partnership assets as he has reasonable pretension to specialized knowledge of accounting and financial reports; Appellee's expert could rely on values Appellee provided regarding partnership tools/small equipment and heavy machinery because Appellee was partner and partnership's bookkeeper, so he had personal knowledge of cost of partnership assets and their relative worth; both parties offered proposed values to their respective experts; court did not accept either valuation as definitive, and instead averaged parties' proposed values to reach fair market value of tools/small equipment; regarding heavy machinery, Appellee was unable to have equipment appraised in 2007 because Appellant physically possessed machinery; Appellee testified that he used average value of actual sales of similar machinery sold on MachineryTrader.com to establish values; Appellee's expert testified Appellee's valuation method was reasonable similar to method expert employed using TopBid.com; Appellant's equipment appraiser testified that he also used MachineryTrader.com to obtain his values for heavy equipment, but he used wholesale values rather than actual sales data; Appellant's expert further testified that lay person could use MachineryTrader.com to obtain values for heavy equipment, but would lack his expertise in appraising equipment; in sum, Appellant's expert testimony established that source Appellee used was proper and lay person could read and interpret data; only dispute was application of fair market value versus wholesale value; Appellant violated fiduciary duty; he wrongfully dissolved partnership by transferring all partnership assets to his new enterprise, while avoiding payment to Appellee of his share due under partnership agreement and relevant law; plain language of partnership agreement, logic, and law of Commonwealth do not support Appellant's interpretation of agreement; court does not have to accept fire-sale or wholesale value of assets where higher value is available; Appellant's proposed asset values were below average sales price and gave Appellant windfall; Appellant's asset values also lacked credibility as he provided lowest possible valuation to reduce his liability to Appellee; Appellee testified that parties agreed partnership would pay Appellant's life insurance premiums in exchange for Ace making matching Simplified Employee Pension ("SEP") contributions for Appellee; partnership paid Appellant's life insurance premiums from 1994 to 2006, but made no matching payments to Appellee's SEP account; court found Appellee's testimony credible, and rejected Appellant's statements to contrary as incredible; court awarded Appellee credit equal to payments partnership made for Appellant's insurance premiums; court also found Appellee's testimony regarding intercompany debt more credible than Appellant's testimony; regarding court's decision to vacate its order imposing costs against Appellee because he failed to submit his expert report until five days before original trial date, hearing testimony showed Appellee's late filing was not dilatory, obdurate or vexatious, and amount sought for costs and fees was excessive under circumstances; additionally, court did not specify a date for Appellee's new expert report, so it would be improper to penalize him for filing expert's report "late" where there was no deadline to file it; no statute permits award of attorney's fees and costs under these circumstances). Accordingly, we affirm.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/14/2017
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