Estate of: John Leslie Rupert

J-S40015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF: JOHN LESLIE RUPERT, IN THE SUPERIOR COURT OF A/K/A JOHN L. RUPERT, LATE OF PENNSYLVANIA PENNSBURY, DECEASED

APPEAL OF: BRYAN J. BOARDMAN

No. 2924 EDA 2015

Appeal from the Order June 25, 2015 In the Court of Common Pleas of Chester County Orphans' Court at No(s): 1513-0131

BEFORE: BOWES, MUNDY AND MUSMANNO, JJ. MEMORANDUM BY BOWES, J.: FILED AUGUST 18, 2016

On appeal, Bryan J. Boardman challenges the propriety of the orphans’ court’s denial of a claim that he made against the Estate of John Leslie Rupert. We affirm.

On January 11, 2013, John Leslie Rupert died testate. On January 23, 2013, the Register of Wills of Chester County probated his last will and testament and issued letters testamentary to C. Barry Buckley. At the time of his death, Mr. Rupert owned a one-half interest in property located at 137 McFadden Road, Pennsbury Township, Chadds Ford (“the real estate”). Appellant possessed an option to purchase the decedent’s one-half interest in the real estate, and it had to be exercised within six months of Mr.

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Rupert’s death. After the six-month period expired, and the option was not exercised, Mr. Buckley deeded Mr. Rupert’s interest in the real estate to the beneficiaries under the will.

Appellant, who has proceeded pro se throughout these proceedings, thereafter filed a claim against the estate, petitioning for payment of $217,572.89. His claim encompassed these four positions: 1) Appellant was the sole owner of the real estate; 2) the estate was liable to Appellant for rental paid to Mr. Rupert by two people who had trailers on the property as well as for rental that Mr. Rupert owed Appellant based upon the fact that Mr. Rupert alone occupied the real estate while he lived; 3) the estate was liable to Appellant for waste occasioned by Mr. Rupert’s use of the real estate; and 4) Appellant owned all of the personal property of decedent by virtue of an agreement of sale executed by Mr. Rupert. After a hearing, the claim was denied in its entirety.

Mr. Buckley filed an account, and Appellant filed exceptions. After those exceptions were denied, Appellant filed the present appeal wherein he raises these issues:

1. Did the Orphans’ Court commit an error of law or otherwise abuse its discretion when it found, at the time of Property purchase, Mr. (“Boardman”) and Mr. (“Rupert”) held equal shares in the Property and that after Rupert’s demise, Boardman and the Rupert Estate held the same equal shares in the Property and that the Deed’s reddendum clause granting Rupert a life estate, transferred “very little” or zero Property ownership interest to Rupert and that “the Executor properly distributed Mr. Rupert's share to his testamentary beneficiaries.”

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2. Did the Orphans’ Court commit an error of law or otherwise abuse its discretion when it found Mr. Rupert was not the tenant in possession of the Property even though the Deed states “Under and subject to the right of John L. Rupert to live in the property for the term of his natural life” and the Agreement of Sale (“AOS”) states “JOHN L. RUPERT SHALL ENJOY LIFE RIGHTS TO THE PROPERTY.”

3. Did the Orphans’ Court commit an error of law or otherwise abuse its discretion when it found any waste of the real Property during occupation and use by deceased Rupert did not incur liability against Rupert and that if any waste did occur then Boardman is as liable as Rupert.

4. Did the Orphans’ Court commit an error of law or otherwise abuse its discretion when it found Rupert’s personal property was not included in the sale of the property even though the AOS specifically states all personal property of deceased Rupert was included in the sale. The Orphans’ Court found the only personal property included in the sale was valueless items scattered about the property.

5. Did the Orphans’ Court commit an error of law or otherwise abuse its discretion when it found the Dead Man’s Statute applies to Mr. Boardman’s testimony and therefore Appellant’s relevant testimony should be ignored but then relies on testimony of Appellant concerning matters between the Appellant and the deceased Mr. Rupert, to form conclusions, for example, to conclude Mr. Rupert did not enjoy exclusive possession of the Property due to Mr. Boardman’s testimony he visited with Mr. Rupert approximately five times a year.

Appellant’s brief at 8-9 (emphasis omitted).

Our standard of review in this matter is as follows:

When reviewing a decree entered by the Orphans' Court, this Court must determine whether the record is free from legal error and the court's factual findings are supported by the evidence. Because the Orphans' Court sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of

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that discretion. However, we are not constrained to give the same deference to any resulting legal conclusions. The Orphans' Court decision will not be reversed unless there has been an abuse of discretion or a fundamental error in applying the correct principles of law.

This Court's standard of review of questions of law is de novo, and the scope of review is plenary, as we may review the entire record in making our determination. When we review questions of law, our standard of review is limited to determining whether the trial court committed an error of law.

In re Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016) (citations and quotation marks omitted).

Resolution of Appellant’s contentions revolves around the interpretation of two documents and the circumstances surrounding their execution. The first instrument is an agreement of sale dated August 20, 2005. At that time, the real estate was in the joint names of Mr. Rupert, who was elderly and infirm, and his wife, Nancy A. Rupert. The Ruperts were separated, and Mr. Rupert told Appellant, a neighbor, that he wanted to sell her share of the house in order to satisfy her credit card debt. On August 20, 2005, John L. Rupert and Nancy A. Rupert executed an agreement of sale, as sellers, and John L. Rupert and Appellant executed that document, as buyers. In the agreement of sale, Appellant agreed to pay $115,000 for Mrs. Rupert’s share of the property. The Ruperts also indicated that the agreement of sale encompassed certain personal property, as follows:

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(A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Property free of liens, including plumbing, heating, lighting fixtures (including chandeliers and ceiling fans), water treatment systems, pool and spa equipment, garage door openers and transmitters, television antennas, shrubbery, plantings and unpotted trees, any remaining heating and cooking fuels stored on the Property at the time of settlement, wall to wall carpeting, window covering hardware, shades and blinds, built-in air conditions, built-in appliances, and the range/oven unless otherwise stated. Also included: ALL PERSONAL PROPERTY OF JOHN L. RUPERT.

(B) LEASED items (not owned by Seller):

NONE

(C) EXCLUDED fixtures and items:

TRACTORS, BACKHOE, EXTRANEOUS OTHER EQUIPMENT, TRAILER.

Estate’s Exhibit 1 at 2.

The agreement of sale contained an addendum, which set forth that Mr. Rupert, following the sale, would retain “life rights to the property and shall not vacate property upon settlement. Both Buyers shall hold title as tenants in common without rights of survivorship and both parties interest shall become part of their individual estates.” Id. at Addendum. The Addendum accorded Appellant the right to purchase Mr. Rupert’s share of the property, upon Mr. Rupert’s death, for $115,000, for a period of six months.

On September 28, 2005, in accordance with the terms of the agreement of sale and addendum, the real estate was deeded by John L.

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Rupert and Nancy A. Rupert, as grantors, to “Bryan J. Boardman and John L. Rupert,” as grantees and as “tenants in common.” Estate’s Exhibit 2 at 1. The consideration was $115,000. The grant to Appellant as a tenant in common of the real estate was made, “Under and subject to the right of John L. Rupert to live in the property for the term of his natural life.” Id. at 2. A corrective deed altering the legal description of the property was executed on October 14, 2005. That deed omitted reference to Mr. Rupert’s retention of a life estate in the property, as outlined in the agreement of sale and initial deed.

Although the agreement of sale and initial deed unequivocally set forth that Appellant purchased a one-half interest in the real estate that was subject to Mr. Rupert’s life estate, Appellant suggests that he purchased the real estate in its entirety in 2005 rather than a one-half interest.

When construing a deed, a court's primary object must be to ascertain and effectuate what the parties themselves intended. Mackall v. Fleegle, 801 A.2d 577, 581 (Pa.Super. 2002). The traditional rules of construction to determine that intention involve the following principles. First, the nature and quantity of the interest conveyed must be ascertained from the deed itself and cannot be orally shown in the absence of fraud, accident or mistake. Id. We seek to ascertain not what the parties may have intended by the language but what is the meaning of the words they used.

Consolidation Coal Co. v. White, 875 A.2d 318, 326 (Pa.Super. 2005).

The language of the agreement of sale and deed is not subject to any interpretation other than Appellant purchased a one-half interest in the real

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estate and held that interest in the property as a tenant in common with Mr. Rupert. In addition, his one-half share of the property was subject to Mr. Rupert’s life estate. Appellant’s position is that he must have bought the entire piece of real estate since a one-half interest subject to a life estate was of little or no value whereas he paid the Ruperts $115,000. Appellant, however, did not present an appraisal of the property as of 2005 so that his proposition is unsupported by any proof. While there are pictures of the house, which was dilapidated, in the record, there was no appraisal of the value of acreage in Chadds Ford.

In addition, Appellant did not level any claim that he was defrauded. In the agreement of sale, he assented to the purchase of the interest in the land outlined in the deed for $115,000. Appellant is bound by the terms of his arrangement, even if it represented a poor financial decision. We therefore reject Appellant’s first position.

The second averment herein is that Mr. Rupert was obligated to pay Appellant fair rental value during the term of his occupation of the real estate. Since Mr. Rupert allowed two people to park their trailers on the property, Appellant also seeks rental that they paid or owed to Mr. Rupert for exercising that privilege.1 In resolving this position, the orphans’ court ____________________________________________

1 It is not clear that the two women who lived in the trailers on the real estate actually paid rent to Mr. Rupert.

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observed that Appellant presented no proof of any agreement by Mr. Rupert to pay rent to Appellant while Mr. Rupert lived on the property or that anyone paid rent to Mr. Rupert. It thus denied this claim.

We note the following. Mr. Rupert retained a life estate in the real estate in the agreement of sale and first deed. The corrective deed, which was filed solely to properly describe the land purchased, mistakenly omitted mention of the life estate. It is established that the owner of a life estate is legally entitled to all rental from the property in question during the term of his or her life. See Guthrie v. Guthrie, 7 A.2d 137, 139 (Pa.Super. 1939). Mr. Rupert, as life tenant of the real estate, owed Appellant no rental income either himself or from anyone else who resided on the property. Hence, Appellant’s second position on appeal lacks merit.

We address together Appellant’s third averment, that he was entitled to waste occasioned by Mr. Rupert’s occupancy of the real estate, and his fourth contention, that he was entitled to all of Mr. Rupert’s personal property under the agreement of sale. We observe that it is established that a claimant against an estate has the burden of proving his claim by direct and positive evidence. In re Schleich's Estate, 134 A. 442, 443 (Pa. 1926).

On the issue of waste, the orphans’ court made two pertinent factual findings. First: “Insufficient credible evidence was provided for the fair market value of the Property at the time of the August 2005 [agreement of

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sale,] Mr. Rupert’s death or any other time.” Trial Court Opinion, 6/24/15 at ¶ 10. Second: “No credible evidence was presented establishing that Mr. Rupert materially damaged or allowed material damage to the Property, that the condition of the Property had materially deteriorated after the [agreement of sale] was signed, or that the market value of the Property had materially declined as a result of waste from the August 2005 sale until Mr. Rupert’s death.” Id. at ¶ 29.

As to the personal property question, the orphans’ court noted: “No credible evidence was presented as to what personal property Mr. Rupert owned in August, 2005 and conveyed in the [agreement of sale].” Id. at ¶ 13. It observed that the agreement of sale was a standard one for the purchase of real estate. Thus, when referring to personal property, the agreement’s intent most probably was that Mr. Rupert sold his furniture and other tangible personal property in his home to Appellant. In light of the orphans’ court’s factual findings as to the lack of evidence of waste and the personalty encompassed by the agreement of sale, it is evident that Appellant failed to meet his burden of proof on these two claims. No relief is due.

Finally, after consideration of the facts, briefs, and applicable law, we affirm the orphans’ court’s application of the Dead Man’s Rule on the basis of its June 25, 2015 opinion.

Order affirmed.

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Judge Mundy did not participate in the consideration or decision of this case. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/18/2016

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Circulated 07/27/2016 10:13 AM

Orphan's Court June 24th 2015 DECISION- ORDER---- Appendix A Pg 1

APPENDIX A Orphan's Court DECISION -ORDER June 24th, 2015 by John L. Hall, J,

IN THE COVRT OF" COJ\'fMON PLltt\S c CHESTER COCNTY, PENNSYLVANIA ORPHANS' COURT DIVISION

ESTATE OF JOHN LESL1E, RUPERT} a/k/a JOHNL RUPERT, DECEASED

DECISlON

II. Proce<lurnl .13ackgroun<l.

The Estate was opened with the January 231 2013 Petition for Probate and Grant of Il Letters Testamentarv bv Mr. Bucklev. Executor, Be.fore the < .. ..... . . . . . . . .., ·, . ' . court for decision are thee Julv, 28.• l

I! 2014 Petiuon for Pavmenr ' of Claim to Brvan , .J. Boardman (''C!afrn"), . . Brvan ; J. Boardmans ! ("tv!r. Boardman") August 12, 2() l 4 petition for Citation: t() Show Cause Why an Account

!should not be fiktl C'Petition for Accounting"). and Mr. Boardrnan's December 4, 201~

I Objections lo th<' Account ("Ohjti;;tfons") filed fry the Executor, C. Barry Buckley (''Mr. 0

i' . . . l !Buckley" ,l in the Esui.te of John Leslie Rupert ("E~tat,/'). This matter is now ripe for a decision. l

: I •r lit I I .l. How was the subject property owned at the time ofMr, Ruperts death?'

I 2. \Vhat personal property, if any, did M.r. Rupert convey in the Agreement of Sak

Ito }di-. Boardman·? r 1.··········~····-····-·---·---- The parties agreed thut Mr:. Boardman could file objections to the October ~7, 2014 First and Finat Accounting, an informa] account (''Ai)cotmr"} prepared by Mr, Buckley and provided to )ft. ..~<,,irdman in lieu of a forrna! account. j'- This issue pertains to Objection l . ( This issue pertains to Objection 2 ~I Brief Page 60

Orphan's Court June za" 2015 DECISION- ORDER---- Appendix A Pg 2

~1 .. li 3. Does the Estate owe Mr. Boardman for rental value of the subject property? ~ ~! l < i: 5 lI 4. Does the Estate owe Mr. Boardman for waste to the subject property?

I11H1. Findings of Fact. 6

:I I~ l. Decedent John Leslie Rupert, n/k/a John L. Rupert ("Mr, Rupert") died testate on

JjJannury .l l, 2013, 1, j! 2. Prior to his death, Mr. Rupert, and his wife, Nancy Rupert ("M.rs. ltupert"), it I f owned an improved parcel of real property located at 137 Mcf'adden Road, Chadds Ford, PA

! I (the "Property") as tenants by the entireties. i I }. Before August 20, 2005, Mr. Rupert informed Mr. Boardman that he was

11 considering a sale of the Property to pay Mrs. Rupert' s credit card debt.

II 4. On August 20, J(JOS, Mr. Rupert and Mm. Rupert entered into an Agreement of .l i I' !Sale (''AOS") with Mr. Boardman which sold Mrs. Rupert's interest in the Propertyto Mr. i;: [ j Boardman and resulted hi the Property being owned by Mr. Ruper! and Mr. Boardman as tenants

11''i · ~ .comm~n: 'A c~odit'.o: .'' f the AOS was that Mr. Rupert could reside on tho P roperty for the

i l rest O! his lite. (Estate Exhibit 1.)

/I ' 5, The AOS lists Mr. Rupert and Mrs, Rupert as rhe Seller or Sellers, and Mr. I Boardman I and Mr. Rupert as the Buyer ot Buyers, 1 I i.I I IiI!----~------- , !4 i I, This issue pertains to Objections 5, 6 and 7. 'f· This issue pertains to Objections 3 and 4. ! ·6 These are the. material credible facts found by the court following its review of the evidence : f presented during the April 8, 20-15 hearing. Any facts described by the court in the Procedural Pr Ba~kground and Discussion sections of this Order are. incorporated into this Findings of Fact section by l (elerence, ii! l 2 j; I j

Brief Page 61

Orphan's Court June 24th 2015 DECISION-ORDER---- Appendix A Pg 3

6. At the time of the sale, the Property consisted of an approxi matcly three acre lot

improved by a dilapidated house i.n which Mr Rupert lived. At that time, Mrs. Rupert lived

elsewhere. I

7. When the AOS was finalized. Mr. Boardmrm resided in a house on an I approximately three-quarter acre lot at 159 Mcf'adden Road, Chadds Ford, PA, He continues to I l i

reside there. His property is adjacent to the Property. ! l 8. Mr, Boardman designs radiation monitors and writes software fot l: }

microcontrollers and personal computers. At the time of the April 2JH.Shearing, he was i i president of an electronics company and held patents for storing solar energy, He described

himself <is someone who "turns every stone." 7 I I ! 9, Other th ..m the purchase price of $.115,000, and the clause in the AOS permitting ! i

Mr. Boardman the option of purchasing Mr, Rupert's share. ofthe Property after his death for an I additional $1 l 5,000, no credible evidence was presented as to the fair market value of the- !i Property ;tt the time the AOS was entered in August 2005. l 10. Insufficient credible evidence was provided to establish the fair market value of

the Property at the time of the August 2005 AOS, Mr. Rupert's death or any Qt her time.

1l. When Mr, Rupert agreed to the AOS, he was physically disabled, in poor health, living alone and unemployed.

12. The AOS is written on a standard agreement tor the. sale of real estate approved by the Pennsylvania Association of Realtors.

'J Mr. Boardman described himself in this manner after the court explored how he produced such lengthy and detailed courr filings without any legal education.

Brief Page 62

Orphan's Court June 24th 2015 DECISION - ORDER---- Appendix A Pg 4

? l3, Written at the end ofparagraph 4(A) of the AOS, describing <'!.11 "Fixtures. &

I Personal Property" included in the sale, is the phrase "ALL PERSON AL PROPERTY OF JOHN ! j L RUPERT:' No list or other itemization is provided in.the AOS describing what comprised I that personal property, No credible evidence was presented as to what personal property t,..fr.

i Rupert ov..-ned in August, 2005 and con veyed in the AOS. I

Il. j 14, Paragraph 4(C) of the AOS excluded the following personal property from the

l t sale: "tractors, backhoe, extraneous other equipment, trailer." !I l[ 1 15. Included at the end of the AOS is an Addendum/Endorsement which Mr,

I Boardman had inserted into the AOS, which provided: 1I . I! 1j "John L Rupert shall enjoy Iife rights to the property mid shall not vacate f property upon settlement. Both buyers shall hold title as tenants in common without rights of survivorship and both parties interest shall become J)<'U't of their individual estates. Upon the demise of either party, their interest shall become part of their individual estates, Should John L. Rupert pre-decease Mr. Boardman, Mr, Boardman shall have the right to purchase from Mr. Ruperts estate. his interest in the property for one hundred fifteen thousand dollars within a period of six months from the time of Mr. Ru perts demise," (Estate Exhibit L)

[ 6, The AOS states that it consists of the whole agreement between the parries and

that any changes to it must bein writing. (Estate Exhibit l,~26.}

17. Mr. Boardman paid the initial deposit of $25,000 required by the AOS to

Mrs. Rupert. He paid the balance of the $115,000 purchase price ($90,000) at

seHlement8 rl 18. Settlement on the /\OS occurred on September 28, 200:5 . In accordance with the 11AOS, the deed ("Deed") provided that Mr. Boardman and Mr. Rupert were the Property I ratlt<OS, owning as tenants in common. The Deed further provided that the Property was

l~ Therecord does 1Wl reflect whether, or bow, Mr. Rupert and Mrs. Rupert shared this money.

l 4 !I Brf ef Page 63

Orphan's Court June 24th 2015 DECISION -ORDER---- Appendix A Pg S

.: "Under and subject Io the right of John L. Rupert to live in ihe property for the term of his } l l natural lue." (Estate Exhibit 2.) j I 19. On or about October 14, 2005, n deed of correction (''Deed of Correction") was

. I executed by Mr. Rupert m:i Mr. ~oardn.~an and subsequently filed. (Estate Exhibit~,) Neither I I j the Deed nor the Deed of Correction defines Mr. Rupert and 1'·1t. Boardman as anything other

/ than "tenants in common." Like the AOS, no fractional ownership interests were indicated in

j those documems.. !. j 20. A Realty Transfer Tax Statement of Value (the "RTT Form") was signed by Mr. i j Boardman and was recorded with the Deed, The RTT Form indicated that a 50% interest in the

I Property was conveyed. I . (Estate Exhibit 2.)

I :~.I. In accordance ,vith the A OS, Deed and Deed of Correction, after the property

l' seulement, Mt'. Rupert and Mr. Boardman owned the Property as tenants in common each

I holding equal shares to it, with Mr. Rupert having the additional right to live on the Property for

I the. rest of his life.

I I 22. Al some puint after the AOS settlement, i\·1L Rupert allowed a woman named

I Hittel Patrice Gimbel (''M.s. Gimbel") and Mrs, Rupert to move residential I . mobile trailers onto

l(h<• Property and reside in them. Ms Gimbel and Mrs. Rupert served as caretakers for Mr.

j Rupert. l. l 23. . There is n:) credible evidence that either ·M·r~. Rn~e~t or Ms. Gimbel had a lease

· [with M1·. Rupert or that either paid any rent to M1·. Rupert for residing Oil the Property .

l .1

, Propert v. 24. . There was no credible evidence presented as to the fair rental value of the

l ' i I

Brief Page 64

Orphan's Court June 24th 2015 DECISION - ORDER---- Appendix A Pg 6

25. Mr. Rupert's interest in the Property did not prohibit him from allowing Mrs.

Rupert and Ms. Gimbel to move trailers onto the. Property and reside there. i

26, Mr, Boardman was aware of the presence of the trailers and that Mrs. Rupert and l ;:m~::::·:.,:: :::: on the Property, but there was no credible evidence that he sought rent I 27. There is no credible evidence that Ms, Gimbel's or Mrs, Rupe it's presence on the [

Property materially affected Mr. Boardrnau's rights to the Property as a tenant in common. i 28, Mr. Rupert did not. exclusively possess the Propeny after settlement on I the AOS. ML Boardman bad the ability to access the Property at any time and l' t i I. I' , ! :::::i::::::,:::::d::··~::::::·:::n~::~:::~:);:sO:i:I:::::~::::, ':::l;:ropcrty ! I ! I j as a tenant in common. l!j I 29. No credible evidence was presented establishing that Mr. Rupert materially j I 11 damaged or a I lowed material damage lo the Property, that the condition of the Property had ! •

I I j materially deteriorated after the AOS was signed, or that the market value of the Property had I I! materially declined as a result of waste from the August 2005 sale until Mr. Rupert's death, Ii ll !i 30. As a tenant in. common..· Mr. Boardman had the abilitv . and rizht ~- to i

I Ii maintain the Property and make any necessary repairs to it I . 31. After opening the- Estate on January 23, 2013, Mr. Buckky executed and l delivc fed a Fiduciary I Warranty Deed ("Executor's Deed") to the testamentary beneficiaries, Ms,

I Gimbel and Mrs. Rupert on Juno 23, 2(114. The Executor's Deed describes Ms. Gimbel and Mrs

!Rupert as grantees of Mr. Rupert's 50'.l/o share of'tbe Property. I I I Ii ! r 6 Brief Page 65

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32. The Executor's Deed was recorded on July 2L 2014 with the Chester County

I Recorder of Deeds.

j 33. Ml'. Boardman knew that Mr. Rupert died rm January 11, 2013 but d1ose not lo

I exercise his option under the AOS to purchase Mr. Rupert's interest in the. Property for $11 .\000 i

! within six months. of Mr. Rupert's death. Instead, soon after Mr. Rupert's death, Mr. Boardman !! began repeated contact with Mr. Buckley in. an effort to convince him that Mr. Boardman should

be provided the entire Property in exthunge ftw Mt. BoaidrnatHlt()pping his waste, rent and

I personal properly demands. l d ., . .hv Discussi<rn . Dead Man 's Statute

:l., Preliminarily, this court needs to address the application of the Dead Man's Statute raised

I l l by the Estate. Prior to the April 8, 2015 hearing, the Executor filed a Motion in Limine

I (" M~tion '') on February }5: 20 l ~ ~eekinga tllli~g declaring Mr. Jloardma~ in~omp~tent to testify to all matters occumng during the life of Mr. Rupert but for authentication of any I i i contracts, At the hearing, counsel for the Executor renewed the Motion objection as to all

! I mutters except for Mr. Boardmau's testimony "regarding title to the Property, regarding issues of

I i how the. Property was held." tN.T. 4/8115 at 3-7. )9 /\ t the hearing, this court deferred ruling on

the Motion. Upon consideration of the Motion and review of the law, this court finds the Motion

I n:eri::d ,mdML :lour:mun in::mpetent to testify as to those matters prohibited by the Dead Man .. Statute, 4,. .Pa.CS.A.§ .. _ 30.

19 . Mr,Bour~imanum•.,1e<.:i.'ssfi.:1l ly,argned that the Estate v.'.aived its objcctit.-m at tlw_ hearing. Even, if the Estate did \V<'tlVC the Dead Man's Statute, the court finds nit of t,,,Jr. Boardman 's testimony in material ;1 opposition to the Estate not credible I

Brief Page 66

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The Dead Mau's Rule, also known as the Dead Mans Statute or the. Dead Man's Act,

"provides an exception to the general rule of competency and disqualifies surviving parties to a

transaction or event who have an interest adverse lo the decedent from testifying as to matters

! which occurred prior to the decedent's death." Estate o/ Kcfsky, 487 Pa. 473~ 475, 409 /\.2d

1358. l 359 {I 979). This exception applies to HilX matter or Iact occurring prior to the decedent's

i I death, See Schroeder v. Jacquiss, 861 A .2d 885, 887 (Pa. 2004); se.t also Estate of Petro, 694 it !· A.2d 627 (Pa. Super. 1997); Estate ofCecchine, 336 Pa.Super 11 l, 485 A.2d 4$4 (1984). l j However, the Dead Man's Rule does not upply to written documents signed by the decedent

II prior to his/her death. Lark en v.. Metz, 3 98 Pa. Super. 23 5, 2 4 2. 580 A .2 d I I SO, J 15 3 ( 1990), il Three conditions must exist before the surviving party or witness is disqualified under the

11jt Dead Man's Act: "the deceased must have had an actual rinht or interest in the. matter at issue, - ii ! i i. e : an interest in the immediate result of the suit; (2) the interest of the witness - .not simply the ; i testimony - must be adverse; (3) u right of the deceased must have passed to a party of record

who represents the deccaseds interests." Id. at 240, 580 A .2d l l 50, J 152, quo ling In Re. [ j Hendrickson's Estate, 338 Pa. 39, 45, lJO A.2d 143, 146"147 (1957); see also in Re: Rider's

11 Estate, 487 Pa. 3 73, 3 77, 409 A.2d 397, 3 99 (.l 979), The burden of proving the incompetency is n on the party challenging competency. Id.

There are three exceptions lo the application of this rule: ( 1) an action involving

surviving partners ot joint promisers: (2) possessory actions in which one of the defendants

disclaims and pays costs into the court or gives security: and (3) where the controversy over the

property of the decedent is between parties respectively claiming such property "by devolution

on the death of the owner." (devtsavtt vel non). This applies to situations in which the decedent's

property passes by will or intestacy. See Estate of Janoskv, 827 A.2d 512, 516 (Pa.Super. 2003).

Brief Page 67

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Applying the law to the case sub Judice, this court finds that the Dead Man's Statute is

applicable. Here, Mr. Rupert had an interest and a right in the property per the AOS and the

Deed. The interest of Mr. Boardman is clearly adverse lo Mr. Rupert. Mr, Boardman seeks

damages/monies allegedly resulting from Mr. Rupert's actions and Mr. Rupert's rights have

passed to his Estate, The Estate timely and properly raised the objection to Mr. Boardman's

resumony.

--i i ! Man's Statute is in error and Mr. Boardman were competent to testify, this court finds that Mr. : j ! ; Boardman is not credible in any of his testimony which is adverse to the Estate. Consequently, ; ; : ; such error would be harmless. In light of Mr, Boardman 's lack of admissible -s.. and credible

evidence, hr:. bas failed to establish and prove hls Claim against the Estate by clear, direct;. II ....

precise and convincing evidence, Estate of Allen, ABS Pa. 415, 412 A.2d 833 (J 980). ! i i Ii •I l ; 1. How was the suqjectproperty owned at the time ofMr. Rupert 's death? l I I The AOS (Estate Exhibit J) was executed on August 20, 2005 and provided for a transfer

ofthe Property from John and Nancy Rupert, as Sellers, to John Rupert and. Bryan Boardman, as

Buyers. The Addendum/Endorsement to the AOS provided: (l) Mr. Rupert the right lo live on

the Property for his life: (2) Buyers (Mr. Rupert and Mr, Boardman) to hold title as tenants in

common without rights of survivorship and for both parties' interest to become part of their

individual estates; and (3) Mr, Boardman the right to purchase from Mr. Rupert's estate. his l j interest in the Property for $115,000 within six months following Mr. Rupert's death, 1v1L !' j !-

[Boardman argues that his interest is superior to Mr. Rupert's because he made a "superior ii i i ! u j ii !f I! 9 I Brief Page 68

Orphan's Court June 24th 2015 DECISION - ORDER---- Appendix A Pg 10

l contribution to the purchase price" and that he purchased Mr. and Mrs, Rupert's entire interest in '! i the Property,

I The court rejects l\,fr. Boardmans arguments. The credible evidence establishes that

I Mrs. Ru pen's half interest in the Property was purchased hy J\1(r. Boardman for an amount which

I the parties contemplated would be equal to Mr. Rupert's half interest at his death. Consistent

l with the court's conclusion arid contrary to Mr, Boardman' s position, the Deed equally listed l j both Mr. Boardman and Mt. Rupert as tenants in common. Where "[tjhe' language of.a deed is

! I dear [and] unambiguous j! ], .. .J the intent of the grantees must be gleaned solely from Its ti i( ll lanzuaue v "' ... , In the absence of fraud.' accident or mistake .t'carol evidence is inadmissible to varv..l ! ;~· l for (

limit the scope of a deed's express covenants and the nature and quantity of the interest l! !i !r conveyec. I must b e ascertume , d. b,y tIre mstrurnent ' ' 1 l·' an· <l cannot rtse · 11, oe ora,11y s I iowu: , , ;.,· 1v l · oore v. it ,I 11 Mi Iler, 9 JO A.2d 704, 708 (Pa.Super. 2006) qu,llting Teacher v. ~ij urina, 36 5 Pa. 4 8(>, 486, 76 I A. 2d 191 199 ( 19 >O). Here, there w~s'nn credibl e "'.''.enee of fraud, accident or mistake,

, Neither the Deed nor Deed ot to1Tet.t1011 specify tho percentages of the. Property owned

by each tenant in common. Rather, they indicate only that Mr. Rupert and Mr .. Boardman have

equal status as tenants in common. This is consistent with the terms of the AOS, In accordance

with its 0"''11 terms (AOS, ~26) and contract la\\;, the :<\()S ca~iiiofbc changed'BY\jflf't'fsHmBnY, Where a contract "is dear and unequivocal, its meaning must be determined by its contents

alone." Welroth v. Harvey, 912 A.2d 863, 866 (Pa.Super, 2006). It is presumed that, unless

· stated otherwise, the ownership interest is equal. The amount of money contribuled by one of

the owners in the purchase of real property does 1101 dictate the percentage of ownership. Moore .-~. l }

l v. Mtller, 910 A.2<l 1-1t 709. Additionally, the amount paid by Mr. Boardman, as contrasted with I r

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Orphan's Court June 24th 2015 DECISION- ORDER---- Appendix A Pg 11

the identical amount he had the option to pay for the entire Property ownership, is consistent

with a conclusion that he only purchased a half interest in the Property.

This court Iinds Mr. Boardmans testimony to the contrary not credible. lf the parties had

agreed that Mr. Boardmau's interest was superior to Mr. Rupert's then the AOS and Deed would

have so indicated. They did not. The credible evidence supports the conclusion that Mt.

! Boardman purchased Mrs, Rupert' s half of the Property for$ l l .5,000 while Mr, R upert retained his half. Mr: Boardmans testimony tliatthb"kty clause In the AOS, which described his option

to purchase Mr. Rupert's interest at his death, could have included any amount other than

!j I l $115,000, like the rest of his self-serving . testimony,. is not aedib.lc:.1.0 . Aceordingly, ~, the court has

11 fouud as a fact that ML Boardman purchased Mrs. Rupert's interest in r.be Property and that 1'1r.

l i Boardman and Mr. Rupert owned the Property as tenants in common in equal shares. Following ~ {

Mr. Rupert's death, Mr. Boardman dk! not purchase Mr. Rupert's interest, and in accordance

with Mr. Rupert's will, the Executor properly distributed Mr. Rupert's share to his testamentary

beneficiaries.

11 2, Whatpersonal property. if any, did Mr. Ruper! convey in the Agreement of Sale lo Mr. Boardman? 11 The Ruperts and J\,1r, Boardman utilized a fill-in·the~blank standard agreement for the 1'! I I sale of real estate in conveying the Property from the Ru perts to Mr. Boardman : I

and Mr. Rupert ! ! J$ tenants in common. Paragraph 4 of the real estate AOS provides as follows:

4. FIXTURES & PERSONAL PROPERTY (f~(HJ)

--- _. _ For the court to believe Mr. Boardman did OQt intend and agroe to pay $1 ! 5,000 for Mr. Rupert'« share of the Properly, :ii would have 10 believe that he, accord ing to his own description. turned every stone except th is important one in a clause that he had included in tho AOS. (N .T 4i8/J5 at l 4- 15.)

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(A) INCLUDED in this sale and purchase price are all existing items permanently installed in the Property free of liens, including plumbing, ~ ; heating, lighting fixtures (including chandeliers and ceiling fans), water treatment systems, pool and spa equipment, garage door openers and

,I transmitters, television antennas, shrubbery, plantings and unponed trees. any remaining heating and cooking fuels stored on the Property a! the lime of I l l l settlement, wall to wall carpeting, window covering hardware, shades and blinds, built-in air conditions, built-in appliances, and the range/oven unless otherwise stated, Also included: ALL PERSONAL PROPERTY OF JOHN I L RUPERT. ! I ! i (B) LEASED items (not owned by Seller): r NONE i (C) EXCLUDED fixtures and items: 1, TRACTORS, BACKHOE, .EXTRANEOUS OTHER EQUJPMENT, TRAILER I This clause is a. standard real estate agreement "fixture clause."

L'! ! i > I Clauses explaining the transfer of personal property that had been arfixed to the : I I I real property were included in agreements in former times. Today, fixture I\ clauses may be included in the section of the agreement that explain which !i personal property, if any, is beingtransferred to the buyer as part of the ! transaction. Fixtures, having become part of the real estate, are inducted in the sale unless specifically excluded. l Ladner Pennsylvania Real Estate Law § l 4.04(f) (Ronald M, Friedman, ed., George T, Bisel Company, Inc. 61ll ed. 2013).

In addition to this clause, paragraph 26(B) of the AOS represents that Mr, Boardman, as Buyer,

I; 'f had inspected ull fixtures and personal property specifically scheduled within the AOS or waived

i · the right to do so.

In the context of mi A.OS of real estate and the localkm of the phrase "ALL PERSONA.L

PROPERTY OF JOHN L RUPBRT'l under paragraph 4(a), it is evident to this court that the

parties were referencing tangible personal property attached to or used 1)1:'l the real property itself.

Even if this phrase. were to he considered ambiguous and extraneous evidence were considered,

there is no credible evidence as to what other personal property was conveyed by Mr. Rupert to

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Orphan's Court June 241h 2015 DECISION - ORDER---- Appendix A Pg 13

I Mr. Boardman beyond that attached to or, HS described by AOS ~4(A), "installed In" the j i,i Property. Although the parties included a list pf excluded tangible personal property1 no $UCh list I l I ofincluded Property was provided, In accordance with the AOS, Mr. Boardman had the right to ! / inspect the included personal property _b\lt there fa up credible evidence that lie viewed anythiug I,

. \ other than the Property. This court declines to construe this phrase to mean all of Mr, Rupert 's '! personal property, including the bank accounts and stocks which Mr. Boardman now seeks,

I located anywhere in the world \Vith whichhe died seized some nine yeais after th¢ AOS, 11 I I Ii-·, Does the Estate pwe Mr. Bom·dmcmjor rental value ofthe subject property? i Mr, Boardman argues he is owed (he rental value of the Property for Mr. Rupert's

occupancy until Mr, Rupert died. This court finds this claim to be merirless and looks to the

1 AOS and the Deed, neither of which req uire, nor even mention, rent. Mr, Rupert was a tenant in i j common with the right to live on the Property for his life, Pursuant to the AOS, (43(h)), Mr.

Rupert was obligated to p,1y the property taxes but nothing else, If Mr, Rupert was obligated ro I pay rent to Mr. Boardman, for hi~ occupancy, or the occupancy of others, the AOS 'would have

stated as such. This court may not add a new term to tht'.AOS,11

Mr: Boardma::i' s alleg~tion that ~1r.- Rupert !·~a~ e~~lusi ve possession of the Property 1 i because he was permitted to live there tor the rest ot his Me docs not equate to a duty to pay rent l I

) Consistent with the court's rejection that Mr. Rupert had exclusive possession of the Property,

generally. each tenant in common. is deemed to hold an undivided right of possession, allowing

I! See The fork Group, Inc l'. Yorktown Caskets, Inc., 924 A.2d 1234 .. 124 7 (Pa.Super. 2 Q 07) (" .. writ!ng cousritutes the agreement between the parties, and its terms and agreements cannot be added to or subtracted from b>' parol evidence." (citations omitted) See also Welroth , •. Harvey, 912 A.2d at 866.

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Orphan's Court June 24th 2015 DECISION -ORDER---- Appendix A Pg 14

each to occupy the whole in common with the other tenants in co min on. See Estate of Engel,

413 Pa. 475, 478, 198 A.2d 505, 507 (1964) (well established that tenants in common "own and

possess in equal shares an undivided interest in the whole property. ") See gmerally 86 C..J .S.

l I Tenancy in Common §§kt Thai. Mr. Rupert had his right lo possession extended through his

II l I

lifetime provided him very little rights that he did not otherwise own as a tenant in common.

i j This additional right might only have provided him a material benefit if, in response to ~1 I' 1 partition action, he had sought to remain on the Property as a life tenant. P<1.R.C:P. l 564. No

such action was ever instituted. Moreover, outside the context of partition, even ifMr, Rupert

were deemed to have exclusive possession, such possession was implicitly agreed to by Mr. ! . l j Boardman, and neither the A OS. the Deed, the Deed of Correction nor any credible evidence !i . l I supports a duty by Mr. Rupert to pay rent. Consequently, rent cannot Jl<J\Y be claimed against 1' ) :Mr. Rupert's Estate.

I ! Lastly, as a tenant in common owner, Mr, Rupert was perrnirred to allow Ms, Gimbel and

Mrs. Rupert to live with him, and care for him, on the Property. There is no credible evidence

j that they paid Mr. R upert any rent, that their presence created a duty of rent payment by 1V1r.

Rupert to Mr. Boardman, or adversely affected any of Mr, Boardmari's rights as a tenantin

common. Even if rent were somehow owed, there is no credible evidence as to any rental value,

4. Does the Estate owe Mr Boardmanfor waste to the subject property?

In his Objections, Mr. Boardman asserts that he is owed money damages for waste

allegedly committed by Mr. Rupert and that he is entitled to the. costs of restoration of the

Properly to a vacant lot Even if tho Objections could be construed to be a properly instituted

action for waste, Mr. Boardman has not met his burden of proving by a preponderance of the

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Orphan's Court June 241h 2015 DECISION -ORDER---- Appendix A Pg 15

l' 1

j evidence that Mr. Rupert commincd waste as to the Property; See Morris v. Knight, 14 Pa.Super,

l 324 (t 900). All of Mr. Boardman's testimony on this issue was excluded by rhe Dead I\ bn's 1 1 II Statute and even if permitted, was not credible. i! I The only credible evidence as to the market value of the Property in 2005 is the fact that I j Mr. Boardman purchased Mrs. Rupert's interest in the Property for $115,000 and agreed to pay, ·

' I if he chose to purchase. an add itional s l I 5, 000 for Mr. Rupert' s in terest after Mr. R upert' s I f death, There was no evidence. oth~r than .!\·1r. Boardman's .t,i~dm.iislbl~ N1d :sdf serving . ill it . . . !I testimony, establishing the condition of the. Property in 2005, Furthermore, us a tenant in ! ii . 11· j

l l ('.Omn101\, "Mr. Boardman had as much tight as Mr, Rupert to maintain and make repairs ti"> £he H ! i Property. Generally, co-tenants in connnon have a ·right and au equal duty to make repairs to the I 1 common property. See generally 86 CJ.S. Tenancy in Common §86, There is 110 evidence that i:_i,

i :

Mr. Rupert ever denied his neighbor. Mr. Boardman.eccess rothe Property. Indeed Mr. I . . . Boardman often entered onto the Property. Consequently, the allegation Uw1 Mr, Rupert owed !

money to Mr. Boardman for waste fa unproven. I u ti!t I l j !I i. I

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Orphan's Court June 24th 2015 DECISION - ORDER ---- Appendix A Pg 16

I> l l di j ORDER : f

j: ! : I I A ND NOW, this 24tb day of June, 2015, following consideration of the evidence ! I

iitI adduced during the April 8, 2015 hearing, it is hereby ORDERED and DECREED that the

I! Claim and Objections are DENIED and OVERRULED us merirless, the Petition for

fI Accounting is DENI ED as moot 12 and the Motion is GRANTED. 13

iql BY THE COURT:

I! !, !! i: q I! : f ;t . \.C

~ l " -~_._,N,_JJ•J~IH--.HH••••••••·~---,....,.....,.,...

12 I The parties agreed that the Estate could file the informal Account to which .M.r. Boardman could j tile his Objections, l i~ The court is kH with the distinct impression that Mr. Boardman has been contemplating and <-rafting his arguments lo acquire Mr. Rupert's sham of the Property Jong before Mr. Rupert died, His efforts to utilize his well thought out positions to his advantage began :50<m after Mr. R,1pe~t's death and continued unabated until the court declined bis request. to provide 4i third post hearing brief: J'vfr, Boardman is well aware thut 11ny expense P.Y the Estate's attorneyto rc-spo11<1.10 his tu-gwnents. documenrs and filings extract legal tees from the Fsti1te which otherwise could he pro\;id"ed fo tht Estate I beneficiaries. When combined with his wholly incredible testimony, the court is left with the impression I of an unscrupulous person who long sought to take advantage ()f Mr. Rupert's estate prior to Mr. R1.1p~rt's death and immediately put his plan into motion once Mr, Rupert's death silenced bis ability to protect his property. Although the court has not been requested and docs not intend to llward atl<Jrncy's foes against Mr. Boardman for pursuing hisClaim and Objections in this forum, ff he appeals this. Order, the court may determine that he is acting in bad faith and request the Superior Court to consider an award of attorney's fees against him pursuant to Pa.R.AJ>. 27'14.

I '

I ! l j i I i 16 i

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Circulated 07/27/2016 10:13 AM Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 1

APPENDIX C - Orphan's Court October 28, 2015 MEMORANDUM OPINION

IN TIIR COlJl{T OF COMMON PLl~AS CIIESTIW. COUNTY, Pl~NNSYLVANIA Ol{PIIANS' COlJRT DIVISION

RSTATJ'l: NO. 1513-0131

Ji:STATti: OF .JOHN LESLIE nUPP:RT, n/1</n .JOHN L. IH.JPERT, l)gCEASm)

(292.J RDA 2015)

Mlt:MOl{ANDUM OPlNION

Prnccdurul ll istory

Brynn J. Boardman ("Mr. Boardman") has appealed this court's June 25, 2015 Order ("Order") which overruled Mr. Boardmans July 28, 2014 Petition for Payment of Claim and his December 4, 2014 Objections ("Objections") lo the informal account I filed by the executor for the Estate of John Leslie Rupert ("!~state"). On July 15, 2015, Mr. Boardman filed Exceptions lo the Order. The court denied the Exceptions by order dated August 21, 2015. Thereafter, on September 18, 2015, Mr, Boardman filed I his appeul. On October 8, 201 S, Mr.

Boardman filed a statement or errors complained or on appeal ("Slntcmcnl"). 2

The following five alleged errors are described within the Statement:

The parties agreed that the Estate would file a11 informal account 10 which Mr. Boardman could tile his Objections. 1 Aithough th~~ court issued an order requiring Mr, Bonrdman to file a concise stntemcnt, in fact Mr. Boardmau's twenty-four (2'1) page document is neither concise nor even labeled "concise." This filing is in clear violation of Pa.R./\.P. !925(h)(1l)(ii) and (iv). Kamer v. l~i,stein, 866 A.2d )CJ,I, •100- ,io2 (Pa. Super. 2004). As explained in footnote l3 of the June 25, 2015 Decision ("Decision") attached to the Order, Mr. Boardman is well aware thut his mnny and massive filings cause an unnecessary drain on this relatively small estate, leaving ever less for the estate beneficiaries. After the issuance of the Decision, that pattern of conduct has continued. Prior to his filing of the Statement, Mr. Boardman filed forty· five ( 45) pages of mcritlcss Exceptions. This court continues to question whether he is acting in bad faith.

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Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 2

"1. Property Ownership. The court round Mr, Rupert and Mr. Boardman owned the property as tenants in common each holding equal shares to it. In this finding the court erred."

"2. Waste of Property. The court found Mr. Rupert's estate is not liable for waste of the property. In this finding the court erred."

"3. Rent of Property. The court found Mr. Rupert's estate is not liable for rental value of the property during co-ownership with Mr. Boardman. In this finding the court erred."

"4. Personal Property. The court found Mr. Rupert's estate is not liable to Mr. Boardman for Mr. Rupert's personal property. In this finding the court erred."

''5. Dead Man's Statute. The court found that Rupert estate's Motion to apply the Dead Man's Statute is carried. In this finding the court erred."

The Decision (a copy of which is attached hereto with the Order) largely addresses the alleged errors. The following supplement is included to further explain the reasons for the court's rulings and to satisfy the mandate of Pa.R.A.P. I 925(n).

Alleged J~rro1· No. 1

"I. Properly Ownership, The court fount! Mr. Rupert and Mr. Boardman owned the

properly as tenants in common each holding equal shares to it. In this finding

the court erred."

Mr. Boardmans claim that he purchased "essentially one hundred percent" (N.T. 4/8/ 15, at I 7, 22, 71, 84 and 86) of the real property ("Property") owned by decedent John Leslie Rupert ("Mr. Rupert") and his witc, Nancy Rupert (''Mrs. Rupert") because he made a "superior contribution lo the purchase price" (Statement, pp. l and 6) is supported neither by the credible evidence nor Jaw. Finding of fact 4 in the Decision, which Mr. Boardman foiled to

Brief Page 79

Orphan's Court October 28, 2015 MEMORANDUM OPINION···· Appendix C Pg 3

contest within his Exceptions, specifically found that the Mr, Rupert and Mrs. Rupert "entered

into an agreement of sale(' AOS ') with Mr. Boardman which sold Mrs. Rupert's interest in the Property to Mr. Boardman .... " Even if Mr, Boardman has preserved an objection to this

finding, the finding is supported by the record evidence.

At the time of the AOS, Mr. Rupert already owned the Property. It is hardly surprising that he did not pay the consideration to purchase it. The only monies paid came, and logically would come, from the new tenant in common, Mr. Boardman. Therefore, even if Mr. Boardman's legal theory of superior contribution to the purchase price were valid, which it is not, it would necessarily fail. I-le paid for n half interest and that is what he got. The price paid by Mr. Boardman supports this conclusion. The AOS required Mr. Boardman to pay $115,000 for Mrs, Rupert's hnlf interest in the Property. It further allowed him the option to buy Mr. Rupert's half interest after Mr. Rupert's death for an identical $115,000 amount. (Estate Exhibit I, pp. 1 and 23.)3

As to the important option clause contained within the AOS (Estate Exhibit I, p. 23), the record belies Mr. Boardmau's claim that he did not knowingly place that provision in the AOS (Statement, p. 4). During the hearing, Mr. Boardman asserted that he "had that [the option clause] included in the sales agreement. ... " (N.T. 4/8/15, at 14.) Shortly thereafter, when asked why he had the clause put into the AOS, Mr. Boardman provided n wholly incredible response, but did not deny that he had the clause inserted. (N.T. 4/8/15, at 15.) It

3 These values imply that the parties valued the Properly for a total n111011nt of approximately $230,000. Within his Exceptions, Mr. Boardman argued that at the time of the 2005 ;\OS, the fair market value of the Property was close lo this figure. I-le arrived at that figure by using the Chesler County assessed value for the Properly multiplied by the common level ratio factor. (Exceptions, p. I 2.) Al1110ughthe com! did not find sufficient credible evidence to conclude as a fact that this calculated value, approximately $210,000, was the 2005 fair market value of the Property, Mr. Board mun 's argument, which he repeats in the Statement, (p. 12), is consistent with the court's determination that Mr. Boardman only purchased Mrs. Rupert's hal I' interest in the Property, and thereafter equally shared the Property with Mr. Rupert as tenants in common. 3

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Orphan's Court October 28, 2015 MEMORANDUM OPINION ----Appendix C Pg 4

was only later in his testimony that he attempted to distance himself from the option purchase

price, stating that he did not think he came up with the $115,000 figure. (N.T. 4/8/15, at 15-

16.) The court did not believe that testimony." The court, as trier of fact, is free to believe all,

part or none of the evidence that is presented and to resolve any conflict in the evidence.

Stokes v. Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa. Super. 200 I), appeal denied,

568 Pa. 23, 797 A.2d 915 (2002). The trial court is "free lo reject even uncontradicted

evidence that it finds lacking in credibility." Boro Construction, Inc. v. Ridley School District,

992 A.2d 208, 218 n.16 (Pa.Cmwlth. 20 I 0), citing D 'Emilto v. Boord of Supervisors of the

Township ofBensalem, 157 Pa.Cmwlth, 64, 628 A.2d 1230 ( 1993).

In any event, as explained in the Decision, the amount of money contributed by one of

the owners in the purchase of' real estate does not dictate the percentage of ownership. It is presumed that, unless stated otherwise, the ownership interest is equal. Moore v. Miller, 910 A.2d 704, 708 (Pa. Super. 2006). Contrary lo Mr. Boardrnan's proffered legal theory, this is the law which controls this issue. The credible evidence did not rebut the presumption described within Moore,

Alleged Ir.nor No. 2

"2. Waste of Properly. The court found Mr. Rupert's estate is not liable for waste of

the property. In this finding the court erred."

4 Although Mr. Boardman hedged 011 the purchase amount, he did not .it that time deny he had the option clause included in the AOS. Even if the $1 I 5,000 figure were random ly picked, as unpersuasivcly implied hy Mr. Boardman, the balance of I hat clause also supports the court's conclusion of equal ownership. When he inserted the clause in the J\OS, Mr. Boardman chose not to define Mr. Rupert's interest as any less than his own, and specified that each of them held as tenants in common with their interests eventually flowing to their individual estates.

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Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 5

As described within the Decision, Mr. Boardman did not carry his burden of proving that the Estate owes him damages for waste. When purchased by Mr. Boardman, the house located on the Property was dilapidated and in poor condition (N.T. 4/8/15, at 87-88). At the time of the purchase, Mr. Rupert, the Property occupant, was so physically disablcd5 that it was very difficult for him to walk, he was unable to shop and he was unemployed. (N.T. 4/8/15, al 52-53.) In fact, Mr. Boardman did not think Mr. Rupert had long to live. (N.T. 4/8/15, at 22.) A Iler the purchase, as a co-tenant in common, Mr. Boardman held an equal right of possession lo the Property, Estate ofEngel, 413 Pa. 4 75, 478, 198 A.2d 505, 507 (1964 ), as well as an equal right and duty to make repairs to it. 86 C ..1.S. Tenancy in Common §86. No credible evidence was presented that Mr. Rupert ever denied Mr. Boardman access to the Property and in foci Mr. Boardman, as an adjacent landowner and purported friend or Mr. Rupert, often entered onto the Property and had continuous opportunities to observe, inspect and repair the house. No credible evidence was offered that the parties ever discussed how repairs and maintenance for the Property would be shared. Mr. Boardmau's decision to wait until after Mr. Rupert's death to claim that Mr. Rupert alone was obligated to repair the Property is legally unsupportable, and further appears, on its face, to be unconscionable.

In any event, Mr. Boardman's testimony in opposition lo the Estate was properly excluded by the court pursuant to the Dead Man 's Statute and even if admitted, was not credible. Consequently, there was 110 credible evidence that waste occurred, that Mr. Rupert was responsible alone to avoid waste, or what damages should be awarded even if waste were proven. Mr. Boardman "s invocation of partition Jaw is equally unpersuasive. Mr. Boardman never instituted a partition net ion against Mr. Rupert. Mr. Boardman cannot now claim the npplication of partition law remedies in this account proceeding. The use of a master for

Mr. Boardman described him as "crippled." (N.T. '1/X/15, at 52.)

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Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 6 example, is a partition, not an account adjudication procedure. Mr. Boardman never requested a master and therefore waived that right, even if it existed.

Alleged Ji:rrn,· No. J

"3. Rent or Property. The court found Mr. Rupert's estate is not liable for rental

value ofthe property during co-ownership with Mr. Boardman. In this finding

the court erred."

Mr. Boardmans claim for rent against the Estate is unpersuasive for a number of reasons. Fundamentally, there is no record evidence that Mr, Boardman and Mr. Rupert ever agreed that Mr. Rupert would pay rent. In fact, the record evidence, as described within the AOS and Property deed, (Estate Exhibit 2), implies that the parties contemplated the right of Mr. Rupert to live on his Property without payment of rent. Mr. Rupert's only agreed upon ongoing monetary requirement was lo pay the Property taxes (Estate Exhibit l, p, 2). furthermore, like Mr. Boardmau's waste argument, his exclusive possession argument rests on partition law. Even if exclusive possession were proven, which it was not, this is not a partition action. As previously staled, Mr, Boardmau's post-hearing suggestion that a partition master should have been appointed is similarly without merit or waived,

Mr. Boardman and Mr. Rupert were co-tenants, deemed to each hold an undivided right of possession in the Property. Each had a right to occupy the whole in common with the other. Estate of Engle, 41 J Pa. al 478, 198 /\.2d al 507. That Mr. Rupert was provided the right to live on the Properly for his lifetime, did not exclude Mr. Boardman from sharing occupancy. No evidence was presented, credible or not, which even suggested Mr. Boardman had a desire to occupy the Property, including that part of the Property eventually occupied by Mrs. Rupert

6 Brief Page 83

Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 7 and I littel Patrice Gimbel ("Ms. Gimbel"}. Although Mr. Boardman knew that Mrs. Rupert and Ms. Gimbel resided on the Property to care for Mr. Rupert, there is no record evidence that Mr. Boardman ever sought to eject them or ask them to pay rent. Indeed, Mr. Boardman declared at the hearing that they do not owe him rent (N.T. 4/8/15, at 26). Furthermore, the law docs not prevent a property owner in need of care from inviting guests to live with and care for him.

Ulrimutcly, there are no credible facts of record to support Mr. Boardrnarr's claim of rent. His many allegations of fact dehors the n.zcord within his Statement cannot change that circumstance. The AOS required Mr. Rupert to pay only taxes during his occupancy. No written evidence of a lease or other requirement to pay rent was presented. No evidence was presented that Mr. Rupert required or collected rent from Mrs. Rupert or Ms. Gimbel. No evidence was presented establishing rent damages, as apparently acknowledged by Mr. Boardman. (See Statement, p. 16.) Consequently, the court did not err when it refused to award Mr. Boardman rental damages.

Alleged Et·1·01· No. 4

"4. Personal Property, The court found Mr. Rupert's estate is not liable to Mr.

Boardman for Mr. Rupert's personal property. In this finding the court erred."

No error was caused by the court when it determined that the personal property included in the AOS consisted of personal property attached to or used on the Property itself. On this issue, Mr. Boardmnu's testimony, including his testimony that Mr. Rupert intended to provide him with all of his personal property anywhere in the world due to Mr. Rupert's "sentiment

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Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 8

towards and friendship with" him, was excluded by the court, and even if considered, was not

credible.

Mr. Bonrdmau's lack or credibility on this issue is disturbingly apparent. For example,

Mr. Boardman outrageously suggests in his Statement (p. 20) that the personal property he

purchased from Mr. Rupert included 50% of the $115,000 (or $57,500) consideration lhnt Mr.

Boardman paid at settlement. Essentially, Mr. Boardman suggests that he continues to own

half of the money he paid to the Rupcrts, nut the logical conclusion or this suggestion is that

the $57 ,500 in personal property he allegedly purchased from Mr. Rupert at the execution of

the /\OS did not even exist at that lime among Mr. Rupert's assets. Instead, at the time the /\OS

was executed in August, 2005, the money was Mr. Boardmnu's personal property, or that of his

lending institution. Second, there was no credible evidence presented that Mr. Rupert even

received $57,500 from the transaction. Mrs. Rupert could well have received all of the

consideration. Third, even if Mr. Rupert received $57,500 or the $115,000 purchase price, it

makes no sense that Mr. Rupert would have contracted to give it back to Mr. Boardman via the

fixtures and personal property clause of the AOS. If he did, Mr, Rupert, in effect, would have

become a bailee of the $57,500, holding it for Mr. Boardman and without authority to use it.

Fourth, if the parties had actually intended in the AOS for Mr. Boardman to buy back his own $57,500 as part of Mr. Rupert's "personal properly", they would simply have listed the total sales price as $57,500, rather than $1 l 5,000, and paid half of the taxes. This argument is really beyond the pale and says much about Mr. Boardman. ''

Further, Mr. Boardman alternatively acknowledges that he did not even know what Mr. Rupert's personal properly consisted or: other than that which Mr. Boardman had observed on

the Property itself. His ongoing post-hearing suggestion of a master, in this instance to 6 It also supports the bad faith referenced in footnote 2.

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Orphan's Court October 28, 2015 MEMORANDUM OPINION ----Appendix C Pg 9 determine the existence of such other personal property, confirms this lack of knowledge. (Statement, p. 20.) Certainly the only personal property that Mr. Boardman purportedly inspected, pursuant to paragraph 26(B) of the AOS, was on the Property.

Additionally, as described within the Decision, the only examples of "fixtures and personal property," described within paragraph 4 of the AOS, were tangible personal properly

attached to or used on the Properly. Contrary to Mr. Bourdrnau's representation within his 7 Statement, those items include personal property which arc not fixtures. Paragraph 4(/\) of the

AOS includes "pool and spa equipment", for example, which could include removable pool covers, skimmers and the like, while garage door "transmitters" are normally portable devices carried within motor vehicles garaged on the subject real estate. The Pennsylvania Supreme Court has specifically defined "chandeliers" as personal property which, even when attached to a dwelling, arc not fixtures. Holthouse v, Rynd, 155 Pa. 43, 25 A. 760 ( I 893); Vaughen v. Haldeman, 33 Pa. 522 ( 1859). Tellingly, when Mr. Boardman and Mr. Rupert listed items to be excluded under the fixtures and personal property clause, they only included personal property, not fixtures, used on the Property, i.e. "tractors, backhoe, extraneous other equipment, trailer." (Estate Exhibit I, p. 2, il4(C)).

Finally, even if the court erred, the error is harmless. Mr. Boardman foiled to prove what other personal property Mr, Rupert owned at the lime the AOS was executed. Like his failure to prove damages related to waste and rent, the record is void of credible evidence defining the type and value of personal property owned in 2005 by Mr. Rupert which was not attached to or used on the Property. As previously described, Mr. Boardman appears to concede this deficiency.

Pixtures are usua 1 ly defined as items pennaneutly a nixed to and which have become pnrl of the real estate. Clay/on v. Lienhard, 312 Pa. 433, 1135-1\J 7, 167 /\. 321, 322 ( 1933). 9

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Orphan's Court October 28, 2015 MEMORANDUM OPINION ---- Appendix C Pg 10

Alleged E1Tor Number S

"5. Dead Man's Statute. The court found that Rupert estate's motion to apply the

Dead Man's Statute is carried. In this finding the court erred."

The only issue concerning the Dead Man's Statute that was preserved on appeal by Mr. Boardman was that of waiver by the Estate, caused by the Estate 's counsel cross examination of Mr. Boardman at the April 8, 2015 hearing. Mr. Boardman ignores the fact that counsel for the Estate raised and preserved the issue of the Dead Man's Statute in the Estate's February 25, 20 I 5 Motion in Limine ("Motion"). At the April 8, 2015 hearing, the Estate continued to assert the Statute. In response, this court deferred ruling on the Motion, thereby compelling the Estate's attorney, properly, to cross examine Mr. Boardman in case the Motion were denied. There is no waiver or the Dead Man's Statute where the trial judge "expressly reserved the right to pass on the questions legitimately arising under the objection when he came to the final decision of the case .... " DeSilver 's Estate, 32 Pa. Super. 174 ( l 906). Consequently, this court correctly found that "[tjhe Estate timely and properly raised the objection to Mr. Boardmau's testimony." (Decision at p. 9.)

Additionally, no prejudice to Mr. Boardman resulted from the Estate's cross examination. Mr. Boardman also had the opportunity lo testify fully in his own direct testimony. When the court eventually applied the Dead Man's Statute, it excluded all material answers, whether provided on direct or cross, which were in violation of the Statute. Lastly, as previously described, even if the Dead Man's Statute is inapplicable and Mr. Boardman's testimony considered by the court, he was simply not credible in opposing the interests of Mr. Rupert and his Estate. Much of his testimony was self-serving, improbable and unsupported by the written documentation.

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Orphan's Court October 28, 2015 MEMORANDUM OPINION---- Appendix C Pg 11

Conclusion

Accordingly, it is respectfully suggested that the Order be affirmed.

l3Y THE COURT:

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