Watkins, R. v. Riad, J.

J-S46018-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT C. WATKINS AND SCOTT R. : IN THE SUPERIOR COURT OF WATKINS : PENNSYLVANIA : : v. : : : JOSEPH RIAD : : No. 3644 EDA 2018 Appellant :

Appeal from the Judgment Entered January 22, 2019 In the Court of Common Pleas of Chester County Civil Division at No(s): 2014-09170-RC

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.* MEMORANDUM BY OLSON, J.: FILED JANUARY 31, 2020

Appellant, Joseph Riad, appeals from the judgment entered on January 22, 2019, granting a one-half interest in the subject residential farm property to Robert C. Watkins and a one-half interest to Appellant. Upon review, we affirm.

The trial court summarized the facts and procedural history of this case as follows:

At all relevant times, [Robert C. Watkins and his brother, Scott R. Watkins (hereinafter individually “Robert” or “Scott” and collectively, “Brothers”)] have resided [at the residential property in dispute in] East Nottingham Township, Chester County, Pennsylvania (the “Property”). Brothers resided at the Property for more than thirty years and received title from their mother, Isla Watkins, on February 17, 1982. In September 1997, Brothers encumbered the Property with a 30-year, $70,000[.00] mortgage.

____________________________________________

• • Retired Senior Judge assigned to the Superior Court.

J-S46018-19

Brothers and [Appellant] have known each other for more than twenty years. Prior to disagreements that led to this litigation, Scott and [Appellant] were close enough to consider one another family. Robert considered [Appellant] to be an acquaintance.

Brothers are unsophisticated, trusting men who would prefer to look the other way when confronted by trouble. Scott, 60 years old at [the time of] trial, is a self-employed mechanic, primarily, if not exclusively, working on motorcycles, and a part-time nurseryman. Robert, 66 years old at [the time of] trial, left employment in 1997 to care for his mother. Robert has a 1976 degree from Arizona State University and a degree from Del Tech Community College. Robert raced Standardbred horses and worked as a stage crew hand at the Hotel DuPont Theater.

[Appellant], 45 years old at [the time of] trial, is an educated and sophisticated businessman. [Appellant] moved to the United States from Kuwait when he was 14 years old and became a citizen in 1998. He matriculated at West Chester University at age 15 and graduated three years later with a degree in computer science and an accounting minor. [Appellant] has been a commodities trader at IMA World Trade and technical services director for an engineering firm, EPS. At the time of trial, [Appellant] had a farm and was engaged in the overseas exportation of cattle.

[At times, Brothers have experienced financial difficulties]. After leaving employment in 1997, Robert cared from his mother, who was debilitated with dementia and lived at the Property, until she passed away in September 2017. Robert also cares for his wife, Rebecca Beckenstrater (“Beckenstrater”), at the Property; she is debilitated from multiple sclerosis. Beckenstrater has lived at the Property since April 2010. At the time of trial, Beckenstrater was confined to a wheelchair and partially blind. Robert has modified the residence to accommodate the handicapped members of his family.

[Appellant] was aware of Brothers’ financial difficulties and the burden[s they] endured caring for family members. In August 2010, [Appellant] approached Scott and began to work on him to convince him that he, [Appellant], could alleviate the family’s financial burden. [Appellant] told Scott that based on their friendship, “I’d like to [d]o something nice for you and pay off your mortgage.” In late August 2010, Scott mentioned to Robert that he might have found a way to have the mortgage paid off and

-2-

J-S46018-19

Robert understood that [Appellant] was somehow involved. The mortgage happened to be held by Wells Fargo, where [Appellant] had his accounts. Some time passed and then [Appellant] invited Scott to come to the Wells Fargo Kennett Square branch (“Bank”) to see “what we can do.”

On September 22, 2010, Scott traveled with [Appellant] to the Bank. [Appellant] was a frequent customer at this branch and was friendly with the branch manager, Triandos Randolph (“Bank Manager”). Scott was introduced to the Bank Manager and a meeting followed between Scott, [Appellant], and the Bank Manager. During the meeting, [Appellant] told Scott that if he wanted the mortgage paid, the Property would be transferred into [Appellant’s] name. Scott thought the request was “kind of strange” and the meeting ended without a commitment from Scott, as he needed time to think about it.

Robert knew that on September 23, 2010, Scott and [Appellant] were going to the Bank to possibly take care of the mortgage and Robert thought this was fine. He understood that they would “go find out, and if so far – if something happens, that, you know, it could happen, well, then I would come down.” Robert did not know or expect that the Property would be transferred to [Appellant] that day. Robert never went to the Bank on September 23 or any day. Robert did not sign the deed or any rd

papers to transfer the Property.

On September 23, 2010, Scott returned to the Bank with [Appellant]. In a meeting with [Appellant] and the Bank Manager, Scott was confronted with a $100,000[.00] balloon payment that was falling due. On hearing this, Scott was afraid of losing the Property. [Appellant] promised Scott that if the Property was transferred, he and Robert could live there the rest of their lives as long as they maintained the Property as they always had and paid the property taxes. Scott agreed to transfer the Property “[b]ecause they were pressuring me. They – I don’t know. It was some kind [of] scam or con, they were conning me I guess, and I ended up believing them, I guess.” In fact, there was no balloon payment. The only debt on the Property was the mortgage, in the original amount of $70,000[.00] that had been discussed the day before.

Robert recalls a telephone call that he received from [Appellant] that day, while [Appellant] was at the Bank, and, after speaking with [Appellant], Robert asked to speak with and then did speak

-3-

J-S46018-19

with Scott. Scott does not recall this [tele]phone call. [Appellant] denies that this [tele]phone call took place. [According to Appellant, Scott and Robert both attended the settlement.] Robert testified that [Appellant] called him and “was explaining about --- about the mortgage and how it had to be put in his name, and I didn’t think it was a good idea and I expressed no to him in so many words. And then I said I want to talk to Scott, you know, and I trust my brother to make the right decisions.” Robert then had a short conversation with Scott and told Scott that he did not think the transfer was a good idea. Robert also told Scott, “Do what you think is right.” Robert never authorized Scott to transfer the Property or to sign his (Robert’s) name to the deed or other documents.

• • * *

When Scott agreed to transfer the Property, he was given, while still in the Branch Manager’s office, all of the papers needed to transfer title from the Brothers to [Appellant]. Scott signed both his name and Robert’s name to all of the papers, including the deed. Scott testified [that he provided Robert’s signature and his own signature and a notary public notarized both signatures.] Scott also affirmed at trial that he knew if the legitimacy of the documents was ever questioned, it would be apparent that Robert had not signed. Finally, despite the documentation that he signed, Scott retained the belief that [Appellant] was gifting him and his brother payment of the mortgage, helping out the family based on friendship, as [Appellant] had previously offered. Scott did not understand the documents he was signing.

To obtain the Property, [Appellant] paid Wells Fargo $62,751.37 to clear the mortgage and the transfer tax of $4,122.82. The Property was worth between $206,140[.00] and $358,000[.00].

Scott testified that he did not have permission or authority from Robert to sign the deed or other documents on his behalf. Scott testified that it was “through much duress. I was coached into doing this.”

• • * *

Scott did not tell Robert what had occurred at the Bank because he thought Robert would not have agreed to transfer the Property. Robert testified at his deposition that Scott only told him that night that the mortgage had been paid, without any further detail. Robert could not recall the details about this conversation at trial.

-4-

J-S46018-19

The Brothers received correspondence and a check in the amount of $696.62 from Wells Fargo shortly after September 26, 2010. The letter referenced the paid in full mortgage. Scott testified that when the letter arrived, he told Robert that the mortgage had been paid, but he did not disclose the Property transfer. At this time, Robert understood only that the mortgage had been paid and he wondered how that had happened, but did not pursue the issue. Robert did not know if a gift or private loan had been made by [Appellant]. The check from Wells Fargo referenced a “sale,” but Robert did not question the meaning.

When Robert received a tax bill in January 2011 for Property, he observed that the bill was in [Appellant’s] name and confronted Scott; Robert was furious. Scott finally explained that he had transferred the Property, but tried to soften the impact by further explaining that [Appellant] had promised that the Brothers only needed to maintain the Property and pay the taxes and they could live there the rest of their lives. Neither Brother thought it would be possible to reverse the transaction at that time. Robert was concerned about losing the house that he had renovated to care for his handicapped family. The Brothers knew [Appellant] was wealthy and did not believe they had the resources to fight him.

After receiving the tax bill, Robert also confronted [Appellant] about the transfer of the Property. [Appellant] responded by saying there had been two mortgages against the Property and he had paid $220,000[.00] to clear the debt. This was a fabrication. [Appellant] reassured Robert that things would be all right and that he just needed to pay the taxes. Robert trusted [Appellant] and believed what he was told.

From 2010 through trial, Robert paid the taxes at the Property, either directly to the taxing authorities or by reimbursing [Appellant]. When questioned at trial, [Appellant] agreed that the taxes were up to date.

[Appellant] first demanded rent from the Brothers in the summer of 2014 after [Appellant] and his girlfriend/attorney, Mickala Rector, came to the Property to evict the Brothers and their family. The rent demand was for more than $50,000[.00] for the past four years. As a result of the threatened eviction and rent demand, the Brothers finally consulted an attorney.

On December 17, 2014, Brothers filed a complaint to quiet title raising two counts[. Brothers first asserted fraud by Appellant against Robert, that Robert’s signature on the deed was a forgery,

-5-

J-S46018-19

and, thus, the deed was void ab initio. The second count of the complaint asserted breach of contract and fraud by Appellant against the Brothers.]

[Appellant] answered the complaint on February 18, 2015 and filed amended new matter and counterclaim, with permission, on February 2, 2016. The amended counterclaim raised five counts, the first to quiet title against Scott, the second for specific performance against Brothers, the third for unjust enrichment against Brothers, the fourth for fraud against Scott and the fifth for breach of warranty of title to real estate against Brothers. Brothers replied to the amended new matter, answered the amended counterclaim and pled new matter on March 10, 2016. Pleadings closed on March 21, 2016 with [Appellant’s] reply to new matter.

The matter was called to trial on January 22, 2018 and a decision issued April 26, 2018 in favor of Robert against [Appellant] on the complaint and in favor of [Appellant] against Scott on the counterclaim. The decision [made Robert and Appellant joint tenants in common of] the Property. Post-trial motions were timely filed by [Appellant] and denied. [Appellant] then timely filed the pending appeal.

Trial Court Opinion, 1/28/2019, at 1-8 (record citations and footnotes omitted).

On appeal, Appellant presents the following issues for our review:

I. Whether the trial court erred as a matter of law in finding the deed was forged and canceled as to Robert C. Watkins, because Appellee[, Robert C. Watkins] did not establish by clear and convincing evidence that the signature on the deed [], even if signed by Scott Watkins, was an unauthorized signing[?]

II. Whether the trial court erred as a matter of law because its analysis of the authority and agency issue misapplies the testimony exception of the statute of frauds and incorrectly requires Appellant to accept[,] as true, Appellee[, Robert C. Watkins’] testimony?

-6-

J-S46018-19

III. Whether the trial court erred as a matter of law where its opinion finds every inference for Appellee[, Robert C. Watkins] and against Appellant [that Appellee, Robert C. Watkins met his] standard of proof [of presenting] clear and convincing evidence?

IV. Whether the trial court erred as a matter of law and abused its discretion when it found Appellant made an oral promise to Scott Watkins and/or Appellee[, Robert C. Watkins] that he/they could live on the property, rent free, for the rest of his/their lives because the quiet title complaint concedes any such oral promise would not be enforceable under the statute of frauds and/or there is no sufficient evidence to support this finding and/or the quiet title action was bifurcated from the eviction and rental action by order dated January 19, 2018?

V. Whether the trial court erred as a matter of law when it created a tenancy-in-common between Appellant and Appellee[, Robert C. Watkins,] by its decision dated April 26, 2018, and denied Appellant’s request for a new hearing to determine the fair market rental value for the property?

Appellant’s Brief at 12-13 (superfluous capitalization, quotations, and suggested answers omitted).1

Appellant’s first two issues are inter-related. Appellant generally

challenges the trial court’s decision that Robert C. Watkins’ signature on the ____________________________________________

1 Initially, we note Appellant’s Pa.R.A.P. 1925(b) concise statement, statement of questions presented pursuant to Pa.R.A.P. 2116, and the individual argument sections in his appellate brief under 2119(a) lack parity. Appellant abandoned an issue pertaining to a notary by failing to brief that issue on appeal and we deem it waived. Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (issues raised in Pa.R.A.P. 1925 concise statement that are not developed in appellate brief are abandoned); see also Commonwealth v. Woodward, 129 A.3d 480, 509 (Pa. 2015) (holding that “where an appellate brief fails to … develop an issue in any [] meaningful fashion capable of review, that claim is waived[]”). To the extent that Appellant’s issues overlap, for clarity and ease of discussion, we will address them together.

-7-

J-S46018-19

deed at issue was forged and signed without his authority. More specifically, Appellant argues that Robert “did not establish a forgery or fraud claim because he did not show [an unauthorized signing] by clear and convincing evidence[.]” Id. at 24 (original emphasis omitted). Appellant points to Robert’s deposition testimony wherein he stated that he told his brother, Scott, to do what he thought was right in connection with the subject transaction. Id. at 21. As such, Appellant contends that Robert gave Scott the express, implied, or apparent authority, as his agent, to the sign the deed on his behalf. Id. at 32-46. Appellant maintains that “the familial relationship and the brothers’ extreme reliance upon each other and trust in one another, with which Appellant was historically familiar, combined with the other attendant circumstances, led Appellant to reasonably believe that [Robert] gave Scott Watkins the authority to transfer the property to Appellant in consideration for Appellant paying the mortgage, in full, and permitting the brothers to rent the Property for a reduced rate.” Id. at 41-42. Moreover, Appellant argues that, “even after learning the Property was transferred to Appellant, [Robert] silently retained the financial benefits of the paid-off mortgage.” Id. at 46.

We have reviewed the parties’ briefs, the applicable law, the certified record, and the trial court’s opinion. We conclude that the trial court’s January 28, 2019 opinion accurately addresses Appellant’s first two assertions of error. The trial court examined whether Scott had express, implied, or apparent agency to act on Robert’s behalf in transferring the Property and concluded

-8-

J-S46018-19

that there was no evidence that “could have caused [Appellant] to believe that Scott had authority to transfer the Property.” Trial Court Opinion, 1/28/2019, at 11. We affirm the trial court’s order based on the reasoning set forth in its opinion, and direct that a copy of that opinion be filed along with this memorandum in all future appellate filings.

In issue three as presented in his appellate brief, Appellant claims that the trial court erred by accepting Scott’s testimony that he forged Robert’s signature to the closing documents. Appellant’s Brief at 22. Appellant claims, pursuant to the “testimony exception” to the statute of frauds applicable in real-estate actions, the trial court was precluded from considering the Brothers’ oral testimony where the deed was already an enforceable writing. Id. at 47-48. He argues that the “testimonial exception” allows the trial court to use the Brothers’ testimony regarding forgery against the Brothers “without accepting it as true[.]” Id. at 48. According to Appellant, the trial court improperly shifted the standard of proof and burden of persuasion to him. Id. at 46.

Appellant’s fourth issue is, to some extent, related to his third claim. Again, relying upon the statute of frauds, Appellant argues that the trial court “erred in finding that there was an oral promise to [the Brothers] that they could live on the Property, rent-free for the rest of their lives.”2 Appellant’s

Brief at 50. Appellant contends that the trial court “abused its discretion when ____________________________________________

2 As will be discussed below, issues pertaining to fair market rental are currently pending in a separate action before the trial court.

-9-

J-S46018-19

it found Scott’s unsubstantiated testimony sufficiently credible” when Scott “impeached himself as he testified to the commission of a crime.” Id. at 51.

The trial court determined that Appellant’s promises to Scott and Robert “[did] not implicate the parol evidence rule or statute of frauds” because “the terms of the transfer of the Property [were] integral to the factual findings in this matter” and the fact that “neither Scott nor Robert can enforce [Appellant’s] promise for a life estate for lack of writing [was] irrelevant.” Trial Court Opinion, 1/28/2019, at 15.

We agree with the trial court’s assessment. Here, the trial court was confronted with vastly different versions of events. Appellant claimed that Robert was present at the bank and signed the documents at issue for the property transfer. Whereas, the Brothers claimed that only Scott was present and that he supplied Robert’s signature to the relevant documents upon undue pressure from Appellant. Thus, the Brothers maintained that Appellant procured the deed by fraud and sought to invalidate it. Accordingly, the core issue to be decided was whether the deed was valid or fraudulently induced. As such, Appellant’s argument that the trial court was bound by the terms of the written deed and could not hear testimony regarding Appellant’s oral promises rings hollow.

The statute of frauds directs that agreements for the sale of real estate shall not be enforced unless they are in writing and signed by the seller. See 33 P.S. § 1 (emphasis added). This Court previously determined:

- 10 -

J-S46018-19

The statute of frauds directs that agreements for the sale of real estate shall not be enforced unless they are in writing and signed by the seller. The purpose of the statute is to prevent perjury and fraudulent claims. The [s]tatute of [f]rauds does not void those oral contracts relating to land which fail to comply with the [s]tatute's formal requirements. It is to be used as a shield and not as a sword, as it was designed to prevent frauds, not to encourage them.

Empire Properties, Inc. v. Equireal, Inc., 674 A.2d 297, 302 (Pa. Super. 1996) (internal citations and quotations omitted) (emphasis added).

Additionally, our Supreme Court has held:

Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.

Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 437 (Pa. 2004) (citation omitted) (emphasis added).

Moreover, the Yocca Court stated:

Notably, while parol evidence may be introduced based on a party's claim that there was a fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract.

Id. at n.26.

Based upon all of the foregoing, we conclude that the trial court did not err by considering oral testimony regarding whether the document at issue

- 11 -

J-S46018-19

complied with the statute of frauds. Scott has maintained that he did not authorize or otherwise sign the deed at issue. To accept Appellant’s suggestion that the written deed controls would be akin to allowing Appellant to use that document as a sword against Scott. Further, because the Brothers claimed that the deed was executed fraudulently, the trial court was permitted to hear oral testimony regarding its formation. Tasked with a classic credibility determination, here, the trial court ultimately deemed the Brothers more credible and we will not usurp that determination.3

In his fifth issue on appeal, Appellant asserts that the trial court erred “when it refused to grant a new trial as to the fair market rental value of the Property because Appellant is entitled to receive fifty percent (50%) of said value.” Appellant’s Brief at 54. However, as Appellant concedes, there is a ____________________________________________ 3 We adhere to the following standard:

Appellate review of a weight claim is a review of the trial court's exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Corvin v. Tihansky, 184 A.3d 986, 992 (Pa. Super. 2018) (original brackets and citation omitted).

- 12 -

J-S46018-19

separate action for rent and trespass pending before the trial court. Id. As the trial court aptly noted:

[Appellant] did not request rent in his first counterclaim. None of the counterclaims requested rent. No rental evidence was offered at trial. [Appellant] raised no timely claim for rent and provided no evidentiary basis on which to award rent.

• • * *

This was not a partition action, but rather an action to quiet title. [Appellant] has a claim for rental value pending in a separate action commenced one week after the within action.

Trial Court Opinion, 1/28/2019, at 12. As such, claims pertaining to an alleged life estate and fair market rental value regarding the subject property are not properly before us and we decline to address those issues.

Finally, we note that, on October 30, 2019, Appellant filed a motion for leave to file a supplemental brief with this Court. By per curiam order, this Court granted Appellant leave to file a supplemental brief. We deemed the supplemental brief filed as of October 30, 2019. In the supplemental brief, Appellant raises an additional issue and urges this Court to remand this matter to the trial court for a new hearing to consider evidence that Appellant discovered after trial purporting to show that the Brothers concealed material evidence that “substantially contradicts the underlying foundation of the trial [c]ourt’s decision[.]” Appellant’s Supplemental Brief at 6. Appellant claims that, after trial, he discovered documents that dispute the trial court’s finding that the Brothers are “unsophisticated, trusting men who would prefer to look the other way when confronted with trouble.” Id. at 22, citing Trial Court

- 13 -

J-S46018-19

Opinion, 1/28/2019, at 2. More specifically, he contends that “[f]ollowing the trial, Appellant [] discovered documents which evidence that the Watkins Brothers are sons of a regionally renowned real estate mogul named Samuel G. Watkins (“Sam Watkins”) and grew up in an affluent, sophisticated and financially literate family that was deeply involved on a daily basis with real estate acquisitions, developments, construction and property sales.” Id. Appellant claims that these documents reveal that the Brothers were well travelled and educated and that their father owned 10 real estate companies. Id. at 22-26. Further, Appellant maintains that after the Brothers vacated the subject premises, a cleaning crew found a newspaper article from 1969 about Robert making financial investments as a child, as well as, two unrecorded real estate contracts on a “burn pile” near the fireplace. Id. at 26-32. Appellant argues that if the trial court had all of this information prior to trial it would not have reached its conclusion that the Brothers were unsophisticated with regard to real estate transactions. Id. at 39.

We previously determined:

To secure a new trial on the ground of after-discovered evidence or discovery that false testimony was given, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result.

Ebner v. Ewiak, 484 A.2d 180, 184–185 (Pa. Super. 1984) (citations and quotations omitted).

- 14 -

J-S46018-19

While Appellant characterizes the evidence he allegedly uncovered as material, in actuality, the proffered evidence could only be used to impeach the Brothers’ testimony. As discussed at length above, the material issue in the quiet title action was whether Robert personally signed the deed transferring the Property or gave Scott authority as his agent to do so. None of the alleged after-discovered evidence would have materially aided the trial court in coming to its ultimate decision. As such, we deny Appellant relief on the issue presented in his supplemental brief to this Court.

Judgment affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/31/20

- 15 -

Circulated 01/14/2020 02:08 PM

ROBERTC. WATKINS . IN THE COURT OF COMMON PLEAS and SCOTT R. WATKINS Plaintiffs CHESTER COUNTY, PENNSYLVANIA

v. NO. 2014-09170.;.RC

JOSEPH RIAD CIVIL ACTION Defendant

OPINION PURSUANT TO PA. R.A.P.1.925 ··· ··

This quiet title action was heard over three days withouta jury· begir1ning January .22, .2018, A declslon w�s entered April 26, 2018 grantih�:·one half.;.. interest in the subject property to Plaintiff, Robert C. Watkins, and one half.;. interest to Defendant, Joseph Riad ("Riad''}. Riad's motion for post-trial relief was denied· on October 26; 2018 and Riad timely filed an appeal. Riad subsequently filed a statement of matters cornplained of on appeal, which we address after setting forth the factual backgroung of thi$; case. Factual Background:. . . This case involves the transfer of ownership of Plaintiffs' residential farm property. The clrcumetences $i.m'.olind.ing the transfer are disputed by Plaintiffs. who are brothers, Robert. and Scott Watkins (individually i'Roberr ot "Scott", and together'"Brothers")and Riad. After ccmsidering all of the evidence and observing the parties and their witnesses during trial; we found the Brothers and their . . witnesses credible and concluded that the Brothers had proven their factual case. ln contrast, we concluded that Riad and his witnesses Were not credible. At all relevant times, the Brothers have resided at 223 Greenhouse Road, Ec:1st Nottihgham Township, Chester County, Pennsylvania (the "Property"). 1 Brothers resided at the Property for more than thirty years and received title from their mother, Ilsa Watkins, on February 17, 1982. (Vol. 1, 28:20-25, Exh. D-1>2 In September 1997, Brothers encumberedthe Property with � 30-year, $70,000 mortgage. (Vol. 1, 32:8;.23, 92:5-11, 116:25-117:7,. Exh. 0.;2)

1 At the time of trial, Scott was dividing his. time between ·the Property and the froperty of his new wife. (Vol. 1 i 24:18�25) The transcript from January .22, .2018 is referenced as.vol. 1, from January 23, 2018 as Vol. 2, and from ,January 24, 2018 as Vol. 3.

·-------·----.. ----

Brothers and Riad have. known each other for more than twenty years. Prior to the disagreements that led to this litigation, Scott and Riad were· close enough to consider one another family .. (Vol 1, 26:2�-27:2) Robert considered Rtad to be an acquaintance. (Vol. 1, .91 :18-20) Brothers are unsophisticated, trusting men who would prefer to look the other way when confronted by trouble. Scott, 60 years old at trial, is a self- employed mechanic, prirnarily, if not excJusiv�ly, working on motorcycles, and a part-time nurseryman. (Vol. 1, 22:24, 24;1-4) Robert, 66 years old at trlel, left employment in 1997 to care for his mother, (Vol. 1, 89:5, 89:23-24) Robert has a 1976' degree from Arizona .State tJniversity and a degree from De.I Tech Community College. (Vol. 1, 112�24;-1 t3: 11) Robert raced Standard bred horses and worked as a stage crew hand atfhe.Hctel DuPont Theater. (Vot 1, 93:11-.16) R.iad, 45 years old at trlsl, is an educated and sophisticated businessman. (Vol. 2, 33:23) Riad moved to the United States from Kuwait when he was 14 ye�rs old and became a. citizen in 1�98. (VoL 2, 33:24-34:9) He matriculated at West Chester University at a9.e 15 and graduated three.years later with a degree fn computer science and an accounting minor; (Vol. 2, 33: 18-.34: 13) Riad has been a commodities trader at IMA World Trade and technlcal.eervlces directer for an. engineering firm, EPS. At the time of trial; Riad was chairman of Riad Trust & Holdings, a buslness that purchases and refines gold. (Vol, 2, 35:15,.;36:tt, 108:25-109:12) In addition, at the time of trial, Riad had a farm and was enga9ed m.tne overseas exportation of catue: (Vol. 2, 36:12-20) Brothers at times have had difficulty financially making ends. meet. (Vol. t. 93:3-8, 117:.8-118:11) After leaving employment in 1997, Robert cared for his mother, who was debilitated from dementia and lived at the Property, until she passed away in September 2017. (Vol. 1, 29:5-30:16, 89:17-20, 90:1-9) Robert also. cares for his wife, Rebecca Beckenstrater («Beckenstrater"), at the Property; she is diabilitated Jro.m multiple sclerosis. (Vol. 1, 31 :10-21 i. 32:2.�7. 8.9:10-91 :8) Beckenstrater has livedat<the Property smce.April, 2010. (VoL 1, 91:.9-11) At the time of· trlal, Beckenstrater was· confined to a wheelchair and partially blind.

Robert has mo�ified the residence to accommodate the handicapped members of his family. (Vol. 1, 100:8-1.2) Riad was aware of Brothers' financial difficulties and the burden Robert endured caring fOrfamily members. (Vol. t, 30:21-31:4, 31:22-32� 48;6�9. 101:4- 15) In August 2010, Riad approached Scott and began to work cm him to convince him that he, Riad, could alleviate t�e family's· financial burden. (N.T. Vol. 1, 33:20,.24,. 34:21-25) Riad told Scott that based on their friendship, "I'd like to so something nice for you and pay off your mortgage." (N.T. Vol. 1, .33;23- 34:2) In late August 2010, Scott mentioned to Robert that he might have found a way to have the mortgage. paid off and Robert understood that Riad was somehowinvolved .. (Vol. 1.,.95:2.;.18) The,n,ortgage happened to beheld byWeU$ Fargo3, where Riad had his accounts. Some time passed and then Riad invited Scott to. come to the Wells Fargo Kenhett Square branch ("Bank") to see "what We can do.:· (N.T. Vol. t; 35:2-4) On September 22, 2010, Scott traveled with Riad to the Bank .. · Rlad was a frequent customer at this branch and was friendly with the branch manager. Triandos Randolph4 (" Bank M.anager"). (Vol. 1, 83:20-84:5) Scott was introduced to the Bank Manager and a: meeting followed between Scott,.Riad and the Bank Manager. (N.T. Vol. 1, 35:4-14) During the meeting, R.iac:J told Scott tnat.if .he wanted the mortgage paid, the Property would be transferred into Riad's name. (N.T. Vol. 1, 35:14-17, 35:22-36:2, 53�3..,6) Scott thoughrthe request was "kind of· strange" and the. meeting ended Without a comrnnmenttrorn Scott, as ne needed time to think about it (N.T� Vo.I. 1, 35:18 ..20; 52:10-20, 53:7-J4) Robert knew that on September 23, 201'.0, Scott and Riad were going to the Bank to possibly take care ofthe mortgage and. Robert thought this was fine. He understood that they would "go find out,. and if so far - - if something happens that, you know, it could happen, well, then .I would come down.II (Vol. 1, 96:4-6, 97:.2-9, 120:8-14, 121:19 ..25) Robert did not know or expect that the Property

3 Wachovia is referenced at times in the transcript and appears on certain documents. Wells Fargo took over Wachovia. 4'The Bank.Man�ger now lives out of' state and did not testify attrial. (Vol. t, 36:10)

3 . . ·-·····-····-·-..--..··-·--··-·-..-- ..··-··-·-··-·--··-·----------··-·-----·-··-·-···-·-·--·------··-·-..-···---

wo.uld be transferred to Riad that day; (Vol. 1, 97:2-4, 99:2t-23) Robert never went to the Bank on September 23rd or any d�y. (Vol. 1. 96:7-12, 119:1--�) Robert did not sign the deed or any papers to transfer the. Property. (Vol. 1, 118:19-25) On September 23, 20.10. Scott. returned to the. Bank with Riad. (Vol. 1, 42:22 ..25, 52:21 ...23, 53:15-18. 121:14-18) In a meeting with Riad and the Bank Manc1ger, Scott. was confronted by Riad with a $1 ooipoo balloon payment that was falling due. (VoL t, 36:5,.24, 37:6.;8; 46:17-47:2) On hearing this, Scott was: afraid of losing the Property. (Vol. 1, 36:21-�7:·2. 37:18-20) Riad promised Scott that ifthe Property was transferred. he and Robert could live there for the rest of their lives as·long as they rnalntalnedfhe Property as they always had and pai� the property taxes. (Vol. 1, 37:21-38: 1) Scott agreed to transfer the Property "[b)ecause.they were pressuring me. They - - I don't know. ltwas some kind of scam orcon, they were conning me I guess, and 1. ended up be.Ueving them, I guess." (Vol. 1, .37:9-16} In fact, there was no balloon payment. The only debt on the Property was the mortgage, in the original amount of $70,000 that had been discussed .tlie day before. Robert recalls a telephone call that he . received from Riad that day, while Riad was at the Bank, and, after speaking to Riad, Robert asked to speak with and then did speak with Scott Scott does not recall this phone .call. (Vol. 1, 54:22�25) Riad denies thatthis phone call tobk place.5 Robert testified mat.Rlad called him and "was .explaining about- - about the mortgage and how it had to. be put in his name, and .1 didn't �hihk itwas a good idea and J expressed no to him. in so many words. And then I said I want to talk to S.cott, you know, and I trust my • brother to make right decisions." (Vol. 1, 96:16-23, 122:7�123:5, 124:22-125:2) Robert then had a short conversation With Scott arid told Scott that he did not thirik.the:transferwas a good.idea. (Vol. 1, 97:12-13, 123:6'-17, 125:3-5, 125:3-5) Robert>a.lso told Scott, "Do what you think is. right." (Vol. 1, 124:6..:9, 124:15-17, 125:1.6".23) Robert never authorized Scott to transfer the Property or to sign his

5 According to Riad, ScQtt and Rpbert. both attended settlement. Therefore, there could not have been.a phone call. ·(Vol. 2'.. 66;7:..17)

(Roberf:s) name to the deed or other documents. (Vol. 1, 108:20-109:1,. 124:5 .. 17; 125:14-:15, t26:2..3) Whether at trial. or during deposinon", Robert's testimony concerning this phone call wa!> consistent He stated multiple times that n.e had :a phone conversation with Riad and told Riad that he did not think it was a good idea to put the Property in Riad's name and told Riad no. He then asked to speak with Scott and Scott took the. phone. Robert then told scott that the transfer was not' a good idea. He· also told Scott to do what he thought was right Robert understood that Spotfwas at the Bank with Riad exploring waysto handle the mortgage. Robert expected a gift. or a new private mortgage. Neither would have required that the Property be placed in Riad's name and Robert understood that his presence would be necessary to transfer the Property. His words, do what you think is right, do not amount to authorization to transfer the Property. When S�ott agreed to transfer the Property, he was given, while. still ih the Branch Manager's office, all of the papers needed to transfer title from the Brothers to: Riad. (VoL 1, 41: 19-24) Scott signed both his name and Robert's name to all of the papers, including the .deed, (Vol. 1. 40: 19.;25, Exh. W-1) S'cott testified: A. Yeah, weU, the way that worked was they had me sign Bob's name. against duress. I didn't really want to do that, but I figured I had to, so I signed Bob's name, and then they had a notary come in a'11d then. she witnessed me sign my name under Robert Watkins' signature that I signed.

Q. So just.so we1re clear - -

Th13 Court: I want to ask a question. Did she notarize your signature as well as his?

The Witness: Yes. But Robert's signature was already- -they already had me write ttis signature down before she. came tn to the room .. Okay. And then she witnessed my signature, and then put the notary on it. ·

6· Depos.ition transcripts. were used at trial to refresh Robert's memory.

5 -----·------------------- ·---- --------·--·-----·--··---------

(Vol. 11 38:14.. 39:1) S.cottalso affirmed at trial that he knew if the legitimacy of the documents was ever questioned; it would be apparent that Robert had not signe.�L (Vol. 1, 54:7-10) Finally, despite the documentation that he signed, Scott retained the belief that Riad was gifting him and hi� brother payment of the mortgage, helping out the family based on friendship; as. Riad had initiaUy offered. (Vol. 1, 58.:12-21) Scott did not understand the documents he was sighing. (Vol. 1, 67:4-9) To obtain the Property; Riad paid Wells Fargo $62i751.37 to clear th.e mort.gage and thetransfer tax of $4,122.82. (Vol. 2',. 107:8-10, Exh. D-4) ThE! Property was worth between $206,140 and $3.58,.000. (Vol. 2, 105:18-19, Exh. w,.9; Trial Dep. orJoseph Summers, 11:17-15) Scott testified that he did not have permission or auth0.rity from Robert to sign the deed or other documents on his behalf. (Vol. 1, 41 :4-16.) Scott testified that it was "through much duress. I was coached into doing this'." (Vol. 11 41:11- 12) When matters were concluded at the Bank, Scott and Riad left together and had lunch at a local restaurant. Eventually, Riad took Scott home; (VoL 1, 42:7-25) Scott did not tell Rob�rt what had occurred at the Bank because he thought Robert would not have .agreed to transfer the Property. (Vol. 1, 43:1-11, 52:24-53:2, 55:1-20) Robert testified at h1s<depositionthat Scottonly told him that night that the mortgage had. been. paid,. without any further detail. Robert could not recall any details about this conversation cit trial. (Vol 1, 126:23-12.9: 11) The; Brothers received correspondence and a check in the amount of $696.62 from Wells Fargo shortly after September 26, 2010. (Exh. D-10) The letter referenced .the paid .in full mortgage. Scott testified -that when the letter arrived, he told Robert that the mortgage had been paid, but he did not disclose the Property transfer. (Vol. 1, 58:8-11) At this. time, Robert understood only that the mortgage had been paid and he wondered how that had happened, but did not pursue the issue. (Vol. 1, 97;19-98:2, 133:23-25) Robert did not know if a gift or private loan had been made .by Riad. (Vot 1, 119:11-120:1) The check

from Wells Fargo referenced a "sale", but Robert did not question the meaning. (Vol, 1, 134:1-1.34:7, �xh. D-9) When Robert received a tax bill in January 2011 for the Property, he. observed that the bill was in R.iad's name and confronted Scott; Robert was furious. (Vol. 't, 43:12-18, 21-23.. 98:3�16) Scott fim�ny explained that he had transferred the.Property, but tried to soften the impact by further explaining that Riad had promised thatthe Brothers only needed to maintain the Property· and pay the taxes and they could live there the rest of their lives. (Vol. 1, 44:.1-9) Neither Brother thought it would be possible. to reverse the. transaction at that time. (Vol. 1, 65:19-6.6:7, 98:22�24, 99:17;.19, 120:23-121:2) Robert was concerned about losing the house that he had renovated to care · for his handicapped family. (Vol. 1, 100:6-12) The Brother� k.new Riaq was wealthy and did notbeneve they had the resources tofighthim.7 (Vol 1, 34:4..:5; 121:1�2) After receiving the tax biH, Robert also confronted Riad about the transfer of the Property. Riad responded by .saying there had been two mortgages against the Property and he had paid $220,000 to clear the debt. (Vol. 1, 98:16� 99:15) This was a fabrication. Riad. reassured Robert that things wou.ld Qe all right and that he just needed to pay the taxes. (Vol. 1, 1 o·o:2-5) Robert trusted Riad and be.lieved What he was told. (Vol. 1, 112:22�i3) From 201,0 through trial, Robert paid the taxes at the. Property, either direcUy.to the taxing authorities or by reimbursing Riad, (Vol. t, 101:16-102:241 105:12 .. 108:19, Exh. W;.3) When questtoned at trial, Riad agteed that the taxes were up to date. (Vol. 2, 127:5-8) Riad first demanded rent from ·the Brothers in the summer of 2014 after Riad and his girlfriend/attorney, Mickala Rector, came to the Property to evict the Brothers and thei('family. (Vol. 1, 44:14-45:1, 64:10-65:9) The rentdemand was for more them $50,QOO for the past four years. (Vol. 1, 44:22-24) As'. a result of

7 P.rior to the start of.trial a ruling hadbeen entered precluding evidenc.e of. Riad's wealth. However, because Ria<:! raised the issue himself on direct examination, the evidence was permitted. Riad· testified that he was coming into milllons and that the Brothers knew he was coming into money in 2010 when the evehts recited herein w�re unfolding. (Vpl. 2. 46.:5-7. 4� :3"4, 109: 13-111 :4)

the .threatened eviction and rent demand, the Brothers finally consulted an attornev. (Vol. 1, 45: 1-8) On December 17, 2014, Brothers filed a complaint to quiet.tine raising two counts. the first asserting that Robert's signature on the Deed· is a forgery and thus the Deed is void ab initio as well as fraud by Riad against Robert, and the • second asserting fra1,.Jd by Riad agaih�t Brothen, and .breach of contract. Riad answered the complaint cm February 18, 2015 and filed amended new matter and counterclaim, with permission, on February 2, 2016. The .amended counterclalm .ralsed five counts, the<first to quiet title against Scott the ·second for specific performance against Brothers, the third for unjust enrichment against Brothers, the fourth 'for fraud against Scott and the fifth for breach of warranty of title to. real. estate .against Brothers. Brothers replied to the amended new matter, answered the amended counterclaim and pied new matter on March 10, 2016. Pleadings closed on March 21, 2016 with Riad'sreply to new matter. The matterwas called to trial on January 22; 2018 and a decision issued April 26, 2018 in favor of RoQertarid against Riad on the complaint and in favor of Riad and against Scott on the. counterclasn. The decision . gave Robert and Riad fifty�percentownership each of the Property. Post-mal motions were timely filed by Riad and denied. Riad then tio,ely filed the pending appeal. Issues preserved.on appeal: Riad filed a statement of matters complained of on appeal raising issues in five paragraphs. The issues are addressed senatlrn. 1. DkJ. the court err when it found a.) that the signature on the deed in Robert's name was an unauthorized 'forgery, b.) that Riad participated ih the fraud i::>erpetrated oh Robert, c.) that the deed is Ulegat and void as to Robert, his signature thereto being a forgery, and d.) that the deed must be cancelled· as to Robert and marked so as .of record because proper application of Pennsylvania law ta the undisputed evidence.established a.) that with Robert's express and/or impiied and/or apparent authority Scott signed Robert's name to the deed, making the signature authorized and riot an unauthorized forgery or fraud, and/or b.) that Robert chose to silently retain the benefits conferred by Rlad insteadof seeking to remedy the. conveyance of the Property; thereby ratifying · Scott's conduct and otherwise being barred by the statute • of limitations, doctrine of lashes, estoppal and waiver;

---·-·--··-

To address Riad's argument. it is necessary to consider the case that Rlad tried as compared to case that Riad has advocated. post-trial. The evidence Riaq proffered at trial was lntendedto show a.) that Scott and Robert tuny participated in the decision to sell the Property (N.T. VoL 2 45:13-47:23, 48:9-50:12, 52:1'8- 58:14. 61 :21-62:22, · 64:5-21); b.) that Scott and Robert attended settlement on September 23, 2010 at the Wells Fargo branch office (N.T. Vol. 2 66:7-67:1. 71 :2-11), and c.) that the deed and other documents transferring the Property were signed by Scott and Robert. (N.T. Vol. 2 67:5--71:18). Post-trial, Riad has abandoned the factual case he. tried to prove and has relied instead on certain facts we found to make a claim of agency. The factual case Riad tried to prove and the facts we found are ln opposition. As discussed, the Brothers put on credible evidence a.) that Robert did not agree to sen the Property, b.) that only Scott appeared.at the Bank on September '23, 2010, and c.) that a phone . conversation .between Scott and Robert took place and thereafter Scott signed Robert's name to the deed and other documents transferring the Property. Riad contends that under an agency theory, based on the phone conversation betwse.n Scott and Robe.rt, he should .have prevailed. In other words, Riad contends he is entitled to ·rely on Robert's statement to Scott to "do what you think is best" made during a phone call t�at �ccording to . Riad never took place: Rlad's position is absurd. He has plucked one factual findinQ from the case ancf attempted to twist it to hle favqr. The. last thing that Robert said to· Riad during that phone call, before asking to speak to his brother, was no, he did not want to transfer the Property. There is no evidence that Scott disclosed tile content of his phone conversation with Robert to. anyone: There. is no evidence that Riad overheard Scott's side of the conversation. Riad could not have known that Scott was told to do What you think is best. There is no evidence of any conversation· as Scott began to sign Robert's name to documents. Are we to believe that Scottbegan signing Robert'e name to documents and no one asked why? Scott did not sign Robert's name and then

9 --·-··-·--·-·-·----···-···-····--·----.. -·-·-·-·-----..--·--------------·-----------------·----·----·-·-·-----·-------

.add 'as agent for. Scott testified that he knew he did not have Robert's authority to transfer the Property, but he did so anyway because he felt duress and pressure. Robert. the C>OIY person with a recollection of the phone call, testified that he did not give authority to transfer the Property. In fact, duting the phone call, he separately told Riad and Scott that he did not agree to the transfer. Robert understood that the September 23rd meeting was to investigate how the mort.gage could be handled. and believed that Riad was contemplating making a gift or a private loan. Neither required transfer of the. Property; Robert understood that transfer of the Property. would require his presence. His words, do what you think is best; dip not Jnclude transferring the Property. Robert knew whathe meant and Scott testified thathe hadno authority to sign Robert's. name. The basic elements bf agency are. themanifestation by the principal that the agent shall act for him, the ijgent's acceptance ofthe undertaking. and the understanding of the parties that the principal is to be in control of the undertaking. Bradney v. Sakelson, 325 Pa.Super. 519, 523, 473 A2d 189, 191 (1984)(citing Restatement (Second) of Agency,§ 1, comment b (1958)). Four types of agency have been · identified and Rlad contends · that under each he prevails. An agency relationship may be created by any of the following: (1) express aµthority, (2) implied authority; (3) apparent authority, and/or (4) authority by estoppal.

Walton v. Johnson, 2013iPA Super 108, 66 A.3d 782, 786. (Pa. Super. Ct 2013). ''Express authority exists where the principal deliberately and specifically grants. authority to the ageht as to certain matters." Id. Robert never granted authority to Scott to act on his behalf in the transfer of the Property. ;'Implied authority exists in situations. where the agent's actions are 'proper, usual and necessary' to carry out express agency." Id. There was no express agency. "Apparent agency exists where the principal, by word .or conduct, causes people with Whom the alleged agent deals. to believe that the principal has

1.0

·----·--------------------------·--·-..-···-·--·--·-·-·-··

granted the agent authority to act" Id. Robert's last words to Riad before Scott signed the deed and related papers were no, he, did not agree to transfer the Property. There is no evidence that anything occurred between the utterance of those words. and Scott's signing the deed and related papers that could have caused Riad to b�lieve that Robert had given . scott a.lJthority to transfer the Property. "Authority by estoppal occurs when the principal fails lo take reasonable steps to disavow the third party of their belief· that the. purported agent was authonzed.to act on behalfe>.f the prlnclpal," Id . Robert told Ri.ad that he did not c1gree to. transfer the Property. Again, there is no evidence that anything occurred that could have caused. Riad to believe that Scott had authority to transfer the Property. Riad also contends that Robert chose to silently retain the benefits conferred by Riad, instead of undoing the conveyance of the. Property,. thereby ratifying Scott's. conduct and otherwise being barred from quieting title by the statute of limitations, doctrine of laches, estoppel and waiver. In his pest-trial motion, Riad raised these claims; however, he failed. to develop any support for them in his post-trial brief stating only Robert "should be .estopped from claiming the. Deed was void because of his failure to take reasonable, timely steps to di�i:ivow his allegedly unauthorized signature on the Deed upon · its discovery." (PTM Brief; p, 5) Issues are waived where there is no dlscusston, argument or Citation to C:luthority to support them. Phillips· v� Selig, 9.5� A.2d 42Q, 437 (Pa. Super. 2008). These claims have be.en waived. Nonethele.ss, we note. that. Robe.rt, upon learning that the Property had been transferred in January 201 t, did . confront Riad. Riad responded by saying there had been two mortgages against the Property and he had. paid $220,000 to clear the debt, which' was a fabrication. In this conversation, Riad reassured Robert that thingswouldbe all right and that he just needed to pay the taxes. Robert trusted Riad and believed What he was told and took no action. Robert also beuevedtbat he qid nothave the resources to fight Riad;

tr ·-,--,,·---·-----····-,,-------·-�-----··---------·---

Riad never addresses our legal conclusion, based on our factual findings, that the transfer of the Property as to Robert was void ab initio .. A forged deed conveys no title. A forged deed is not voidable, but is void. Reck v: Clapp, 98 Pa. 581 (1881). Even as to one who is innocent, and Riad was not innocent, a forged deed cannot pass title .. Id. 1'No man can be deprived of his property by a for�ed deed or mortgage,· no matter what may be the bona tides of the ·party who claims under it." Smith v. Markland, 223 Pa. 605, 72 A. 1047 (1909). "[A] deed may be good in partand void in part It may be .good against one person and void against another." Id., 98. at 586. Robert•s signature, on the deed is a forgery. As to Robert the deed is void. 2. Did the court err when if denied Riad's post-trial request to modify the Decision or grant a new trialto determine the market rental value ofthe Property arid the property taxes aftei"2014?

Riad contendsthatweerredby makin9, no award for rental value; since he was four,d to be the out-or-possesslon owner of fifty"'.perceht of the Property, Riad raised five ceunterclalms in this action. The first counterclaim requested that Riad receive a fifty.:percent interest in the Property, if we concluded that Robert did not sign the deed. This is the d.etermint:ttion and aw�rd made. Riad did not request rent in his first counterclaim. None of the counterclaims requested rent, No rental value evidence wa$ offered at trial. Riad. raised no timely claim for rent and provided no evidentiary basis on which to award rent. . . Refusal. to open the record post-trial to take evidence on a. claim that was never· raised is not error. The statute referenced by Riad, 68 P.S. § 101, is inapposite, This was not .a partition action, but rather an action to quiet title. Finally, Riad has a claim for rental value pending in a separate action commenced one week after the within action.8 Riad also contends that we erred in finding. that the Brothers paid all property taxes from the time of the transfer through the time oftrial, The Brothers

8 The two actions had been consolidated, but counsel We.re notifie1=t before the start of trial that the consolidatlon would be dissolved and only the quiet title action .tried. The second action was not ready to be tried lnasmuch as one: of the defendants; Ilsa Watkins, was deceased and her estate ·. had not been substituted,

I� ·-·--·-----"-··-····-----·-·---

provided an evidentiary basis for this finding that we determined to be credible. When questioned, Riad conceded that the taxes were current at.tlme of trial. 3 ... Did the court err when it concluded that 11[b]eing culpable toward Robert, Riad is. not entitled by way of equitable lien · or otherwise to reimbursement from Robert of the sum paid to clear the mortgage on the at Property" [COL, 1f4] because the undisputed evidence triaJ clearly showed that Riad conferred a financial benefit on Robert and Robert chose and tor years cqntinued to choose to sile.ntly appreciate that financial benefit for his and his family's pecuniary gain and as such has caused inequitabJe and substantial financial Joss to Rlad,

Riad maintains that the undisputed evidence at trial showed that Riad conferred a financial benefit on Robert and Robert knowingly accepted this benefit causlnq Jnequitable and substantial financial loss to Riad. In etherwords, our ruling unjustly enriched Robert at Riad's expense; Riad points out in his post-trial motion brief 'that unjust enrichment is an equitable doctrine. (Brief, p. 12) Unjust enrichment occurs when a party. either "wrongfully secured or passively rec.eived a benefit that Would be unconscionable for her to retain/ Totchia ex rel. Torchia v. Torchia, 499 A;2d 581, 581 {Pa; Super; 1973)(citation omitted). A party may recover where (1) another party is enriched and (2) an injustice. will result if recovery i� denied. Id. pp. 582-583. When the Property was transferred, Robert held a one-half interest. The Property had a value ef at least $206,000 and as much as $358,.000. The debt against the Property was $62, 751. Following. the transfer, Robert continues to hold a one�halfinterest and there is no debt against the Property because Riad paid the mortgage. Riad attempted to obtain a $206,000,.$358,000 property for the payment of $62,751. To do so, he. lied about the debt against the Property and made a prornlse that he did not keep about retaining a life estate for payment of taxes . . Instead of the windfall he hoped for, Riad obtained a .one-half interest in the Property, so an interest valu.ed at minimally $103,000, for $62,751. Riad schemed, influenced and pressured Scott to cause Scott to sign over the Property. Riad initiated the fraud, caused all the papers to be prepared for the transfer and accepted Scott's signing of Robert's name. When Robert learned

13 ·-···-···-·-·--··----·--··----- -·-------------- ·----··---·

that the Property had been titled to Rlad, Robert confronted Riad and Riad lied to him aboutJhe conditions on the transfer. Robert and Scott believed that they could not fight Riad and took no action until Riad squeezed them harder, looking to collect.rent and threatening an eviction; He who comes into a court of equity must come With clean hands, Riad seeks. an equitable remedy, but stands before the court with unclean hands as to .the controversy at.issue. In re Estate of Pedrick, 505 Pa. f?.30, 46,2. A.2d 215,. 222 (1984)("the doors of a court of equity [are closed] to one tainted with inequitableness or bad faith relative to the matter ih Which he seeks re.lief'). Riad is entitled to no equitable relief in this matter. Additionally, it is difficult to understand· what benefits Riad contends he conferred on Robert, Aproperfy worth $206,000-$358;000 was taken by clearing a debt of $62,751. The promise of ·a lifetime estate was never secured by a writing. The Brothers paid the property taxes. before and after the transfer. Following tran.sfet,the Brothers ho long�r had a mortgage payment, but instead, had ,an obligation to, provide unsp�cified maintenance services for Riad. When Riad determined the Brothers were not performing, he demanded $50,000 for four years of back rent. The Brothers Would have owed less money over four years if they had paid the mortgage, Which carried a monthly payment of $627, instead of the $1,180 monthly rental that Riad demanded. (Vol. 1, 92:t2.:14; Vol. 2, 55:19-21) 4. Did the court err; to the extent its decision was premised on a presumption that a notary, Tina J.. Magana. was not present .and/or did not sign and affix her notary seal to the deed arid other closing doclirn.ents?9 ·

Riad failed to raiseJhi$ issue in his post-trial motion. This is a claim that fhe verdict is against the weight ofthe evidence. Such a claim is waived unless made as ·part of a post-trial motion. Bensinger v. Univ; of Pittsburgh Med. Ctr., 2014 PA Super 174, 98 A.3d 672, 68.5. (pa. Super. Ct, 2014); Riad did not suggest any error concerning the notary ln his. post-trial motion or supporting brief. However, no factual finding was made with regard to the notary because

9 · Given our disposition of this claimed ·error, we have omitted from our recitation the . evidence . . Riad claims wasundisputed.

. . whether or not she affixed her signature to the deed. and other disputed documents lslrrelevant to the outcome oUhis case. 5. Did the court err in its factual findings that (a)."Riad convinced Scott that a balloon mortgage would soon fall due", (b) "Riad also. promised Scott that he would permit Brothers to reside at the Property rent free for the remainder .of their lives", and (c) 11Robert was told that in exchange for the transfer of the Property and continued payment of property taxes, Riad. had paid the mortgage and had given Brothers a life estate" [Findings of Fact, 171 18 and 27} as these findings are against the weight of the evidence and clearly erroneous as a matter of law as oral -statements concerning a purported transfer .of real estate. should neither nave been considered by the court nor memorialized in the Decision because the. statements ate unsubstantiated oral .staternente by an interested party [Scott] that lack .credibility and otherwise violate the rules on parole evidence and statue of frauds con��rning the conveyance of real estate interests. The oral statements purportedly made are also lf3gal conclusions and riot statements of fact as they interpret the terms of a mortgage and note.and cannot; as a matter of law. constitute a false Qr fraudulent statement of fact and/or concern a present existing intent and cannot, as a matter of law, constituted a false or fraudulent statement. · Rlad's statements to the Brothers about the terms of the. mortgag!Et he paid do not.implicate the parol evidence rules or statute of frauds. Riad's promises to the BrC>thers. about the terms of transfer of the Property are integral to the. factual findings ih this matter. That neither Scott nor Robert can enforce Riad's promise for a life estate for lack of a Writing· is irrelevant. Riad maintains that he had less experience than either of the. Brothers .in matters involving real estate or mortgages. To the. contrary, Riad is a sophisticated businessman with real estate. holdings. On di.reel examination, Riad testified that he had not previously purchased any property prior to purchasing the subject property; (VoL 2, 36:21-25) On cross-exemlnation, Riad conceded that he owns three properties i.n Chester County in addition to the subject property; (Vol. 2, 111 :5;.24, 128: 14-129:6) �iad also owns a property in Hcckessin, Delaware. (Vo]. 3; 12:20-13:11) Riad testified that he carefully researched the value of the Property before moving forward with.his acquisition. (Vol. 2, 51:4-19, 52:.9-17) Riad testified that he investigated the debt against the Property to insure that he had. 9ood title. (Vol. 2, 55:4-7, 59:16-23) In contrast, the real estate. closing at issue is the first Scott ever attended. Scott did not

15 -·---·-··----------·--·--·-·-- ·-·--·--·- ---

understand the HUDA that he signed. (Vol. 1, 67:4-17) There is no evidence that Robert had any experience in real estate. Riad maintains that he did not have access to the mortgage and note that the Brothers held. To the. contrary, Riad testified that he obtained the "paperwork thatshowed the loan" from Robert, brought it to the Bank and had the Bank Mana.ger look up the loan and make copies. (Vol. 2, 61:5.:62:1, 63:9-13) Riad maintains that the Bank Manager confirmed the terms of the mortgage Scott;. The record is devoid of evidence of what the Bank Manager might have· said on .either day that Scott was. at the Bank. We are mystified by Rlao's argument since Riad's counsel objected at trial to testimony concerning what the Bank Maoag�r said and the objecticm was sustained. (Vol.' 1. 36:14.-20)

For <!II of the reasons stated, we entered our d�cisjQh and order denying Rlad's post-trial motion. This was a scheme concocted by Riad to separate the Brothers from their residential farm. The statute of limitations on any claim seen could have pursued againstRia(J expired long before the action was brought. As to R;obert, he did not sign the deed. The deed was void ab fnitio. Robert retains his one-half share of the Property.

BY THE COURT: . -.. -···

DATE: January ·� �2019