Banko v. Malanecki

HESTER, Judge: Presently before the court is appellant’s appeal from the order of the lower court dated March 31, 1980, wherein the court en banc dismissed all exceptions 1 to the Decree Nisi previously filed and entered the same as a final decree. During a non-jury trial, only the appellant testified. The salient facts may briefly be summarized as follows: In 1969, appellant’s first wife of over twenty (20) years died. Thereafter appellant developed a serious drinking problem. In 1972, appellant met appellee and they dated until the later part of 1973 when it was agreed that appellant would move in with the appellee. They held a “wedding reception” in January of 1974 to convince people they had married (although in actuality they had not). Appellant listed his house for sale in November, 1973 and closed on it on April 23, 1974. Trusting her “all the way,” following the closing on his house (on the same day), appellant out of the proceeds of the closing (a) paid off appellee’s mortgage in the exact amount of $2,195.18 and (b) paid off appellee’s auto loan in the exact amount of $3,782.86. With respect to the mortgage: — 14 — Q Why did you pay that off for Gail? A Because I loved Gail and like I said, I thought that we were going to live together and things were eventually going to work out and we were getting married. Q Did she actually ask you however to pay that bill? A No, she didn’t. (R 47a) And in regard to the satisfaction of the auto loan: Q And again why did you make that payment? A Same as with the other payment. I wanted to pay off because I felt that someday we would get married. (R 47a) In addition to (a) and (b) above, appellant also purchased new furnishings and furniture from Grant’s in the approximate amount of $2,500.00 and contributed additional miscellaneous personalty from his recently sold home of a minimum value of $1,500.00 (total $4,000.00). Within a week following the closing, the parties opened a joint savings account in the names “ William Banko and Gail Banko”—husband and wife, as tenants by the entireties (Trial Exhibit # 3, both parties being signatories thereto. The original deposit was $3,300.00 (from the proceeds of the sale of the house), which subsequently grew by $300.00 (appellant’s IRS refund check) and by $1,600.00 (appellant’s six week vacation check), to a total of $5,200.00 by June 21, 1974. During the period of time the parties lived together (January to July, 1974), both were gainfully employed; when appellant received his pay check he would turn it over to the appellee, retaining only $10.00 per week as spending money. Appellee in turn paid all normal monthly bills and expenses. In July, things started to change, “pressure” started to build, and appellant started to drink. Three or four days later, following an argument, appellee told appellant to leave—to get out—and he did. Subsequently, appellant was hospitalized, and then spent 28 days at Serenity West. Following discharge, appellant moved to the Penn Motel. Appellee corresponded and visited infrequently. — 15 — In November, 1974, appellee (with William Malanecki) visited appellant and told him they were married. “She wanted me to wish them good luck, which I did, and not to bother them.” (R 56a). On July 9, 1974, appellee, signing as “Gail Banko”, withdrew all of the funds from the entireties savings account ($5,232.21 consisting of $5,200.00 principal and $32.21 accumulated interest). Appellant brought suit in equity against the appellee for the full return of the monies expended on alternate equitable theories of breach of a confidential relationship, breach of an implied covenant agreement between the parties, and on the theory of unjust enrichment. In an effort to reach equity, appellant requested monetary damages, the imposition of an equitable lien, a constructive trust, and a full accounting. The Chancellor decreed: (a) Appellant is not entitled to recover the monies spent to pay off either the mortgage or the auto loan; (b) Appellant is entitled to one-half the furniture or one-half its value; and (c) Appellant is entitled to one-half the savings account funds. We affirm in part and reverse in part. We affirm the final order of the lower court which found that appellant is not entitled to recover the monies spent to pay off either the mortgage or the auto loan. The record is barren of any evidence which rebuts the presumption that said payments were intended as inter vivos gifts. Nor was evidence produced demonstrating that the relationship, at that time, was such that said “presumption of inter vivos gifts” was inapplicable, thus shifting the burden to the donee/appellee to prove that said payments were the voluntary acts of the donor/appellant. We also affirm that portion of the appealed-from order which founded on the rationale of DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975), concluded that appel — 16 — lant is entitled to one-half the furniture, or one-half its value in the instant case. Because of the time lapse involved, the expected normal depreciation of personal property, and the fact that appellee has had the exclusive and beneficial use of same since 1974 (excepting the parties’ joint use from January to July, 1974), we direct that this portion of the order be molded to reflect an award of $2,000.00 plus interest from July of 1974. However, we reverse that portion of the appealed-from order which concludes that appellant is entitled to one-half of the savings account funds. We conclude that appellant is entitled to all of the proceeds from the savings account ($5,232.21) plus interest from July, 1974. It is undisputed that the parties were never formally married. However, marriage is an indispensible element of the existence of an estate by the entireties. See Masgai v. Masgai, 460 Pa. 453, 333 A.2d 861 (1975); Simpson v. Simpson, 404 Pa. 247, 172 A.2d 168 (1961); Pa. Bank and Trust Co. v. Thompson, 432 Pa. 262, 247 A.2d 771 (1968). The Union Bank savings account was opened (on April 26, 1974) by the parties as husband and wife—as tenants by the entireties. Additionally, appellee affirmed this status by affixing her signature on the line where the words signature of wife appeared by signing “Gail Banko.” Appellant testified that he “trusted” the appellee; that she handled the parties’ financial affairs, and that he thought they eventually would marry. We are of the opinion that in April of 1974 when appellee represented to the bank that she was appellant’s wife, this representation has sufficient probative value to establish the existence of a confidential relationship between them with respect only to the creation of the savings account. As our Supreme Court opined in Estate of Dzierski, 449 Pa. 285, 289, 296 A.2d 716, 718 (1972); Neither of these two general principles (i. e., the prima facie creation of a gift and the burden of proof placed on the presumed donor, or his representative, to show no gift) — 17 — applies, however, “where the relation of the parties to each other, or some vicious element in connection with the transaction, is such that the law compels the recipient of the bequest or gift to show that it was the free, voluntary and intelligent act of the person giving it.” Weber v. Kline, 293 Pa. 85, 87, 141 A. 721, 722 (1928). The presence of a confidential relationship sufficient to shift the burden of proof to the alleged donee does not turn on the existence of any specific association of parties. Leedom v. Palmer, 274 Pa. 22, 117 A. 410 (1922). In Kees v. Green, 365 Pa. 368, 75 A.2d 602 (1950), we said that the burden will shift if “circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other weakness, dependence, or trust, justifiably reposed. . . . ” In Yohe v. Yohe, 466 Pa. 405, 411-412, 353 A.2d 417, 420-21 (1976), our Supreme Court stated: The imposition of a constructive trust is an equitable remedy designed to prevent unjust enrichment. (Citations omitted). A constructive trust arises “[wjhere a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. (Citations omitted). A transferee is under such an equitable duty to reconvey property to the transferor if the transfer was induced by fraud, duress, undue influence, or mistake, or if the transfer was the result of an abuse of a confidential relationship. Chambers v. Chambers, 406 Pa. 50 at 54, 176 A.2d 673 at 675. We conclude that with respect to the creation of the saving account, contrary to the Chancellor’s finding, the record does reflect the existence, at that time under consideration, of a confidential relationship. Accordingly, it was incumbent upon the appellee to demonstrate that she did not abuse that relationship. Appellee did not testify. We are also convinced that appellee’s subsequent act of withdrawing all of these funds on July 9, 1974, the same — 18 — month that she demanded appellant remove himself from her home, is relevant in demonstrating the existence and subsequent abuse of a confidential relationship. We therefore conclude that the appellee took possession of ¿he savings account in question on July 9, 1974 in the amount of $5,232.21 as a constructive trustee and therefore we reverse that portion of the order of the lower court and enter an award in favor of the appellant and against the appellee in the amount of $5,232.21 plus interest from July of 1974. We therefore affirm in part and reverse in part and direct judgment be entered in favor of the appellant and against the appellee in a total sum of $7,232.21 plus interest from July of 1974. Affirmed in part and reversed in part. BROSKY, J., filed a concurring and dissenting opinion. Footnotes [1] Only appellant William Banko filed a timely appeal to the March 31, 1980 Order. Gail Malanecki, a/k/a Gail Woodward, a/k/a Gail Banko did not appeal. Moreover, William Malanecki, a party originally named, was dismissed from this action by stipulation of the parties and by Order of Court dated October 1, 1979.