Malinowski, M. v. Swinnerton, E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARY MALINOWSKI, EXECUTRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF STANLEY : PENNSYLVANIA
MALINOWSKI, :
:
Appellant :
:
v. :
:
EDWARD T. SWINNERTON, :
INDIVIDUALLY AND AS A GENERAL :
PARTNER OF T&R PAYMENT :
PROCESSING : No. 453 MDA 2019
Appeal from the Judgment Entered March 1, 2019
in the Court of Common Pleas of Luzerne County
Civil Division at No(s): 3263-C-2005
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 24, 2020
Mary Malinowski, Executrix of the Estate of Stanley Malinowski (“the
Estate”), appeals from the Judgment awarding the Estate $8,954.28, in the
partnership dissolution case originally filed by the decedent, Stanley
Malinowski (“Malinowski”) against Edward T. Swinnerton (“Swinnerton”). We
affirm.
The trial court set forth the Findings of Fact underlying the instant
appeal, in relevant part, as follows:
4. T&R [Payment Processing (“T&R”)] was formed in 1997 as a
general partnership between Malinowski and Swinnerton. Both
Malinowski and Swinnerton owned 50% [] of the partnership.
5. There were no restrictive covenants executed by either
Malinowski or Swinnerton in favor of T&R or each other.
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6. A letter dated July 8, 2004 (“the Letter”) was sent at the
direction of Malinowski by Attorney Anthony Lupas to Swinnerton
stating Malinowski’s intent to retire.
7. The Letter was sent at Malinowski’s direction to Swinnerton to
“notify [Swinnerton] that he is retiring from the partnership of
T&R [] … effective sixty (60) days from [Swinnerton’s] receipt of
this letter.”
8. Swinnerton received the Letter sometime in July 2004.
9. T&R was in the business of selling credit card processing
services to merchants.
10. T&R paid a commission to Malinowski and Swinnerton for
equipment[-]related sales and leases. The commissions were
based on actual sales and were not split evenly.
11. Swinnerton received $10,000 in commissions in 2004.
12. Residuals on credit and transactions received from the
processing company or bank, as non-commissions, were split
evenly between Malinowski and Swinnerton.
13. The partnership income in favor of Swinnerton for the year
2004 equaled $203,100. [FN1, FN2]
[FN1] Malinowski records this amount as $213,000, while
Swinnerton records this amount as $203,000. The difference
results from Malinowski’s inclusion of $10,000 in commissions
[that] Swinnerton earned in 2004. As the commissions were not
included in the partnership’s evenly[-]split profits, $203,000 is the
proper principal income figure.
[FN2] The calculation breaks down as follows: $144,000
(Distributions to Swinnerton) - $11,000 (Distribution to
Malinowski) + $236,000 (Guaranteed payments to Swinnerton) -
$166,000 (Guaranteed payments to Malinowski).
14. In August 2003, Malinowski personally borrowed $360,000
from Fifth Third Bank [(“the Fifth Third Loan”)].
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15. The Fifth Third Loan was guaranteed by T&R. The Fifth Third
Loan payments were paid by automatic withdrawal[s] from the
T&R account at the rate of $8,400 per month.
16. Malinowski made no payments on the Fifth Third Loan and all
payments were made by T&R or Swinnerton.
17. T&R and Swinnerton’s 2004 payments of the Fifth Third Loan
debt totaled $100,800.
18. Swinnerton owes Malinowski 50% (fifty percent) of his excess
partnership income.
19. Swinnerton charged expenses on an American Express card
through T&R (“AMEX Card”) that were personal expenses.
20. Malinowski did not hold an American Express card that he
used for business purposes.
21. Swinnerton charged $71,208.84 on the AMEX Card in the year
2004.
22. Swinnerton owes Malinowski 50% [] of his 2004 AMEX Card
charges.
23. Malinowski used the resources of the T&R call center for a
real estate business that he operated apart from T&R.
24. The parties agreed that Malinowski would pay Swinnerton
50% of the cost of operating the call center to account for
Malinowski’s real estate business.
25. Both parties believe the value of Malinowski’s use of the call
center for the real estate business equals approximately
$40,000.[FN3]
[FN3]Swinnerton provides the more specific number of $40,309.
[The trial court] generally finds Malinowski less credible than
Swinnerton. Even so, Malinowski’s assessment of the T&R call
center usage value is an approximation close to the more specific
value Swinnerton offers.
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....
27. Swinnerton’s year 2004 payment on the Fifth Third Loan, in
the amount of $100,800, was already included in the year 2004
partnership income in favor of Swinnerton.
28. Both Malinowski and Swinnerton apply a 6% [] non-
compounded interest rate to a 12.66[-]year period [in] their
interest calculations.
29. Malinowski passed away on August 26, 2017, and his counsel
subsequently filed a Praecipe to Amend Caption and Substitute
Party on August 28, 2017[,] reflecting Mary Malinowski, Executrix
of the Estate of Stanley Malinowski [(the Estate, Executrix and
Malinowski are sometimes jointly referred to as “Malinowski”)], as
[p]laintiff for Stanley Malinowski, deceased.
Trial Court Opinion, 10/12/17, at 2-4.
On April 1, 2005, Malinowski filed a Civil Complaint alleging a dissolution
of the partnership, and demanding an accounting. Swinnerton filed an
Answer, New Matter and Counterclaim. Swinnerton’s Counterclaim did not
seek damages for the payments made on the Fifth Third Bank Loan by
Swinnerton or T&R. At trial, Malinowski claimed $1,263,251.32 in damages
from 2004 through 2006. Swinnerton counterclaimed for $228,895 for 2004
or, alternatively, $25,495 for 2005. On October 12, 2017, following a bench
trial, the trial court entered an Opinion and Order awarding Malinowski
$147,222.95. Swinnerton and Malinowski both filed post-trial Motions.
On July 25, 2018, following the scheduling and rescheduling of oral
argument, the trial court entered an Amended Final Decision and Order (“the
2018 Order”) awarding Malinowski $227,596.28. Swinnerton filed a Motion
for Reconsideration/Clarification on August 8, 2018. The trial court granted
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the Motion for Reconsideration/Clarification. Following a telephone conference
with the parties, and upon further review of the record, the trial court entered
an amended Memorandum and Order (“the Amended Order”) awarding
Malinowski $8,954.28. Following the entry of Judgment, Malinowski filed the
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Malinowski presents the following claims for our review:
[1.] Whether the [t]rial [c]ourt erred by refusing to allow
[Malinowski] to testify [as] to the value of the partnership?
[2.] Whether the [trial c]ourt erred in allowing [Swinnerton] a[]
$317,200.00 credit for personal expenses charged to the
partnership?
[3.] Whether the [trial c]ourt erred in allowing loan payments
made by the partnership to be deducted from [Malinowski’s] share
of partnership income[,] when the partnership accountant
testified that all distributions made to the partners were “met” [as
to] the loan payments?
[4.] Whether the [trial c]ourt erred in allowing [Swinnerton] to
retain all of the partnership property and income for the year 2006
without surcharge?
Brief for Appellant at 4.
We begin our analysis with our standard of review. When reviewing an
adjudication in equity,
“our standard of review is limited. We will reverse only where the
trial court was palpably erroneous, misapplied the law or
committed a manifest abuse of discretion. Where there are any
apparently reasonable grounds for the trial court’s decision, we
must affirm it.” Viener v. Jacobs, 834 A.2d 546, 554 (Pa. Super.
2003) (citations omitted). Moreover,
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The function of this Court on an appeal from an adjudication
in equity is not to substitute [our] view for that of the lower
tribunal; our task is rather to determine whether “a judicial
mind, on due consideration of all the evidence, as a whole,
could reasonably have reached the conclusion of that
tribunal.”
Hess v. Gebhard & Co., Inc., 570 Pa. 148, 808 A.2d 912, 920
(2002) (quoting Aiken Indus., Inc. v. Estate of Wilson, 477
Pa. 34, 383 A.2d 808, 810 (1978)). … “When reviewing the results
of a non-jury trial, we are bound by the trial court’s findings of
fact, unless those findings are not based on competent evidence.”
Viener, 834 A.2d at 554.
Nebesho v. Brown, 846 A.2d 721, 725-26 (Pa. Super. 2004).
Malinowski first claims that the trial court improperly refused to allow
him to testify regarding the value of the partnership. Brief for Appellant at
16. Specifically, Malinowski argues that the trial court improperly disallowed
him from testifying about the value of the partnership based upon Plaintiff’s
Exhibit 6, i.e., the USB Buyout Report. Id. According to Malinowski, the USB
Buyout Report summarized T&R’s residuals for the relevant time period. Id.
at 17. Malinowski directs our attention to his testimony regarding the
methodology and information used to make the calculations set forth in
Defendant’s Exhibit 6, which include the monthly averages for the residuals.
Id. at 17-18. However, when asked whether Plaintiff’s Exhibit 6 accurately
reflected the value of the residual stream of T&R during 2004, Swinnerton
lodged an objection, which the trial court sustained. Id. at 20. Malinowski
argues that the trial court improperly excluded this testimony, as an owner of
property may testify regarding its value. Id. at 19-20. Malinowski contends
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that, because he had testified regarding the methodology and information
used in the calculations without objection, the trial court erred in excluding
this testimony. Id. at 20.
In its Opinion, the trial court deemed this claim waived, based upon the
misidentification of the exhibit number in the Pa.R.A.P. 1925(b) Concise
Statement, and Malinowski’s failure to identify where, in the record,
Malinowski preserved this claim prior to filing the Concise Statement. Trial
Court Opinion, 7/23/19, at 4. We agree with the sound reasoning of the trial
court, and discern no error or abuse of discretion in this regard. We therefore
affirm on the basis of the reasoning set forth in the trial court’s Opinion with
regard to this claim. See id. at 3-4.
Even if Malinowski had properly preserved this claim, we would conclude
that it lacks merit. “Questions concerning the admissibility of evidence lie
within the sound discretion of the trial court[.]” Parr v. Ford Motor Co., 109
A.3d 682, 690 (Pa. Super. 2014) (en banc) (citation omitted). “An abuse of
discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Id.
At trial, Malinowski testified that T&R received monthly reports from
their present bank setting forth its “residuals.” N.T., 6/29/17, at 143.
Malinowski identified Plaintiff’s Exhibit 8 as an actual residual report, and
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Plaintiff’s Exhibit 6 as a summary of Plaintiff’s Exhibit 8. Id. at 143-44.
Swinnerton’s counsel objected to Malinowski’s testimony regarding these
documents as hearsay. Id. at 142-43. When Malinowki’s counsel represented
that he would lay a proper foundation for the testimony, the trial court
permitted Malinowski to continue with his testimony regarding these exhibits.
Id. at 144.
Relevant to our analysis, Malinowski testified that “Mike Jenrette”
prepared Plaintiff’s Exhibit 6. Id. After Malinowski testified regarding his
personal knowledge of the certain accounts identified in Plaintiff’s Exhibit 8,
the following discussion transpired:
Q. [Malinowski’s counsel:] … [B]ased upon your experience with
Credit Card Merchant Servicing and the reports that you would get
from the sponsoring banks, and specifically Plaintiff’s Exhibit
No. 6, do you believe that that accurately reflects the value of the
residual stream of T&R during the Summer of 2004?
Id. at 157 (emphasis added). At this time, Swinnerton’s counsel objected,
and the trial court sustained the objection. Id. at 157, 169. In particular, the
trial court excluded the testimony based upon Pa.R.E. 701, which addresses
opinion testimony by lay witnesses. Id. at 169. While we agree with the trial
court’s determination that the evidence was inadmissible, we would have
affirmed the trial court’s determination for a different reason. See In re
A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018) (stating that the “right-for-
any-reason” doctrine “allows an appellate court to affirm the trial court’s
decision on any basis that is supported by the record.”).
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Here, Malinowski sought to render an opinion regarding the accuracy of
values assigned to the residual stream summarized in Plaintiff’s Exhibit 6. See
N.T., 6/29/17, at 160. However, the person who prepared that exhibit was
not presented as a witness, and could not be cross-examined as to the
methodology used to assign a value to the residual stream. Because the
evidentiary value of Malinowski’s valuation testimony rested not only upon his
own credibility, but that of the person who prepared Plaintiff’s Exhibit 6,
Malinowski’s testimony attesting to the accuracy of Exhibit 6 constituted
impermissible hearsay. See Pa.R.E. 801(c) (defining hearsay as an out-of-
court statement offered to prove the truth of the matter asserted). Our review
further discloses that Malinowski failed to provide a sufficient basis to offset
the hearsay character of this evidence. Consequently, we conclude that the
trial court did not abuse its discretion by excluding this testimony.
In his second claim, Malinowski argues that the trial court improperly
failed to surcharge Swinnerton with $317,200 in charges that Swinnerton
made on the AMEX Card. Brief for Appellant at 21. Relying on the testimony
of the partnership’s accountant, Malinowski contends that the charges were
not a “business expense,” but a personal expenditure not deducted as a
business expense….” Id. at 21-22. According to Malinowski, the testimony
of the partnership’s accountant was unequivocal that the charges were not a
business expense, and that the presumption with regard to handling the
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partnership’s funds is against Swinnerton, as he had exclusive control of that
property. Id. at 22.
In its Opinion, the trial court addressed this claim, and properly
concluded that it lacks merit. See Trial Court Opinion, 7/23/19, at 4-5. We
agree with the sound reasoning of the trial court, and affirm on this basis with
regard to Malinowski’s second claim.1 See id.
In his third claim of error, Malinowski argues that the trial court
improperly allowed Swinnerton to retain partnership property and profits
without imposing a penalty or surcharge. Brief for Appellant at 22. Malinowski
asserts that Swinnerton retained all of the partnership’s property and income
“after Malinowski was wrongfully excluded in 2004[.]” Id. at 24. According
to Malinowski, Swinnerton then converted all of the T&R accounts by “rewriting
them” into an entity controlled by Swinnerton, “B.” Id. Malinowki cites only
one legal authority to support his argument, our Supreme Court’s decision in
Bracht v. Connell, 170 A. 297 (Pa. 1933). According to Malinowski,
Swinnerton wrongfully excluded Malinowski from partnership income, and
Swinnerton breached his fiduciary duty to Malinowski. Brief for Appellant at
15. Malinowski claims that Swinnerton provided no information regarding the
____________________________________________
1 Our review of the record discloses no evidence presented at trial regarding
individual charges on the AMEX Card, and whether those charges were
personal or business expenses.
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partnership, made no distributions to him, and provided him with no financial
records regarding T&R. Id. at 15-16.
In its Opinion, the trial court addressed Malinowski’s claim and
concluded that it lacks merit. See Trial Court Opinion, 7/23/19, at 5-6. We
affirm on the basis of the trial court’s Opinion with regard to Malinowski’s
claim, with the following addendum. See id.
Our review of the record discloses that Malinowski ignores evidence
regarding his own actions with T&R’s property, which supports the trial court’s
determination not to impose a surcharge or penalty on Swinnerton. For
example, Swinnerton testified at trial that, on November 30, 2004, he found
that Malinowski had locked him out of T&R’s call center in Pittston,
Pennsylvania. N.T., 6/29/17, at 89. Upon gaining entrance to the facility,
Swinnerton discovered that “[t]he office was vacant, empty that day, vacant
of employees.” Id. On the telemarketers’ desks, Swinnerton discovered a
marketing script soliciting business for Credit Card Merchant Services, a
competing business owned and operated by Malinowski. Id. at 90. Further,
Swinnerton found contracts indicating that Credit Card Merchant Services had
employed T&R’s employees from the T&R’s call center.2 Id. at 91. Swinnerton
testified that, upon this discovery, he repeatedly and unsuccessfully
____________________________________________
2 The employees had tendered their resignations to Swinnerton sometime
after signing employment contracts for Credit Card Merchant Services. Id. at
92.
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attempted to reach Malinowski for an explanation. Id. at 93. Thus, the record
reflects no abuse of the trial court’s discretion in not assessing a surcharge or
penalty on Swinnerton.
In his fourth claim, Malinowski argues that the trial court improperly
deducted from its award certain Fifth Third Loan payments. Brief for Appellant
at 24. Malinowski states that T&R never “wound up its partnership affairs.”
Id. at 26. According to Malinowski, “[l]oans[,] guaranteed payments and
distributions made to the partners were net of the monies spent by the
partnership for the repayment of loans that were made to the individual
partners and guaranteed by the partnership.” Id. at 27. Malinowski contends
that, regarding any lack of clarity in this regard, “every presumption should
be made against Swinnerton and in favor of Malinowski.” Id. Malinowski also
challenges the trial court’s failure to award partnership income or property for
the year 2006. Id. Malinowski contends that the earnings made by
Swinnerton in 2006 came “exclusively from the accounts ‘rewritten’ by
Swinnerton from T&R to Birchwood.” Id.
In its Opinion, the trial court addressed Malinowski’s claim and
concluded that it lacks merit. See Trial Court Opinion, 7/23/19, at 6-8. We
agree with the sound reasoning and conclusions reached by the trial court, as
set forth in its Opinion, and affirm on this basis as to Malinowski’s fourth claim
of error. See id.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/24/2020
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Circulated 02/26/2020 03:42 PM
MARY MALINOWSKI, Executrix of the : IN THE COURT OF COMMON PLEAS
Estate of Stanley Malinowski, OF LUZERNE COUNTY
Plaintiff
vs. CIVIL ACTION - LAW
EDWARD T. SWINNERTON
Individually and as a general partner
of T&R Payment Processing,
Defendant : NO. 3263 of2005
OPINION ISSUED PURSUANT TO PA.R.A.P.1925(a)
I. Facts and Procedural Background
This case arises as the result of a dispute concerning profit and cost allocation between
1
two business partners in a now-defunct business partnership. Stanley Malinowski ("Plaintiff')
and Edward Swinnerton ("Defendant") formed T &R Payment Processing ("T &R") in 1997 as an
equal partnership. A bench trial was held before President Judge Richard M. Hughes, III of the
Luzerne County Court of Common Pleas ("Court") on June 29, 2017 resulting in an Opinion and
Order filed October 12, 2017 ("2017 Opinion and Order") that awarded Plaintiff $147,222.95
(One Hundred Forty Seven Thousand Two Hundred Twenty Two Dollars and Ninety Five
Cents). Both Plaintiff and Defendant filed Post Trial Motions on November 10, 2017. Oral
argument was scheduled, and, due to a weather delay, subsequently rescheduled to April 9, 2018.
On July 25, 2018 this Court issued an Order ("2018 Order") including an Amended Final
Decision awarding Plaintiff $277,596.28 (Two Hundred Seventy Seven Thousand Five Hundred
Ninety Six Dollars and Twenty Eight Cents).
1
Original Plaintiff Stanley Malinowski passed away subsequent to the bench trial and prior to a decision on the
matter. Thereafter, Plaintiff became Mary Malinowski, Executrix of the Estate of Stanley Malinowski.
1
Defendant filed a Motion for Reconsideration/Clarification in response on August 8,
2018. This Court expressly granted the Motion for Reconsideration/Clarification on September
5, 2018, and held a telephone conference with the parties on September 26, 2018. Following the
telephone conference this Court again embarked on a thorough review of the record, and took
into account previous determinations as to credibility, resulting in a Memorandum and
accompanying Order, both filed January 31, 2019 ("2019 Memorandum and Order"). The 2019
Memorandum and Order amends the Court's previous decision to reflect an award to Plaintiff in
the amount of $8,954.28 (Eight Thousand Nine Hundred Fifty Four Dollars and Twenty Eight
Cents).
Thereafter, Plaintiff filed an Appeal to the Superior Court of Pennsylvania on March 15,
2019. This Court filed an Order Pursuant to Pa. R.A.P. Rule 1925(b ), Directing Appellant to File
of Record a Statement of Errors Complained of on Appeal on March 26, 2019. Petitioner
complied on April 23, 2019, filing a document entitled Petitioner's Statement of Matters
Complained of Pursuant to Pa. R.A.P. 1925(a) on that date ("Statement of Errors").
Petitioner's Statement of Errors identifies four clear statements of error, and additionally
a further claim that the Court did not consider proper evidence:
1. Disallowing Plaintiffs Proposed Value Testimony. The Court erred in not permitting
the Plaintiff, Stanley Malinowski to testify to Plaintiff's Exhibit No. 7 which was the
USB Buyout Report to provide testimony concerning his opinion of the value ofT&R in
2004.
2. Allowing Deduction of American Express Expenses. The Court erred in not charging the
Defendant, Swinnerton with $317,200.00 in charges made to the partnership on his
American Express Account since the uncontradicted testimony of the partnership's
2
accountant was that it was not a "business expense" but instead a personal expenditure
not deducted as a business expense.
3. Allowing Defendant to Retain Partnership Property and Profits Without Penalty or
Surcharge.
4. Allowing Loan Payments to be Deducted. The Court erred in ignoring that the
partnership accountant DePalantino admitted in his Trial Testimony that the loan
payments could not be considered Damages owed to Swinnerton.
5. Plaintiff followed its fourth claim of error with a further claim that the Court did not
properly consider Defendant's liability to Plaintiff for the years 2005 and beyond in light
of the partnership's continuation through the winding up process pursuant to 15
Pa.C.S.A. §8336 and 15 Pa. C.S.A. §8352.
II. Legal Discussion
The General rule under Pa. R.A.P. 1925(a) entitled "Opinion in Support of Order" states:
Except as otherwise prescribed by this rule, upon receipt of the notice of appeal, the judge
who entered the order giving rise to the notice of appeal, if the reasons for the order do
not already appear of record, shall forthwith file ofrecord at least a brief opinion of the
reasons for the order, or for the rulings or other errors complained of, or shall specify in
writing the place in the record where such reasons may be found. ( emphasis added)
Pursuant to Pa. R.A.P. 1925(b),
If the judge entering the order giving rise to the notice of appeal ('judge") desires
clarification of the errors complained of on appeal, the judge may enter an order directing
the appellant to file of record in the trial court and serve on the judge a concise statement
of the errors complained of on appeal ("Statement.").
Pa. R.A.P. 1925(b )(ii) further states: "[t]he Statement shall concisely identify each ruling
or error that the appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge."
3
The Court cannot determine where in the record Plaintiff raised its first claim of error
prior to the Statement of Errors. Plaintiffs first claim of error alleges that the Court "erred in not
permitting the Plaintiff, Stanley Malinowski to testify to Plaintiffs Exhibit No. 7 which was the
USB Buyout Report to provide testimony concerning his opinion of the value of T &R in 2004."2
Near the end of the trial the Court admitted Plaintiffs Exhibits 1, 2, 5, 6, and 8. Transcript, p.
210-14. However, a review of the transcript does not disclose where the Court prevented
Plaintiff from testifying to proposed Plaintiff's Exhibit No. 7 nor where Plaintiff objected.
"'Issues not raised in the lower court are waived and cannot be raised for the first time on
appeal.' Pa. R.A.P. 302(a) ... 'A Rule 1925(b) statement of matters complained of on appeal is
not a vehicle in which issues not previously asserted may be raised for the first time.'" Hinkal v.
Pardoe, 133 A.2d 738, 746 (Pa. Super. 2016). An inability of the Court to determine where
Plaintiff previously raised this issue is fatal to its claim of error. A lack of identification where
in the record the Court committed the alleged error, and by extension failing to show where
Plaintiff previously objected to the Court's alleged error, defeats Plaintiffs first claim of error.
Plaintiffs second claim of error misidentifies the crux of the American Express
argument. Plaintiff alleges that the Court erred in not charging the Defendant, Swinnerton with
$317,200.00 in charges made to the partnership on his American Express Account since the
uncontradicted testimony of the partnership's accountant was that it was not a "business
expense" but instead a personal expenditure not deducted as a business expense. The witness at
issue, Albert J. DePalantino ("DePalantino"), is a CPA licensed in Pennsylvania who does tax
and accounting work for Defendant Swinnerton and has done tax and accounting work for T &R.
2
Rather than the USB Buyout Report, a review of the documents reveals that Plaintiffs Exhibit No. 7 consists of a
letter from Defense Counsel to Raymond P. Wendolowski, Esquire dated August 11, 2006 and various attached
documents. The included pages are stamped P - 7.001 through P - 7.010.
4
Transcript, p. 222-23. Plaintiff correctly points ou! that DePalantino agrees Defendant's
American Express charges are personal instead of business expenses. Transcript, p. 243-44.
Whether those charges are identified as business or personal is quite beside the point at issue.
The question is whether, if the charges were personal, they were also built back into Defendant's
income on his tax reporting. On this issue DePalantino indicates Defendant already included the
American Express charges on his income, stating "correct" on redirect when asked whether if the
"entire $71,000 was personal to Mr. Swinnerton, would your process then be to put it into his
income?" Transcript, p. 245. On cross examination regarding the same issue, DePalantino is
ambiguous, responding "[i]t might have been added back in there. I don't know without looking
at these documents." Transcript, p. 245. At best, DePalantino's ambiguity on cross examination
still fails to meet Plaintiffs burden of proof.3
Plaintiff's third claim of error wholly ignores the calculations this Court detailed in the
2019 Memorandum and Order. Plaintiff claims that the Court allowed Defendant to retain
partnership property and profits without penalty or surcharge. Plaintiff then chronologically
expounds Defendant's complete control of T&R Assets through 2006 and claims that Defendant
never accounted for Plaintiffs portion of the T&R Assets except payments on Plaintiffs loan
guaranteed by the partnership. To the extent that Plaintiff recites factual statements in its third
claim of error, this Court concurs. However, the implication that this Court failed to disgorge
Defendant of T&R assets he kept that were owed to Plaintiff incorrectly interprets this Court's
rulings. Starting with the 2017 Opinion and Order, this Court always accounted for claims of
3
The facially confusing nature of DePalantino's testimony led the Court to initially include the American Express
charges in its damages calculations. See 2017 Opinion and Order. However, the Court later granted Defendant's
second motion for post-trial relief, reversing its inclusion of the American Express charges from damages
calculations. See the 2018 Order, Para. 4. This reversal came following another careful review of DePalantino's
testimony and a determination that, at best, its ambiguity prevented Plaintiff from meeting its burden.
5
both parties to the T &R assets when determining damages. The Court's most recent 2019
Memorandum and Order explained its mathematical calculations in painstakingly detailed
footnotes.4 Regarding the failure of Defendant to supply Plaintiff with any T&R Assets for the
year 2006:
"The Court ultimately determines that Plaintiff is unable to prove beyond
speculation the actual amounts of Partnership Income from T &R Processing in
2006. Defendant admits that he began rewriting T &R accounts into Beechwood
accounts in December 2005, and converting them in August 2006. The entire
conversion process was complete by December 2006. (Transcript, p. 97). It is
apparent to the Court that T &R generated an undetermined amount of Partnership
Income in 2006. However, Plaintiff is unable to meet his burden of establishing that
amount beyond mere speculation. (Transcript, p. 196)." 2019 Memorandum and
Opinion, Memorandum footnote 2.
Plaintiffs fourth claim of error appears to mistakenly believe the Court calculated loan
repayment damages for Defendant. Plaintiff alleges the Court erred in ignoring that the
partnership accountant DePalantino admitted in his trial testimony that the loan repayments
could not be considered damages owed to Swinnerton. Plaintiff then proceeds to cite to a
number of transcript passages identifying the loan repayments as already included in their
income under guaranteed payments. A review of this Court's rulings reveals that for the years
2004 and 2005 the Court only considered the loan repayments as part of the partnership income
and built those damages into the partnership income calculations. 2019 Memorandum and
Opinion, Memorandum footnotes 6- 7. That approach conforms to the testimony of DePalantino
4
See the Memorandum filed January 31, 2019.
6
cited in Plaintiffs Statement of Errors. Regarding years 2006 and 2007, the Court treated the
loan repayments as standalone figures and calculated them individually as part of damages.
2019 Memorandum and Opinion, Memorandum footnotes 6-7, 9-10. DePalantino's testimony
cited in the Statement of Errors confirms that loan repayments in year 2007 went into
Beechwood, and as explained above starting with year 2006 this Court cannot calculate T &R
partnership income beyond mere speculation. As such, the Court could not calculate loan
repayments as part of partnership income, and instead the Court calculated loan repayment for
the years 2006 and 2007 as standalone figures.
Finally, Plaintiff appears to follow his fourth claim of error with a further unidentified
claim of error resting upon the position that the Court should have considered partnership income
beyond year 2004 because T&R never wound up its affairs. Pursuant to 15 Pa. C.S.A. §83525
and 15 Pa. C.S.A. §8336,6 the rights and duties of a partnership continue following dissolution
until the partnership is wound up. The Court initially only considered the partnership income for
2004 on the finding that T &R dissolved that year. 2017 Opinion and Order, Opinion Conclusion
of Law No. 1. The Court did not initially rely upon sections 83 52 and 8336 because they were
repealed prior to the bench trial. The Court reversed that ruling upon reconsideration in the 2018
Order based upon 101 Pa. Code §13.155(b). 2018 Order, footnote 1. As discussed repeatedly
above, the Court could not calculate partnership income for the years 2006 and beyond without
engaging in speculation. Plaintiff failed to meet its evidentiary burden allowing the Court to
5
On dissolution, the partnership is not terminated but continues until the winding up of partnership affairs is
completed. 15 Pa. C.S.A. §8352.
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(a) When a partnership for a fixed term or particular undertaking is continued after the termination of that term
or particular undertaking without any express agreement, the rights and duties of the partners remain the same as
they were at such termination so far as is consistent with a partnership at will. (b) A continuation of the business
by the partners or such of them as habitually acted therein during the term, without any settlement or liquidation
of the partnership affairs, is prima facie evidence of a continuation of the partnership. 15 Pa. C.S.A. §8336.
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make such a calculation for those years. A suggestion that the Court concluded the Defendant's
liability to Plaintiff terminated after 2005 is plainly wrong: "It is apparent to the Court that T&R
generated an undetermined amount of Partnership Income in 2006. However, Plaintiff is unable
to meet his burden of establishing that amount beyond mere speculation. (Transcript, p. 196)."
2019 Memorandum and Order, Memorandum footnote 2. Based upon sections 8352 and 8336,
through section 13.155(b), the Court did consider partnership income beyond the year 2004, but
only for 2005 because based upon the evidence presented the Court could not make a calculation
of partnership income for years 2006 and beyond.
Conclusion
For the foregoing reasons, this Court ruled in favor of Plaintiff and against Defendant in
the amount of $8,954.28 (Eight Thousand Nine Hundred Fifty Four Dollars and Twenty Eight
Cents). The Court further refers to its October 12, 2017 Opinion and Order; July 25, 2018 Order;
and January 31, 2019 Memorandum and Order in this matter in response to the Concise
Statement of Errors Complained of on Appeal.
The Office of Judicial Records (Prothonotary) is directed to enter this Opinion ofrecord,
and transmit the record to the Prothonotary of the Superior Court of Pennsylvania.
BY THE COURT:
Copies sent via U.S. Mail:
Michael R. Mey, Esquire
1144 E. Drinker Street
Dunmore, PA 18512
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Walter T. Grabowski, Esquire
61 N. Washington Street
Wilkes-Barre, PA 18701
Jeffrey S. Adler, Esquire
1001 Conshohocken State Rd.
West Conshohocken, PA 19428
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