J-A30027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN F. RAGANO, EXECUTOR OF THE IN THE SUPERIOR COURT OF
ESTATE OF CATALDO VASAPOLLI PENNSYLVANIA
v.
FABRIZIO SPAGNOLO AND ELISA D.
SPAGNOLO, CO-ADMINISTRATORS OF
THE ESTATE OF LUIGI SPAGNOLO
v.
A.P.S. RECYCLING, INC.
APPEAL OF: FABRIZIO SPAGNOLO AND
ELISA D. SPAGNOLO, CO-
ADMINISTRATORS OF THE ESTATE OF
LUIGI SPAGNOLO
No. 1026 EDA 2014
Appeal from the Judgment Entered June 4, 2014
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 10539 CV 2008
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED APRIL 30, 2015
Appellants Fabrizio Spagnolo and Elisa D. Spagnolo, co-administrators
of the Estate of Luigi Spagnolo, deceased, appeal from the June 4, 2014
judgment determining that the Estate of Cataldo Vasapolli, represented by
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*
Retired Senior Judge assigned to the Superior Court.
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Appellee John F. Ragano, Executor,1 was the owner of certain disputed real
estate and personal property by virtue of a resulting trust. 2 After careful
review, we vacate the June 4, 2014 judgment and the portion of the trial
court’s January 28, 2014 order finding a resulting trust and directing
conveyance of the real estate and attendant personal property and business
license. We further remand for a new trial.
A summary of the factual and procedural history of this case follows.
In June 2004, brothers-in-law Cataldo Vasapolli and Luigi Spagnolo entered
into an agreement regarding the purchase of certain real estate at 2 Katz
Road in the Borough of Stroudsburg, Monroe County, Pennsylvania, which
was the site of a scrap metal and recycling business. A dispute over the
nature and extent of that agreement is at the heart of the litigation
underlying this appeal. Specifically, on June 29, 2004, the subject property,
including a bill of sale for personal property connected with the recycling
business and a junkyard operating license, was sold by Unity Bank to
Spagnolo for a purchase price of $1,012,500.00. Vasapolli paid the
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1
Ragano, an attorney, also represented Vasapolli in various matters prior to
his death.
2
The judgment and the trial court’s January 28, 2014 order involve two
distinct matters that were tried together. Only paragraphs one, two and
three of the January 28, 2014 order, and the portion of the June 4, 2014
judgment order referencing them, are pertinent to this appeal. We,
therefore, treat paragraphs one, two and three as a separate order and final
judgment, which is the subject of this appeal. See Moyer v. Gresh, 904
A.2d 958, 961 n.1 (Pa. Super. 2006) (treating distinct matters contained in
a single order as separate orders).
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purchase price and closing costs.3 At the same time, Spagnolo executed a
promissory note and mortgage for the amount of the purchase price in favor
of Vasapolli.4 The note and mortgage contained no provision for interest or
periodic payment, the note being payable on demand.5
On November 9, 2005, Ragano, acting as Vasapolli’s lawyer, wrote to
Spagnolo’s attorney, Joseph Wiesmeth, Esquire, requesting a contract of
sale of the 2 Katz Road property from Spagnolo to Vasapolli be prepared.
Spagnolo responded on November 11, 2005, through his attorney that he
believed the property should remain in his name.
On October 31, 2008, Vasapolli filed a complaint against Spagnolo
alleging breach of an oral, or alternatively an implied, contract to convey the
2 Katz Road property. Vasapolli claimed that at the time of the real estate
transaction, he contemplated eventually executing a real estate exchange
that would be recognized by the Internal Revenue Service (IRS) for tax
purposes under Section 1031 of the Internal Revenue Code but had not yet
sold the property whose proceeds were to be used to purchase the 2 Katz
Road property. Vasapolli also sought equitable remedies of estoppel,
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3
The purchase price and closing costs totaled $1,036,283.10.
4
The mortgage was not recorded until May 30, 2008.
5
Near the time of the closing, Attorney Wiesmeth incorporated A.P.S.
Recycling, Inc. as a Pennsylvania subchapter “S” corporation with Spagnolo
and Vasapolli each obtaining a 50% share. The corporation was formed to
operate a recycling and scrap-yard business at the 2 Katz Road property,
with Spagnolo handling the management of the operations.
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constructive trust, accounting and quantum meruit. On March 11, 2009,
Spagnolo committed suicide. Vasapolli died on June 9, 2009. Estates were
raised for both decedents and their respective personal representatives,
Ragano and Appellants, were substituted as parties. Business operations of
A.P.S. Recycling, Inc. ceased following Spagnolo’s death until they were
resumed in December 2009 by Ragano on behalf of the estate of Vasapolli.
On May 7, 2010, Appellants filed an answer together with new matter
raising, inter alia, the defenses of the statute of frauds and the parol
evidence rule, and together with a counterclaim to quiet title. Additionally,
Appellants filed a joinder complaint against A.P.S. Recycling, Inc., seeking
fair rental value and back rent for the period of operation after Spagnolo’s
suicide.
Trial on the matter was held on September 24-25, 2013.6 On January
28, 2014, the trial court determined, “[t]he Estate of Cataldo Vasapolli is the
owner of 2 Katz Road, Stroudsburg, Pennsylvania by virtue of a resulting
trust.” Trial Court Opinion and Order, 1/28/14, at 26, ¶ 1. The trial court
also determined the estate of Vasapolli was the beneficial owner of the
personal property indicated on the bill of sale from the June 29, 2004
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6
On May 7, 2010, Appellants filed an application to dissolve the A.P.S.
Recycling, Inc., corporation. The respondent, Ragano, Executor of Cataldo
Vasapolli’s estate, opposed dissolution. Trial on the matter was held at the
same time as trial on Vasapolli’s complaint. The trial court’s grant of
dissolution and January 28, 2014 order requiring an accounting is the
subject of the companion appeal at 1030 EDA 2014.
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transaction. Id. at ¶ 2. Appellants were directed to execute the required
documents to transfer title to the real estate, personal property and
Junkyard license to the Estate of Cataldo Vasapolli. Id. at ¶ 3.
On February 7, 2014, Appellants filed a timely post trial motion, which
the trial court denied on March 3, 2014. Appellants filed a notice of appeal
on March 28, 2014.7
On appeal, Appellants raise the following issues.
I. Was the [t]rial [c]ourt in error when it
admitted unreliable, biased, and inadmissible
hearsay testimony to establish a [r]esulting
[t]rust?
II. Was the [t]rial [c]ourt in error when it found
that a [r]esulting [t]rust had been established
in order to complete a 1031 exchange for “tax
purposes” when such an exchange would have
been illegal?
III. Was the [t]rial [c]ourt in error and abuse [sic]
its discretion when it provided remedies that
had not been requested by either party?
Appellants’ Brief at 7.
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7
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In its May 8, 2014 Rule 1925(a) statement, the
trial court referenced its January 28, 2014 opinion as containing the reasons
for its decisions. Additionally, by orders dated May 2, 2014 and May 22,
2014, this Court noted Appellants’ appeal was premature and directed
Appellants to praecipe the Monroe County Prothonotary to enter judgment
on the trial court’s January 28, 2014 verdict order. By stipulated order, the
trial court entered final judgment on June 4, 2014, perfecting the appeal.
See Pa.R.A.P. 905(a)(5) (noting a premature appeal is subsequently
perfected when a final, appealable order is entered).
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Appellants first aver the trial court erred in admitting, over their
objection, testimony from Ragano about statements made to him by
Vasapolli concerning an oral agreement he had with Spagnolo relative to the
subject real estate transaction. Id. at 15. “[O]ur standard of review in
assessing the trial court’s evidentiary rulings is extremely narrow. Such
decisions are referred to the [trial] court’s discretion, and will not be
disturbed absent both error and harm or prejudice to the complaining party.”
Kopytin v. Aschinger, 947 A.2d 739, 744 (Pa. Super. 2008) (citation
omitted), appeal denied, 964 A.2d 2 (Pa. 2009).
Prior to trial, Appellants filed a motion in limine seeking to preclude
testimony from Ragano, based on statements from Vasapolli that “the
agreement between Vasapolli and Spagnolo was that Spagnolo would
[convey the property to him] at the appropriate time for tax reasons.”
Motion in Limine, 5/17/13, at 3, ¶ 6. Appellants claimed the evidence
violated the parol evidence rule and constituted inadmissible hearsay. Id. at
3, ¶¶ 8, 9. The trial court denied the motion without prejudice to raise the
issue at trial. Trial Court Order, 8/5/13, at 1. Appellants renewed their
hearsay objection at trial. N.T., 9/24/13, at 17. Ragano, through his
attorney, asserted the testimony was admissible under Pennsylvania Rule of
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Evidence 803 as showing Vasapolli’s then existing state of mind, including
intent, plan, motive and design.8 Id. at 18; see also Ragano’s Brief at 9.
Rule 803 provides as follows.
Rule 803. Exceptions to the Rule Against
Hearsay--Regardless of Whether the Declarant
Is Available as a Witness
The following are not excluded by the rule against
hearsay, regardless of whether the declarant is
available as a witness:
…
(3) Then-Existing Mental, Emotional, or
Physical Condition. A statement of the declarant’s
then-existing state of mind (such as motive, intent
or plan) or emotional, sensory, or physical condition
(such as mental feeling, pain, or bodily health), but
not including a statement of memory or belief to
prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s will.
…
Pa.R.E. 803(3).
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8
The trial court overruled Appellants’ objection relative to admission of parol
evidence and allowed the testimony over Appellants’ hearsay objection,
deferring its decision “as to whether or not it’s hearsay, or whether it’s an
exception to the rule.” N.T., 9/24/13, at 20. The trial court never made a
subsequent formal ruling on the objection. However, it apparently accepted
and relied on Ragano’s testimony of Vasapolli’s statements in its finding that
a resulting trust was created. “[The trial court] further find[s] [] Ragano’s
testimony of the initial Agreement between [Vasapolli and Spagnolo] as to
the purchase and ownership of the real property to be credible.” Trial Court
Opinion, 1/28/14, at 18. We note the trial court does not address the basis
for its evidentiary ruling in its January 28, 2014 opinion or its May 8, 2014
Rule 1925(a) opinion.
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We have described the applicability of this exception as it pertains to a
declarant’s state of mind as follows.
The exception, of course, is inapplicable if the
statements are not being introduced for the truth of
the matter asserted, as such statements are not
hearsay. However, where a statement is being
introduced for the truth of the matter asserted, then
it may be admissible if it is a declaration concerning
“the declarant’s then existing state of mind … such
as intent, plan, motive, design, mental feeling, pain,
and bodily health.” Pa.R.E. 803(3). Of course, the
statement must be relevant to the issue in the case.
The statement must be instinctive, rather than
deliberate[.] Moreover, a statement relating to past
events based on memory or belief is not permissible
to establish the truth of those events, absent relation
to the execution, revocation, identification, or terms
of the declarant’s will.
Schmalz v. Mfrs. & Traders Trust Co., 67 A.3d 800, 804 (Pa. Super.
2013) (some internal quotation marks, citations, and footnote omitted).
Instantly, the relevant questioning proceeded in the following manner.
[BY RAGANO’S ATTORNEY] Q. Did they have
any business dealings?
[BY RAGANO] A. Yes.
Q. What was the nature of the business
dealings between the two brothers-in-law that you
were aware of?
…
A. Apparently, there was a recycling facility
up in Pennsylvania, which is the subject of this
lawsuit. They had a business relationship involving
that property and the corporation that ultimately ran
the recycling facility.
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Q. Now, the record is going to show that
there was a property deeded to Mr. Spagnolo on
June 29th of 2004. Did you have any function, as
attorney for Mr. Vasapolli, in that transaction?
A. At that time, no.
Q. Did you even know about it at that time?
A. I don’t believe so.
Q. Did you learn about it subsequently?
A. Yes, I did.
Q. And how did you learn about it
subsequently?
A. Well, after, I guess, in 2004 or 2005, Mr.
Vasapolli told me that he –
[APPELLANTS’ COUNSEL]: Objection, Your Honor,
as to hearsay evidence.
…
Q. Mr. Ragano, do you recall the question?
A. No.
Q. Okay. Did Mr. Vasapolli discuss with you
the property that you purchased in Stroudsburg at
any time?
A. Yes.
Q. When was that?
A. In 2000 -- probably early 2005, late
2004. I’m not sure.
Q. And what did he tell you?
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A. He told me that he had purchased this
property, and that he was going to use it as part of a
1031 exchange; not that he purchased it, but that he
put it in his brother-in-law’s name. So that, at a
later date, when he sold the property in New York,
on which he would realize a substantial capital gain,
he could then utilize this property as part of the
exchange to defer his tax.
Q. Is that the first that you found out about
the property?
A. Yes.
N.T., 9/24/13, at 16-21.
The trial court noted that, other than the executing documents, i.e.,
the deed, note and mortgage, there was no written expression of an
agreement between Spagnolo and Vasapolli respecting the subject
transaction. Trial Court Opinion, 1/28/14, at 14. From the surrounding
circumstances, the trial court found that an oral agreement existed. Id.
We find an oral agreement existed between Vasapolli
and Spagnolo with regard to the real property and
operation of A.P.S. However, both men are
deceased and there is no way to know exactly what
that oral agreement entailed, other than by parol
evidence. Therefore, we are bound by the written
documents, and the parol evidence that supports or
refutes the existence of a resulting trust.
Id. The trial court relied on the cited testimony to conclude the parties
agreed that Spagnolo would re-convey the property to Vasapolli at a future
date to effect a 1031 exchange. Id. at 16
Furthermore, the purchase of the real property was
not intended to be for Spagnolo, despite the
existence of the Mortgage and Note. [] Ragano
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testified that Vasapolli intended the taking of title in
Spagnolo’s name to be held only until such time as
Vasapolli arranged a 1031 exchange of real property,
at which time the real property would be conveyed
back to Vasapolli and the Mortgage and Note
extinguished. We find this testimony of an oral
agreement credible.
Id.
Appellants argue the trial court’s acceptance of Ragano’s testimony
about Vasapolli’s statements to him, uttered six months after the referenced
events, about his intentions regarding the real estate transaction was in
error. Appellants’ Brief at 14.
The statement Vasapolli allegedly made to Ragano
was not made spontaneous with the impression. It
was a self-serving statement made long after the
initial sale. It was not about a “then existing” mental
condition. Even if Vasapolli had made the
statement, it was done far past when it could have
been used to fall within this exception.
Id. at 18.
The Trial Court’s acceptance of this testimony under
Pa.R.E. 803(3), the “Then Existing Mental,
Emotional, or Physical Condition” exception, is so
broadly read as to make just about any hearsay
statement admissible and to allow any statement
made years after an incident to paint an impression
more favorable to the declarant.
Id. at 17.
We agree the trial court’s evidentiary ruling was in error. It is
undisputed that the testimony of Vasapolli’s statements was for the truth of
the matter asserted and constituted hearsay evidence. Ragano offered
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Vasapolli’s statements to show the substance of an oral agreement between
Spagnolo and Vasapolli. See, e.g., Schmalz, supra at 803-804 nn. 3, 5
(noting distinction between state-of-mind non-hearsay evidence offered to
explain listener’s reaction and not the truth of the matter asserted, and the
state-of-mind exception to hearsay rule where declarant’s state of mind is
offered for truth of the matter asserted). To be admissible, the exception
under Rule 803(3) would have to apply. Ragano insists the exception
applies because, “Vasapolli had discussions with Attorney Ragano that
concerned his then existing state of mind as to how the deal should be
structured, including Vasapolli’s ‘intent, plan, motive, [and] design.’”
Ragano’s Brief at 10. We disagree.
First, we note that for the state-of-mind exception to apply, the
declarant’s intent or plan must be relevant to the issue in the case.
Schmalz, supra. In this case, it is Vasapolli’s state of mind at the time of
oral agreement with Spagnolo that is relevant. However, Ragano’s
testimony concerned Vasapolli’s expression of his intent six months after the
relevant events. See N.T., 9/24/13, at 16-21. As noted above, “a
statement relating to past events based on memory or belief is not
permissible to establish the truth of those events ….” Schmalz, supra.
Neither were Vasapolli’s statements “instinctive, rather than deliberate,” as
they were made with the view of enforcing a re-conveyance of the property.
N.T., 9/24/13, at 16-21, see id. Accordingly, we conclude the trial court
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erred in admitting Ragano’s hearsay testimony of Vasapolli’s purported
intent and plan underlying the June 29, 2004, real estate transaction.9
We next address whether this error resulted in harm to Appellants.
See Kopytin, supra. The trial court found “a resulting trust was formed for
the benefit of Vasapolli,” citing section 440 of the Restatement of Trusts.
Trial Court Opinion, 1/28/14, at 15. The Restatement provides as follows.
§ 440 General Rule
Where a transfer of property is made to one person
and the purchase price is paid by another, a resulting
trust arises in favor of the person by whom the
purchase price is paid, except as stated in §§ 441,
442 and 444.
RESTATEMENT (SECOND) TRUSTS § 440 (1959).10
However, the subject transaction did not involve a gratuitous transfer.
Rather, Vasapolli supplied the purchase funds as a loan evidenced by a note
and secured by the mortgage. Section 445 of the Restatement provides as
follows. “Where a transfer of property is made to one person and the
purchase price is advanced by another as a loan to the transferee, no
resulting trust arises.” Id. § 445; see also Mermon v. Mermon, 390 A.2d
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9
We further note that the statements, as testified to by Ragano, convey
only Vasapolli’s understanding of his own purpose. Vasapolli did not indicate
his intention was communicated to or agreed to by Spagnolo as the basis of
an oral agreement.
10
The trial court determined that the exceptions noted in Sections 441, 442,
and 444 did not apply. Trial Court Opinion, 1/28/14, at 15.
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796, 799 (Pa. Super. 1978) (finding purchase price of property advanced as
a loan precluded finding of resulting trust, citing Section 445).
The trial court additionally relied on Section 404 of the Restatement,
which provides as follows. Trial Court Opinion, 1/28/14, at 15.
§ 404 Where Resulting Trust Arises
A resulting trust arises where a person makes or
causes to be made a disposition of property under
circumstances which raise an inference that he does
not intend that the person taking or holding the
property should have the beneficial interest therein,
unless the inference is rebutted or the beneficial
interest is otherwise effectively disposed of.
RESTATEMENT (SECOND) TRUSTS § 404 (1959); see also Galford v.
Burkhouse, 478 A.2d 1328, 1334 (Pa. Super. 1984) (applying Section 404
to determine parties’ intent to establish resulting trust). “A resulting trust
arises when a person makes a disposition of property under circumstances
which raise an inference that he does not intend that the person taking or
holding the property should have a beneficial interest in the property.”
Fenderson v. Fenderson, 685 A.2d 600, 604 (Pa. Super. 1996), appeal
denied, 698 A.2d 594 (Pa. 1997). “To establish a right to an equitable lien,
the evidence [] must be clear, precise and indubitable as to the intention of
the parties.” Mermon, supra at 799 (internal quotation marks and citation
omitted).
The Statute of Frauds specifically exempts such
trusts, implied in law, from its operation. Parole
[sic] evidence is, therefore, admissible to show the
circumstances under which a resulting trust arose.
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In order to establish, by oral testimony, a resulting
trust in real estate against the person holding the
legal title the evidence must be clear, explicit and
unequivocal or, as it has been otherwise stated,
clear, precise and unequivocal or clear, precise and
convincing and satisfactory or clear, precise and
indubitable.
…
Moreover, while parole [sic] evidence concerning the
circumstances surrounding the execution of a deed is
admissible to challenge the legal title and establish a
resulting trust, such parole [sic] evidence cannot be
the basis for an oral express trust[,] which would be
violative of the Statute of Frauds.
Galford, supra at 1333, 1334.
The “circumstances” relied on by the trial court in the instant case was
the parties’ purported oral agreement. Trial Court Opinion, 1/28/14, at 14.
As noted above, the trial court relied heavily on the inadmissible hearsay
evidence to make its determination about the substance of the agreement
between Spagnolo and Vasapolli, which in turn formed the basis of the trial
court’s finding that a resulting trust was created. Id. at 16. Absent that
evidence, it is by no means “clear, explicit and unequivocal” that such a trust
existed as required for Ragano to meet his burden of proof. See Galford,
supra at 1333. For these reasons, we are constrained to vacate the June 4,
2014 judgment. We also vacate paragraphs one, two and three of the trial
court’s January 28, 2014 order pertaining to the action underlying the
instant appeal.
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Based on the foregoing, we conclude the trial court’s finding that a
resulting trust was created between Spagnolo and Vasapolli was based on
inadmissible hearsay evidence. Accordingly, we vacate the trial court’s June
4, 2014 judgment relative to this appeal and remand the case for a new
trial or other further proceedings, consistent with this memorandum.11
Judgment vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2015
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11
We recognize that, depending on the outcome on remand, Appellants’
remaining issues may become moot or may be confronted again. Because of
our disposition of Appellants’ first issue, we decline to address them here.
We do so without prejudice to either party to revisit the issues before the
trial court on remand or in a future appeal if appropriate. We therefore
express no opinion on Appellants’ remaining issues at this juncture.
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