Leak, D. v. Laterese Cowell

J-S44020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID LEAK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

LATERESE COWELL, ADMINISTRATRIX
OF THE ESTATE OF LYNDA COWELL AND
LATERESE COWELL, ADMINISTRATRIX
OF THE ESTATE OF NINTHA C. JOHNSON
AND HARRIET WRIGHT,

Appellees No. 794 EDA 2016

Appeal from the Judgment Entered May 5, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 4319, March Term, 2014

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN: FILED SEPTEMBER 29, 2017

David Leak, Appellant, brought this fraudulent conveyance action

pursuant to the Pennsylvania Uniform Fraudulent Transfer Act (“PUFTA”), 12

Pa.C.S. §§ 5101–5110, against Appellees, Harriet Wright and Laterese

Cowell, administratrix of the estates of Lynda Cowell and Nintha C.

Johnson,1 seeking Appellee Wright’s reconveyance of property of one of the

____________________________________________

1
Nintha C. Johnson and Lynda Cowell were mother and daughter,
respectively. Laterese Cowell was Lynda Cowell’s daughter and Nintha C.
Johnson’s granddaughter. Laterese Cowell and Harriett Wright are cousins,
as Nintha C. Johnson is Harriet Wright’s aunt. Complaint, 3/7/14, at ¶¶ 6,
7; N.T., 1/25/16, at 33; Findings of Fact and Conclusions of Law, 2/2/16, at
¶ 2.
J-S44020-17

estates so that Appellant could collect on a judgment. Following a two-day

bench trial, the trial court determined that Appellant failed to carry his

burden of proof and found against him in favor of Appellees. We affirm.2

The trial court filed the following Findings of Fact:

3. Nintha C. Johnson owned 1528 Point Breeze Avenue,
Philadelphia, PA (the “Property”) at the time of her death on
January 6, 2007.

4. Before Nintha C. Johnson’s death, Ms. Wright had spent
significant time at the Property. She was close to her Aunt
Nintha and described the Property as “the go-to house” in her
family. Ms. Wright’s Aunt Nintha lived on the top floor of the
Property and operated a beauty salon on the first floor. Ms.
Wright credibly testified that the Property had “tremendous
emotional value” to her.

5. Nintha C. Johnson left a will, which was probated by her
daughter, Lynda Cowell.

6. The will left the Property to Lynda Cowell, but steps were
never taken during her life to convey the Property to her.

7. On June 12, 2007, Lynda Cowell was issued letters
testamentary for the estate of Nintha C. Johnson, appointing her
as the administratrix.

8. Lynda Cowell died on December 12, 2011.

9. Plaintiff David Leak was injured when he tripped and fell on
the Property on June 21, 2011.

10. On February 15, 2012, the Court granted a rule to show
cause why the Property should not be sold at sheriff’s sale to
satisfy back taxes in the amount of $6,291.97.

____________________________________________

2
Harriet Wright is the only Appellee who filed a brief in this appeal.

-2-
J-S44020-17

11. Ms. Wright learned of the impending sheriff’s sale and
contacted her cousin, Laterese Cowell, to offer assistance to
stave off the sale of the Property.

12. While the Property also had sentimental value to Lynda
Cowell’s heirs, back taxes were owed and it was in poor
condition. The heirs, including Laterese Cowell, believed the
Property was more trouble than it was worth, and were happy to
allow their cousin, Harriet T. Wright, to own the Property if she
paid the back taxes and assumed any liens and judgments.

13. Lynda Cowell’s heirs and Ms. Wright further agreed that they
would wait until after January 2013 (more than one year after
Lynda Cowell’s death) to sign over the deed for the Property to
Ms. Wright instead of probating Lynda Cowell’s estate.

14. On August 22, 2012, before any notice of any potential claim
by Mr. Leak had been served on any of the defendants in this
matter, defendant Harriet T. Wright entered into an agreement
with the heirs of Lynda Cowell to take over ownership and
possession of the Property.

15. On the same day, Ms. Wright’s daughter, Courtney A.
Wright, signed for Laterese Cowell a Sheriff’s Sale Payment Plan
Agreement with the City of Philadelphia and the School District
of Philadelphia to pay all back taxes on the Property.

16. At her mother’s direction, Courtney A. Wright made
payments to cover the delinquent taxes in the amount of
$5,679.34.

17. A title report Ms. Wright obtained on August 2, 2012,
showed that $6,087.40 was owed on the Property in city and
school taxes, $6,580.93 was owed for water and sewer, and
judgments in an aggregate amount of $35,276.91 had been
lodged against the Property. The obligations against the
Property totaled $47,945.24.

18. Ms. Wright understood that she would be taking ownership
of the Property subject to all outstanding debts and liens.

19. In early 2013, Ms. Wright contacted Laterese Cowell and
asked her to put the deed to the Property in her name. She
received no response.

-3-
J-S44020-17

20. On May 10, 2013, counsel for plaintiff Leak filed petitions for
citations to show cause on the heirs of the Estates of Lynda
Cowell and Nintha C. Johnson why his lawyer should not be
appointed administrator of these estates. The stated purpose of
the petitions was so Mr. Leak could present a claim against the
estates for his slip and fall.

21. A hearing on the petitions was scheduled for May 29, 2013.

22. Laterese Cowell was given notice of the petitions and hearing
date.

23. When Ms. Wright learned of the petitions, she asked
Laterese Cowell to go to the register of wills and sort out the
situation.

24. On May 16, 2013, defendant Laterese Cowell was appointed
administrator d.b.n.c.t.a. of Nintha C. Johnson’s estate.

25. On May 17, 2013, defendant Laterese Cowell was appointed
administratrix of Lynda Cowell’s estate.

26. On June 12, 2013, plaintiff Leak filed a slip and fall action
against Laterese Cowell as the administratrix of the estates of
Lynda Cowell and Nintha C. Johnson.

27. The complaint was served upon Laterese Cowell on July 2,
2013.

28. On June 28, 2013, a deed conveying the Property from the
estate of Nintha C. Johnson to defendant Harriet T. Wright for
$5,743.71 was recorded in Philadelphia.

29. Also recorded was a Philadelphia Real Estate Transfer Tax
Certification that stated the fair market value of the Property
was at $16,742.00.

30. On February 14, 2014, a default judgment was entered in
the slip and fall matter against Laterese Cowell, as administratrix
of the estates of her mother and grandmother, for failure to file
an answer within the required time. On February 28, 2014, a
judgment in the amount of $15,000 was entered in favor of

-4-
J-S44020-17

David Leak and against Laterese Cowell, as administratrix of the
estates of her mother and grandmother.

31. The matter now before the Court was initiated by complaint
on March 27, 2014. Plaintiff Leak alleges that the transfer of the
Property constitutes a fraudulent conveyance perpetrated to
avoid Mr. Leak’s slip and fall law suit.

32. Service was effectuated on defendant Harriet T. Wright on
April 10, 2014, and on Laterese Cowell on April 17, 2014.

33. Ms. Wright responded to the complaint, denying all material
allegations; Ms. Cowell failed to respond to the complaint.

34. A bench trial was held on January 25 and 26, 2016.

35. Plaintiff Leak presented the testimony of Robert Yizzi, a
certified real estate appraiser, who testified that, as of January
7, 2015, the fair market value of the Property was $130,000.

36. Defendant Wright also presented expert appraisal testimony.
Her expert, Henry Hoffman, testified that the fair market value
of the Property as of June 27, 2013, was $50,000.

Findings of Fact and Conclusions of Law, 2/2/16, at 2–5.

The trial court concluded that Appellant was a creditor of the estates of

Nintha Johnson and Lynda Cowell “by virtue of the $15,000 judgment

entered on February 28, 2014, in his favor and against [Appellee] Laterese

Cowell, as administratrix of the estates of her mother and grandmother.”

Findings of Fact and Conclusions of Law, 2/2/16, at 6. Citing Pa.R.C.P.

1029(b), and in light of Appellee Laterese Cowell’s failure to file an answer

to the complaint “notwithstanding her appearance at the trial and denial of

all material allegations at that point,” the trial court considered any facts

stated in paragraphs 20–24 of the complaint to have been admitted as to

-5-
J-S44020-17

the estates of Nintha C. Johnson and Lynda Cowell. Findings of Fact and

Conclusions of Law, 2/2/16, at 7. The trial court determined that the

“deciding factor in this case is that significant steps already were taken to

effectuate the transfer of the Property” from Appellee Nintha Johnson’s

estate to Appellee Wright “long before” Appellee Laterese Cowell or Appellee

Wright “had any inkling that [Appellant] would present a claim against the

estates.” Id. at 9–10. The trial court concluded that the amount Appellee

Wright paid plus the back taxes and judgments against the Property “far

exceeds” its fair market value. Id. at 11. Thus, the trial court found for

Appellees and against Appellant.

We summarize the procedural history as follows. Appellant filed a

complaint on March 27, 2014, contending that the transfer of the Property to

Appellee Wright was a fraudulent transfer and was done to avoid the

“potential law suit” filed by Appellant. Complaint, 3/27/14, at ¶ 22.

Appellee Wright filed an Answer and New Matter on April 29, 2014; Laterese

Cowell never filed an answer. On February 27, 2015, Appellee Wright filed a

motion for summary judgment, which the trial court denied on May 8, 2015.

Appellant filed a motion in limine on November 3, 2015, requesting “an

inference that the agreement of sale would be unfavorable to [Appellees’]

legal position and would favor [Appellant’s] claim.” Motion, 11/3/15, at

unnumbered 1. The trial court denied the motion on January 28, 2016.

-6-
J-S44020-17

On January 22, 2016, Appellee Wright filed two motions in limine; one

sought to preclude the report and testimony of Appellant’s expert, Robert

Yizzi, and one sought to preclude Appellant “from introducing evidence and

testimony of fraudulent intent” at trial. Motion in Limine, 1/22/16, at

unnumbered 1. By orders dated January 25, 2016, and filed January 28,

2016, the trial court denied Appellee Wright’s motion to preclude the report

and testimony of Robert Yizzi and denied in part and granted in part

Appellee Wright’s motion to preclude testimony relating to her fraudulent

intent. In this regard, the trial court stated that Appellant “is precluded from

presenting testimony of alleged intent to defraud, delay, and hinder” but “is

permitted to introduce exhibits to prove the alleged intent . . . to the extent

they were produced in discovery.” Order, 1/28/16. Also in that order, the

trial court noted that Appellant was precluded from “attempting to establish

the intent element of 12 Pa.C.S. § 5104(a)(1)” and “testimony is permitted

to establish elements of § 5104(a)(2) but [it] will be disregarded by the

court when evaluating the claim under § 5104(a)(1).” Id.

A bench trial ensued on January 25 and 26, 2016. At the close of

Appellant’s case, Appellees Wright and Laterese Cowell moved for a nonsuit

on Appellant’s claim pursuant to 12 Pa.C.S. § 5104(a)(2). N.T., 1/26/16, at

70, 90. The trial court granted the nonsuit based upon its conclusion that

Appellant failed “to introduce any competent evidence that the Property was

transferred without receiving a reasonably equivalent value, a necessary

-7-
J-S44020-17

element of the claim.” Findings of Fact and Conclusions of Law, 2/2/16, at

6. The trial court ultimately held “that neither Laterese Cowell nor Harriet

Wright intended to hinder, delay, or defraud” Appellant. Id. at 11.

Appellant filed a post-trial motion on February 11, 2016, seeking

removal of the nonsuit and judgment in his favor, or in the alternative, a

new trial. Post-Trial Motion, 2/11/16. The trial court denied the motion on

February 23, 2016.3 Appellant filed a notice of appeal on March 7, 2016,

and a court-ordered Pa.R.A.P. 1925(b) statement on March 24, 2016.

Procedurally, the appeal was premature, as judgment had not been entered

on the verdict. See Johnston the Florist v. TEDCO Construction Corp.,

657 A.2d 511, 514 (Pa. Super. 1995) (an appeal lies from the entry of

judgment and not an order denying a post-trial motion). Ultimately,

judgment was entered on May 5, 2016.4

____________________________________________

3
We note that “[a]n appeal does not lie from the entry of a judgment of
compulsory nonsuit, but rather from a refusal to take it off [.]” Biddle v.
Johnsonbaugh, 664 A.2d 159, 161 (Pa. Super. 1995). Pennsylvania Rule
of Civil Procedure 227.1 mandates that post-trial motions, including a
motion to remove a nonsuit, must be filed within ten days after “notice of
nonsuit or the filing of the decision in the case of trial without a jury.”
Pa.R.C.P. 227.1(c)(2). Thus, the appeal properly lies from judgment entered
on the order denying removal of the nonsuit. See, e.g., Harvey v. Rouse
Chamberlin, Ltd., 901 A.2d 523, 524 n.1 (Pa. Super. 2006) (quoting Billig
v. Skvarta, 853 A.2d 1028, 1030 n.1 (Pa. Super. 2004) (“[I]n a case where
nonsuit was entered, the appeal properly lies from the judgment entered
after denial of a motion to remove nonsuit.”)).

4
This Court has held that quashing a premature appeal is an unnecessary
expenditure of judicial resources where the decision on appeal is otherwise
(Footnote Continued Next Page)

-8-
J-S44020-17

Appellant raises the following issues on appeal:

1. In granting the Nonsuit, did the trial court commit an abuse
of discretion/error of law in failing to consider [Appellees’]
Expert’s appraisal as evidence in determining whether the
Property was sold “without receiving a reasonably equivalent
value”?

2. In granting the Nonsuit, did the trial court commit an abuse
of discretion/error of law by sustaining three objections to “Mr.
Yizzi’s attempt at trial to extrapolate that value ($130,000) back
to 2013?”

Appellant’s Brief at 2–3 (parentheses substituted for brackets).

We address the issues together. A trial court may enter a nonsuit on

any and all causes of action if, at the close of the plaintiff’s case against all

defendants on liability, the court finds that the plaintiff has failed to establish

a right to relief. Pa.R.C.P. 230.1(a), (c); Commonwealth v. Janssen

Pharmaceutica, Inc., 8 A.3d 267, 269 n.2 (Pa. 2010). Nonsuit is proper

where the plaintiff has not introduced sufficient evidence to establish the

necessary elements to maintain a cause of action. Gillard v. Martin, 13

A.3d 482, 486–487 (Pa. Super. 2010). “On appeal, entry of a compulsory

nonsuit is affirmed only if no liability exists based on the relevant facts and

circumstances, with appellant receiving ‘the benefit of every reasonable

_______________________
(Footnote Continued)

final and the only barrier to appellate review is the entry of judgment.
Johnston the Florist, 657 A.2d at 514. “[W]here . . . judgment is
subsequently entered, the appeal is ‘treated as filed after such entry and on
the date thereof.’ Pa.R.A.P. 905(a).” K.H. v. J.R., 826 A.2d 863, 872 (Pa.
2003).

-9-
J-S44020-17

inference and resolving all evidentiary conflicts in appellant’s favor.’”

Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 595–596 (Pa.

2012) (quoting Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998)). An order

denying a motion to remove a nonsuit will be reversed on appeal only if the

trial court abused its discretion or committed an error of law. Weiner v.

Fisher, 871 A.2d 1283, 1285 (Pa. Super. 2005); Kovalev v. Sowell, 839

A.2d 359, 368 (Pa. Super. 2003).

Both of Appellant’s issues assail the propriety of the trial court’s grant

of a nonsuit related to § 5104(a)(2) of PUFTA. That provision provides as

follows:

§ 5104. Transfers fraudulent as to present and future creditors

(a) General rule.--A transfer made or obligation incurred by a
debtor is fraudulent as to a creditor, whether the creditor's claim
arose before or after the transfer was made or the obligation
was incurred, if the debtor made the transfer or incurred the
obligation:

(1) with actual intent to hinder, delay or defraud any
creditor of the debtor; or

(2) without receiving a reasonably equivalent value in
exchange for the transfer or obligation, and the debtor:

(i) was engaged or was about to engage in a
business or a transaction for which the remaining
assets of the debtor were unreasonably small in
relation to the business or transaction; or

(ii) intended to incur, or believed or reasonably
should have believed that the debtor would incur,
debts beyond the debtor's ability to pay as they
became due.

- 10 -
J-S44020-17

12 Pa.C.S. § 5104(a).

In its Pa.R.A.P. 1925(a) opinion, the trial court explained that the

Estate of Lynda Cowell conveyed the Property to Appellee Wright for

$5,743.71 plus her agreement to pay all outstanding debts and liens against

it in the amount of $47,945.24. Supplemental Trial Court Opinion, 2/16/17,

at 2. The trial court observed that Appellant’s only evidence offered in

support of his claim that the transfer of the Property was not a reasonably

equivalent value was the expert opinion of Robert Yizzi, a certified real

estate appraiser. The trial court determined, however, that it was fatal to

Appellant’s case that Mr. Yizzi valued the property as of 2015, not 2013

when the transaction occurred. Id.

Appellant challenges the trial court’s determination that he failed to

produce competent evidence at trial that the estate did not receive

reasonably equivalent value for the Property when it was transferred, a

“necessary element of the claim.” Findings of Fact and Conclusions of Law,

2/2/16, at 6; Appellant’s Brief at 14.5 Encompassed in that issue, Appellant

maintains that the trial court erroneously concluded that the testimony of

Appellant’s expert witness, Robert Yizzi, was not credible because it

____________________________________________

5
Rather than provide pinpoint citation to a particular document, both
Appellant and to a lesser extent, Appellees, merely cite to the appendix to
Appellant’s brief in violation of Pa.R.A.P. 2119(c) and 2133, thereby
requiring this Court to scour the appendix, the trial court opinion, and other
documents in search of referenced support.

- 11 -
J-S44020-17

addressed the value of the Property as of January 7, 2015, not the relevant

period at the time of the transfer in 2013. N.T., 1/26/16, at 95. Moreover,

Appellant asserts the trial court erroneously found that Robert Yizzi’s

testimony was the only evidence Appellant presented in support of his

§ 5104(a)(2) claim. Appellant’s Brief at 15. In this regard, Appellant points

out that he also relied on the opinion of Appellees’ expert, Henry Hoffman,

that the Property was worth $50,000 in June of 2013. See Findings of Fact

and Conclusions of Law, 2/2/16, at 5. Although Appellant disagreed with

that valuation, Appellant contends that he relied upon Mr. Hoffman’s

appraisal to support his contention that the $5,743.71 that Appellee Wright

paid for the property was substantially below even the $50,000 appraisal of

Appellees’ own expert, Henry Hoffman. Appellant’s Brief at 15. Appellant

avers that the trial court’s refusal to consider Mr. Hoffman’s testimony as

evidence constituted an abuse of discretion. Id.

Finally, Appellant contends the trial court committed an abuse of

discretion or error of law in sustaining three objections to Mr. Yizzi’s attempt

at trial to extrapolate his 2015 $130,000 value of the Property back to the

time of the Property’s transfer in 2013. N.T., 1/25/16, at 123; N.T.,

1/26/16, at 81. It clearly provided that the Property’s valuation of $130,000

was as of January 7, 2015, and the estimate of value stated in the appraisal

applied only to the effective date as stated in the report. Report, 1/27/15,

at 1, 22. At trial, Mr. Yizzi explained that he utilized a Board of Revision of

- 12 -
J-S44020-17

Taxes (“BRT”) Report, a public record that the City of Philadelphia utilizes in

valuing property to determine assessment values, and the sale of

comparable properties in formulating his appraisal of the Property’s market

value in January of 2015. When Appellees objected to Appellant’s

solicitation of Mr. Yizzi’s opinion of the Property’s valuation in 2013 because

Appellant asked for an opinion outside of the witness’s report, the trial court

sustained the objections. N.T., 1/25/16, at 135–136.

Appellee Wright responds that in deciding whether an expert’s trial

testimony is within the fair scope of his report, “the accent is on the word

`fair.’” Appellee’s Brief at 9. Appellee Wright relies upon Sutherland v.

Monongahela Valley Hosp., 856 A.2d 55, 59 (Pa. Super. 2004), where

this Court stated:

The question to be answered is whether, under the
circumstances of the case, the discrepancy between the expert’s
pre-trial report and his trial testimony is of a nature which would
prevent the adversary from preparing a meaningful response, or
which would mislead the adversary as to the nature of the
appropriate response.

Id. Appellee maintains that any attempt by Mr. Yizzi at trial to extrapolate

“an entirely new opinion” valuing the Property as of 2013, when he never

provided such opinion in his expert report, was precluded by Pa.R.C.P.

4003.5. Appellee’s Brief at 12.

Appellant’s argument that the trial court was required to consider

Appellant’s reliance on Appellees’ expert report by Henry Hoffman as well is

premised on Pa.R.C.P. 230.1(a)(2), which provides:

- 13 -
J-S44020-17

Rule 230.1. Compulsory Nonsuit at Trial

(a)(1) In an action involving only one plaintiff and one
defendant, the court, on oral motion of the defendant, may enter
a nonsuit on any and all causes of action if, at the close of the
plaintiff’s case on liability, the plaintiff has failed to establish a
right to relief.

(2) The court in deciding the motion shall consider only evidence
which was introduced by the plaintiff and any evidence favorable
to the plaintiff introduced by the defendant prior to the close of
the plaintiff’s case.

* * *

(c) In an action involving more than one defendant, the court
may not enter a nonsuit of any plaintiff prior to the close of the
case of all plaintiffs against all defendants.

Pa.R.C.P. 230.1(a) and (c). We observe that Appellant failed to make this

specific claim in his post-trial motion or Pa.R.A.P. 1925(b) statement. See

Pa.R.A.P. 302(a) (noting that “[i]ssues not raised in the lower court are

waived and cannot be raised for the first time on appeal”); Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this [Rule] are waived”). Moreover,

examining the provisions of Rule 230.1(a)(2), we note that Mr. Hoffman’s

testimony was not necessarily “favorable” to Appellant. Indeed, in its

conclusions of law, the trial court determined that Mr. Hoffman’s appraisal of

$50,000 as of June 2013 was approximately the same amount of debt that

Appellee Wright assumed when she took ownership of the Property.

Findings of Fact and Conclusions of Law, 2/2/16, at 10.

- 14 -
J-S44020-17

In challenging the trial court’s ruling proscribing Appellant’s efforts to

have Mr. Yizzi extrapolate the value of the Property to 2013, when his report

failed to do so, Appellant confuses and mistakenly relies on case law in

support of the use of comparable property values in determining the

Property’s valuation. Appellant’s Brief at 19–20. The trial court’s rulings

sustaining Appellee’s objections had nothing to do with the expert’s proper

use of comparable property values in reaching his appraisal value.6 Rather,

the trial court concluded that the opinion Appellant attempted to solicit

violated Pa.R.C.P. 4003.5(c) because Mr. Yizzi’s testimony was not within

the fair scope of his report. Supplemental Trial Court Opinion, 2/16/17, at

2. Rule 4003.5(c) provides, “[T]he direct testimony of an expert at the trial

may not be inconsistent with or go beyond the fair scope of his or her

testimony...set forth in the deposition, answer to the interrogator, separate

report or supplement thereto.” Pa.R.C.P. 4003.5(c); Supplemental Trial

Court Opinion, 2/16/17, at 2.

There is no “hard and fast rule for determining when a particular

expert’s testimony exceeds the fair scope of his or her pretrial report.
____________________________________________

6
We also note that the comparable values utilized in the Report discussed
only properties that were sold after the Property was transferred to Appellee
Wright, before January 7, 2015, whereas our Supreme Court has observed
that “comparable properties” are those that “have been recently sold.”
McKnight Shopping Center v. Board of Property Assessment, Appeals
& Review, 209 A.2d 389, 393 (Pa. 1965). Thus, using this definition,
comparable properties should have included those “recently sold” before the
instant transfer in 2013.

- 15 -
J-S44020-17

Rather, the determination must be made with reference to the particular

facts and circumstances of each case.” Wilkes-Bane Iron & Wire Works,

Inc. v. Pargas of Wilkes-Barre, Inc., 502 A.2d 210, 212 (Pa. Super.

1985). Nevertheless, “[t]he controlling principle which must guide us is

whether the purpose of Rule 4003.5 is being served.” Id. The limitations

on the scope of the expert’s testimony “serves to insure that an expert’s

report will be sufficiently comprehensive and detailed to inform an opposing

party of the expert’s testimony at trial.” Jones v. Constantino, 631 A.2d

1289, 1295 (Pa. Super. 1993) (citing Havasy v. Resnick, 609 A.2d 1326,

1331 (Pa. Super. 1992)).

In light of these principles, it is clear that the trial court correctly

concluded that the proffered testimony was outside the fair scope of Mr.

Yizzi’s report. That report estimated the Property’s value as of January 7,

2015, not as of the date of transfer. Further, the report provided that the

estimate of value stated in the appraisal applied only to the effective

date as stated in the report. Report, 1/27/15, at 22. The report did not

render any opinion regarding the value of the Property in 2013. Thus, it

would constitute prejudice and unfair surprise to Appellees to permit Mr.

Yizzi to render an entirely new appraisal.

We agree with the trial court that Appellant failed to prove under 12

Pa.C.S. § 5104(a)(2) that the Property was transferred without receiving

reasonably equivalent value and properly granted Appellees’ motion for

- 16 -
J-S44020-17

nonsuit. Appellant’s sole evidence offered by Mr. Yizzi did not address the

value of the Property in 2013, when the Property transfer occurred, and

Appellant’s attempt to extrapolate the 2015 value to 2013 was properly

denied. Mr. Hoffman’s testimony was not necessarily favorable to Appellant,

and in any event, that particular argument was not properly presented and

preserved to the trial court. Finally, Appellant’s attempt to offer testimony

about a BRT Report was not permitted because the report was not entered

into evidence. N.T., 1/25/16, at 127; Supplemental Trial Court Opinion,

2/16/17, at 3.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017

- 17 -