Leak, D. v. Laterese Cowell, 794 EDA 2016

Background

Nintha C. Johnson owned 1528 Point Breeze Ave.; her will left the property to daughter Lynda Cowell, who died in 2011; the property had back taxes, water/sewer bills, and judgments totaling about $47,945.24.
Harriet Wright, a cousin with close family ties to Johnson, agreed with heirs to take the property, pay delinquent taxes and liens, and assume debts; Wright (through her daughter) paid approximately $5,679.34 toward taxes and later a $5,743.71 deed consideration was recorded (June 28, 2013).
David Leak tripped and fell on the property (June 21, 2011); he obtained a $15,000 default judgment against Laterese Cowell as administratrix (Feb. 28, 2014) and then sued under the Pennsylvania Uniform Fraudulent Transfer Act (PUFTA), 12 Pa.C.S. § 5104, alleging the 2013 transfer was fraudulent to defeat his claim.
At bench trial Leak offered an appraiser, Robert Yizzi, who valued the property at $130,000 as of January 7, 2015; Wright’s expert, Henry Hoffman, opined the value was $50,000 as of June 27, 2013.
The trial court entered a nonsuit at the close of Leak’s case under § 5104(a)(2), finding Leak failed to prove the estate did not receive reasonably equivalent value because Leak’s expert gave a 2015 valuation (outside his report’s effective date) and Leak was not permitted to extrapolate it to 2013; the court also found Wright assumed debts roughly equal to the 2013 fair value.
The Superior Court affirmed, holding Leak failed to prove a lack of reasonably equivalent value and that the trial court did not abuse discretion in limiting expert testimony under Pa.R.C.P. 4003.5.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff proved the transfer violated § 5104(a)(2) (transfer for less than reasonably equivalent value)	Leak argued the $5,743.71 paid plus assumed debts was far below the property's fair market value (citing his expert’s $130,000 appraisal)	Wright argued the estate received equivalent value when Wright paid taxes/assumed liens and that Leak’s expert gave a 2015 value, not a 2013 value, so no proof of inadequate consideration	Held: Affirmed nonsuit. Leak failed to prove lack of reasonably equivalent value because his expert’s report valued the property as of 2015 and testimony extrapolating to 2013 was outside fair scope and properly excluded
Admissibility of expert testimony/opinion about 2013 value when the report gives a 2015 valuation	Leak argued the court should allow his expert to extrapolate the 2015 appraisal back to 2013 and also rely on defendant’s 2013 appraisal ($50,000) as favorable evidence	Wright argued extrapolation would be an ‘‘entirely new opinion’’ outside the fair scope of the expert report and would prejudice her under Pa.R.C.P. 4003.5	Held: The trial court properly excluded extrapolated 2013 opinion (report limited opinion to Jan. 7, 2015); reliance on defendant’s expert was not a preserved basis to defeat nonsuit and his testimony was not necessarily favorable to Leak

Key Cases Cited

Janssen Pharmaceutica, Inc. v. 8 A.3d 267 (Pa. 2010) (standard for nonsuit and appellate review explained)
Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 (Pa. 2012) (appellate review of nonsuit: treat plaintiff most favorably and resolve conflicts in plaintiff’s favor)
Agnew v. Dupler, 717 A.2d 519 (Pa. 1998) (nonsuit appellate standard and evidentiary inferences)
Gillard v. Martin, 13 A.3d 482 (Pa. Super. 2010) (nonsuit proper when plaintiff fails to introduce necessary elements)
Wilkes-Bane Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc., 502 A.2d 210 (Pa. Super. 1985) (scope of expert testimony governed by facts and purpose of rule limiting surprise)
Jones v. Constantino, 631 A.2d 1289 (Pa. Super. 1993) (expert report must inform opposing party of expected testimony to avoid unfair surprise)
Sutherland v. Monongahela Valley Hosp., 856 A.2d 55 (Pa. Super. 2004) (whether trial testimony is within fair scope of pretrial report depends on whether opponent can prepare a meaningful response)