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CHARLES VACCO v. GEORGE MARCUS (12/14/84)

filed: December 14, 1984.

CHARLES VACCO, APPELLANT,
v.
GEORGE MARCUS, ROSE MARCUS, CARL MARCUS, 122 BAR, A PARTNERSHIP AND THE 122 CORPORATION



No. 01379 PITTSBURGH, 1982, Appeal from an Order of November 3, 1982, in the Court of Common Pleas, Civil Division, of Allegheny County, No. GD78-3472.

COUNSEL

Thomas M. Castello, Pittsburgh, for appellant.

Joseph D. Talarico, Pittsburgh, for appellees.

Rowley, Tamilia and Hester, JJ.

Author: Per Curiam

[ 336 Pa. Super. Page 212]

In September, 1967, a jury awarded appellant five thousand dollars as a result of an altercation with appellee, George Marcus. Appellant's action was filed against George Marcus, individually and trading as 122 Lounge. The judgment was indexed solely against George Marcus.

On February 1, 1974, George and Rose Marcus, appellees, entered into a written agreement for the sale and transfer of the assets of the 122 Bar to the 122 Corporation which was owned by their son, Carl Marcus. It is the validity of this transfer that was before the lower court for determination.

Appellant filed his complaint in equity alleging inter alia that appellees intentionally caused the sale, transfer and conveyance of the assets of the 122 Bar to their son's corporation for the purpose of defrauding appellant, a judgment creditor. Appellant alleged appellees transferred the assets in order to avoid attachment and execution, and did so without notification to appellant, in violation of the Pennsylvania Bulk Transfer Act. Appellant contends the business was a partnership between George and Rose Marcus subject to his prior judgment.

The parties agreed to submit the case to a Chancellor based upon a stipulated statement of facts and memorandums of law. The Chancellor entered a decree nisi, finding the 122 Bar was property owned by tenants by the entireties and, therefore, could not be subject to the debts of one of the spouses. The Chancellor's findings were affirmed by a court en banc. Appellant appeals from this final decree.

Initially, we note that a Chancellor's findings of fact, when affirmed by a court en banc, are comparable to a jury verdict and would only be set aside if the evidence is insufficient to support them, if they are premised on erroneous inferences and deductions, or if they constitute an error of law. Sobers v. Shannon Optical Co., 326 Pa. Super. 170,

[ 336 Pa. Super. Page 213473]

A.2d 1035 (1984); Krosnar v. Schmidt, 282 Pa. Super. 526, 423 A.2d 370 (1980).

The threshold question is whether the presumption that property owned by husband and wife is held as a tenancy by the entireties has been rebutted. The lower court expounded that, in order to ascertain the existence of a partnership, one must resolve the duties of the husband and wife and the extent of their involvement in the business. The lower court focused on the intention of the couple in determining whether a partnership existed, found it unclear, and refused to imply the existence of a ...


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