Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WILLIAM LESSNER v. BIRDIE L. RUBINSON AND FIRST PENNSYLVANIA BANK. APPEAL WILLIAM LESSNER (03/08/89)

filed: March 8, 1989.

WILLIAM LESSNER
v.
BIRDIE L. RUBINSON AND FIRST PENNSYLVANIA BANK. APPEAL OF WILLIAM LESSNER, BY HIS EXECUTOR, HERBERT PRESSMAN, ESQUIRE



Appeal from the Final Decree entered February 5, 1988, in the Court of Common Pleas of Philadelphia County, Civil Division, No. 6484 March Term 1983.

COUNSEL

Herbert Pressman, Philadelphia, for appellant.

Louis S. Criden, Philadelphia, for appellees.

Cirillo, President Judge, and Brosky, Rowley, Wieand, McEwen, Del Sole, Montemuro, Beck and Tamilia, JJ.

Author: Rowley

[ 382 Pa. Super. Page 308]

This appeal challenges a final decree of the Court of Common Pleas of Philadelphia County, which ruled that a bank Certificate of Deposit ("C.D.") in the joint names of William Lessner (decedent) and Birdie L. Rubinson, his sister, is not an asset of the decedent's estate, but rather the property of Birdie L. Rubinson. The court also ruled that a $5,000 check given by William to Birdie was a gift and is not an asset of the estate. We affirm in part and reverse in part.

Our Court has held that the

     findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. The appellate court, in these circumstances, is limited to determinations of whether the trial court's findings are supported by competent evidence and whether the trial court committed an error of law.

Brenna v. Nationwide Insurance Co., 294 Pa. Super. 564, 567, 440 A.2d 609, 611 (1982) (citations omitted). With this standard of review in mind, we summarize the facts as found by the trial court.

On or about July 18, 1978, William Lessner and his sister, Birdie Rubinson went to the First Pennsylvania Bank ("the Bank") to obtain a Certificate of Deposit ("the replacement C.D.") to replace a $50,000 C.D. which William had owned with his wife, Anna.*fn1 The amount of the replacement C.D. was $50,000, it was made payable to "William Lessner or Birdie L. Rubinson", and it matured on April 1, 1979.

Upon maturity of the replacement C.D., a new C.D. ("the third C.D."), dated April 1, 1979, was issued,*fn2 also in the amount of $50,000 and for four years. This third C.D. was

[ 382 Pa. Super. Page 309]

    issued in the name of "William Lessner or Birdie Rubinson," as well. The third C.D. is at the center of this dispute.

The trial court found as a fact that the third C.D. remained in the constant possession and control of Birdie from the time it was issued. The court also found that Birdie did not contribute any funds toward purchase of the C.D. It is uncontradicted that before the third C.D. was to mature on April 1, 1983, William requested that Birdie return it to him so that he could get a higher rate of interest elsewhere. Birdie refused. William brought this action in the Court of Common Pleas on March 31, 1983 seeking to enjoin Birdie from redeeming the third C.D.*fn3

In addition to the $50,000 C.D., a check in the amount of $5,000 is at issue in this case. William alleged in Count II of his complaint that on July 1, 1982 Birdie requested that he loan her $5,000 so that, together with $5,000 of her own funds, she could purchase a $10,000 C.D. for herself. William alleged that he complied with her request, but never received repayment of the $5,000. The trial court made no specific findings of fact regarding the $5,000 in dispute except to note that William claimed the payment of $5,000 to Birdie was a loan.

William died on July 28, 1984 before the date of trial. William's executor was substituted as plaintiff upon filing a suggestion of death. Following a bench trial held in February 1986, the Honorable Calvin J. Wilson concluded that the C.D., as well as the $5,000 check, were gifts by William to his sister and, therefore, did not constitute any part of his estate. William's executor has appealed.

Appellant presents seven issues on appeal, which may be most efficiently distilled into two arguments: 1) that the trial court erred in not applying 20 Pa.C.S. ยง 6303(a) in deciding the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.