J-A19003-20

WILLIE WITHERSPOON : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DEBORAH MCDOWELL-WRIGHT : No. 2293 EDA 2019

Appeal from the Judgment Entered June 14, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): July Term, 2016 No. 02776

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY PANELLA, P.J.: FILED OCTOBER 23, 2020

Willie Witherspoon appeals from the judgment entered on June 14,

2019, in the Philadelphia County Court of Common Pleas, in his favor and

against Deborah McDowell-Wright1 in the amount of $7,500 following a non-

jury trial in this conversion action. On appeal, Witherspoon complains the

amount of damages the trial court awarded him was against the weight of the

evidence. Initially, we conclude that McDowell-Wright’s death during the

pendency of this appeal does not affect our jurisdiction. Further, we conclude

the trial court did not abuse its fact-finding discretion, so we affirm.

Witherspoon and McDowell-Wright were former paramours who resided

together at McDowell-Wright’s residence in Philadelphia, Pennsylvania, from

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1 As will be discussed in more detail below, McDowell-Wright passed away on

March 1, 2020, while this appeal was pending. J-A19003-20

2002 to 2015. The relationship turned acrimonious, and in November of 2015,

McDowell-Wright evicted Witherspoon from the home by obtaining, as alleged

by Witherspoon, numerous “fraudulent” protection from abuse orders. Civil

Complaint, 7/26/2016, at ¶ 4. Witherspoon also averred that McDowell-Wright

converted his personal property after he left the residence. See id., at ¶ 5.

Witherspoon filed a pro se complaint, on July 26, 2016, alleging

conversion, breach of verbal loan agreements, and damages suffered based

on false eviction. The matter proceeded to trial on September 27, 2017. At

that time, Witherspoon had retained counsel and McDowell-Wright was pro

se. McDowell-Wright produced a discharge in bankruptcy, and the trial court

entered a non pros, finding the matter barred.

Witherspoon subsequently filed a petition to remove the non pros. The

court heard oral argument on the matter and thereafter, vacated the judgment

of non pros on January 9, 2018.2 The court also granted Witherspoon leave

to file an amended complaint, which he did on January 26, 2018, solely

alleging conversion and seeking damages in the amount of $223,510.

A two-day trial began on March 28, 2019. Based on Witherspoon’s

allegations that he had been engaged in the hobby of rebuilding classic cars

and McDowell-Wright had converted his tools and equipment, the court

narrowed the focus of the testimony to the value of the missing property. The

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2 The court based its decision on the finding that McDowell-Wright’s bankruptcy did not bar the action. See Trial Court Opinion, 10/9/2019, at 2.

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following day, the court found in favor of Witherspoon in the amount of

$7,500.

Witherspoon filed a timely post-trial motion, seeking reconsideration of

the damages award. On June 14, 2019, the court denied Witherspoon’s motion

and entered judgment reflecting the verdict. This appeal followed.3

Preliminarily, we acknowledge we are confronted with a unique

predicament concerning the matter before us. On August 7, 2020, prior to

argument, McDowell-Wright’s daughter filed a “Suggestion of Death” in this

Court, indicating that McDowell-Wright passed away on March 1, 2020.4 No

additional information has been filed in the Court regarding this issue, and it

does not appear that a personal representative has been appointed or that an

estate has been raised. Furthermore, as noted above, during the pendency of

the underlying proceeding, McDowell-Wright represented herself. No one filed

an appellee’s brief.

Pennsylvania Rule of Appellate Procedure 502, which provides guidance

when a party dies, states:

(a) Death of a party.-- If a party dies after a notice of appeal or petition for review is filed or while a matter is otherwise pending in an appellate court, the personal representative of the deceased party may be substituted as a party on application filed by the ____________________________________________

3 On July 19, 2019, the trial court ordered Witherspoon to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Witherspoon filed a concise statement on August 12, 2019. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 9, 2019. 4 Witherspoon acknowledged he received notice of McDowell-Wright’s death

in his appellant’s brief. See Appellant’s Brief, at 3 n.1.

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representative or by any party with the prothonotary of the appellate court. The application of a party shall be served upon the representative in accordance with the provisions of Pa.R.A.P. 123. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate court may direct. If a party against whom an appeal may be taken or a petition for review may be filed dies after entry of an order below but before a notice of appeal or petition for review is filed, an appellant may proceed as if death had not occurred. After the notice of appeal or petition for review is filed, substitution shall be effected in the appellate court in accordance with this paragraph. If a party entitled to appeal or petition for review shall die before filing a notice of appeal or petition for review, the notice of appeal or petition for review may be filed by his personal representative, or, if he has no personal representative, by his counsel, within the time prescribed by these rules. After the notice of appeal or petition for review is filed, substitution shall be effected in the appellate court in accordance with this paragraph.

Pa.R.A.P. 502(a). In relevant part, Rule 502 “permits any party to make a

suggestion of death on the record. The Rule then states that proceedings may

be had as this court directs. The open-endedness of this Rule is evident.”

Commonwealth v. Bizzaro,

(Pa. Super. 1987).

We note there is a dearth of case law dealing with Rule 502(a) and

particularly, the totality of the circumstances before us – in which the

decedent is the appellee, she was acting pro se, the underlying judgment has

been entered against her, and she passed away after Witherspoon filed a

notice of appeal but before he had filed his Appellant’s Brief. However, a

review of existing authorities leads us to conclude this appeal is ripe for our

review.

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If McDowell-Wright had passed prior to the entry of judgment in this

matter, the trial court would have been without subject matter jurisdiction to

proceed further until a personal representative had been appointed in her

place. See Grimm v. Grimm,

(Pa. Super. 2016) (holding

that the mandatory language of Pa.R.Civ.P. 2355 required substitution for a

deceased defendant to re-establish trial court’s subject matter jurisdiction).

In contrast, if McDowell-Wright had passed after the judgment had been

entered, but before Witherspoon filed a notice of appeal, the Rules of Appellate

Procedure provide that Witherspoon would be entitled to proceed as if

McDowell-Wright had not died. See Pa.R.A.P. 502(a).

Here, McDowell-Wright’s daughter, who is not a party to this appeal,

filed a suggestion of McDowell-Wright’s death with this Court that Witherspoon

has not challenged. In this document, McDowell-Wright’s daughter asserts

that McDowell-Wright passed on March 1, 2020. This date would be after

Witherspoon filed his notice of appeal on August 26, 2019, but before he filed

his Appellant’s Brief with this Court on March 21, 2020. The Rules of Appellate

Procedure allow for, but do not mandate, substitution under these

circumstances. See Pa.R.A.P. 502(a) (providing that “the personal

representative of the deceased party may be substituted as a party on

application filed by the representative or by any party”).

In contrast to the rules governing the trial court, the fact that no

personal representative has been substituted here does not act to deprive this

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Court of subject matter jurisdiction, as Rule 502(a) does not mandate

substitution under these circumstances. See, e.g., Grimm,

(addressing appellant’s claims against deceased appellee even though there

had been no substitution for the deceased appellee). We therefore must next

consider whether McDowell-Wright’s death renders this appeal moot.

In Shiomos v. Commonwealth State Employees’ Ret. Bd.,

(Pa. 1993), the Pennsylvania Supreme Court determined that an

appellant’s passing did “not render the case moot as the outcome may have

relevance to his estate and also, the questions raised in this appeal have an

impact on recurring issues statewide.”

at 159 n.1.

Applying Shiomos to the present matter, we conclude that McDowell-

Wright’s death does not render the case moot as the outcome will have

relevance to her estate and Witherspoon’s rights as a purported creditor of

her estate. Accordingly, we will address the substantive issue raised on

appeal.

In Witherspoon’s sole argument, he claims the trial court abused its

discretion by awarding him only $7,500 of his demand that exceeded $75,000

despite finding McDowell-Wright liable for conversion of Witherspoon’s

property. See Appellant’s Brief, at 2. Witherspoon states the $7,500

determination “is clearly against the weight of the evidence.” Id., at 5.

Generally, our review of damage awards is straightforward:

Our standard of review of a trial court’s award of damages is narrow: In reviewing the award of damages, the appellate courts

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should give deference to the decisions of the trier of fact who is usually in a superior position to appraise and weigh the evidence. If the verdict bears a reasonable resemblance to the damages proven, we will not upset it merely because we might have awarded different damages.

McManamon v. Washko,

(Pa. Super. 2006) (citations

omitted). However, when evaluating the value of personal property that has

been lost due to a defendant’s wrongdoing, the analysis becomes slightly more

complex.

Here, the trial court found that Wright had converted Witherspoon’s

personal property. “Conversion is the deprivation of another’s right of property

in, or use or possession of, a chattel, without the owner’s consent and without

lawful justification.” Brinich v. Jencka,

(Pa. Super. 2000)

(citation omitted). “[I]t is the traditional function of the fact finder in

conversion actions to estimate damages.” Pikunse v. Kopchinski,

(Pa. Super. 1993). Estimation of the damages, as opposed to

more certain methods of valuation, is often necessary:

While the measure of damages for conversion is the market value of the converted property at the time and place of conversion, such a value is often unascertainable. It is also well- settled that mere uncertainty as to the amount of damages will not bar recovery where it is clear that the damages are the result of defendant’s conduct. In addition, replacement cost as the measure of damages has been a long-established exception to the general rule as to market value of personal belongings:

What a thing will bring in the market at a given time is perhaps the measure of its value then; but it is not the only one. Many of the goods for which compensation is here asked were of such a character that their market value could not compensate for their loss, as, for instance, clothing and

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other personal belongings. It cannot be said that they had no value in the open market, since at public auction they would most likely have brought something, but manifestly the price they would have there commanded would not represent their value to the owner . . . Where this is the case the just rule of damages is the actual value of the thing destroyed to him who owns it, taking into account its cost, the practicality and expense of replacing it, and such other consideration as in the particular case affect its value to the owner.

Lloyd v. Haugh & Keenan Storage & Transfer Co.,

,

(1909).

Lynch v. Bridges & Co.,

(Pa. Super. 1996) (some

citations omitted).

In Delahanty v. First Pennsylvania Bank,

(Pa.

Super. 1983), this Court described the fact-finder’s role regarding the

determination of damages as follows:

Though justice and public policy require that the wrongdoer bear the risk of uncertainty which his own wrong has created and which prevents the precise computation of damages, the fact- finder still may not render a verdict based on speculation or guesswork. Yet, the fact-finder may make a just and reasonable estimate of the damage based on relevant data, and in such circumstances may act on probable and inferential, as well as upon direct and positive, proof. Thus, the law does not demand that the estimation of damages be completely free of all elements of speculation.

…

Generally, under Pennsylvania law, damages need not be proved with mathematical certainty, but only with reasonable certainty, and evidence of damages may consist of probabilities and inferences. Although the law does not command mathematical precision from evidence in finding damages, sufficient facts must be introduced so that the court can arrive at an intelligent estimate without conjecture. Where the amount of

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damage can be fairly estimated from the evidence, recovery will be sustained even though such amount cannot be determined with entire accuracy. It is only required that the proof afford a reasonable basis from which the fact-finder can calculate the plaintiff's loss.

(citations omitted).

Subsequently, in Penn Electric Supply Co., Inc. v. Billows Electric

Supply Co.,

(Pa. Super. 1987), a panel of this Court rejected

the plaintiff’s assertion that “the court is required to accept the plaintiffs’

valuation of damages where defendant fails to identify and value the goods

he converted.”

. In reaching this determination, the panel stated:

We have not uncovered another jurisdiction that, in conversion actions, places the burden of proof as to damages on the defendant so as to require the court to accept the plaintiff’s figure. The cases hold that plaintiff is not relieved of the burden of proving the amount of damages simply because the defendant by his own wrong has precluded a more precise computation of damages. The general rule is that if the defendant wishes to argue for a reduction in damages or to rebut the adequacy of plaintiff’s evidence, the burden of such a showing is on the defendant. But failure to meet this burden does not require the court to assess damages at whatever figure the plaintiff has shown, however uncertain.

(citations and quotation marks omitted). The panel held that “in a

conversion action, it is for the trier of fact to consider the evidence of damages

from both the plaintiff and the defendant and to measure the value of the

damages in the context of [the] plaintiff’s burden.”

.

In Pikunse, the appellant-landlords admitted to throwing out the

appellee-tenant’s personal property after she failed to timely pay her rent and

then depositing the property at the side of the road as trash. The tenant filed

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a lawsuit against the landlords, and the matter proceeded to a non-jury trial.

The court found in favor of the tenant and awarded her damages. On appeal,

one of the issues the landlords raised was whether the tenant met her burden

of proof at trial regarding the value of her personal property.

Applying Delahanty and Penn Electric, the Pikunse Court opined:

In the instant case, the trial court considered the evidence presented by both [tenant] and [landlords] and found that [the tenant]’s evidence was the more credible. In light of this factual finding, we conclude that the trial court’s award of damages was not improper, but rather, was adequately supported by the evidence. The list of items taken, and their worth, as estimated by [the tenant], based on the price she paid for each, afforded the trial court a reasonable basis upon which to calculate [the tenant]’s loss. [The landlords] failed to meet their burden of proof with respect to rebutting [the tenant]’s valuation evidence, and therefore, the trial court was free to accept the figure of $7,139.00 proffered by [the tenant] as the value of her personal possessions.

Pikunse,

.

Turning to the present matter, Witherspoon points to the following

circumstances as supporting his claim the trial court abused its discretion in

awarding him only $7,500 in damages: (1) he testified that he performs home

remodeling and restores antique cars; (2) he presented a list of the items

converted; (3) McDowell-Wright did not rebut Witherspoon’s testimony that

he devoted time and financial resources to restoring antique cars; (4) the

court found a witness who testified on his behalf regarding the existence of

the tools and materials and the conversions of those items credible; and (5)

the court found McDowell-Wright liable of conversion. See Appellant’s Brief,

at 8. Additionally, he contends the court abused its discretion when it refused

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to utilize the replacement value of his tools because it believed he only used

the tools for a hobby. See

Lastly, Witherspoon asserts that precedent only

requires him to “make a reasonable basis to calculate his losses.”

Witherspoon testified that in December 2015, based on his memory, he

created a handwritten, itemized list of tools and equipment that he stored in

McDowell-Wright’s basement and garage that were never recovered and how

much he had paid for them. See N.T., 3/28/2019, at 25-28; see also Trial

Exhibit P-9. He also presented a second handwritten, itemized list of converted

property he used solely for his hobbies. See N.T., 3/28/2019, at 65; see also

Trial Exhibit P-10. Witherspoon stated that “[a] lot of the tools” at issue he

“brought into the relationship” and some he bought during the relationship

with McDowell-Wright. Id., at 74. He indicated many of the products were

purchased to support his antique car hobby, crafts, and to just earn extra

money. Id.5

Witherspoon presented Donnell Blackmon as a witness. Blackmon was

a neighbor of McDowell-Wright and was familiar with Witherspoon’s hobbies.

See id., at 97-98. Blackmon testified that on the night that Witherspoon was

formally evicted from the home, he observed McDowell-Wright’s son and

brother removing tools and other items that belonged to Witherspoon from

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5 Witherspoon also testified he had a trailer located on McDowell-Wright’s property that was broken into but no items were missing from it. See N.T., 3/28/2019, at 56-57.

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the garage. See id., at 99-101. He stated this activity continued for three

weeks. See id., at 100-101. His testimony did not include evidence regarding

the value of the converted items. See id., at 96-119.

In her defense, McDowell-Wright denied taking or destroying any of the

items at issue and testified that Witherspoon took them himself. See N.T.,

3/29/2019, at 5-6. She did not present any evidence challenging the value of

the tools and equipment at issue.

At the conclusion of the testimony, the trial court found the following:

This property that may have been purchased ten years ago for $500 is maybe worth $20 now in terms of its market value after depreciation. Further, these tools were not made for an income-producing business. They were part of his hobby, so he was not in the business of using these tools.

So if we start depreciating all this material – he didn’t tell when he bought it, where he bought it, how much he paid for it at the time, so the Court has to guess its own depreciation and market value of the property that was converted at the time it was converted.

…

I think you[, McDowell-Wright,] and your son -- I think you and your son -- I think you were not telling me the truth. I think that your son did go to the garage and remove Mr. Witherspoon’s stuff from the garage and probably from the basement too. I think that you weren’t telling me the truth about this material.

Your son didn’t like Mr. Witherspoon and didn’t like what he did to you, and under those circumstances, it’s credible.

And nobody is here to testify on your behalf either, except for Mr. Blackmon, who testified on behalf of Mr. Witherspoon, which leads to the Court to believe that whatever was in the garage was taken by your son with your consent.

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Id., at 47-49.

Additionally, in its Rule 1925(a) opinion, the trial court concisely

explained its determination regarding the value of the lost property as follows:

The Court sitting without [a] jury is, as the finder of fact, entitled to believe all, some, or none of the evidence presented to it regardless of whether [Wright] rebutted [Witherspoon]’s claim of damages. [Witherspoon] could not substantiate his claim for $223,510.00 in lost property beyond his assertion and this claim strained credulity. The record supports the finding of the Court.

Trial Court Opinion, 10/9/2019, at 3.

Based on the case law, we are compelled to agree with the trial court’s

conclusion. The court heard testimony on the value of the property from a

single witness, Witherspoon. He testified that his estimation was based on his

memory from December 2015, when he created a handwritten, itemized list

after the tools and equipment that he stored in McDowell-Wright’s basement

and garage had disappeared. See N.T., 3/28/2019, at 25-28; see also Trial

Exhibit P-9. He also indicated that many of the tools were purchased prior to

his relationship with McDowell-Wright, and others were purchased during the

time period. Id., at 74.

In assessing this testimony, it is evident that the court believed

Witherspoon’s estimate was overstated, insofar as Witherspoon did not

consider depreciation of value when determining the market value of the

converted property at the time and place of conversion in 2015. As the court

pointed out, Witherspoon did not state when he bought the tools, where he

bought them, and how much he paid for them at the time.

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Applying Delahanty and Penn Electric to the present matter, making

such an estimate was within the power of the trial court as fact-finder, and

while McDowell-Wright did not rebut Witherspoon’s proffer of evidence, the

court was not required to plainly accept Witherspoon’s valuation of damages.

The court’s denigration of the value of some the tools because

Witherspoon only used them for hobby purposes, taken in isolation, could be

seen as an abuse of discretion. Materials used in a hobby are still valuable,

and hobbies themselves clearly provide some value to their practitioners. If

the court had explicitly depreciated the value of the tools simply because

Witherspoon used them for a hobby, we might be inclined to find an abuse of

discretion.

However, when reviewing the totality of the court’s estimation of the

tools’ value, we conclude that it did not engage in the reductive analysis

Witherspoon alleges. While the court, while speaking from the bench, certainly

classified some of the tools as used solely for a hobby, this statement was in

a context of describing the deficiencies in Witherspoon’s evidence of the value

of the tools. The court highlighted several deficiencies and noted that the tools

were not used for income-producing purposes.

We find no indication the court depreciated the value of the tools simply

because they were used for a hobby. Rather, the court used that factor as one

of many for its decision to find Witherspoon’s valuation not entirely credible.

Since this discussion was, in essence, part and parcel of a credibility

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determination, we cannot conclude that it was an abuse of discretion.

Accordingly, we conclude that the trial court did not abuse its discretion in

setting damages at $7,500, and Witherspoon’s argument is unavailing.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/23/20

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