Bower, M. v. Bower, P.

CourtSuperior Court of Pennsylvania
DecidedJuly 7, 2020
Docket1786 MDA 2019
StatusUnpublished

This text of Bower, M. v. Bower, P. (Bower, M. v. Bower, P.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bower, M. v. Bower, P., (Pa. Ct. App. 2020).

Opinion

J-S22032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW BOWER, MATTHEW : IN THE SUPERIOR COURT OF BOWER TRUCKING, INC., BOWER : PENNSYLVANIA TRUCKING : : Appellants : : : v. : : No. 1786 MDA 2019 : PENELOPE BOWER :

Appeal from the Judgment Entered June 19, 2020 In the Court of Common Pleas of Lycoming County Civil Division at No(s): CV-2018-0001585-PI

BEFORE: OLSON, J., MURRAY, J., and COLINS, J. *

MEMORANDUM BY COLINS, J.: FILED JULY 07, 2020

Appellants, Matthew Bower and Matthew Bower Trucking, Inc.,1 appeal

from the judgment entered on June 19, 2020, against Appellants and in favor

of Appellee, Penelope Bower. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 Although the notice of appeal also named “Bower Trucking” as an appellant, the trial court docket, notes of testimony, and trial court opinion all list the plaintiffs only as Matthew Bower and Matthew Bower Trucking, Inc., without Bower Trucking. The notice of appeal appears to be the sole place where “Bower Trucking” is listed as a party. We will presume that this inclusion was an error by Appellants’ counsel and not an attempt to influence this Court’s understanding of the ownership of Bower Trucking, which is a central issue in this action. J-S22032-20

Matthew Bower (“Matthew”)2 and Penelope Bower (“Penelope”) are

siblings; their mother was Anna M. Bower (“Anna”), who died on October 11,

2018. N.T., 10/1/2019, at 135.

On October 25, 2018, exactly two weeks after their mother died,

Matthew commenced this action against his sister by filing an “Application for

Special Relief in the Nature of a Preliminary Injunction.” On November 2,

2018, the trial court entered an order resolving the preliminary injunction

application by confirming an agreement of the parties. On February 8, 2019,

Appellants filed a complaint in replevin requesting that the trial court order

Penelope to return a 2004 Kenworth truck to them and a motion for contempt

on the grounds that Penelope had not followed the November 2018 order and

agreement. After Penelope filed preliminary objections to the complaint,

Appellants filed an amended complaint on May 31, 2019, additionally

requesting that the trial court order Penelope to return a 1999 International3

truck (“the Truck”) to them, along with “[a]ll titles, papers, Bills of Lading,

customer lists, and any other corporate papers[.]” Amended Complaint in

Replevin, 5/31/2019, ad damnum clause ¶ 1. On September 6, 2019, the

court entered an order –

2 Although we generally prefer to eschew using first names to identify parties, in order to avoid seeming overly familiar, given that there are three individuals and two companies involved in this action named Bower, we believe that using the individual’s first names clarifies matters for the readers of this decision. 3 “International” is a brand of trucks.

-2- J-S22032-20

dismissing all of [Appellants’] claims in regard to the 2004 Kenworth, and dismissing . . . Matthew Bower and Matthew Bower Trucking, Inc.’s claims for the [Truck]. The only issue remaining was the claim raised by Matthew Bower that he is Bower Trucking and therefore is the owner of the [T]ruck. As the [trial c]ourt indicated in its Order of September 6, 2019, the sole issue remaining in the replevin action was to identify the individuals who are owners of the business entity known as Bower Trucking in order to determine whether Matthew Bower as Bower Trucking may continue to pursue his replevin action with regard to the [T]ruck.

Trial Court Opinion, dated October 3, 2019, at 1.

On October 1, 2019, the trial court held a hearing on the remaining

claim. At the hearing, the fact that Matthew was the original owner of the

Truck was undisputed. Furthermore, “neither party dispute[d] that the

[current] titled owner of the [T]ruck is Bower Trucking. The dispute arises

out of who is Bower Trucking.” Id. (emphasis added).

During his testimony, Matthew “produced various exhibits such as

receipts and bills which showed that he, at times, . . . used the name Bower

Trucking.” Trial Court Opinion, dated October 3, 2019, at 2. When asked

about the name “Bower Trucking,” Matthew answered, “My father’s used that

name. My brother, I think, has used that name. I’ve used that name.” N.T.,

10/1/2019, at 8. Matthew stated that Matthew Bower Trucking, Inc., paid for

the gas and tires for the Truck. Id. at 33-35, 41-42. Matthew further testified

that Penelope had failed to return to him business records, checks, keys, and

titles for Matthew Bower Trucking, Inc., that she had in her possession. Id.

at 43, 45-47.

-3- J-S22032-20

Matthew’s estranged wife, Amy Bower (“Amy”), testified about a time

that Penelope tried to have Amy sign a document stating that Amy owned half

of Matthew Bower Trucking, Inc. Id. at 83-86. One of Matthew’s employees

testified that he did not know about Penelope owning a trucking company. Id.

at 89-91.

Appellants also presented the testimony of Matthew and Penelope’s

maternal uncle, Robert Strauser, which included the following:

Q . . . [W]ere you aware that Anna . . . entered into a business with Penelope . . . called Bower Management or Bower Trucking?

A No.

Q Did she ever talk to you about that?

[PENELOPE’S COUNSEL]: Objection hearsay. . . .

[APPELLANTS’ COUNSEL]: . . . [U]nder the Dead Man’s Act the witness can testify to statements by the deceased if he doesn’t have an interest in the outcome, or is a party to the action. . . .

THE COURT:. . . I believe it’s hearsay as I’m not going to allow him to testify to anything that . . . Anna . . . would have said to him. . . .

Q Did you ever see any corporate papers where Anna . . . was party to any corporation or partnership?

Id. at 96-98. Additionally, Anna’s grandson testified that he did not know

anything about Anna running a business. Id. at 101.

Penelope testified and presented a written partnership agreement

stating that Bower Trucking is a partnership between herself and Anna,

entered into on January 5, 2014. Defendant’s Exhibit No. 4; N.T., 10/1/2019,

-4- J-S22032-20

at 140, 157. Penelope presented further documentation that a federal

Employer Identification Number (“EIN”) was obtained for Bower Trucking

using Anna’s Social Security Number, Defendant’s Exhibit No. 5; N.T.,

10/1/2019, at 140, and annual applications with motor carrier reports for a

registration number with the United States Department of Transportation for

Bower Trucking listing Penelope and Anna as general partners. Defendant’s

Exhibit Nos. 6, 10-11; N.T., 10/1/2019, at 141-42.

Penelope testified that Bower Trucking purchased the [T]ruck from

Matthew on May 31, 2014. N.T., 10/1/2019, at 140, 157. The title, dated

May 31, 2014, transferring the [T]ruck from Matthew as an individual to Bower

Trucking was entered into evidence as Defendant’s Exhibit No. 1; on it, the

purchaser was listed as Penelope as “general partner” and the seller was listed

as Matthew. During his testimony, Matthew had confirmed that the signature

on the title transfer was his. N.T., 10/1/2019, at 58.

Following the hearing, on October 3, 2019, the trial court entered a

written order and opinion finding that Bower Trucking was a partnership

between Penelope and Anna and that, as there was no dispute that Bower

Trucking owned the Truck and that Anna was deceased, Penelope

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