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HomeMy WebLinkAbout95-612 orphans_2RANDALL L. VALK, Plaintiff VS. · DAUPHIN DEPOSIT BANK AND · TRUST COMPANY, a division · of DAUPHIN DEPOSIT CORP., · and RICHARD P. VALK, · Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION · NO. 21-95-612 IN RE: MOTIONS FOR POST-TRIAL RELIEF BEFORE HESS, J. ORDER AND NOW, this 3o ~ day of May, 2000, the objections of respondents to the submission of our court order dated January 5, 1995, are DENIED. The post-trial motions of the plaintiff/petitioner are DENIED. It is ordered and directed that the accounting filed in this case is CONFIRMED without the necessity of advertising. BY THE COURT, Michael L. Bangs, Esquire .For the Plaintiff David DeLuce, Esquire For Dauphin Deposit Bridget Montgomery, Esquire For Richard P. Valk I/A'. Hess, J. :rlm RANDALL L. VALK, Plaintiff VS. DAUPHIN DEPOSIT BANK AND : TRUST COMPANY, a division · of DAUPHIN DEPOSIT CORP., : and RICHARD P. VALK, : Defendants : : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-95-612 IN RE: MOTIONS FOR POST-TRIAL RELIEF BEFORE HESS, J. OPINION AND ORDER Before the court are motions for post-trial relief filed by petitioner. He raises and has briefed roughly thirty-two assignments of error. We agree with the respondent that, for the most part, they represent instances where the petitioner disagrees with the court's findings and the ultimate result. The sheer number of these motions puts us in mind of Judge Aldisert's memorable observation in United States v. Hart, 653 F.2d 286, 287,n. 1 (3d cir. 1982)' With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant's brief that contains ten to twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. This is a case in which the plaintiff has opposed the confirmation of an account and seeks 'to surcharge the defendants as a result of their alleged mismanagement of a trust of which he is NO. 21-95-612 the beneficiary. One allegation, specifically, is that Richard P. Valk, in his capacity as president of Valk Manufacturing Company, did acts which caused a diminution in value and loss of income to the shares of Valk Manufacturing Company which comprised the corpus of the trust. The trust agreement at issue contains an exculpatory clause. It provides that the trustees are not liable or responsible for any loss or depreciation in the trust assets resulting from any error in judgment or from any act or omission except for their own willful misconduct. Following a hearing in this matter, we entered a decree nisi which is the subject of the exceptions sub judice. In our earlier decree, we found that Richard P. Valk had not been guilty of any willful misconduct in his management of Valk Manufacturing. To the contrary, it is clear to us that, thanks in large measure to his efforts, Valk Manufacturing Company had prospered and that the shares of stock in question had, in fact, increased enormously in value. To his credit, the petitioner has distilled the various assignments of error in his post-trial motions to five questions. Cumberland County Local Rule 210-7 provides that: "Issues raised, but not briefed, shall be deemed abandoned." In light of this role we will deem the following questions to be preserved post-trial: me DOES THE PAUL VALK TRUST LIMIT THE LIABILITY OF THE RESPONDENTS HEREIN SOLELY TO ACTS OF WILLFUL MISCONDUCT? Be DID THE CO-TRUSTEES BREACH THEIR FIDUCIARY DUTIES TO THE BENEFICIARY AS A RESULT OF ACTS OF WILLFUL MISCONDUCT? Ce DID PETITIONER SUFFER A LOSS OR SUPPRESSION OF VALUE OF HIS STOCK AS A RESULT OF THE ACTIVITIES OF THE CO-TRUsTEES? NO. 21-95-612 De WAS PETITIONER PREVENTED FROM PROVIDING A FULL AND COMPLETE STATEMENT OF DAMAGES BY THE DISCOVERY RESTRICTIONS PLACED UPON PETITIONER AND THE FAILURE OF THE COURT TO ALLOW PETITIONER'S EXPERT TO TESTIFY FULLY AS TO HIS EXPERT REPORT7 Ee SHOULD THE COURT HAVE PERMITTED THE TESTIMONY OF TED VALK WHEN HE WAS NOT DISCLOSED TO PETITIONER UNTIL LESS THAN A WEEK PRIOR TO TRIAL? We are satisfied that we have fully addressed the first three of these questions in the opinion in support of our decree nisi. We continue to believe that our ruling on this matter was correct and see no purpose in adding to what has already been said. Two issues then remain. First, petitioner complains that earlier discovery restrictions imposed by the court prevented his expert from testifying as completely as he should have. By an order dated January 5, 1995, we did, indeed, restrict discovery in a related equity case docketed to number 717 Equity of 1994.~ It is tree that the parties have agreed in this case that discovery in both this and the equity action would be available for use at the trial of both. That there would be a common availability of discovery materials, however, did not relieve the plaintiff, in the Orphans' Court action, from petitioning the court to obtain information which was essential to his expert in this particular case. That, however, was not done. Moreover, the petitioner complains that his expert · , I The respondents have objected to making the January 5, 1995, a part of the record of this case. We cannot, .however, address the petitioner's arguments with regard to the import of this order without making it a part of the record. Accordingly, the respondents' objections will be overruled. NO. 21-95-612 was hampered in the calculation of damages. We have, however, found that there was no liability. Petitioner also complains that we limited his access to corporate information after 1989. The record in this case will indicate, however, that we admitted evidence concerning corporate finances after 1989 in light of the petitioner's argument that the trust was not terminated at least until such time as the distribution of the trust property was tendered. Finally, we are satisfied that additional information would have done nothing to bolster the plaintiff's expert testimony. This is because we found his entire approach to this case to be flawed. In opining that the defendants/respondents had received excessive compensation, he relied on a table of average salaries. We find more accurate the testimony of the defendants' expert that such averages have no application to closely held family corporations such as Valk Manufacturing. Next and finally, the petitioner argues that we erred in permitting the testimony of Ted Valk at trial. The petitioner is correct that Mr. Ted Valk, who has been president of Valk Manufacturing since the early 1990s, was not identified on the defendants' witness list at the pretrial conference held on February 14, 2000. The petitioner was first notified of the intention · to call Mr. Ted Valk by letter on or about March 14, 2000. The petitioner thereafter filed a motion for continuance or in the alternative to exclude testimony. The petitioner contends that, by identifying Ted Valk as a witness less than one week prior to the trial, he suffered surprise and/or prejudice. We continue to be mystified at the notion that Ted Valk would be a surprise witness in this case. He has been identified as a wrong-doer in the initial pleading in this matter and is a NO. 21-95-612 named defendant in the companion shareholders' suit. As has already been observed, all discovery taken in the companion suit was made available for use in the trial of this matter. According to the exhibits attached to respondent Richard P. Valk's answer to the motion to preclude testimony, discovery had been directed to Ted Valk in the form of interrogatories. The actions of Ted Valk, among others, have been called into question by this litigation. He would be expected to take the stand and defend against the petitioner's contentions. Thus, his testimony could hardly come as a surprise. ORDER AND NOW, this day of May, 2000, the objections of respondents to the submission of our court order dated January 5, 1995, are DENIED. The post-trial motions of the plaintiff/petitioner are DENIED. It is ordered and directed that the accounting filed in this case is CONFIRMED without the necessity of advertising. BY THE COURT, Michael L. Bangs, Esquire For the Plaintiff David DeLuce, Esquire For Dauphin Deposit Bridget Montgomery, Esquire For Richard P. Valk :rlm