WITH v. KNITTING FEVER, INC. (E.D.Pa. 9-27-2010)

to an action already taken. See Shepard v. United States, 290 U.S. 96, 105-06 (1933) (distinguishing between forward facing and backward facing testimony). Finally, no circumstances exist that suggest a motive for Marguerite Casale to misrepresent her thoughts. Accordingly, the Court deems paragraph five of Mr. Casale's Declaration admissible, under Rule 803(3), for purposes of establishing Marguerite Casale's intent to form a partnership.

Alternatively, the KFI Defendants object to James Casale's Declaration under the Dead Man's Rule. Pennsylvania's Dead Man's Act states:

Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy . . .

42 PA. CONS. STAT. § 5930. "The underlying policy is `to prevent the injustice which might flow from permitting the surviving party to an occurrence to testify favorably to himself and adversely to the decedent, which testimony decedent's representative would be in no position to refute.'" Bacon v. Riva, No. CIV. A.92-2498, 1993 WL 4132 at *2 (E.D. Pa. Jan. 4, 1993) (quoting Perlis v. Kuhns, 195 A.2d 156, 158 (Pa. Super. Ct. 1963)). "Under this act, in order to find a surviving party's interest adverse to the one who is dead, three conditions must exist: (1) the deceased must have had an actual right or interest in the matter at issue; (2) the interest of the witness — not simply the testimony — must be adverse; and (3) a right of the deceased must have passed to a party of record who represents the deceased's interest." Keegan v. Fahnestock Co., Inc., No. CIV. A.95-5998, 1996 WL 530000, at *5 (E.D. Pa. Sep. 16, 1996). The Dead Man's Act is an exception to the general rule of evidence in the federal courts and in Pennsylvania that every person is competent to testify as a witness. Mt. Airy Ins. Co. v. Thomas E. Angst Assoc., P.C., 954 F. Supp. 1040, 1043 (E.D. Pa. 1997). Accordingly, both commentators and courts have construed its application narrowly. Id.

Notably, the Permsylvania Dead Man's Act applies in a federal diversity case where state substantive law controls, but does not apply to a claim under federal law. Savarese v. Agriss, 883 F.2d 1194, 1200 n. 10 (3d Cir. 1989); In re Capital Center Equities, 137 B.R. 600, 607 n. 1 (E.D. Pa. 1992).

In this matter, the KFI Defendants do not make the crucial showing necessary to exclude James Casale's Declaration under the Dead Man's Rule — that of adversity. Defendants have failed to demonstrate that James Casale bears any interest adverse to that of Marguerite Casale. Quite to the contrary, and according to the only evidence of record, James Casale is effectively Marguerite's sole beneficiary and executor. Far from acting against the interest of her estate, Mr. Casale now brings a claim against third parties on behalf of a business owned at least in part by her. Given the absence of any showing of adversity, together with the narrow construction typically accorded to this Rule, the Court declines to find James Casale incompetent to testify.

ii. Declaration of Dawn Casale

Dawn Casale, James's sister and Marguerite's daughter, similarly provided a Declaration as to conversations with her mother regarding the alleged formation of the 1999 partnership, as follows:

5. In March 2002, during a visit after my mother came home from a short emergency hospital stay, she discussed her affairs with me.

6. I was informed that since 1999 The Knit With was organized as a partnership with my brother, James or, as I call him, Jimmy. Prior to this, I had no knowledge The Knit With was a partnership although I knew my brother often paid my mother's buying trips, operated the business, made orders with suppliers, could pay the business' bills, regularly did the business' banking and was apparently familiar with all aspects of the business. At the time, I recalled instances where my brother inspected checks written by my mother against the business account prior to her presenting the same to either me or another person and my brother visibly agreeing with the checks written by my mother.

7. During this discussion, my mother displayed to me a lengthy document which she referred to as a partnership agreement. I paged through the document, looked at some sections but did not read the document word for word. The document identified as the Articles of Partnership between Marguerite Hawco Casale and James F. Casale attached to my brother's declaration appears to be identical to the document my mother showed me.

8. My mother explained to me her reasons in organizing the partnership with my brother.

9. I understood my mother's purpose was to assure The Knit With would continue to operate in the event of her disability or death.

10. I understood the agreement called for the partnership to retain and reinvest profits.

11. I understood the agreement allowed for new partners and that both my mother and my brother could transfer their own partnership interest to one of my siblings provided the transfer was made in writing in some way. I also understood that in the event of the death of either, business would pass to the remaining partner but remain a partnership.

12. My mother was undecided whom, if anyone, would receive her interest in The Knit With.

13. I understood the partnership was formed with my brother because he had, over the years, contributed time, effort and money to The Knit With and had learned the business.

14. I also understood the partnership required The Knit With to continue under the same name at the same location and in the same manner but my mother and brother were equal partners.

(D. Casale Decl. ¶¶ 5-14.)

Again, KFI Defendants seek to exclude these statements as hearsay and Plaintiffs invoke Federal Rule of Evidence 803(3). Unlike with James Casale's Declaration, however, the Court does not find that paragraphs six and eight to fourteen of Dawn Casale's Declaration fall within the specified hearsay exception. As the advisory committee notes to Rule 803 explain:

The exclusion of "statements of memory or belief to prove the fact remembered or believed" is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference for the happening of the event which produced the state of mind.

FED. R. EVID. 803 advisory committee's note (1972). The Third Circuit has thus held that hearsay statements offered pursuant to Rule 803(3) cannot be introduced to prove the truth of the underlying facts asserted. Callahan v. A.E.V., Inc., 182 F.3d 237, 252 (3d Cir. 1999) (quoting Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1274 (3d Cir. 1995)). Rather, "[f]or a hearsay statement to be admissible under Rule 803(3), the statement must occur `contemporaneous with the state of mind sought to be proved,' and the party `must not have had time to reflect and possibly fabricate or misrepresent his thoughts.'"Hussey v. Chase Manhattan Bank, No. CIV. A.02-7099, 2005 WL 1787571, at *7 (E.D. Pa. 2005) (quotingUnited States v. Reyes, 239 F.3d 722, 743 (5th Cir. 2001)).

Although Dawn Casale purports to testify about her mother's intentions with respect to organizing TKW as a partnership, her statements lack the one element present in James Casale's declaration — contemporaneity. Marguerite Casale's statements related not her desire or intent to form a partnership, but rather the fact that she actually formed a partnership with James Casale in 1999. Such statements are not contemporaneous with Marguerite Casale's intent or state of mind, but instead are offered to prove the truth of a fact remembered. Accordingly, the Court does not find Dawn Casale's statements regarding conversations with her mother to be admissible under Federal Rule of Evidence 803(3).

In an alternative effort to admit Dawn Casale's statements. Plaintiff contends that paragraphs nine through fourteen are not hearsay because they do not purport to offer into evidence any underlying statements by Mrs. Casale to prove the truth of the matter asserted. Rather, such statements "explain only Dawn Casale's understanding of the formation of the TKW partnership, as explained by her mother." (Pl.'s Sur-reply Br. 4.) Plaintiff's argument, however, is nothing more than a play on words designed to end-run the hearsay rules. Dawn Casale had no personal understanding or knowledge of the partnership arrangement other than what was told to her by Marguerite Casale. Because her Declaration does not purport to speak as to any of her own experiences, it falls squarely within the definition of hearsay.

The cases cited by Plaintiff do nothing to bolster its argument. In Citizens Fin. Group, Inc. v. Citizens Nat'l Bank, 383 F.3d 110, 133 (3d Cir. 2004), the Third Circuit found that the witnesses were testifying to their own personal experiences with customers at the bank, not about out-of-court statements asserted for their truth, which was not inconsistent with Rule 801(c). Moreover, the testimony about the actual behavior of the customers was not hearsay. Id. at 133. Likewise, inBohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79, 89 (3d Cir. 2001), the Third Circuit deemed admissible a memorandum authored by the plaintiff's employee stating his understanding of the parties' agreement. Notably, however, the Court did not consider whether the memorandum was hearsay, only whether it was admissible under the parol evidence rule — an issue not present in this case. Id.

Notwithstanding the foregoing conclusions, however, the Court acknowledges that Dawn Casale's statements regarding James Casale's participation in TKW (contained in paragraphs six and eighteen) are admissible since they are based on her own personal knowledge. As noted above, Dawn Casale testified that although she did not know that TKW had been organized as a partnership since 1999, she did recall that her brother effectively operated TKW and was familiar with all financial aspects of the business — often approving expenditures made by Marguerite Casale, arranging and financing Marguerite's attendance at an annual trade show, and taking overall control of the business. (D. Casale Dccl. ¶¶ 6, 18.) Such testimony is based on her own observations and goes directly towards proving whether a partnership existed.See In re Labrum Doak, 227 B.R. at 407 (noting that a partner's commitment to a partnership "may be established merely by conduct which manifests on intention that a party be considered a partner").

iii. The Unsigned Partnership Agreement

Third, as evidence of the alleged partnership between Marguerite Casale and James Casale, Plaintiff provides the Court with an unsigned draft of the 1999 Partnership Agreement. (Pl.'s Opp'n Mot. Summ. J., Ex. 6.) This document, dated September 11, 1999, sets forth precisely how the partnership, known as The Knit With, was to be operated, financed, named, dissolved, managed, continued in the event of one partner's withdrawal and otherwise conducted. (Id.) As averred by James Casale. however, the original of this agreement is no longer available. He explained as follows:

On August 14, 2005, the Last Will executed June 9 was read at a gathering of my mother's seven children, certain of their spouses and her several grandchildren. Almost 20 persons were present at this gathering. The reading of the Will took place in an upstairs parlor at which only my mother's seven children were present; a copy of the Last Will was provided to each of my siblings. The executed original Last Will and the executed Partnership Agreement were openly available for inspection by my siblings; copies of the October 21 instrument were also available. Following this reading, distribution of my mother's gifts to her children and grandchildren occurred — in the upstairs parlor and other common areas of the house both upstairs and downstairs in my mother's bedroom. In connection with this distribution, I was required to go outside in the gardens to resolve a conflict involving two of my adult nephews who are cousins to each other. Hours later and after my family had departed, I returned to the upstairs parlor to retrieve the Original Will and Partnership Agreement for re-filing; both documents could not be found.

(J. Casale Decl. ¶ 15.)

KFI Defendants now contend that, under Pennsylvania law regarding lost instruments, this document is not admissible to prove that the document was executed and formalized as a contract. (Defs.' Mem. Supp. Mot. Summ. J. 7 (citing Hacker v. Price, 71 A.2d 851 (Pa. Super. Ct. 1950); Compass Tech. v. Tseng Lab., 71 F.3d 1125, 1133 (3d Cir. 1995)).) In these cases, Pennsylvania courts held that "[t]o recover on an instrument, the original of which has been lost, the burden of proving the loss of the original and that a diligent, bona fide and thorough search was made without success is upon the one offering secondary evidence." Hacker, 71 A.2d at 853 (citations omitted). "He is also required to prove its former existence, execution, delivery and contents. The evidence to sustain these averments must be clear and convincing." Id. (citations omitted). "Whether the party offering secondary evidence has met this burden of proof successfully is a matter to be determined by the trial court and rests largely in the court's discretion which will not be disturbed on appeal unless there is a manifest abuse thereof."Id.

Defendants' reasoning fails, however, in the simple fact that Plaintiff does not seek to recover against the KFI Defendants on the Partnership Agreement or any term thereof. Rather, the production of the Partnership Agreement goes only to whether there was "clear, mutual assent" sufficient to evidence intent to form a partnership. Accordingly, the Pennsylvania rules regarding lost instruments are inapplicable.

Nor is the document excludable under the so-called best evidence rule. Federal Rule of Evidence 1002 states that, "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress." FED. R. EVID. 1002. Rule 1004 goes on to state, however, that:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if —

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording or photograph is not closely related to a controlling issue.

FED. R.EVID. 1004.

In this case, Plaintiff offers the Declaration of James Casale, who averred that the original, signed Partnership Agreement was misplaced or taken during the reading of Marguerite Casale's Will. (J. Casale Decl. ¶¶ 15-16.) There is no evidence of destruction in bad faith. Moreover, Plaintiff presented significant evidence that the executed Partnership Agreement did, at one point, exist. Mr. Casale indicated that he and Marguerite Casale agreed to the terms of the Partnership Agreement, executed it on September 11, 1999, and maintained that document in TKW files until shortly before June 9, 2004. (Id. ¶ 8.) Dawn Casale likewise testified that she viewed the executed Partnership Agreement sometime in March 2002 and that it appeared identical to the document now produced to the Court. (D. Casale Decl. ¶ 7.) Finally, and perhaps most importantly, in accordance with Fed.R. Evid 1004(4), the actual contents of the Partnership Agreement are not related to a controlling issue in this case. Rather, this case concerns breach of warranty and RICO violation claims with respect to transactions between Defendant KFI and Plaintiff TKW. The Partnership Agreement is only relevant to establish Marguerite Casale's intent to enter into a partnership in 1999 and to ensure that current Plaintiff TKW is, in fact, the real party in interest. To that end, only its existence, and not the specifics of its contents, are crucial. Therefore, the Court deems the unexecuted Partnership Agreement admissible and relevant to a determination of whether the 1999 partnership was formed.

Unlike her statements as to conversations with her mother, Dawn Casale's averments that she saw and skimmed through an executed version of the Partnership Agreement are based on her own personal recollection of events.

iv. Conclusion as to Existence of the 1999 Partnership

Given the Declaration of James Casale, Dawn Casale's admissible statements, and the unsigned copy of the Partnership Agreement between Marguerite Casale and James Casale, the Court finds that a genuine issue of material fact is present as to the existence of the 1999 partnership. Clear evidence suggests that in 1999. Marguerite Casale expressed her assent to enter into a partnership with James Casale in order to carry on the business of TKW. James Casale

agreed to this proposal and, together, the two entered into a written Partnership Agreement. Dawn Casale averred that James then proceeded to function in a manner that evidenced his status as a partner in TKW.

The KFI Defendants fail to counter these facts with any contrary evidence suggesting that TKW continued as a sole proprietorship in Marguerite Casale's name. Considering the evidence in the light most favorable to Plaintiff, a reasonable factfinder could rationally conclude that the 1999 partnership was in place. b. Whether the 2007 Partnership Between Dawn and James Casale is the Successor-in-Interest to the 1999 Partnership

The KFI Defendants make a final argument that Plaintiff has not offered any fictitious name registration amendments, any partnership tax returns for The Knit With, any partnership financial statements, or any K-l's or other schedules reflecting partners' income for any of the years in which Plaintiff claims such a partnership existed. They go on to argue that the absence of such evidence creates the likely inference that no such partnership existed.
This argument fails on two grounds. First, Defendants concede that not every partnership generates all of these types of documents. Accordingly, their absence does not firmly establish the non-existence of a partnership. Moreover, although the absence of these documents may, in fact, create an inference of no partnership, the Court is required, on summary judgment review, to draw all inferences in favor of the non-moving party.

Plaintiff argues that even if the Court were to find that TKW was unequivocally operated as the sole proprietorship of Marguerite Casale at the time of her death, James Casale could be substituted as the plaintiff since Marguerite's June 2004 Will appointed James as the Executor of her estate and Federal Rule 17(a)(1)(A) permits an executor of an estate to act, in his own name, as the real party in interest on behalf of the estate. As both parties agree, however, that Will was never probated. Pennsylvania law provides that suit may only be brought by the personal representative of the decedent, meaning the administrator or executor of the estate. Gee v. CBS, Inc., 471 F. Supp. 600,616 (E.D. Pa. 1979) (citing 20 PA. CONS. STAT. §§ 3372, 3373). For an executor or administrator to be appointed to administer the estate, a petition would have to be made for a grant of letters of administration or letters testamentary pursuant to 20 PA. CONS, STAT. §§ 3151 and 3155. Plaintiff has not produced any such letters testamentary.

The Court's inquiry, however, does not end at this juncture. Rather, we must now determine whether the present form of TKW the 2007 partnership between Dawn and James Casale — is the successor-in-interest to the 1999 partnership.

Under the Uniform Partnership Act, dissolution of partnership is caused by the death of any partner. 15 PA. CONS. STAT § 8353(4); see also Hansel v. Hansel, 446 A.2d 1294, 1298 (Pa. Super. Ct. 1982). "The termination of a partnership is markedly different from the dissolution of a partnership. When a partnership has terminated it ceases doing business; when a partner effects a dissolution it simply means that partner is no longer associated with the business of the partnership." Canter's Pharm., Inc. v. Elizabeth Assoc., 578 A.2d 1326, 1329 (Pa. Super. Ct. 1990). Upon dissolution, the partnership continues until there is a "winding up" of partnership affairs. 15 PA. CONS. STAT. § 8352. Once dissolution occurs, however, the authority of the surviving partner to act for the partnership is limited to acts necessary to wind up partnership affairs or to complete those begun, but not then finished. 15 PA. CONS. STAT. § 8355.

While these rules would suggest that the 1999 partnership was effectively dissolved upon the death of Marguerite Casale, the Uniform Partnership Act may be trumped by agreement. Under well-established jurisprudence, the Uniform Partnership Act applies only in the absence of a partnership agreement addressing the effect of the death of a partner on continuation of the business. See Girard Bank v. Haley, 332 A.2d 443, 446 (Pa. 1975); see also Custer v. Somerset Manor Assoc., 4 Pa. D. C. 5th 225, 230 (1989) ("[t]he general principle of law is that the death of a general partner dissolves the partnership . . . unless otherwise agreed." (emphasis added)); 56 AM. JUR. PARTNERSHIP § 724 ("parties may make a binding agreement that the surviving partner may continue the partnership business after the death of one of the partners, without liquidation by the surviving partners and with or without the participation of the decedent's legal representative or the

substitution of the person acquiring his or her interest.").

As indicated above, Plaintiff, in this case, has produced a Partnership Agreement — albeit an unexecuted version — which provides for continuation of the partnership in the event of one of the partners' deaths as follows:

A Partner's membership in the Partnership shall be automatically terminated upon the occurrence of any of the following events:

(A) The Partner's death by any cause whatsoever

. . .

Except as otherwise expressly provided in these Articles of Partnership, and despite any contrary provision now existing or later recognized to be existing in the law of Pennsylvania, the Partnership shall not be dissolved, terminated or extinguished upon the withdrawal of any individual Partner from membership or assignment of Partnership interest, but instead the Partnership shall endure and be continued by the remaining Partners or Partner.

(Pl.'s Opp'n Mot. Summ. J., Ex. 6 §§ 7.3, 7.5.) "Upon the termination of any Partner's membership in the Partnership, such Partner shall have no further interests in or claim against the Partnership or Partnership assets other than those rights expressly contained in the Eighth article of this Agreement . . ." (Id. § 7.6.) Taking this Partnership Agreement per its terms, the 1999 partnership between Marguerite Casale and James Casale did not terminate upon Marguerite's death, but rather survived and was continued under the direction of James Casale.

Notably, this type of provision comports with Pennsylvania law. The Pennsylvania Supreme Court has recognized that where the business of a firm is carried on by the surviving partners in the firm name and at the same place, after the death of a partner, by and with the knowledge and consent of his administrator without arrangement for dissolution of the firm or closing its business, it will be considered that the administrator exercised his right of election to continue the business under the provision of the partnership agreement that, in case of death of a partner during the term of the partnership, his administrators might elect that the business continue for the benefit of the persons entitled under deceased. Evans v. Watts, 43 A. 464, 465 (Pa. 1899)

Nevertheless, the Court still faces the issue of Plaintiff's failure to produce an executed version of the Partnership Agreement, thereby making the admissibility of its contents questionable. To that end, the Court returns to Federal Rule of Evidence 1004, which states that "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if — . . . (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless he proponent lost or destroyed them in bad faith." FED. R. EVID. 1004. "The decision whether to admit a writing under any of the exceptions in Rule 1004 is left to the discretion of the trial judge." U.S. ex rel. Magid v. Wilderman, No. CIV. A.96-4346, 2004 WL 1987219, at *3 (E.D. Pa. Aug. 18, 2004) (citations omitted).

In this case, there is no evidence that the Partnership Agreement was lost or stolen in bad faith. James Casale stated that the document was openly available for viewing during the reading of his mother's Last Will and, after the nearly twenty family members present were disbursed, the agreement could not, despite reasonable search, be found. (J. Casale Decl. ¶ 15.) Moreover, as set forth above, Plaintiff has provided ample circumstantial evidence as to the contents of the Partnership Agreement. James Casale avers that he and Marguerite Casale entered into such an agreement and that the version provided to this Court is a true and correct copy of the same agreement as electronically maintained by his law office. (J. Casale Decl. ¶¶ 8, 16.) Finally, Dawn Casale attests to seeing the signed Partnership Agreement and states that "[t]he document identified as the Articles of Partnership between Marguerite Hawco Casale and James F. Casale attached to my brother's declaration appears to be identical to the document my mother showed me." (D. Casale Decl. ¶ 7.) Given this evidence, the Court concludes that "a reasonable juror could be convinced that the copy is accurate."Guy C. Long, Inc. v. Insul/Crete Co., Inc., No. CIV. A.92-4987, 1993 WL 218901, at *4 (E.D. Pa. June 18, 1993) (citing 5 JACK B. WEINSTEIN MARGARET A. BERGER, WEINSTEIN'S EVIDENCE, ¶ 1004(1)[03], at 1004-11, ¶ 1008[5], at 1008-17 (1992)).

In light of these conclusions, the Court may now draw the reasonable inference — as permitted by Federal Rule of Civil Procedure 56 — that the 1999 partnership continued after the death of Marguerite Casale, under the express terms of the 1999 Partnership Agreement. Thereafter, in September of 2007, James Casale entered into a new Partnership Agreement with his sister, Dawn Casale, to formalize Marguerite's intent, expressed in her prior wills, that Dawn join the business, and to make Dawn Casale a formal partner in TKW. (Pl.'s Opp'n Mot. Summ. J., Ex. 3.) Indeed, the 2007 Partnership Agreement expressly noted that the partnership was created to "formalize the role of Dawn P. Casale as an equal partner to James F. Casale in the ownership and operation of The Knit With" and "for the continued growth and expansion of The Knit With." (Id. (emphasis added).) Because there was no winding up or termination of the 1999 partnership and the business was simply carried on by the 2007 partnership, the Court concludes that a reasonable factfinder, faced with such evidence, could determine that the present form of TKW — as memorialized by the 2007 partnership agreement — is in fact the successor-in-interest to the 1999 partnership form of TKW. In turn, the present Plaintiff would be the real party in interest in this

Alternatively, even if the Court were to find that the 1999 partnership was terminated upon Marguerite Casale's death and that James Casale operated TKW alone until entering into a partnership with Dawn Casale in 2007, summary judgment would not be the appropriate remedy. Federal Rule of Civil Procedure 17(a)(3) states that, "[t]he court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest." FED. R. CIV. P. 17(a)(3). Thus, if the Court were to deem James Casale the real party in interest in this case, the proper course of action would be to allow Plaintiff to substitute him as the actual plaintiff.

matter. Given this genuine issue of material fact, the Court cannot grant KFI Defendants' Motion for Summary Judgment.

In light of these findings, the Court declines to delve into the inherently perplexing subject of the effect of Marguerite Casale's Will. As noted above, although her Last Will and Testament appointed James Casale as executor and left him virtually all of her possessions, that Will was never probated. Accordingly, Letters of Administration were never issued in connection with Marguerite Casale's estate and a personal representative capable of pursuing any claims of Marguerite Casale's estate was never appointed. In Pennsylvania, the Orphans' Court possesses exclusive original jurisdiction over all matters regarding the "administration and distribution of the real and personal property of decedents' estates." 20 PA. CONS. STAT. § 711(1). Thus, such an action cannot be brought in a federal court. See Bosley v. Bosley, No. CIV. A.07-1380, 2008 WL 2048665, at *3 (M.D. Pa. May 12, 2008). To resolve this issue, then, the Court would have to order the parties to have Marguerite Casale's Will probated and ensure that a personal representative is appointed, who could then authorize distribution of Mrs. Casale's partnership share to James Casalc.

IV. CONCLUSION

In short, after unnecessarily complicated, and somewhat confused, argument by the parties, the Court finds that KFI Defendants have failed to meet their burden of proving the absence of a genuine issue of material fact as to the real party in interest. Plaintiff has come forth with substantial and material evidence suggesting that James and Marguerite Casale intended to — and indeed did — enter into a partnership in 1999 with respect to the operation of TKW. That partnership remained intact during the time of the challenged sales of yarn in this case. After Mrs. Casale's death. James continued the partnership before restructuring it to include his sister, Dawn Casale, as partner and making it a successor-in-interest to the 1999 partnership of TKW. While KFI Defendants have pointed to the absence of letters of administration and the disregard of various formalities by the Casale family with respect to the structuring of TKW, they have failed to prove that no reasonable juror could conclude that Plaintiff TKW is the real party in interest to this case. Accordingly, the Motion for Summary Judgment is denied.