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ZIMMER v. ZIMMER (10/16/74)

decided: October 16, 1974.

ZIMMER
v.
ZIMMER, APPELLANT



Appeal from decree of Court of Common Pleas of Erie County, No. 56-E of 1971, in case of Helen M. Zimmer v. Richard H. Zimmer.

COUNSEL

George W. Schroeck, for appellant.

William J. Kelly, David J. Graban, and Elderkin, Martin, Kelly, Messina & Zamboldi, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Pomeroy concurs in the result.

Author: Jones

[ 457 Pa. Page 488]

This is an appeal from an order of the Court of Common Pleas of Erie County dismissing objections to the jurisdiction of a court-appointed trustee to hold a public sale of real estate subsequent to the entrance

[ 457 Pa. Page 489]

    of a default judgment against appellant, Richard H. Zimmer, in an action for partition of real property brought by appellant's recently divorced wife, Helen M. Zimmer, appellee before this Court.

Appellant and appellee were married on November 3, 1967, and divorced on March 25, 1971. Prior to the marriage, appellant had been the owner since 1963 of ten acres of land and buildings in Le Boeuf Township, Erie County, Pennsylvania. By the face of a deed dated February 19, 1969, Richard and Helen Zimmer became the owners of this property as tenants by the entireties with the right of survivorship.

On August 16, 1971, subsequent to the divorce, appellee filed a complaint in equity for partition of this real estate with the Court of Common Pleas of Erie County. Appellant failed to file an answer to the complaint, and on June 15, 1972, appellee filed with the court a petition for a decree upon judgment in default for partition. Pursuant to Rules 1557 and 1558 of the Pennsylvania Rules of Civil Procedure, the Court of Common Pleas entered that day an order directing partition and directed the parties or their attorneys to appear for a preliminary conference to consider "(1) Whether the parties can agree upon a plan of partition; (2) Simplification of the issues and (3) Whether any issues or matters relating to the carrying out of the judgment of partition shall be referred to a Master and such other matters as may be needed in the disposition of the action." Appellant filed no exceptions to this order. Subsequently, a trustee was appointed in accordance with Rule 1558 to conduct further proceedings including sale of the property, if necessary.

On January 19, 1973, the trustee conducted a factfinding hearing in accordance with Rule 1559 of the Rules of Civil Procedure, at which were present appellant's attorney and appellee and her attorney, appellant being absent due to an illness in the family. At

[ 457 Pa. Page 490]

    the hearing, appellant's counsel challenged appellee's ownership of the property in question, contending that appellant's signature on the deed to the property in question had been forged, and stated that the report of a handwriting expert's examination of the deed would be filed with the trustee within ten days. Neither that report nor any other correspondence from the appellant had been received by the trustee after four months. In a report filed on May 15, 1973, the trustee concluded that since no proof of forgery had been presented, the deed of conveyance would stand as recorded, and that appellant and appellee each stood seized as tenants in common of an undivided one half interest in the ...


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