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decided: June 28, 1976.


Appeal From the Final Decree Dated May 23, 1975, of the Court of Common Pleas of Luzerne County at No. 6882 of 1974., Civil Action, Equity. No. 1609 October Term, 1975.


Richard M. Goldberg, Wilkes-Barre, for appellant.

Chester B. Muroski, P. Savage, Wilkes-Barre, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, files a dissenting opinion in which Jacobs and Cercone, JJ., join.

Author: Hoffman

[ 241 Pa. Super. Page 502]

Appellant brought a petition for declaratory judgment*fn1 in the Court of Common Pleas of Luzerne County on August 20, 1974, seeking an interpretation of certain deed provisions. The court below filed a declaration and decree nisi on February 18, 1975, adjudging appellant the owner of an undivided one-half interest in

[ 241 Pa. Super. Page 503]

    the property and appellees the owners of the other one-half. Appellant contends that the court below erred in holding that appellant's delay in commencing legal action barred her claim to sole title to the entire fee.

In 1918, appellant's parents, Steven and Mary Stolarick, moved to the family farm which is the subject of this dispute. Steven and Mary had ten children: appellant, Michael, John, Andrew, Joseph, Frank, George, Anna, Katherine, and Steven, Jr.

In August, 1923, Steven and Mary conveyed the farm to Michael and John Stolarick by deed which contained the following provisions:

"The said Grantees, Mike Stolarick and John Stolarick, . . . agree to pay to Steven Stolarick the sum of six dollars on the first day of each month as long as he may live, to furnish him with board and home as long as he may live. To furnish their mother, Mary Stolarick, with a home during her life together with suitable clothing, also the same to their three sisters, Anna, Mary, and Katie Stolarick until they become of full age of 21 years. To Steven Stolarick, Junior, the sum of One Hundred dollars at the death of father and mother. At the death of Steven and Mary Stolarick the said Mike and John are to pay to their brothers, Andrew, Joseph, Frank and George, to their sisters, Anna, Mary and Katie Solarick, if said sisters are of ages, [sic] if not of ages [sic] to be paid when they are, a sum of money in equal shares not to exceed one-half the value of the within described farm. Should the Grantees, Mike and John Stolarick, default in any of the conditions or payments mentioned in this Deed then this Deed to be void and of no effect and to revert to the Grantors or their estate."

Steven Stolarick, appellant's father, died on February 16, 1929. Michael Stolarick, one of the two grantees, died intestate in 1947, and Michael's interest passed to his mother, Mary. Mary Stolarick died testate on February 11, 1953, leaving all her property to her son Andrew

[ 241 Pa. Super. Page 504]

    and to appellant. John Stolarick, the other grantee, died on June 11, 1964. His interest in the farm descended to his two sons, John and George, the appellees in this matter. On November 7, 1973, Andrew Stolarick died and, by his will, devised his entire estate to appellant.

On August 21, 1974, appellant filed a petition for declaratory judgment with the Court of Common Pleas of Luzerne County seeking a determination of title to the land under the 1918 deed. At trial on December 17, 1974, the court heard testimony from Katherine Stolarick Disque, appellant's 60 year-old sister; Steven Stolarick, Jr., appellant's 81 year-old brother; Frank Stolarick, appellant's 73 year-old brother; and appellees, appellant's nephews.

Katherine Stolarick Disque testified that the deed was executed and delivered in her presence. She stated that Joseph, George, Anna, appellant and she were living on the farm at the time of her father's death in 1929. Neither grantee lived on the farm; however, Michael, and not John, looked after his semi-invalid mother and his brothers and sisters until his death in 1937. She testified that she did not receive any payments from either of the grantees or their successors in interest when Mary Stolarick died or thereafter, despite the fact that she requested payment from her brother John. According to Katherine after Michael's death, Andrew and Mary provided for all of their mother's needs. John lived on the farm from 1931 until several years before his mother's death but never contributed to the maintenance of the family. John left the farm when he learned that his mother's will left her entire estate to Andrew and appellant. Finally, Katherine testified that she was unsuccessful in getting either her brother John, or his two sons, appellees, to agree to comply with the provisions of the deed, although several meetings were held to arrange an amicable settlement.

[ 241 Pa. Super. Page 505]

Steven Stolarick, Jr., testified that after his mother's death he never received the hundred dollars required by the deed although he approached John Stolarick, his brother, four or five times to arrange settlement of the matter, because John was unwilling to agree to a settlement.

Frank Stolarick testified that he never received the payments provided in the deed and that he also attended several family meetings to arrange settlement. He testified that after his brother Michael died John did not provide support for his mother. However, he testified that John received no rent from the farm, from his mother, Andrew, or appellant.

Appellee George Stolarick, John's son, 33, testified that his father never received profits from operation of the farm and that he had no knowledge of any proposed settlements except for a conference with a lawyer in 1970. He conceded on cross-examination that his father did receive $7 per week from Michael and certain produce from the farm. Appellee John Henry Stolarick, age 35, testified that he did not know whether his father had made the payments required by the deed, that he never made payments on his father's behalf, and that neither he nor his brother ever did any work on the farm.

At the conclusion of the trial, the court held that appellant owned an undivided one half interest in the farm and appellees owned the other undivided half interest. Further, the court ordered the owners to pay $100 to Steven Stolarick, Jr., or his heirs and to pay within six months a sum of money equal to one-half the present fair market value in equal shares to Andrew, Joseph, Frank, George, ...

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