James C. Larrimer, Dougherty, Larrimer & Lee, Pittsburgh, for appellant.
Charles D. Coll, Pittsburgh, for appellees.
[ 241 Pa. Super. Page 20]
On November 4, 1974, the appellees' action for the partition of certain improved commercial real estate, held in common by the parties to this appeal, but in possession of the appellees, resulted in the entry of a Decree Nisi by the court below directing distribution of the proceeds from the sale of said real estate. The appellant*fn1
[ 241 Pa. Super. Page 21]
contends that the lower court erred by failing to deduct from appellees' distributive share of the property the proportionate part of the rental value thereof to which she, as co-tenant not in possession, was entitled.*fn2 We agree, and therefore remand this case to the lower court to adjust its scheme of distribution in a manner consistent with this opinion.*fn3
By deed dated August 29, 1958, Stanley Dembec, now deceased, and his wife, Elizabeth, conveyed to Clifford B. Grubbs and his wife, Rose, the sister of Elizabeth, a parcel of land located in Allegheny County. This conveyance was made pursuant to an oral agreement between the parties by which they were to combine their joint assets and enter the restaurant-tavern business. Thereafter, a commercial building was constructed on the property and a liquor license was secured. Unfortunately, serious disagreements arose between the parties which resulted in a suit in equity by the Dembecs against the Grubbs requesting a reconveyance of the property and either an accounting of the receipts and expenditures of the restaurant or a money judgment for the rental value of the premises.
After a hearing, the chancellor entered an adjudication on July 29, 1969, declaring the Grubbs to be trustees ex maleficio of a one-half undivided interest in the property, but denying the Dembecs an accounting of the restaurant business. The adjudication did not mention the
[ 241 Pa. Super. Page 22]
Dembecs' request for rent. On August 18, 1969, the appellant filed exceptions to the chancellor's decree asserting, inter alia, that the chancellor erred by not ordering the Grubbs to pay one-half the fair rental value of the premises. The appellant's exceptions were dismissed by the chancellor, and the decree was affirmed per curiam by the Pennsylvania Supreme Court on June 28, 1971. Dembec v. Grubbs, 443 Pa. 564, 278 A.2d 487 (1971). On July 16, 1971, as trustees ex maleficio pursuant to the decree, the Grubbs conveyed an undivided one-half interest in the real estate to the estate of Stanley Dembec, deceased.
On June 29, 1971, the Grubbs initiated an action for the partition of the real estate. In answer to the Grubbs' complaint, the appellant joined in the prayer for partition of the real estate and again requested an allowance for rent. A responsive pleading was then filed by the Grubbs in which they asserted that the appellant's claim for rent was barred by the doctrine of res adjudicata because of the previous litigation. The Grubbs also averred a set-off and counterclaim alleging certain expenditures made while in possession of the land. On October 18, 1972, the court below dismissed all claims with respect to rent or expenses, declaring that these issues had been finally adjudicated in the prior action. Exceptions were filed to this order of the lower court, and, after argument, were dismissed on January 19, 1973. No appeal was taken from this action.
On March 26, 1973, a master in partition was appointed, and the property was sold to the Grubbs at a sale confined to the parties for $34,500. On November 4, 1974, the lower court entered a Decree Nisi, directing distribution of the proceeds equally to the co-tenants. The appellant filed exceptions to this decree, raising, inter alia, the dismissal of her claim for rent. On March 12, 1975, ...