No. 335 October Term, 1979, Appeal from Order entered on January 16, 1979, in the Court of Common Pleas of Cumberland County at 38 Equity Term, 1976.
Laurence E. Norton, II, Legal Services, Inc., Carlisle, for appellant.
Kent H. Patterson, Harrisburg, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 272 Pa. Super. Page 426]
This is an appeal from an order by the court en banc sustaining exceptions to a decree nisi. The question is whether the court en banc abused its discretion in overruling findings of fact of the chancellor and in substituting other findings in their stead. For the reasons given below we reverse the order of the court en banc and reinstate the decree nisi.
The appellee, Mr. Rosario Sorbello, instituted this action in equity seeking the imposition of a constructive trust with regard to a house and property, hereinafter called the Orchard Road property, that is titled in the name of appellant only. Judge Sylvia Rambo heard the case as chancellor. She denied appellee's prayer for relief and issued a decree nisi on September 27, 1977. A court en banc heard exceptions to the decree nisi and an order and opinion were entered on January 16, 1979, sustaining appellee's exceptions and imposing a constructive trust on the Orchard Road property.
The factual history of this case is involved and highly emotional and need not be developed at great length. The parties were married in 1948 and lived together as man and wife until 1970. In August of 1970 the parties separated and did not live together again as a married couple until February, 1974, when a reconciliation occurred. In the intervening period there were numerous unsuccessful attempts by the parties to resolve their differences and during this period the parties often lived in the same house but not as husband and wife. The crucial factor that lead to the 1974 reconciliation was appellee's demonstration of the sincerity of his intentions by deeding the title of the Orchard
[ 272 Pa. Super. Page 427]
Road property from the parties as tenants by the entireties to appellant alone.*fn1
The issues presented gravitate around the purchase of the Orchard Road property. Appellant asserts that the property was purchased by the appellee with funds that came from two sources: first, money that was held jointly by the parties prior to 1970 and was seized by appellee in 1970, second, appellee's share of the proceeds from the sale in 1972 of the Sorbello's previous home.*fn2 Appellee argues that the Orchard Road house was bought entirely with his own funds.
The 1974 reunion ended in July, 1974, when appellant left the Orchard Road house after being beaten by Mr. Sorbello. Appellant returned to Orchard Road in September, 1974, and stayed until March, 1975, when appellee informed appellant that he wanted a divorce.
This appeal centers on whether appellee seized jointly held money shortly after the 1970 separation and whether the money used to buy the Orchard Road property was entirely appellee's or a joint contribution of the parties. The chancellor below made twenty-four findings of fact. Two of those findings were that the appellee did seize jointly held money and that the Orchard Road property was purchased with jointly owned money confiscated by appellee in 1970.*fn3 The court en banc sustained exceptions to ...