Charles D. Coll, Pittsburgh, for appellants.
James C. Larrimer, Pittsburgh, for appellees.
Price, Hester and Montgomery, JJ. Hester, J., files a dissenting statement.
[ 274 Pa. Super. Page 364]
The instant case is again before this court on appellants' action for partition of real property. On appeal, appellants challenge the action of the trial court in modifying its decree nisi in accordance with appellee's exceptions. Finding appellants' challenge to be correct, we reverse and modify the order of the trial court.
The facts of this case involve an extensive course of litigation between the respective parties, and a more in-depth chronology of that litigation may be found at an earlier appeal to this court in Grubbs v. Dembec, 241 Pa. Super. 18, 359 A.2d 418 (1976). For purposes of this appeal, the following summary will suffice. On August 29, 1958, Stanley Dembec, now deceased, and his wife Elizabeth, appellee herein, conveyed a parcel of land in Allegheny County to the Grubbs. In conjunction with the conveyance, the Grubbs and Stanley Dembec orally agreed to establish a restaurant-tavern business on the premises. The business was established in November 1958 with the Grubbs having exclusive management of the operation. Eventually, disagreements arose between the parties, and on April 16, 1964, the Dembecs filed suit requesting a reconveyance, and either an accounting by the Grubbs for the profits derived from the restaurant-tavern business or a money judgment for the rental value of the premises during the time the Grubbs were in exclusive possession. 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' request for an accounting of profits; the chancellor made no mention of the request for rent. That decree was affirmed per curiam by the supreme court. See Dembec v. Grubbs, 443 Pa. 564, 278 A.2d 487 (1971). On July 16, 1971, as trustees pursuant to the decree, the Grubbs conveyed an undivided one-half interest in the real estate to the estate of Stanley Dembec.
On June 29, 1971, the Grubbs initiated an equity action for the partition of the real estate. A master was appointed
[ 274 Pa. Super. Page 365]
and the property was sold to the Grubbs under an exclusive sale agreement for a total consideration of $34,500. On May 19, 1975, the court ordered an equal distribution of the funds to both parties. After denial of exceptions, Elizabeth Dembec appealed to this court alleging that the chancellor erred in failing to deduct from the Grubbs' share an amount equal to the fair rental value of her one-half interest during the time the Grubbs were in exclusive possession dating from the decree of the court on July 29, 1969. This court agreed, and remanded for a hearing to determine the rental value that should be deducted from the Grubbs' distributive share and whether they should be credited with any expenditures made during this period. See Grubbs v. Dembec, supra, 241 Pa. Super. 18, 359 A.2d 418 (1976).
Upon rehearing, the chancellor received evidence regarding the rental value of the premises from the commencement of the Grubbs' exclusive possession on November 1, 1958, until the date of the entry of the decree of distribution on May 19, 1975. At the conclusion of the testimony, the chancellor entered a decree nisi in which he ordered a diminution in the value of the Grubbs' distributive share in the amount of $7,525. The court also granted the parties twenty days from the date on which they received notice of the decree nisi in which to file exceptions. Appellee filed exceptions in which she challenged the calculations of the trial court. On July 17, 1978, the court entered a final order in which it concluded that its calculations in the decree nisi were in error. The court stated that the decree nisi only deducted the rental value of appellee's interest from the date of the earlier decree on July 29, 1969, (in which appellants were declared trustees for the benefit of appellee) until the date of the decree of distribution on May 19, 1975, and that the deduction for rent should have been calculated from the date on which appellants assumed exclusive possession on November 1, 1958. The rental value of appellee's one-half interest from November 1, 1958, to May 19, 1975, was $20,236.50, and a final decree was entered on July 17, 1978, in which appellants' one-half share of the sale proceeds was diminished by this amount.
[ 274 Pa. Super. Page 366]
Appellants have appealed from the final decree and present two issues for resolution: (1) whether appellee's exceptions were timely; and (2) whether the trial court erred in decreeing a diminution in appellants' share of the proceeds of sale for the rental value of appellee's interest from the commencement of appellants' exclusive possession on November 1, 1958, until the order of the court on July 29, 1969.
Appellants' first assignment of error regarding the alleged late filing of exceptions is without merit. Appellants' complaint giving rise to the instant proceeding was brought as an action for the partition of real property. Under Pa.R.C.P. No. 1573(c) appellee had twenty days from the filing of the decree nisi in which to file exceptions. Although appellee did not file exceptions until twenty-one days subsequent to the filing of the decree nisi, we find no waiver by appellee since the decree nisi extended the date for the filing of exceptions until twenty days subsequent to the service of that decree upon the respective parties. Pa.R.C.P. No. 248 provides that "[t]he time prescribed by any rule of civil procedure for the doing of any act may be extended or shortened by written agreement of the parties or by order of court." Thus, although the ...