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ESTHER MARIE AUGELLETTA v. DAWSON E. FOX (05/16/80)

filed: May 16, 1980.

ESTHER MARIE AUGELLETTA, FORMERLY ESTHER MARIE FOX, APPELLANT,
v.
DAWSON E. FOX, A/K/A DAWSON FOX



No. 268 April Term 1979 Appeal from the Order of the Court of Common Pleas of Beaver County, Civil Action - Equity, at No. 98 of 1978.

COUNSEL

David L. Gropp, Beaver, for appellant.

No appearance entered nor briefs submitted for appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 278 Pa. Super. Page 2]

On January 19, 1978, appellant filed a complaint in equity seeking the partition of realty and personalty that she and appellee (her divorced husband) owned as tenants-in-common. During their marriage, the parties owned this property as tenants by the entireties, but upon their divorce, their ownership was automatically changed to a tenancy in common. 68 P.S. § 501 (1965), repealed in part by the Judiciary Act Repealer Act, 42 Pa.C.S.A. § 20002(a) [1092] (1979 Pamphlet). In addition to asking for the partition and sale of the property, the complaint asked that an assessment be made against appellee's share of the partition proceeds. In

[ 278 Pa. Super. Page 3]

    support of this latter request, the complaint alleged that appellee had been in continuous possession of the realty (and some of the personalty) since at least June 8, 1977; that the realty's fair market rental value, exclusive of real estate taxes and insurance, was $300 per month; and that appellee had refused to account to appellant for his exclusive use of the property. On May 10, 1978, a default judgment was entered on the complaint, and on January 3, 1979, the lower court ordered the partition of the realty into equal one-half shares "subject to proportionment of proper charges of expenses and debts." Subsequently, the court appointed a trustee to make a public sale of the property. On February 14, 1979, appellant filed a motion requesting the court "to assess the realty rental sum due [appellant] in this proceedings [ sic ]." On February 16 the lower court entered an order denying this motion on the grounds that it was premature and that appellee had been given inadequate notice of it. This appeal is from that order.*fn1

The primary issue before us is whether the lower court's order denying appellant's motion was interlocutory. If the order was interlocutory, we must quash this appeal since the lower court has not certified the order pursuant to 42 Pa.C.S.A. § 702(b) (1979 Pamphlet), and Pa.R.A.P. 1311, and appellant may not appeal as of right pursuant to Pa.R.A.P. 311.

Appellant argues that the lower court's order is not interlocutory but final because if

     the Court below [does not] determin[e] and assess[ ] the value of the default judgment of Appellant against the Appellee . . . the "amount" of the lien against the Appellee's one-half share of the real estate will be valueless and result in a "practical" finalization to prohibit the Appellant from receiving any portion of the Appellee's share of sale proceeds prior to distribution thereof.

Appellant's Brief at 9.

[ 278 Pa. Super. ...


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