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MARILYN K. BARALE v. STEVE BARALE (10/10/80)

filed: October 10, 1980.

MARILYN K. BARALE,
v.
STEVE BARALE, APPELLANT



No. 1323 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Washington County, Civil Division, at No. 451 January Term, 1975 A.D.

COUNSEL

Wray G. Zelt, III, Washington, for appellant.

Gordon F. Harrington, Washington, for appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ.*fn*

Author: Cercone

[ 282 Pa. Super. Page 215]

This is an appeal from the order entered August 15, 1978, in the Court of Common Pleas of Washington County, Pennsylvania. The primary issue is whether the court below erred in withholding certain designated amounts from the share of the partition sale proceeds due the appellant.

During the course of their marriage, appellant, Steven Barale, Jr., and his ex-wife, Marilyn Barale, became the owners of the house and lot located at 105 Barale Drive, Washington, Washington County, Pennsylvania. Following the grant of divorce, appellant's ex-wife filed a complaint in partition for the appointment of a trustee pursuant to

[ 282 Pa. Super. Page 216]

    statute. The Chancellor appointed a trustee, an attorney at law, to make public sale of the real estate jointly owned by the Barales as tenants by the entireties, to make a return of sale, and after confirmation by the court to distribute the net proceeds equally between husband and wife.

The trustee, after proper notice, conducted the sale on September 13, 1977. The highest bid was received from Andrew A. D'Alessandro and Theresa K. D'Alessandro in the amount of $50,000, and the trustee accepted $5,000 from the successful bidders as hand money. Subsequently, the trustee asked the Chancellor to confirm his return of sale. This was done on October 19, 1977, and the trustee was ordered to deliver a deed of special warranty to the D'Alessandros, the purchasers, at the closing which occurred on November 4, 1977. Following this, a second return of sale was issued wherein the trustee suggested that additional sums were to be deducted from the appellant's proceeds. Exceptions to this second return of the trustee were filed on November 22, 1977, by appellant and by the D'Alessandros. Among other things, appellant contended that it was improper to withhold the amount of $1,105.97 from his share of the proceeds to compensate the D'Alessandros for the missing front door, dishwasher and curtain rods.*fn1 On the other hand, the D'Alessandros by filing their exceptions sought reimbursement for the costs, expenses and losses incurred in litigating their right to an adequate water supply.

To fully understand the importance of these exceptions, some background information is necessary. Upon obtaining possession of the property, the D'Alessandros discovered that the water supply had been cut off by Steve Barale, Sr., father of appellant and an adjacent property owner. The D'Alessandros also discovered that the front door, a built-in dishwasher and curtain rods had been removed from the

[ 282 Pa. Super. Page 217]

    premises by appellant. The trustee in partition and the purchasers sought unsuccessfully in separate actions to secure an injunction requiring that the water supply be restored. Consequently, the buyers contracted to have a well drilled to obtain water for their property. The purchasers also bought a ...


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