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filed: February 6, 1981.


No. 1410 April Term, 1978, Appeal from the order of the Court of Common Pleas of Greene County, Civil Division, No. 657 in Equity


Robert V. Campedel, Clairton, for appellant.

George Retos Jr., Washington, for appellee.

John M. Crimmins, Pittsburgh, for participating party.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Cercone

[ 284 Pa. Super. Page 187]

This is an appeal from an order of the Greene County Court of Common Pleas dismissing James Recktenwald's exceptions to the findings of fact of a master appointed to oversee the sale of 131.32 acres of farm land which the parties herein presently hold as tenants-in-common, and to oversee also the subsequent partition of the proceeds. James Recktenwald raises seven questions on appeal.*fn1 We need only consider two questions generally raised, because of the disposition of the case we make today: what effect, if any, does a master's finding of nondivisibility have in an action for the partition of former entireties realty? and when is the proper time to except to a master's finding on the amount of an equitable lien to which a property is subject?*fn2

Until their divorce August 26, 1976, the parties held the acreage in question as tenants-by-the-entireties. The tenancy was automatically transmuted into a tenancy-in-common upon their divorce by virtue of the Act of May 10, 1927, P.L.

[ 284 Pa. Super. Page 188884]

§ 1, as amended May 17, 1949, P.L. 1394 § 1; 68 P.S. § 501.*fn3 Judith Recktenwald initiated the instant complaint in partition. From the record it would appear that Mrs. Recktenwald sought the partition for two reasons. The first, apparently, is to gain sole control over her rightful share of a significant asset of a now defunct marriage. The second reason appears to be the desire to ensure repayment of a substantial loan Pittsburgh National Bank made to the Recktenwalds, and for which Mrs. Recktenwald's now deceased mother, Katherine Carvlin,*fn4 had acted as surety, pledging certain of her stock holdings. The complaint alleges that the loan was made for the purpose of purchasing the land being partitioned, and that it was in fact used for that purpose. In responding to the complaint, James Recktenwald admitted the loan, and hence also the validity of the claim by the Carvlin Estate, but denied that the entire sum was used to purchase the real estate. He further alleged that a substantial portion of funds had been used by Judith Recktenwald for her own purposes, the nature of which were unknown to him. Subsequently, the Carvlin Estate itself petitioned to intervene. The chancellor, President Judge Glenn Toothman, dismissed the Estate's petition; by the same order he appointed Rosanna D. Polen, Esq., master in partition and ordered her to consider the claim of the Carvlin Estate as a valid claim against the proceeds of the sale of the property when it came time for their distribution, subject only to her determination of size of the Estate's claim.*fn5 The master proceeded to hold hearings to determine

[ 284 Pa. Super. Page 189]

    the value of the property. After having received the relevant evidence the master placed the value of the real estate at $62,495.00, including $17,685.00 for coal deposits unevenly distributed across the property. Because the coal is not evenly distributed, the master found that the land was not divisible without prejudice to one or the other of the parties. The master also placed the amount of the Carvlin Estate lien against the property to be $17,511.88 plus interest from January 1, 1978. James Recktenwald excepted both to the finding of nondivisibility of the realty and the amount and validity of the Carvlin Estate's claim.

President Judge Toothman characterized the problem in the instant case as a misapprehension of the nature of proceedings under the Act of 1927. Both parties and the master proceeded under the belief that a partition action under Section 501 of the Act is controlled by the Pennsylvania Rules of Civil Procedure, specifically Pa.R.C.P. 1551 et seq., which dictate the procedure in ordinary partition actions. Rule 1558 requires that if a petition for partition is granted then the court "shall direct the parties or their attorneys to appear for a preliminary conference to consider (1) whether the parties can agree upon a plan for partition or sale . . . ." Pa.R.C.P. 1558(a)(1). Rule 1560 permits the division of the property being partitioned into proportionate shares, called purparts.*fn6 As the chancellor points out in his

[ 284 Pa. Super. Page 190]

    able opinion below, the Rules of Civil Procedure directly conflict with the dictates of the Act of 1927 as amended. Section 501 provides that the method of partition of a statutorily created tenancy-in-common following divorce is the sale of the property and the division of the proceeds of the sale. Section 501 reads:

Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit in the court of common pleas, sitting in equity, of the county where the property is situate, against the other to have the property sold and the proceeds divided between them. The summons in such suit shall be served in the same manner and with like effect as in cases of partition at law.

At the hearing on such suit both husband and wife shall be competent witnesses. The value of the property shall be proven by the testimony of at least two impartial and disinterested witnesses. 1927, May 10, P.L. 884 § 1; 1949, May 17, P.L. 1394 § 1. 68 P.S. § 501.

Furthermore, Section 503 of the same act reads:

The proceeds of any sale had under the provisions of this act, after the payment of the expenses thereof, shall be equally divided between the parties, subject, however, to the deduction therefrom of the amount of any lien entered of record jointly against both of the respective parties, together with any interest due thereon and docket costs, which shall be paid by the trustee appointed by the court

[ 284 Pa. Super. Page 191]

    to make sale of such property to the person or persons to whom the same is due and payable, and the amount of any liens entered of record against either of such parties, together with interest due and costs taxed thereon, shall be deducted from the share of the party against whom such lien is filed, and paid by such trustee to the person or persons to whom the same is due and payable . . . . 68 P.S. § 503.

Finally, the Rules of Civil Procedure specifically provide that the Act of 1927 is not suspended or affected by Rules 1551 et seq. See Pa.R.C.P. 1590.

Clearly, the finding of the master concerning the divisibility of the real estate was superfluous to the partition proceeding in this case. As President Judge Toothman said in his opinion below:

Appellant additionally argues that the findings of the master concerning the amount of the Carvlin Estate's claim are in error. We do not reach the merits of appellant's argument for we find them to be prematurely presented to us for consideration. Section 503 of the Act of 1927 provides that claims by record lien holders shall be deducted from the proceeds of the sale of the real estate. Section 502 provides that the master or trustee shall submit the order of sale to the court for its confirmation. At the time the court is to consider the confirmation of the sale and partition of the proceeds it will necessarily have the opportunity to pass on the validity of all lien holders' claims. Instantly, there has been no sale of the property, nor a proposed partition of the proceeds, nor has the court below considered the amount of the Carvlin Estate's claim as determined by the master. It

[ 284 Pa. Super. Page 192]

    has only ruled that the Estate has a valid claim -- as admitted in the pleadings by the appellant -- although the amount of the claim is unresolved. The chancellor's order neither puts appellant out of court, nor does it finally decide the issue. The order must therefore be interlocutory in nature. Piltzer v. Independence Fed. Sav. & Loan Ass'n, 456 Pa. 402, 319 A.2d 677 (1973). It is axiomatic that an appeal will be only from a final order unless the Legislature otherwise provides. Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968). Appellant asserts no appeal as of right, Pa.R.A.P. 311, nor has he met any of the requirements for the permissible appeal of an interlocutory order, Pa.R.A.P. 312 and Pa.R.A.P. 1301 et seq.

In light of the foregoing, we affirm that portion of the chancellor's order which dismisses James Recktenwald's exception to the master's findings of fact on the question of the divisibility of the land, and we dismiss the appeal from the remaining portions of the order as an impermissible appeal from an interlocutory order. That part of the order of the hearing court which is reviewable at this time is affirmed, and the case is remanded for further proceedings not inconsistent with this opinion.

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