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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 . . . ." ...

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