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JANET ANNE KLEINTOP v. CLIFFORD T. KLEINTOP AND DIANE KLEINTOP (10/23/81)

filed: October 23, 1981.

JANET ANNE KLEINTOP
v.
CLIFFORD T. KLEINTOP AND DIANE KLEINTOP, APPELLANTS



No. 1506 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Northampton County, Pennsylvania, Civil Action - Law No. 305, May Term, 1978.

COUNSEL

William E. McDonald, Lansford, for appellants.

Michael Prokup, Allentown, for appellee.

Brosky, Johnson and Popovich, JJ.

Author: Popovich

[ 291 Pa. Super. Page 492]

This is a direct appeal from an Order entered in a declaratory judgment action*fn1 creating an equitable lien in favor of appellee against certain residential real estate owned by appellants. Appellants do not quarrel with the finding of an equitable lien, but do here assert that the lower court abused

[ 291 Pa. Super. Page 493]

    its discretion in interpreting a contract dealing with the disposition of the proceeds of the realty once "sold", by declaring that the lien becomes "due and payable when any transfer is made of the property." We agree and, therefore, modify the Order entered by the lower court.*fn2

The undisputed facts are these: Appellee, Janet Anne Kleintop, and appellant, Clifford T. Kleintop, were husband and wife but were divorced prior to the commencement of the instant action. Clifford T. Kleintop and appellee were the owners, as tenants by the entireties, of certain real estate located at R.D. # 1, Northampton, Northampton County, Pennsylvania. After the real estate was purchased, Clifford and appellee entered into a "Separation and Property Settlement Agreement" (Agreement) dated December 17, 1973. The Agreement was recorded in the Office of the Recorder of Deeds in and for the County of Northampton in Miscellaneous Book Vol. 250, at page 256, on March 31, 1976. The Agreement sets forth, in paragraph No. 10, that:

"10. Wife agrees to convey her interest in the jointly owned real estate located at R.D. # 1, Northampton, Northampton County, Pennsylvania, to Husband for the sum of Eight Thousand ($8,000.00) Dollars. In the event husband sells said real estate, he agrees to give his wife fifty (50%) percent of the net proceeds of said sale in excess of Twenty Thousand ($20,000.00) Dollars after deducting the cost of settlement." (Lower Court Opinion at 1)

The parties were ultimately divorced; thereafter, Clifford titled the real estate in his name and that of Diane Kleintop, his present wife and the other appellant in this action.*fn3 The appellants have resided at and continue to occupy the premises in question.

[ 291 Pa. Super. Page 494]

Appellee, concerned that appellants might attempt to sell the property and remove themselves from this jurisdiction without paying her the sum called for in the Agreement,*fn4 filed a " PETITION FOR JUDGMENT INVOLVING A LIEN AGAINST REAL ESTATE." Therein, appellee contended that her interest, as delineated in the Agreement, "constitute[d] a valid and enforceable lien against the said real estate." (RR 4a) After a hearing on the merits of appellee's petition, the Honorable Richard D. Grifo issued an Order on May 23, 1980, holding that an equitable lien existed against the property in question in favor of appellee, based upon his interpretation of paragraph No. 10 of the Agreement. Also, from the date of the recording ...


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