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JOSEPH HEALEY v. ANTHONY J. CAPONE AND DOROTHY CAPONE (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


February 5, 1982

JOSEPH HEALEY
v.
ANTHONY J. CAPONE AND DOROTHY CAPONE, HIS WIFE, APPELLANTS

No. 2613 Philadelphia, 1980, Appeal from Decree Entered October 16, 1980, Court of Common Pleas, Civil Division, Equity, Lackawanna County, No. 4, March Term, 1976.

Before Cercone, P.j., Hester, and Johnson, JJ.

MEMORANDUM

This is an appeal from a final decree affirming a decree nisi. For the following reason, we affirm.

The facts reveal that Appellants, then in-laws of Appellee, purchased a home for their daughter and son-in-law in August of 1972. The Appellee and his wife made the mortgage and insurance payments and paid the utility bills. When Appellant's daughter divorced Appellee, Appellants evicted Appellee, claiming that he was merely a renter, delinquent in his rent and not the true owner of the property. The court below found Appellee and his wife to be the beneficial owners of the property, imposed a resulting trust and ordered an accounting.

The sole issue raised on appeal is whether Appellee's former wife and co-tenant in common should have been joined in the action below as an indispensable party.

When Appellee and his wife were divorced, they became with respect to the property in question, tenants in common.*fn1 Tenants in common are not indispensable parties within the definition of Pa.R.C.P. 2227, which states: "Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants." As the court en banc below points out, this rule applies only when the right or liability of the parties is solely joint. William Ross, et al. v. Thomas Kitt, et al. 10 Pa. Commw. 375, 308 A.2d 906 (1973).

Because we find that Appellee's former wife is not an indispensable party we find it unnecessary to discuss whether her interest in the property has been adequately protected.

The decree entered October 16, 1980 is affirmed.


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