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HAROLD V. LOHMILLER v. JOAN F. LOHMILLER WEIDENBAUGH (07/16/82)

filed: July 16, 1982.

HAROLD V. LOHMILLER, JR.
v.
JOAN F. LOHMILLER WEIDENBAUGH, APPELLANT



NO. 1869 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division-Equity, of Montgomery County, at No. 77-10812.

COUNSEL

Arthur L. Jenkins, Jr., Norristown, for appellant.

Steven J. Proctor, Pottstown, for appellee.

Spaeth, Cavanaugh and Van der Voort, JJ.

Author: Van Der Voort

[ 302 Pa. Super. Page 177]

This is an appeal from an order directing that a 40% undivided interest in real property be partitioned. A multitude of pleadings have been filed and argued. We need only highlight a selected number of such filings and orders resulting therefrom.

The parties were married in August 1960. From December 1971 through January of 1975, Hazel Lohmiller, appellee's mother proceeded to transfer to the parties, as entireties property, a total, undivided interest of 40% in her farm.*fn1 In July 1976, the parties were divorced. On June 23, 1977, Mr. Lohmiller filed a complaint seeking a partition of the entireties property. Appellant, now known as Mrs. Weidenbaugh filed various pleadings including: a preliminary objection

[ 302 Pa. Super. Page 178]

    raising the non-joinder of an indispensable party; a counterclaim seeking the partition of the whole farm; an action in equity involving the whole parcel; and a motion to consolidate the various actions. All such motions/petitions were refused or denied. On July 31, 1980, the lower court ordered the 40% interest be partitioned and appointed a trustee to arrange a public sale and to distribute the proceeds. Appellant timely filed this appeal.

As a preliminary matter, we note that an order directing a partition of real property is interlocutory; however a party may take an appeal as a matter of right from such order. Pennsylvania Rules of Appellate Procedure, Rule 311(a)(6). Appellant raises four issues on this appeal.

I. Is the Act of May 10, 1927, as amended, pertaining to the division of entireties property after divorce, applicable to a partial interest in real estate?

The act in question, 68 P.S. ยง 501,*fn2 in pertinent part 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."

Appellant contends that the act was to apply only to fee simple interests in real estate and not to an undivided interest of 40%. She goes on to argue that if applied to a partial interest then the statute is unconstitutional as it ...


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