No. 1502 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Action, Equity, of Tioga County at No. 291 CD 1979.
Daniel W. Shoemaker, York, for appellants.
No appearance entered nor briefs submitted on behalf of appellee.
Spaeth, Cavanaugh and Montemuro, JJ.
[ 305 Pa. Super. Page 278]
This is an appeal from an order of partition entered by the court in Tioga County.
[ 305 Pa. Super. Page 279]
In 1958 a group of men from York County desired to purchase a hunting camp in Tioga County. When they did so they took title in the names of three of their members "as Trustees for 'North York Club'". The club had a constitution and by-laws which fixed "the value of said membership" at $200.00. This was later changed to $300.00. In 1974 the club took advantage of an opportunity to purchase an adjoining tract of land, this time taking title in the name of twelve named members as "Trustees for 'North York Club'". At the same time the three named grantees of the original parcel of land conveyed that parcel to the same twelve and in the same capacity. The twelve grantees included the three "trustee" grantors. Appellee, Theodore Fuhrman, was one of the originators of the club and was one of the twelve grantees in the two 1974 deeds. In 1978 Fuhrman was given notice of his termination from the club and was tendered a check in the sum of $300.00 for the value of his membership.
Fuhrman instituted the present suit in which he sought partition of the real estate. Trial was held before Judge Kemp who decreed that the property was subject to partition. After consideration of exceptions to the decree the court concluded as a matter of law that the twelve grantees in the two deeds were tenants in common and reaffirmed its order of partition. The court further concluded that Fuhrman "is a member of the North York Club, the attempted expulsion from membership being without due process and pursuant to adopted rules and regulations of the by laws".
On appeal we do not have the benefit of a brief on behalf of appellee. We have therefore examined the complaint and the record to determine the nature of appellee's claim. In so doing we find that Fuhrman in his complaint sought only the remedy of partition. The issues were not framed, nor was the evidence directed to the general issue of the propriety of Mr. Fuhrman's expulsion from the North York Club. Moreover, the appellee testified that he did not seek reinstatement
[ 305 Pa. Super. Page 280]
as a member. The only question before the Court was whether or not the appellee ...