No. 97 E.D. Appeal Docket 1982, Appeal from the Order of the Superior Court at No. 1869, Philadelphia, 1980, affirming the Orders of the Court of Common Pleas of Montgomery County at No. 77-10812
Arthur L. Jenkins, Jr., Norristown, for appellant.
Steven J. Proctor, Pottstown, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., filed a dissenting opinion, joined by Roberts, C.j.
Appellant, Joan Lohmiller Weidenbaugh, and appellee, Harold V. Lohmiller, were married on August 20, 1960. During their marriage, appellee's mother, Hazel Lohmiller, transferred to appellant and appellee, as tenants by the entireties, a 40% undivided interest in her 170 acre farm located in Montgomery County, Pennsylvania. Hazel Lohmiller retained a 60% undivided interest in the farm, as a tenant in common with appellant and appellee. On July 9, 1976, appellee and appellant were divorced.
On June 23, 1977, appellee filed the present equity action pursuant to the Act of May 10, 1927, as amended, 68 P.S. § 501 et seq.*fn1 (hereinafter The Act), against appellant, seeking partition of the couples 40% interest in the farm held by the appellant and appellee as tenants by the entireties. In response, appellant sought dismissal of appellee's complaint by filing a preliminary objection that challenged appellee's failure to join co-tenant, Hazel Lohmiller, as an indispensable
party. On November 23, 1977, the lower court dismissed appellant's preliminary objection. On July 31, 1980, the lower court ordered only appellee's and appellant's 40% interest in the farm partitioned and appointed a trustee to arrange a public sale and distribute the proceeds. Appellant appealed and the Superior Court affirmed. Lohmiller v. Weidenbaugh, 302 Pa. Super. 174, 448 A.2d 583, (1982). On November 1, 1982, this Court granted allocatur.
In affirming the lower court's dismissal of appellant's preliminary objection raising the non-joinder of Hazel Lohmiller, the Superior Court stated:
The Act of May 10, 1927 provides a complete procedure to be followed (except for claims preserved under the Divorce Code of 1980) when parties who have been divorced, partition property formerly held as tenants by the entireties. Lykiardopoulos [ v. Lykiardopoulos ], 453 Pa.  at 293 [309 A.2d 548 (1973)]. Looking at the Act, it provides only for a husband or wife to bring an action against his or her spouse; and not against third parties . . . .
Appellant argues that in Pennsylvania all co-tenants must be joined as parties to the partition action. She relies on ...