No. 210 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of York County at No. 79-S-4376.
James T. Yingst, Hanover, for appellant.
Mark D. Frankel, York, for appellee.
Wickersham, Johnson and Hoffman, JJ.
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Elizabeth A. Kopp appeals from the order of the Court of Common Pleas of York County dismissing her exceptions
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and making final an earlier decree that partitioned real estate owned by appellant and Edward L. Kopp.
Plaintiff-appellee Edward L. Kopp and defendant-appellant Elizabeth A. Kopp were formerly husband and wife. Prior to their divorce, they entered into a separation agreement dated November 6, 1970. Pursuant to the agreement, appellant relinquished all rights to support and maintenance. Appellee agreed that, in exchange, appellant would have sole occupancy of the family residence for herself and her children so long as she paid all mortgage payments, utility bills, and taxes. The agreement further provided: "Should the Wife no longer use the premises as her residence the same shall be sold at a price agreeable to both Husband and Wife and the net proceeds therefrom shall be divided equally between Husband and Wife." R.R. at 29a. In the same provision, appellee "specifically waive[d] his rights to have the real estate of the parties sold pursuant to the provisions of the Act of May 10, 1927, P.L. 884 (68 P.S. § 501) as amended." Id. The Act, referred to in the agreement, provided in pertinent part:*fn1
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.
On December 26, 1979, appellee filed a complaint in equity seeking partition of the subject real estate pursuant to the Act of May 10, 1927, P.L. 884, § 1; as amended by the Act of May 17, 1949, P.L. 1394, § 1, 68 P.S. § 501 (hereinafter referred to as "the Act"). Appellant filed an answer asserting that the separation agreement entered into by the parties barred appellee from requesting partition of the property. Trial before the Honorable Emanuel A. Cassimatis was held on August 31, 1981. In an opinion
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and order dated October 22, 1981, Judge Cassimatis ruled that the separation agreement was not a bar to appellee's statutory right to partition. Accordingly, Judge Cassimatis issued an order and decree to partition the parties' real estate. Appellant filed exceptions which were orally argued before the court en banc. On May 17, 1983, appellant's exceptions were dismissed and ...