Appeal from the Decree of the Court of Common Pleas of Philadelphia County, Civil division at No. 1440 Aug. Term 1976.
Edwin P. Smith, Philadelphia, for appellant.
R. Stuart Jenkins, Philadelphia, for appellee.
Cavanaugh, Tamilia and Popovich, JJ.
[ 381 Pa. Super. Page 279]
This is an appeal from the final decree of the Philadelphia Court of Common Pleas, dated May 31, 1988, which distributed the proceeds realized from the partition sale of the parties' real estate and the rents derived from that property. Since the final decree was entered in violation of the Act of May 10, 1927, as amended, 68 Pa.S.A. § 501 et seq., we reverse and remand for an evidentiary hearing and adjudication in accordance with the guidelines of this opinion.
Instantly, the appellant, Harold Hairston, questions: 1) whether the lower court misinterpreted the comments of counsel at oral argument to be an agreement that the appellee was entitled to one-half of the rental income; 2) whether the appellee is entitled to any portion of the rental income, especially that income derived prior to their divorce;
[ 381 Pa. Super. Page 2803]
) whether the lower court erred in ascribing a rental income value for periods when the apartment was vacant; 4) whether the lower court incorrectly calculated the credits due the appellant; and 5) whether the lower court erroneously based its findings upon evidence which was not properly made a part of the record.
The record reveals the following facts: During their marriage, the parties purchased the property in question on June 16, 1970. The property is a duplex apartment building, of which one side served as the marital abode. On August 26, 1970, the appellee left the marital home, and, on November 20, 1973, the appellant was granted a divorce. The appellant continued to live in one of the apartments until August of 1977, charging himself rent equal to that collected for the adjoining apartment.
In August of 1976, the appellee filed the present action for partition of marital property in accordance with the Act of May 10, 1927, P.L. 884, as amended in 1949, 68 Pa.S.A. § 501 et seq. In addition to her request for a statutory partition of the property, the appellee requested an accounting of the rents from August 26, 1970, the time of the parties' separation, until the time of the sale. The appellant then answered the complaint, alleging the appellee was not entitled to any rental income and counterclaiming for a sum of money equal to the mortgage payments, interest, taxes, maintenance, enhancements and other expenses associated with the property.
On January 30, 1979, the parties stipulated that the property in question was held by the parties as tenants in common and requested appointment of a Master to conduct a partition sale. The stipulation further stated that the property should be partitioned in accordance with Rules 1551-1574 of the Pennsylvania Rules of Civil Procedure. On March 22, 1979, a master was duly appointed for the express purpose of selling the property in accordance with 68 Pa.S.A. § 501 et seq. Eventually, in December of 1986, the property was sold for net proceeds of $44,406.06, after payment of the master's fee and the appraiser's fee.
[ 381 Pa. Super. Page 281]
On August 7, 1987, the trial court entered an adjudication and decree nisi ordering the proceeds divided equally between the parties in strict accordance with 68 Pa.S.A. § 503, citing Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973). Both parties filed for post-trial relief. The appellee argued that the trial court erred in refusing to apply the provisions of Rule 1551 et seq., since she sought both statutory and equitable relief in her original complaint. Thus, she was entitled to her share of the partition proceeds plus one-half of the net rental value from August, 1970, until November, 1986. Likewise, the appellant argued the trial court erroneously refused to grant equitable relief since the appellee had originally requested both statutory and equitable relief and he had ...