ADAM L. KAPCSOS Appellee
MALISHA J. BENSHOFF Appellant
from the Judgment Entered March 8, 2016 In the Court of
Common Pleas of Cambria County Civil Division at No(s):
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.
Malisha J. Benshoff, appeals from the entry of judgment on
March 8, 2016, in this action for partition of real property.
Although we agree that the parties own the premises jointly
and that the premises may be partitioned, we hold that the
trial court erred by misallocating the amount owed by
Appellee, Adam Kapcsos, to Benshoff upon partition. Thus, we
vacate the judgment below and remand for further proceedings.
and Kapcsos purchased the property in Sidman, Cambria County
("the Property") by a deed dated March 30, 2005,
that was recorded on May 27, 2005. Benshoff and Kapcsos never
married, and the deed stated that it conveyed the Property to
"MALISHA J. BENSHOFF, a single individual, and ADAM J.
KAPCSOS, a single individual, of Johnstown, Pennsylvania, as
joint tenants with the right of survivorship, Grantees."
The deed recited further that the conveyance was "for
and in consideration of the sum of NINETY THREE THOUSAND AND
($93, 000.00) DOLLARS . . ., unto [Grantor] well and truly
paid by the said Grantees." Kapcsos' Ex. A, at 1
and Kapcsos separated in 2008. Kapcsos filed this action for
partition of the Property on October 29, 2014, after which
Benshoff filed an answer and counterclaim for partition.
trial court held a bench trial on May 27, 2015, and made the
following Findings of Fact and Conclusions of Law on July 7,
1. [Kapcsos] and [Benshoff] purchased real property [in]
Sidman, Pennsylvania on May 27, 2005, as joint tenants with
the right of survivorship. The [P]roperty consists of a lot
with a single-family residence built on it.
2. The purchase price of the [P]roperty was $93, 000 and
Kapcsos made a deposit/earnest payment of $2, 000 from his
savings with an additional payment at the closing of $20,
322.56 made from his savings. Benshoff did not contribute any
funds towards these amounts.
3. The balance was financed with a mortgage in the amount of
$74, 000 in both parties' names.
4. The parties were not married at the time of the purchase
and never married thereafter.
5. In May 2008, Kapcsos moved out of the residence and
Benshoff took up occupancy with the couple's minor child
until March 2010 when she moved out.
6. In April 2010 Kapcsos took up residence on the [P]roperty
where he has remained since.
7. Upon retu[r]ning to the [P]roperty Kapcsos found a shed
the parties had purchased was removed by Benshoff.
8. Benshoff also removed all the personal property and all
the furnishings, excepting the stove and refrigerator.
9. Kapcsos found the [P]roperty in need of repairs and
engaged in a period [of] remodeling that included new
carpets, painting almost every room, upgrading the bathrooms,
repaired the fireplace, replaced the hot water tank, and
10. From May 2008 through March 2010[, ] Benshoff paid all
the expenses relative to the [P]roperty including the
mortgage and utilities.
11. From April 2010 to the present[, ] Kapcsos has paid all
the expenses related to the [P]roperty including the mortgage
12. As of April 20, 2010, the mortgage had an outstanding
balance of $62, 694.60 with a monthly payment of $528.
13. As of April 6, 2015, the mortgage had an outstanding
balance of $52, 545.11 with a monthly payment of $563.
14. From January 1, 2011 through the present[, ] the
[P]roperty had a monthly fair rental value of $800.
15. The parties, as joint tenants with the right of
survivorship, each have a one-half interest in the
16. The [P]roperty is not capable of division, without
prejudice to or spoiling the whole, into
purparts proportionate in value to the interests of
17. The property can be most advantageously divided into a
18. Kapcsos remains in the [P]roperty and desires to maintain
possession of it. As such he will be awarded the single
purport and Benshoff shall execute a deed to this effect upon
payment of an owelty, to be calculated below, and refinancing
of the mortgage to remove Benshoff's name from the debt.
19. The [P]roperty has a current appraised value of $102,
20. The current mortgage is $52, 545.11 as of the last
statement entered. . . .
21. The current equity in the [P]roperty is $102, 000 -[$]52,
545.11 = $49, 454.89.
22. Each party is entitled to their one-half interest in the
equity calculated as $49, 454.89 / 2 = $24, 727.45.
23. Benshoff is entitled to a credit for ½ the fair
rental value of the property from January 1, 2011 through
July 1, 2015. This being the only period for which a fair
rental value has been established.
a. Her credit is calculated as $800/month X 54 months
= $43, 200 / 2 = $21, 600.
24. Kapcsos is entitled to the following credits:
a. Hot water heater valued at $292.56 ($276 $16.56 tax).
Kapcsos is not entitled to any credit for other improvements
as they were not necessary to preserve or safeguard property.
b. One-half the mortgage payments made from April 1, 2010
through July 1, 2015. . . . [A]s of April 1, 2010, the
payment was $528 per month. As of April 1, 2015 this amount
increased to $563. . . . Accordingly the mortgage credit is
calculated as follows:
i. April 1, 2010 through March 1, 2015: 59 months X $528
month = $33, 404.
ii. April 1, 2015 through July 1, 2015: 4 months X $563 = $2,
iii. $33, 404 $2, 252 = $33, 404 / 2 = $16, 701.
c. Deposit/earnest payment of $2, 000 plus cash paid at
closing of $20, 322.56 = $22, 322.56. These sums may not be
used in determining the parties' interest in the property
but under Pennsylvania Rule of Civil Procedure 1570(a)(5) the
Court may award credit for payments made or liabilities
incurred by a party. The Court finds that by making these
payments out of personal funds Kapcsos made a payment that
inured to the benefit of Benshoff and is entitled to credit
for that payment.
25. The owelty [to which] Benshoff is entitled is calculated
$ 24, 727.45 representing her ½ share of the equity
$ 21, 600.00 representing her ½ share of the ...