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Russo v. Polidoro

Superior Court of Pennsylvania

December 11, 2017

FRANCES A. RUSSO
v.
ROSEMARIE POLIDORO AND CAROL TRAMA, Appellant

         Appeal from the Order December 5, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 150703451

          BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD [*] , J.

          OPINION

          DUBOW, J.

         Appellants, Rosemarie Polidoro and Carol Trama, appeal from the December 5, 2016 Order entered in the Court of Common Pleas of Philadelphia County, which granted Partition in favor of Appellee, Frances A. Russo, after finding that the Deed restriction did not bar Appellee from filing an Action in Partition. After careful review, we reverse.

         This matter arises out of a dispute between family members over title to nine properties located in Philadelphia, Pennsylvania ("the properties").[1]In two separate transactions in 1984 and 1985, Frank Russo, Sr., acquired title to the properties. In 2007, he initiated a Quiet Title Action to invalidate a purportedly fraudulent deed, alleging that a 1991 Deed conveying the properties to his son and two other individuals was invalid because his son had forged the signature. All parties entered into a Settlement Agreement prior to trial to invalidate the 1991 Deed and convey the properties from Frank Russo, Sr., to his three daughters, Appellants and Appellee, as tenants in common, each with a one-third interest.

         On September 14, 2009, the court entered an Order, which confirmed the Settlement Agreement and ordered Frank Russo, Sr., to prepare and record a new Deed transferring the Properties from himself to Appellants and Appellee as tenants in common, subject to the restriction that:

No disposition of the properties or any action concerning the properties may be taken without the express written agreement of at least two of the deed holders; and further, that all expenses of the properties are to be borne equally by the three deed holders.

Order, dated 9/14/09 ("the restriction"). Consequently, Frank Russo, Sr., conveyed title to the properties to Appellants and Appellee as tenants in common by Deed dated October 15, 2009, and recorded October 19, 2009. The Deed expressly incorporated the September 14, 2009 Order and the Order was attached to the recorded Deed. As required by the Order, the Deed contains the restriction.

         In July 2015, Appellee filed a Complaint in Equity initiating a Partition Action against Appellants, her sisters. Appellants filed Preliminary Objections in the form of a demurrer, arguing that the language of the restriction precludes an Action in Partition. The trial court overruled the Preliminary Objections. Appellants then filed an Answer with a New Matter, raising the same argument.

         On October 5, 2016, the trial court ordered the parties to submit memoranda of law solely on the issue of whether the restriction deprived the parties of the equitable relief of Partition, and subsequently held oral argument on the issue.

         On December 5, 2016, after hearing oral argument and considering the memoranda, the court entered an Order directing Partition of the properties. Appellants timely appealed.[2]

Appellants raise the following four issues on appeal:
1) Whether the trial court erred in holding that the trial court's Order of September 14, 2009, which provided that "no disposition of the properties or any action concerning the properties may be taken without the express written agreement of at least two of the deed holders . . ." did not preclude [Appellee] from bringing an [A]ction for [P]artition of those properties?
2) Whether the restriction contained in the Deed by which the parties obtained title, which included both the language of the September 14, 2009 Order and the Order itself, ...

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