FRANCES A. RUSSO
ROSEMARIE POLIDORO AND CAROL TRAMA, Appellant
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.
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.
matter arises out of a dispute between family members over
title to nine properties located in Philadelphia,
Pennsylvania ("the properties").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
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.
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.
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.
December 5, 2016, after hearing oral argument and considering
the memoranda, the court entered an Order directing Partition
of the properties. Appellants timely appealed.
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, ...