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Griest v. Griest

Superior Court of Pennsylvania

March 27, 2018

HOWARD F. GRIEST, III Appellant
v.
KEVIN GRIEST Appellee

          Appeal from the Order Dated June 26, 2017 In the Court of Common Pleas of Chester County Civil Division at No(s): 16-04054-RC

          BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT [*] , J.

          OPINION

          GANTMAN, P.J.

         Appellant, Howard F. Griest, III, appeals from the order entered in the Chester County Court of Common Pleas, which overruled his preliminary objections in the nature of a motion to assert arbitration and compel bifurcation of the counterclaim of Appellee, Kevin Griest, in this partition action. We reverse and remand for further proceedings.

         The parties to this action are brothers. On April 12, 2000, the parties' mother transferred two parcels of property to Appellant and Appellee as joint tenants with the right of survivorship: (1) real property at 265 Killian Road, Chester County, Pennsylvania ("Farm Property"); and (2) real property at 251 Killian Road, Chester County, Pennsylvania ("Rental Property"). On April 29, 2016, Appellant commenced this partition action against Appellee by writ of summons. Appellant filed a complaint on January 3, 2017. Specifically, Appellant alleged that, since August of 2006, Appellee has retained exclusive possession of the Farm Property. Appellant claimed Appellee refused to rent the Farm Property, which prevented Appellant from collecting a fair rental value for that land. Appellant conceded that Appellee has rented the Rental Property to tenants since 2004, but Appellant insisted the rental income is inadequate to pay for the taxes, insurance and maintenance expenses for both properties. As a result, Appellant has had to contribute to those payments while Appellee has paid nothing. Appellant sought partition of the Farm Property and Rental Property so the parties can sell the properties, pay the expenses of the sales, and equitably divide the net proceeds of the sales. Appellant further requested an order assessing charges against Appellee for the fair market rental value arising from Appellee's exclusive use and occupancy of the Farm Property, as well as reimbursement of the amounts Appellant has paid for taxes, maintenance, and insurance for the properties.

         On February 10, 2017, Appellee filed an answer and counterclaim, introducing a third parcel of real property at 50 West Conestoga Road, Elverson, Pennsylvania ("Elverson Property"). Appellee claimed the parties entered into an agreement dated May 5, 2006 ("Agreement"), which is relevant to the partition action. The Agreement provides, in pertinent part, as follows:

         AGREEMENT

THIS AGREEMENT made by and between [Appellant] and [Appellee], both of Chester County, Pennsylvania (hereinafter collectively referred to as the "Partners"):
WHEREAS, the Partners are individuals and co-owners of [the Farm Property]; and
WHEREAS, [Appellant] owns personal property separate and distinct from the Farm Property; and
WHEREAS, [Appellee] owns personal property separate and distinct from the Farm Property;
WHEREAS, [Appellant] desires to utilize the Partners' interest in the Farm Property as collateral for purposes of purchasing [the Elverson Property]; and
WHEREAS, [Appellee] is not a party to the purchase of the [Elverson] Property; and
WHEREAS, [Appellee] has been asked by [Appellant] to sign as a limited surety for [Appellant's] purchase of the [Elverson Property], which Surety Agreement will pledge [Appellee's] interest in the Farm Property as collateral for [Appellant's] purchase of the [Elverson] Property;
WHEREAS, [Appellee] is willing to sign a Limited Surety Agreement, provided his personal property, which is separate and distinct from the Farm Property, is exempt from the Limited Surety Agreement; and
WHEREAS, in exchange for signing a Limited Surety Agreement, [Appellee] has requested of [Appellant] the right to receive Twenty Percent (20%) interest in the [Elverson Property], under certain terms and conditions; and
WHEREAS, [Appellant] is agreeable to meeting [Appellee's] requests in exchange for [Appellee's] signing a Limited Surety Agreement; and
WHEREAS, the Partners desire to set forth in this Agreement the arrangement between them;
NOW THEREFORE, the Partners, intending to be legally bound, mutually agree as follows:
1. Pledge of Farm Property as Collateral for Purchase of [Elverson] Property:
The Partners hereby agree to pledge the Farm Property as collateral for [Appellant's] purchase of the [Elverson] Property. In making this pledge, [Appellee] will sign the Limited Surety Agreement attached hereto and marked as Exhibit "A". The Partners acknowledge that [Appellee] owns personalty, which is to be exempted from that property being pledged as collateral. …
2. Refinancing of Loan for Purchase of [Elverson] Property:
The Partners acknowledge that [Appellant] has or will receive financing to complete his purchase of the [Elverson] Property. [Appellant] agrees that on June 2, 2011 or as soon as reasonably possible thereafter, [Appellant] will apply for refinancing of any outstanding loan encumbering the Farm Property. In seeking refinancing, [Appellant] will make all reasonable efforts to complete the ...

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