ADAM K. KAPCSOS
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): No.
BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J.,
OLSON, J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY,
Kapcsos moved for en banc reargument of Malisha J.
Benshoff's appeal in this partition action. We granted
his motion. However, during our deliberations of the issues
that Ms. Benshoff raised on appeal, we discovered a
significant procedural error by the parties in the trial
court. Because this procedural error is fatal to our
appellate jurisdiction and the judgment entered below, we
must quash this appeal.
Kapcsos and Ms. Benshoff purchased a piece of real estate
"as joint tenants with the right of survivorship."
N.T., 5/27/15, Plaintiff's Exhibit A. A few years later,
their relationship soured, and Mr. Kapcsos filed a
"Complaint in Partition." Complaint, at 1. In his
prayer for relief, Mr. Kapcsos requested that the trial court
"enter an Order awarding him the property," because
he had paid, among other things, all of the acquisition
costs, years of mortgage on his own, taxes, and various
up-keep and remodeling expenses. Complaint, at
Ms. Benshoff filed an Answer and Counterclaim, in which she
sought partition and an equitable award based upon her
½ interest in the property. Mr. Kapcsos replied to her
Counterclaim, and the pleadings then closed.
Mr. Kapcsos filed a certificate of readiness, requesting a
bench trial to divide the property. That trial occurred, and
the court entered an order equitably carving-up the
property, even though no one had moved for an order
legally partitioning it. As a result, the trial
court has never entered an order of partition with the
Recorder of Deeds of Cambria County.
After the trial, the court of common pleas ordered:
that upon payment of the owelty of $7, 011.33 to [Ms.]
Benshoff and proof that the mortgage has been refinanced to
remove [Ms.] Benshoff as a debtor, [Mr.] Kapcsos is awarded
title to the real estate and that [Ms.] Benshoff shall
execute a deed in favor [of Mr.] Kapcsos at that time.
Payment of the owelty and transfer of the property shall
occur within forty-five (45) days unless the Court, for good
cause shown, extends this time.
Court Order, 7/10/15. Ms. Benshoff filed exceptions, which
the trial court overruled in a January 11, 2016 Order.
Benshoff appealed. A three-judge panel of this Court affirmed
in part and revered in part. We granted reargument en
neither party has challenged our jurisdiction, we may always
consider that question on our own motion. See, e.g., M.
London, Inc. v. Fedders Corp., 452 A.2d 236, 237 (Pa.
Super. 1982). We raise the issue of our jurisdiction now,
because we have uncovered a procedural error in the record
that prevents us from addressing the merits of this appeal.
is purely a question of law; the appellate standard of review
is de novo and the scope of review plenary."
Commonwealth v. Seiders, 11 A.3d 495, 496-97 (Pa.
begin by discussing proper procedure for a partition action,
due to its unique nature and the dearth of appellate
precedent in this rarely litigated, often confusing, area of
the law. Pennsylvania Rules of Civil Procedure 1551 - 1574
split a partition action into two, distinct, chronological
parts. Rules 1551 - 1557 govern Part 1, and Rules 1558 - 1574
govern Part 2. Each part, by rule, must produce its own,
distinct, appealable order.
first order, under Pa.R.Civ.P. 1557, directs partition of the
parties' legal interests into severalty. See Johnson
v. Gaul, 77 A. 399, 400 (Pa. 1910) ("partition is a
possessory action; its purpose and effect being to give to
each of a number of joint owners . . . his [or her] share in
second order, under Pa.R.Civ.P. 1570, does one of three
things. A Rule 1570 order may (1) divide the partitioned
property among the parties, (2) force one or more of the
parties to sell their interest in the land to one or more of
the parties, or (3) sell the land to the general public and
distribute the proceeds among the parties.
1, the court must determine whether the property is
partitionable under law. In other words, Part 1 is to
I. Do the parties jointly own the real estate in question?
II. If so, what fractional legal interests in the property