Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kapcsos v. Benshoff

Superior Court of Pennsylvania

July 27, 2018


          Appeal from the Judgment Entered March 8, 2016, In the Court of Common Pleas of Cambria County Civil Division at No(s): No. 2014-4183.



          KUNSELMAN, J.:

         Adam K. 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.

         Mr. 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 2.[1] 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.

         Next, 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.[2]

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.

         Trial Court Order, 7/10/15. Ms. Benshoff filed exceptions, which the trial court overruled in a January 11, 2016 Order.

         Ms. Benshoff appealed. A three-judge panel of this Court affirmed in part and revered in part. We granted reargument en banc.

         Although 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.

         "Jurisdiction 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. Super. 2010).

         We 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.

         The 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 severalty").

         The 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.

         In Part 1, the court must determine whether the property is partitionable under law. In other words, Part 1 is to ascertain:

I. Do the parties jointly own the real estate in question?
II. If so, what fractional legal interests in the property does ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.