J-A15025-22
2022 PA Super 137
DEBORAH S. FUNK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
VIOLA E. EMPFIELD, DONNA L. :
YATSKO, AND DIANE M. GREENE :
:
Appellants : No. 1238 WDA 2021
Appeal from the Order Entered September 22, 2021,
in the Court of Common Pleas of Indiana County,
Civil Division at No(s): 11060 C.D. 2019.
BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.
OPINION BY KUNSELMAN, J.: FILED: AUGUST 10, 2022
In this partition action, Viola Empfield, Donna Yatsko, and Diane Greene,
appeal from an order denying their exceptions to the master’s initial report.
Because the trial court has not yet fully and finally partitioned the property,
the appealed-from order is interlocutory. Thus, we lack appellate jurisdiction
and quash this premature appeal.
Mrs. Viola Empfield and her husband owned a farm in Indiana County.
They had three daughters, Ms. Yatsko, Ms. Greene, and Deborah Funk. In
2011, the Empfield Farm consisted of a farmhouse and other structures, and
the Empfields deeded Ms. Funk 50% interest in the property and retained a
50% interest, as joint tenants, with right of survivorship. A few months later,
Ms. Funk and her husband built another residence and garage on the property.
In December of 2015, Mrs. Empfield acquired her husband’s interest in
the farm. Three years later, she conveyed her 50% interest to herself, Ms.
Yatsko, and Ms. Greene, as joint tenants, with right of survivorship.
J-A15025-22
Ms. Funk then commenced this partition action against her mother and
two sisters. The trial court entered an order directing that the property be
equitably partitioned, and the case proceeded before a master.
Following an evidentiary hearing, the master submitted a report to the
trial court on how he believed the property should be divided. However, the
master did not divide the property into final, definitive purparts, because he
held that “the parties shall have input into the exact, final location of the
borderline before final subdivision is approved by the proper government
agencies.” Master’s Report, 8/6/21, at 12.
Nor did the master resolve the following issues between the parties:
Establishing language for an easement and maintenance of common
facilities that the parties will share, such as the driveway and spring.
Determining and imposing the parties’ costs for the master, the
appraiser, the stenographer, the surveyor, subdivision approval, and
recording of documents.
Further relief as the trial court deems appropriate.
See id. at 12-13.
Both parties filed exceptions to that initial report, which the trial court
denied in a September 22, 2021 order. The trial court confirmed the master’s
general scheme for partitioning the property and gave the master further
instructions as follows:
The master shall employ a surveyor, at the expense
of the parties, to obtain subdivision approval, provided that
the parties may have involvement in determining the exact,
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final location of the boundary line by providing input to the
master before a final subdivision is approved by the proper
governmental agencies. [Thereafter], the master shall
prepare and record the deeds partitioning the property[1] in
conformity with the subdivision approval, and shall include
in the deeds provisions for the easements and the
maintenance agreements needed to describe and define the
permitted uses of the common facilities the parties will
share, such as the driveway, and possibly the spring, if the
party whose land does not include the spring elects to have
access to the spring, or access to the spring is necessary to
obtain subdivision.
The parties shall each promptly pay one-half of the
fees and costs of the master, the master’s appraiser, the
court reporter used at the hearing, the surveyor, and any
other costs or expenses essential to complete the
subdivision approval and recording of documents required
to complete the partition.
Order, 9/22/21, at 1-2 (some capitalization omitted).
Ms. Empfield, Ms. Yatsko, and Ms. Greene appealed from that order.
Before reaching the merits of their claims of error, we must consider our
appellate jurisdiction. In short, we ask whether the September 22, 2021 order
is appealable.
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1 We note that this portion of the order adopts the master’s recommendation
that the parties or the master “prepare the partition deeds . . . .” Master’s
Report, 8/6/21, at 12. Deeds are unnecessary, because a final order of court
“itself operates as such a conveyance.” 23 Standard Pa. Practice 2d §122:162
at 172-73 (citing Kaufmann v. City of Pittsburgh, 93 A. 779 (1915)).
Where, as here, a trial court decides to award purparts to several owners
“it will convey ownership to the parties by its Part 2 order, which the Recorder
of Deeds will record. No deed is executed, because the order serves as the
conveyance.” Kapcsos v. Benshoff, 194 A.3d 139, 143 (Pa. Super. 2018)
(en banc). The parties are not conveying the property (and, hence, not
deeding it) to each other. Instead, the court is ordering them to take a
purport, presumably against the wishes of one or more parties.
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“Neither party has raised this issue; however, it is well-settled that this
Court may raise the issue of our jurisdiction sua sponte.” Zablocki v.
Beining, 155 A.3d 1116, 1118 (Pa. Super. 2017). “Jurisdiction is purely a
question of law; the appellate standard of review is de novo, and the scope of
review plenary.” Kapcsos v. Benshoff,
194 A.3d 139, 141 (Pa. Super. 2018)
(en banc).
In Kapcsos, this Court reviewed the two parts of a partition action. We
explained that both parts must be followed to protect the rights of the parties
and their heirs. Part 1 is to decide if the plaintiff may maintain a partition
action and what legal interests in the property, if any, the parties share. If
the trial court rules that the parties jointly own the property, then it enters an
order directing partition, which is immediately appealable. Part 2 involves the
separation of the property into purparts or its sale. See id.
We opined that, “If the property is never partitioned via a Part 1 order,
the court has nothing to divvy-up in Part 2, because the parties still own
undivided interests in the whole.” Id. at 145 (emphasis in original).
Ultimately, “the failure of the parties to secure and record a Part 1 order
partitioning the property deprived the trial court of jurisdiction to conduct Part
2.”
Id. Therefore, we quashed the appeal.
In reaching that decision, we said, “Each part, by rule, must produce its
own, distinct, appealable order.” Id. at 141. To the extent this statement
seemingly permits an immediate appeal from any Part 2 order, rather than a
final judgment, we clarify that statement.
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Kapcsos did not consider when appellate rights ripen after Part 2,
because, in Kapcsos, we focused on Part 1 and the jurisdiction of trial courts.
Thus, so far as the above statement may be read to allow an immediate appeal
from any Part 2 “order,” the statement was dicta; it does not bind this panel.
See, e.g., In re L.J., 79 A.3d 1073, 1081 (Pa. 2013) (explaining that stare
decisis is inapplicable to issues not considered and adjudicated in a prior
decision). As we explain, the appealable “order” after Part 2 is either (1) an
order disposing of post-trial motions and entering judgment or (2) the
prothonotary’s entry of judgment based on the praecipe of a party.
Turning to the instant matter, Ms. Empfield, Ms. Yatsko, and Ms. Greene
have appealed from an order overruling their exceptions to the master’s initial
report during Part 2. That order is not appealable.
To begin, we recall that a Part 1 order – i.e., an order directing partition
– is interlocutory but immediately appealable, as of right, under Pennsylvania
Rule of Appellate Procedure 311(a)(7). See Kapcsos, supra. However, an
order entered during Part 2 that divides the property into purparts or sells it
is not immediately appealable under that Rule. See
Zablocki, supra (holding
that an order directing a sale is not immediately appealable pursuant to
Pa.R.A.P. 311(a)(7)). In light of that holding, our appellate jurisdiction must
rest upon some other ground; we find none.
It is settled law “that an appeal will lie only from a final order unless
otherwise permitted by statute.” Gasper v. Gasper, 432 A.2d 613, 615 (Pa.
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Super. 1981). “A final order disposes of all claims and of all parties . . . .”
Pa.R.A.P. 341.
Here, the trial court’s order clearly did not dispose of all claims. Instead,
it directed the master to proceed further in dividing the property into definitive
purparts. The court ordered the master to “employ a surveyor” to locate the
“exact, final location of the boundary line . . . before final subdivision is
approved by the proper governmental agencies . . . .” Order, 9/22/21, at 1.
From this language alone, we conclude the order was not final, because the
“final location of the boundary line” and the “final subdivision” remain
undecided. Id. Indeed, the order invites more litigation by welcoming the
parties’ input. Additional issues may arise concerning where, precisely, to
draw the boundary line.
Beyond that concern, the trial court directed the master to establish an
easement for the property’s driveway and to draft language regarding its use
and maintenance. The master must also craft an order governing the shared
facilities and use of the spring on the property.2 Any of these matters may
produce added points of contention between the parties.
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2 We note that the master used the word “agreement” to describe these future
determinations. To the extent the parties might agree on the easement and
facilities-management language, the master or the court may enter a consent
decree. If the parties cannot agree, however, the master or the court will
need to adjudicate that dispute and incorporate the decision into its Part 2
order. For a sample Part 2 order fully confirming a master’s report, see 23
Standard Pa. Practice 2d §122:159 at 168-69.
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Finally, the fees and costs for the master, appraiser, expert, court
reporter, local-governmental approval of the subdivision, and recordings of
documents are unknown, much less resolved. If a dispute over those amounts
emerges, that could serve as yet another basis for seeking post-trial relief and
a subsequent appeal.
Affirming the September 22, 2021 order would not end this litigation,
because the master still has work to do. That might lead to another round of
appeals. Thus, if we decided the issues raised in this appeal, we would violate
the “policy of precluding piecemeal determinations and the consequent
protraction of litigation” that interlocutory appeals produce. Pugar v. Greco,
394 A.2d 542, 545–46 (Pa. 1978).
The September 22nd order is not final, because it does not dispose of all
claims and issues pending before the trial court. Like the order in Zablocki,
supra, which partitioned the property by directing a judicial sale of the land,
this order is “interlocutory and non-appealable.” Zablocki,
155 A.3d at 1118.
Furthermore, the order is not “collateral to the main cause of action;” hence,
it is not appealable under Pa.R.A.P. 313.
Although we recognize that a partition action is nuanced, in many ways,
it is like any other civil case. “Except as otherwise provided in this chapter,
the procedure in an action for the partition of real estate shall be in accordance
with the rules relating to the civil action.” Pa.R.C.P. 1551. Thus, when the
Rules of partition do not directly contradict the other Rules of Civil Procedure,
the general Rules apply. See Pa.R.C.P. 132.
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Generally, civil non-jury decisions are subject to post-trial motions. See
Pa.R.C.P. 227.1. A Part 2 order is subject to post-trial-motion practice, unless
the Rules of partition state otherwise. We find nothing so dictating.3 Indeed,
Rule 1573 provides for post-trial motions following an order directing sale
and distribution of the proceeds. While such a sale was not ordered here, Rule
1573 demonstrates that the Supreme Court expects Part 2 of a partition action
to conclude with post-trial motions. In fact, in Jacobs v. Stephens, 889 WDA
2020, 293 WDA 2021, 2022 WL 278839 (Pa. Super. 2022) (unpublished), this
Court recently dismissed as waived all issues that an appellant failed to raise
in post-trial motions following a non-jury decision in Part 2 of a partition
action. We agree with Jacobs in that regard.
In civil matters, an “appeal to this Court can only lie from judgments
entered subsequent to the trial court’s disposition of post-[trial] motions, not
from the order denying post-trial motions.” Raheem v. Univ. of the Arts,
872 A.2d 1232, 1234 (Pa. Super. 2005); see also Jacobs, supra at *1, n.1
(accord). Nothing in the Rules for partition actions directs otherwise. As such,
we hold, following Part 2 of a partition action, an appeal properly lies from the
judgment entered after the trial court disposes of post-trial motions.
Because the interlocutory order before us is not a final judgment, we
have no appellate jurisdiction over it.
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3 We note that a Part 1 order is exempt from post-trial motions, if, but only
if, the trial court directs partition. See Pa.R.C.P. 1557.
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/10/2022
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