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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROGER RUSH, LAWRENCE RUSH AND IN THE SUPERIOR COURT OF
CLARA CANNON PENNSYLVANIA
v.
MILLICENT RUSH AND LEORA LYTLE
APPEAL OF: MILLICENT RUSH AND
LEORA LYTLE, BY SUBSTITUTED PARTY,
DEBORAH GAIL SMITH
No. 165 WDA 2015
Appeal from the Order Entered December 30, 2014
In the Court of Common Pleas of Somerset County
Civil Division at No(s): 367 Civil 1995
BEFORE: SHOGAN, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 30, 2015
Millicent Rush (“Millicent”) and Leora Lytle (“Leora”), by substituted
party, Deborah Gail Smith (“Smith”), appeal the order entered December
30, 2014, in the Somerset County Court of Common Pleas, dismissing their
exceptions, and denying their motion to strike a Partition Master’s Report.
In the Report, the Master (1) determined that a 175-acre parcel, deeded to
Millicent and Leora, along with their siblings Roger Rush (“Roger”), Lawrence
Rush (“Lawrence”) and Clara Cannon (“Clara”), (collectively “the Plaintiffs”),
following the death of their mother, Sarah Jane Rush, was not capable of
division into purparts without prejudice to the whole property, (2) rejected
Millicent and Leora’s proposal that a specific 43.75-acre parcel be carved out
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and deeded to Leora, and (3) recommended the property be offered for
private sale among the parties. On appeal, Millicent and Leora argue the
trial court erred and abused its discretion in adopting the Master’s Report
because of the extreme delay between the Master’s hearings, in 1997 and
1999 respectively, and the issuance of the Report in 2011. For the reasons
that follow, we affirm.1
The parties are siblings, the children of William H. Rush and Sarah
Jane Rush. After William died in 1964, ownership of the subject property, a
200.09-acre tract in Somerset County, was transferred to Sarah. Upon her
death, on April 4, 1993, the property passed to their children, the parties
herein, as tenants-in-common. On June 21, 1995, the Plaintiffs, Roger,
Lawrence and Clara, initiated a partition action. Thereafter, the parties
agreed to transfer a 25-acre parcel of the property, which included a
farmhouse and barn, to Millicent as satisfaction of her interest in the subject
property. On July 5, 1996, the trial court entered an order, based upon the
agreement of the parties. See Order, 7/5/1996. The order further provided
the remaining 175 acres would be subject to partition “among the remaining
parties in proportion to their respective interests,” that is, each receiving a
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1
We note the record reveals that Lawrence died in June of 2002, but prior to
his death, transferred his interest in the property to Roger. Millicent later
died in March of 2010, and Leora died in February of 2011. Millicent’s
daughter, Deborah Gail Smith, is the substituted party for both of their
interests.
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one-fourth share. Id. A Master was appointed in August of 1996. The trial
court summarized the issue before the Master as follows:
The principal controversy presented to the Master [was] based
on the desire of the Plaintiffs to have the 175 acre residue sold
as a unit to include land and timber and thereafter to split the
cash proceeds versus [Leora and Millicent] who desire to have
the 175 acre residue divided into 43.75 acre tracts for
distribution to each of the remaining four cotenants. At least in
the alternative, [] Leora [] desires that a 43.75 acre parcel along
the east side of the Millicent Rush tract be conveyed to her in
kind and the balance of the property be divided among the
remaining three cotenants in any manner they desire.
Trial Court Memorandum Opinion, 1/2/2015, at 4.
After the Master took no action for more than a year, Millicent and
Leora filed a motion seeking to vacate the appointment and proceed to a
hearing before the trial court. On October 8, 1997, the trial court vacated
the original Master’s appointment, and substituted William T. Cline, Esq., to
serve as Partition Master. Two Master’s hearings were conducted on
November 24, 1997, and July 22, 1999, during which the parties each
presented expert testimony from a real estate appraiser and a professional
forester.
No subsequent action was taken for four years. In July of 2003, the
Master sent a letter to the parties setting a briefing schedule. The parties
submitted timely briefs in October of 2003. With no explanation provided in
the record, the case then laid dormant again until June of 2011, when the
trial court scheduled a status conference. Before the date of the conference,
however, on July 6, 2011, the Master filed a Preliminary Report. Relevant to
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this appeal, the Master found the following: (1) Millicent’s acceptance of the
25-acre parcel “completely satisfied her interest in this property and … she
has no claim on any of the balance of the property or the timber on [the]
residual property[;]” (2) the property “is not capable of division into pur
parts (sic) without prejudice to or spoiling of the whole[;]” (3) the Master
“does not have the authority to divide out a [43.75-acre] tract to be given to
Leora[;]” and (4) “the best course would be to offer the property to a private
bid sale among the parties[.]” Master’s Preliminary Report, 7/6/2011, at 13,
15, 17.
On July 11, 2011, Millicent and Leora filed both a motion to strike the
Master’s report, due to “the extraordinary passage of time,”2 and exceptions
to the Master’s report, challenging the Master’s legal and factual conclusions.
On May 16, 2012, the trial court conducted an evidentiary hearing.
Thereafter, on December 30, 2014, the trial court filed a memorandum
opinion and order denying Millicent and Leora’s motion to strike, and
dismissing their exceptions to the Master’s report. The order also scheduled
a settlement conference in January of 2015, “limited to either the
establishment of a beginning private sale bid price or upon the direction of
one or more appraisals to be commissioned by the parties.” Order,
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2
Defendants’ Motion to Strike Master’s Preliminary Report, 7/11/2011, at ¶
3.
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12/30/2014. The conference was conducted on January 21, 2015. The
same day, Millicent and Leora filed an appeal from the December 30, 2014,
Order.3
Before we address the substantive issues raised on appeal, we must
first determine whether the order before us is appealable. See In re Estate
of Moskowitz, 115 A.3d 372, 388 (Pa. Super. 2015) (“The appealability of
an order directly implicates the jurisdiction of the court asked to review the
order.”) (quotation omitted). The Plaintiffs filed a motion to quash this
appeal, which this Court preliminarily denied, without prejudice, to their
right to raise the issue before the merits panel. See Order, 6/19/2015. The
claim is now ripe for our review.
The Plaintiffs contend the trial court’s December 30, 2014, order was
not a final order under Pa.R.A.P. 341. They argue the court “went out of its
way to structure” the order “so it was not final in nature[,]” scheduling a
settlement conference for the following month. Plaintiffs’ Brief at 10
(emphasis omitted). Furthermore, they emphasize that, after the settlement
conference, the trial court entered an order, based on an agreement of the
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3
On January 23, 2015, the trial court ordered Millicent and Leora to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Millicent and Leora complied with the court’s directive, and filed a
concise statement on February 12, 2015.
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parties, establishing a timetable for the updated valuation of the property,
and expressly stating:
The Court AFFIRMS that the Order of December 30, 2014
determining that the property should be sold at private sale and
that the property was not divisible into purparts is NOT A FINAL
ORDER, and accordingly is not subject of appeal at this time.
Order, 1/21/2015. Therefore, the Plaintiffs assert Millicent and Leora are
now “estopped from claiming the December 30, 2014 Order is a final order
from which an appeal could be taken.” Plaintiffs’ Brief at 12. Moreover,
they claim, “[w]here more remains to be done in preparing for a partition
sale of property, an appeal from an earlier determination involving
exceptions to a master’s report is premature and should be dismissed or
quashed.” Id.
In response to the motion to quash,4 Millicent and Leora relied on this
Court’s decision in Bernstein v. Sherman, 902 A.2d 1276 (Pa. Super.
2006), in which the appellant filed an appeal from a decision granting
exceptions to a partition master’s recommendation, and providing for a
private sale of the property. Id. at 1277. While not directly addressing the
appealability of the order, the Bernstein Court, nevertheless, considered
the substantive issue on appeal.
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4
Millicent and Leora did not address the appealability of the December 30,
2014, order in their brief before this Court.
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In its Pa.R.A.P. 1925(a) opinion, the trial court acknowledged the
finality issue, noting that it had “attempted to avoid rendering a final
appealable order until after valuations were established[.]” Pa. R.A.P. 1925
Opinion, 4/10/2015, at 2. Nevertheless, the court declined “to comment on
whether the within appeal is from a final order or is an interlocutory appeal
lacking approval from the court.” Id.
While we recognize the valuation of the property is not complete, we
find the December 30, 2014, order constituted a final order for purposes of
resolving the primary conflict between the parties, that is, the division of the
property. Indeed, the trial court’s order decisively stated: “[F]or the
reasons set forth in the foregoing Memorandum Opinion [Millicent and
Leora’s] Exceptions are DISMISSED and the Motion to Strike Partition
Master’s Preliminary Report is DENIED.” Order, 12/30/2014. In rejecting
Millicent and Leora’s exceptions to the Master’s report, the trial court
conclusively determined that the 175-acre parcel was incapable of division
into purparts without prejudice to the whole. With regard to the outstanding
issue of an updated valuation, the order directed the parties to appear for a
settlement conference limited “to either the establishment of a beginning
private sale bid price or upon the direction of one or more appraisals to be
commissioned by the parties.” Id. Those remaining issues regarding
valuation were clearly ancillary to the main claim.
We agree that this Court’s decision in Bernstein supports our ruling.
Although the Bernstein Court did not specifically address the appealability
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of the order in question, the procedural posture of that case is similar to the
case sub judice.
In Bernstein, the parties sought partition of eight parcels of real
estate they owned as tenants-in-common. Bernstein, supra, 902 A.2d at
1277. The master recommended a partition plan, whereby each party would
receive four parcels, and provided a setoff to the party receiving the lower-
valued properties. Id. The party receiving the higher-valued properties
filed exceptions, “asserting his right to a private sale of the properties
between the parties.” Id. The trial court, thereafter, entered the order on
appeal, which granted the exceptions, and provided for a private sale of the
properties.
Here, the order on appeal denied Millicent and Leora’s exceptions to
the Master’s Report, but, like the order in Bernstein, also provided for a
private sale of the property to be conducted sometime in the future.
Significantly, the trial court’s December 30, 2014, order conclusively
determined that the 175-acre parcel was not capable of division without
prejudice. As such, the valuation of the property, and its subsequent sale,
are ancillary matters.5
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5
In support of their motion to quash, the Plaintiffs cite only an unpublished
decision of this Court, Forkal v. Forkal, 11 A.3d 1010 [1939 MDA 2009]
(Pa. Super. 2010) (unpublished memorandum), for the proposition that,
“[w]here more remains to be done in preparing for a partition sale of
property, an appeal from an earlier determination involving exceptions to a
master’s report is premature and should be quashed.” Plaintiffs’ Brief at 12.
(Footnote Continued Next Page)
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Moreover, we do not agree that Millicent and Leora are estopped from
claiming the trial court’s December 30, 2014, order is appealable. While it
does appear from the text of the court’s January 21, 2015, order that
Millicent and Leora may have, at least preliminarily, agreed the December
2014 order was not a final order,6 they are not estopped from taking a
contrary view in this appeal. “[T]here are two essential elements of
equitable estoppel: inducement and justifiable reliance on that inducement.”
GAF Corp. v. Cathcart, 574 A.2d 604, 608 (Pa. Super. 1990), appeal
denied, 589 A.2d 687 (Pa. 1990), and 589 A.2d 691 (Pa. 1990). Here, the
Plaintiffs make no claim they relied upon the agreement to their detriment.
Accordingly, we find the appeal is properly before us and may now address
the substantive claims.7
Our review of a ruling in a partition action is well-settled:
_______________________
(Footnote Continued)
However, a review of that decision reveals that the order in question not
only denied the appellant’s exceptions to the master’s report, it also directed
the master to employ an appraiser and, thereafter, issue an amended report
“including specific findings regarding the value and division of the
property.” Forkal, supra, unpublished memorandum at 2. Therefore, in
Forkal, unlike in the present case, the primary controversy between the
parties, i.e., how the shared real estate would be divided, was not
determined by the order on appeal.
6
We note that the certified record does not include any transcript from the
January 21, 2015, hearing.
7
In making this determination, we are also cognizant of the fact that this
partition action has been languishing in Somerset County for many years,
apparently through no fault of the parties.
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The scope of appellate review of a decree in equity is
particularly limited and such a decree will not be disturbed
unless it is unsupported by the evidence or demonstrably
capricious. The test is not whether we would have reached the
same result on the evidence presented, but whether the judge’s
conclusion can be reasonably drawn from the evidence. Where a
reading of the record reasonably can be said to reflect the
conclusions reached by the lower court sitting in equity, we
cannot substitute our judgment for that of the lower court. The
findings of the chancellor will not be reversed unless it appears
that he clearly abused his discretion or committed an error of
law.
Lombardo v. DeMarco, 504 A.2d 1256, 1258 (Pa. Super. 1985) (internal
citations omitted).
Partition actions are governed by the Pennsylvania Rules of Civil
Procedure. See Pa.R.C.P. 1551-1574. After the trial court grants partition
of jointly-owned property, it may appoint a master to determine whether the
property is capable of division without prejudice to or spoiling the whole.
See Pa.R.C.P. 1558(b), 1559. If the property is capable of division without
spoiling the whole, it is then divided “into as many purparts as there are
parties entitled thereto[.]” Pa.R.C.P. 1560(a). If the property is not capable
of proportional division, it is then “awarded equitably among the parties with
appropriate provisions for owelty.”8 Pa.R.C.P. 1562. However, if the
property is not capable of division into purparts without prejudice to or
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8
“Owelty” is defined as “[e]quality as achieved by a compensatory sum of
money given after an exchange of parcels of land having different values or
after an unequal partition of real property.” Bernstein, supra, 902 A.2d at
1278 n.2.
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spoiling the whole, Rule 1563 directs the property “shall be offered for
private sale confined to the parties.” Pa.R.C.P. 1563.
Here, the Master determined that the 175-acre parcel was not capable
of division without prejudice to the whole. Relying on his “personal view
of the property,” as well as the testimony of the parties’ experts, the Master
concluded the “topography” of the land parcel “is so vaired that a division
into pur parts (sic) would not result in parcels of equal value.” Master’s
Preliminary Report, 7/6/2011, at 15, 16. In doing so, the Master relied on
the following factual determinations: (1) the land was only accessible by a
dirt lane which was in poor condition; (2) the only level acreage on the land
was the 25-acre parcel given to Millicent; (3) the size and species of the
trees were not uniform through the acreage; and (4) the topography of the
land provided for “no other commercial use … other than timber production.”
Id. at 16. The trial court accepted these findings when it dismissed Millicent
and Leora’s exceptions to the Master’s report.
On appeal, Millicent and Leora contend the trial court abused its
discretion in accepting the Master’s report after a 12-year delay between the
date of the final partition hearing and the filing of the Report. Relying on the
doctrine of laches, they contend that the “[e]xtreme delay in the Master
filing his [r]eport should have compelled the Trial Court to disregard the
Master’s Recommendations.” Millicent and Leora’s Brief at 18. Specifically,
Millicent and Leora assert:
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The only equitable remedy for such a prolonged delay was to
allot [Leora] a forty-three (43) acre purpart as she requested. It
is well-established that actions in equity may apply the doctrine
of laches where there is inexcusable delay or failure to exercise
due diligence. In this case, the appointed Partition Master failed
to perform his duties with due diligence.
Id. Millicent and Leora further contend they suffered prejudice as a result of
the delay, in that the “costly timber and real estate appraisals and expert
testimony on those appraisals [are now] outdated and unreliable.” Id. at
19. Consequently, they allege the substituted party, Smith, will now “be
faced with the financial burden of essentially re-trying the Partition Action
fifteen (15) years after the case was initiated.” Id. at 20.
In its Rule 1925(a) opinion, the trial court rejected Millicent and
Leora’s claim that “the passage of time alone renders the report and
recommendation totally invalid.” Pa.R.A.P. 1925 Opinion, 4/10/2015, at 2.
While agreeing the timber and real estate appraisals were outdated, the
court, nevertheless, concluded the Master correctly determined that the
property was not capable of division into purparts without prejudice to the
whole. Id. at 2, 4. In doing so, the court relied on the Master’s factual
findings, which were “unchanged” in the 12 years since the last partition
hearing. Id. at 4. Specifically, the court noted:
The subject property is irregularly shaped, has poor natural or
man-made access, has areas of uneven and extreme sloped
terrain, lacks a homogeneous timber strain, and enjoys as its
only primary use hunting and/or timbering. … [T]he only prime
acreage consisted of the family homestead dwelling house and
outbuildings situate[d] in a meadowland which was the only
tillable area on the 200 acre parcel. This prime acreage was
conveyed to Millicent [] by agreement of the parties leaving only
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the rugged timberland for division among the four remaining
litigants. Even though a surveyor could lay out lines which
depicted 44 acre tracts for the remainders, those tracts would be
unequal in value due to the very nature of timber, the
topography, and road access.
Id.
We find no abuse of discretion on the part of the trial court. Although
Millicent and Leora’s experts opined the remaining 175 acres would not be
spoiled if Leora received her requested 43-acre parcel, the Master was free
to reject that testimony. See Werner v. Werner, 573 A.2d 1119, 1121
(Pa. Super. 1990) (“Absent an abuse of discretion or an error of law, we are
bound to accept the findings of the trial court or master, particularly where
the findings are largely dependent upon the credibility of the witnesses”),
appeal denied, 593 A.2d 843 (Pa. 1991). Indeed, Millicent and Leora’s real
estate appraiser admitted he did not view the entire 200-acre property, but
concentrated only on the proposed 43-acre parcel Leora wished to obtain.
N.T., 7/22/1999, at 16-17. Here, the trial court concluded that, due to the
varying conditions of the property, the parties would be prejudiced if the
acreage, or even part of the acreage, was divided into purparts. See
Pa.R.A.P. 1925 Opinion, 4/10/2015, at 4. We find the court’s conclusion is
supported by the record. Furthermore, we agree with the trial court’s
finding that the passage of time, alone, did not compel the wholesale
rejection of the Master’s report. See id. at 2. Although the valuation of the
land and timber may have changed over the 12 years since the last hearing,
the topography of the land did not.
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Moreover, Millicent and Leora’s reliance on the doctrine of laches is
misplaced.
The doctrine of laches is an equitable bar to the prosecution of
stale claims and is the practical application of the maxim that
“those who sleep on their rights must awaken to the
consequence that they have disappeared.” In order to apply
the doctrine to bar prosecution of a stale claim, the following
elements must be demonstrated: (1) a delay arising from
[plaintiff’s] failure to exercise due diligence; and (2) prejudice to
the [defendants] resulting from the delay.
Kern v. Kern, 892 A.2d 1, 9 (Pa. Super. 2005) (internal citations omitted),
appeal denied, 903 A.2d 1234 (Pa. 2006). Here, there is no support in the
record for a finding that the delay in the filing of the Master’s report was
attributable to a lack of “due diligence” on the part of the Plaintiffs. Id.
Therefore, the equitable remedy of laches is not applicable under the facts of
this case.
Lastly, we note the trial court concluded that even if the property was
capable of division without prejudice to the whole, the Plaintiffs, as majority
owners, had the right to reject the division of the property into purparts and
compel a sale. See Pa.R.A.P. 1925 Opinion, 4/10/2015, at 4.
Pennsylvania Rule of Civil Procedure 1563(b) provides, in relevant
part:
Parties defendant owning a majority in value of the property
may object in writing to any sale, requesting that the property
be awarded to them at its valuation fixed by the court and that
their interests in the same remain undivided.
Pa.R.C.P. No. 1563(b). Although Rule 1563(b) speaks to the majority
opposing a sale, the trial court interpreted the rule as providing majority
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owners “the absolute right to reject a division of the property into purparts
with owelty for equalization.” Pa.R.A.P. 1925 Opinion, 4/10/2015, at 5. See
also 5 Goodrich Amram 2d § 1563(b):3 (“The co-tenants owning a majority
in value of the property have the right, not only to block a private sale of the
property, but to compel a private sale of the property confined to the parties
even when a minority interest attempts to prevent it.”). Further, the court
observed, “The passage of time did not change the fact that the [P]laintiffs
were still the majority owners.” Pa.R.A.P. 1925 Opinion, 4/10/2015, at 5.
Again, we detect no basis to disagree with the sound logic of the trial court.
Accordingly, because we find the trial court did not err or abuse its
discretion in dismissing Millicent and Leora’s exceptions and denying their
motion to strike the Master’s report, we affirm the order on appeal.
Order affirmed. Motion to quash appeal denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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