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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK FORKAL, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDOLPH FORKAL,
Appellant No. 2053 MDA 2015
Appeal from the Order Entered October 27, 2015
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2007-1140 C.P.
MARK FORKAL, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RANDOLPH FORKAL,
Appellee No. 2173 MDA 2015
Appeal from the Order Entered September 15, 2014
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 1140-2007 CP
MARK FORKAL, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDOLPH FORKAL,
Appellant No. 94 MDA 2016
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Appeal from the Order Entered December 22, 2015
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2007-1140
MARK FORKAL, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RANDOLPH FORKAL,
Appellee No. 206 MDA 2016
Appeal from the Order Entered September 15, 2014
In the Court of Common Pleas of Susquehanna County
Civil Division at No(s): 2007-1140
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 20, 2016
The appeals at docket numbers 2053 MDA 2015, 2173 MDA 2015, 94
MDA 2016, and 206 MDA 2016 involve a dispute over two parcels of
property in Susquehanna County, Pennsylvania. On August 26, 2016, this
Court, sua sponte, consolidated the four appeals for disposition. After
careful review, we vacate the order underlying the appeal at 2053 MDA 2015
and remand for a new valuation hearing. Additionally, we quash the appeals
at 2173 MDA 2015, 94 MDA 2016, and 206 MDA 2016.
*
Former Justice specially assigned to the Superior Court.
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The relevant facts and convoluted procedural history of this matter are
as follows:
This case originated from an action in partition filed on
August 10, 2007 concerning property located in Springville
Township, Pennsylvania. Mark Forkal (hereinafter, [“Mark”]) filed
a Complaint in Partition against Randolph Forkal (hereinafter,
[“Randolph”]) concerning a specific devise from the Will of the
Estate of Virgie Forkal[, Mark and Randolph’s late mother].
[Mark and Randolph] are brothers and owned the property as
tenants in common, but a deterioration of their sibling
relationship instigated this litigation. [Mark] requested that this
Court grant relief, specifically that two identified parcels in the
complaint be equitably divided, that this Court grant [Mark] one-
half of the market value of equipment on said land, and one-half
of the fair market rental value of the property that [Randolph]
had occupied since the death of Virgie Forkal.
This action has been on-going for a prolonged period of
time, and several opinions have been issued regarding this
matter. Because of this, those Opinions can be referenced for a
lengthy and specific recitation of the facts and procedural history
of this case and an abbreviated version will be set forth up until
the proceedings relevant to the issue at hand:
While co-tenants, each party signed separate leases with
different gas companies for the oil and gas rights to the land.
After a partition hearing occurred on March 20, 2009, the Master
of Partition (Raymond C. Davis, Esq., hereinafter “the Master [”])
filed a Report and Recommendation which stated that the land in
question could not be partitioned without prejudice. As a result,
the Master recommended that a private sale of the property
should take place.
Between 2009 and 2014, several Exceptions to the
Master’s Report and Amended Master’s Reports were filed.
[Randolph] also appealed many of this Court’s Orders to both
the Superior Court and the Supreme Court of Pennsylvania.
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Finally, on June 16, 2014, a Private Sale Hearing occurred
wherein [Mark] was successful in bidding on the property [in]
the amount of $5,001,000.00.
The Return of Sale of the Master Partition was
subsequently filed on July 10, 2014. An Order Confirming
Master’s Partition Sale was executed on July 9, 2014 and filed on
July 10, 2014. On July 17, 2015, [Randolph] filed a Motion for
Post-Trial Relief. On August 18, 2014, [Randolph] filed a Brief in
support thereof. [Mark] filed a Motion to Dismiss [Randolph’s]
Motion for Post Trial Relief on August 1, 2014.
On August 11, 2014, [Mark] then filed a Petition for Escrow
of Oil and Gas Royalties. On August 25, 2014, a hearing took
place before this Court over [Randolph’s] Motion for Post-Trial
Relief and [Mark’s] Petition for Escrow of Oil and Gas Royalties.
[Randolph] filed an Answer to [Mark’s] Petition for Escrow
of Oil and Gas Royalties on August 29, 2014. Also, on August 29,
2014, [Randolph] filed a Motion for a Hearing on Post Trial
Relief.
On September 14, 2014 this Court issued an order
granting [Randolph’s] Motion for Post-Trial Relief and denying
[Mark’s] Motion to Dismiss, [Mark’s] Petition for Escrow of Oil
and Gas Royalties, and [Mark’s] Motion for Hearing on Post Trial
Relief. The Court ordered that the June 16, 2014 sale of the
property to be set aside, that a new appraisal of the property
commence within 45 days, ordered discovery of leases be within
30 days and that a “re-hearing of the matter be held within 60
days to determine the proper value of the property.” On October
14, 2014, an appraisal was completed.
During this time, a number of discovery motions and
orders were filed and issued. On January 7, 2015, this Court
issued an order granting [Randolph’s] Motion for Enlargement of
Time to Conduct Discovery. No further discovery was requested.
On March 30, 2015, the Master sent a letter to the parties
to schedule the sale of the Surface only of the subject property.
[Randolph] protested the continuation of proceedings.
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On April 23, 2015, the Master petitioned this Court to be
allowed to proceed and schedule the sale of the property; the
Master asserted that it was his belief that discovery was
completed and that a re-hearing was unnecessary because “the
appraisal obtained by the Master pursuant to the Court Order
dated September 15, 2014, speaks to the proper value of the
property.” The Master’s Motion, p. 2 ¶ (b). The same day, this
Court ordered the Master to schedule the private sale of the
property. [Randolph] filed numerous motions in protest of the
scheduled sale of the property.
On October 1, 2015, the Master sent a letter to counsel for
both parties concerning potential dates of sale. On October 7,
2015, the Master conducted a private sale between the two
parties. On October 27, 2015, the Master filed a proposed Return
of Sales and Schedule of Distribution along with the proposed
Order. The Report of Sale noted a successful bid by [Mark] in the
amount of $739,000.00.
On October 29, 2015, [Randolph] filed a Motion for Post
Trial Relief that is the subject the matter at hand. [Randolph]
alleges that the sale should be set aside because of inadequate
price; and the Master’s alleged violation of both the Pennsylvania
and Susquehanna County Rules of Civil Procedure. [Randolph]
requests that this Court grant its Motion for Post Trial Relief,
order a re-hearing to determine the property value of the subject
property, order expedited discovery be conducted in the matter,
order a resale of the surface of the disputed parcels, and that
the Court grant any other relief as is just and equitable.
Trial Court Opinion, 12/22/15, at unnumbered 1-4.
The order confirming the sale was filed October 27, 2015. This order
disposed of all claims and all parties, and it made final all previously filed
interlocutory orders including the April 23, 2015 order. See Betz v.
Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012) (holding that “an appeal of a
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final order subsumes challenges to previous interlocutory decisions”);
Pa.R.A.P. 341 note (“A party needs to file only a single notice of appeal to
secure review of prior non-final orders that are made final by the entry of a
final order[.]”).1 On October 29, 2015, Randolph filed a post-trial motion for
reconsideration. The trial court did not immediately file an order disposing
of Randolph’s motion, and Randolph properly filed his notice of appeal which
was docketed by this Court at 2053 MDA 2015.
For clarity, before we reach the merits of the appeal at 2053 MDA
2015, we must address the filings at the other docket numbers in this
appeal. On December 14, 2015, Mark filed a separate appeal titled as a
cross-appeal from an order filed on September 15, 2014. This Court
docketed that cross-appeal at 2173 MDA 2015. However, an appeal must be
filed within thirty days after the entry of the order from which the appeal is
taken. Pa.R.A.P. 903(a).2 Mark’s December 14, 2015 appeal, wherein he
1
On May 15, 2015, Randolph filed a timely appeal from the April 23, 2015
order which was docketed at 828 MDA 2015. On August 11, 2015, this
Court quashed that appeal because the underlying order did not dispose of
all claims and “anticipated further proceedings.” Order, 8/11/15. Thus, we
are satisfied that Randolph’s appeal from the October 27, 2015 final order
was the proper method by which to challenge the April 23, 2015 order.
2
To the extent that Mark titled and intended his appeal as a cross-appeal, it
is untimely as a cross-appeal as well. “[I]f a timely notice of appeal is filed
by a party, any other party may file a notice of appeal within 14 days of the
date on which the first notice of appeal was served, or within the time
otherwise prescribed by this rule, whichever period last expires.” Pa.R.A.P.
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attempts to appeal from the September 15, 2014 order, is patently
untimely. Additionally, even if we conclude that the September 15, 2014
order was not final until the filing of the October 27, 2015 order, Mark’s
appeal remains untimely because it was filed more than thirty days later.
Thus, Marks’ appeal at 2173 MDA 2015 was untimely, and we quash.
Next, despite being divested of jurisdiction due to Randolph’s timely
November 24, 2015 appeal pursuant to Pa.R.A.P. 1701, the trial court
entered an order denying Randolph’s post-trial motion on December 22,
2015. Inexplicably, Randolph filed an appeal from this order on January 12,
2016, which this Court docketed at 94 MDA 2016. Because the trial court
was without jurisdiction to enter the December 22, 2015 order, the appeal
from that order also is a nullity, and we quash.
Finally, we note that after Randolph filed the superfluous appeal on
January 12, 2016, Mark filed a cross-appeal on February 2, 2016, which this
Court docketed at 206 MDA 2016. Because the trial court was without
jurisdiction to file its December 22, 2015 order, Randolph’s January 12, 2016
appeal was a nullity, rendering Mark’s cross-appeal a nullity as well.
Moreover, Mark’s cross-appeal was untimely pursuant to Pa.R.A.P. 903(b).
903(b). As noted, Randolph’s appeal was filed on November 24, 2015, and
Mark’s “cross-appeal” was not filed until December 14, 2015, more than
fourteen days later.
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For the reasons set forth above, we quash the appeals at 2173 MDA
2015, 94 MDA 2016, and 206 MDA 2016. Accordingly, we address only
Randolph’s appeal from the October 27, 2015 order.
In his appeal, Randolph raises the following issues:
1. Did the Court of Common Pleas err by allowing the Master in
Partition, Raymond C. Davis, to present an ex parte Motion
without any notice to Randolph Forkal or opportunity for
argument, in violation of both Pennsylvania Rule of Civil
Procedure 208.3 and Susquehanna County Rules of Civil
Procedure 208.3(a) and 206.1?
2. Did the Court of Common Pleas err by ostensibly issuing an
Order, the result of an ex parte Motion, that is contrary to its
September 15, 2014 Order requiring a re-hearing of the matter
to determine the proper value of the property?
3. Did the Senior Visiting Judge Vanston have the authority to
reconsider Judge Seamans’ September 15, 2014 and April 23,
2015 Orders?
4. Whether the October 7, 2015 sale should be set aside because
the value of the property was unknown at the time of the sale,
outstanding issues relevant [to] the value of the property were
unknown at the time of the sale, and the sale price was grossly
inadequate?
5. Whether the Master in Partition violated his duties owed to the
Parties[?]
Randolph’s Brief at 6-7. After reviewing the record, we conclude that we
may dispose of Randolph’s issues concurrently.
Partition of real property is governed by Pennsylvania Rules of Civil
1551-1575. Interpretation of these rules involves questions of law, and our
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standard of review is de novo. LaRue v. McGuire, 885 A.2d 549, 553 (Pa.
Super. 2005).
Our Rules of Civil Procedure provide as follows:
A master who is appointed by the court shall make such
examinations and hold such hearings as may be necessary,
giving reasonable notice thereof. The master may employ
appraisers and, with the authorization of the court, such other
experts as are necessary to enable the master to perform his or
her duties.
Pa.R.C.P. 1559. Therefore, in order to proceed in certain facets of partition,
Rule 1559 contemplates a master obtaining authorization from the trial
court. Accordingly, we discern no impropriety in the Master filing the April
23, 2015 motion with the trial court.
However, we must point out that the April 23, 2015 motion bears no
certificate of service pursuant to Pa.R.Civ.P. 208.2(4), and there is no
evidence that the parties were apprised of the motion. Moreover, despite
the absence of notice, the trial court ruled on the Master’s motion the same
day it was filed. This ruling was based solely on the ex parte motion filed by
the Master, wherein the Master averred that he “believes that all matters
have been handled.” Ex Parte Motion, 4/23/15, at ¶ 9. Indeed, absent an
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opportunity to be heard,3 there is no basis in the record for the trial court’s
conclusions other than the Master’s stated beliefs.
What is clear from the record is that the September 15, 2014 order
was not followed, discovery is incomplete, there was an ex parte
communication between the Master and the Court, and the trial court
granted the Master’s request despite the fact that the September 15, 2014
order had not been followed.
This convoluted history spawned an unnecessarily cumbersome
procedure and resulted in prejudice because there was no opportunity for
the parties to be heard regarding the Master’s ex parte motion. As such, we
vacate the October 27, 2015 order and the order granting the Master’s ex
parte motion and remand for the parties, the Master, and the trial court to
comply with the September 15, 2014 order. When the terms of the
September 15, 2014 order have been satisfied, a new valuation hearing shall
be held.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
3
See Pa.R.Civ.P. 208.3 (setting forth the decisional procedure for motions
including oral argument thereon).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2016
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