J-A33013-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
LEEANN PAINTER-FRANCIS, : IN THE SUPERIOR COURT OF
EXECUTRIX OF THE ESTATE OF : PENNSYLVANIA
DOROTHY M. PAINTER, DECEASED :
:
v. :
:
TERRY L. PAINTER, JOY E. PAINTER :
HOWARD, RODGER C. PAINTER AND :
PAULA V. PAINTER, HIS WIFE, DAVID :
L. PAINTER AND CAROL A. PAINTER, :
HIS WIFE, AND DANIEL H. PAINTER :
:
APPEAL OF: TERRY L. PAINTER : No. 185 WDA 2016
Appeal from the Order Entered January 27, 2016
in the Court of Common Pleas of Westmoreland County,
Civil Division, at No(s): 5302 of 2008
*****
TERRY L. PAINTER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOY E. HOWARD, FORMERLY JOY E. :
PAINTER, DAVID L. PAINTER AND :
CAROL A. PAINTER, HIS WIFE : No. 901 WDA 2016
Appeal from the Order Entered June 2, 2016
in the Court of Common Pleas of Westmoreland County,
Civil Division, at No(s): 235 of 2016
BEFORE: LAZARUS, SOLANO, and STRASSBURGER, JJ.*
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED: FEBRUARY 27, 2017
*Retired Senior Judge assigned to the Superior Court.
J-A33013-16
The Partition Action (185 WDA 2016)
In this appeal, Terry L. Painter (Terry) appeals from a trial court order
denying exceptions to a final report of the Special Master, which provided
that Joy E. Howard Painter (Joy) had assigned her 1/10 share to Carol and
David Painter (Carol and David); thus, Carol and David held a 3/10 interest
in the real estate at issue. In other words, the trial court adopted the
Special Master’s report, which paved the way for the sale of the real estate.
Terry suggests that the order he has appealed from is a final order
pursuant to Pa.R.A.P. 341. However, “[a]n order directing the sale of real
estate is certainly not a final order, as it has not disposed of all claims, as
credits and debts remain to be considered.” Zablocki v. Beining, __ A.3d
__, 2017 WL 542021, at *2 (Pa. Super. Feb. 10, 2017). Accordingly, the
appeal at this docket number must be quashed as this Court does not have
jurisdiction to entertain it. Thus, I respectfully dissent as to the Majority’s
disposition of the partition action.
The Contract Action (901 WDA 2016)
In this appeal, Terry appeals from an order sustaining
preliminary objections and dismissing his complaint. Specifically, the trial
court concluded that the “issues raised and claims asserted in [Terry’s]
complaint were litigated, decided, and are currently on appeal in [this] Court
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J-A33013-16
in the partition action…, [thus,] the action is barred by pendency of the prior
action, principles of res judicata and collateral estoppel.” Trial Court Opinion,
3/1/2016, at 1 (unnecessary capitalization omitted).
“Pursuant to the doctrine of res judicata, a final judgment on the
merits by a court of competent jurisdiction will bar any future suit between
the parties or their privies in connection with the same cause of action.”
Yamulla Trucking & Excavating Co. v. Justofin, 771 A.2d 782, 784 (Pa.
Super. 2001) (emphasis added). Here, the final judgment relied upon by
the trial court is the order in the partition case. However, as we just pointed
out, the order in the partition case is not a final order. Accordingly, res
judicata cannot apply to this action at this juncture. Therefore, I agree with
the Majority decision to reverse the order of the trial court in the contract
action.
-3-
Painter-Francis, L. v. Painter, T.
Combined Opinion