J-S33020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DWAYNE G. WEAVER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE E. WEAVER :
:
Appellant : No. 210 MDA 2019
Appeal from the Order Entered January 2, 2019
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2016-395
BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2019
George E. Weaver appeals from the order entered January 2, 2019, in
the Court of Common Pleas of Centre County, denying his post-verdict motions
and making final the trial court’s judgment entered on September 4, 2018.
This timely appeal is taken from a non-jury trial regarding land partition issues
between brothers, George E. and Dwayne G. Weaver. George Weaver now
raises two jurisdictional issues and four claims of trial court error. After a
thorough review of the certified record, submissions by the parties and
relevant law, we affirm based on the trial court opinion. We provide additional
reasoning regarding the challenge to jurisdiction.1
____________________________________________
1 Because we rely on the trial court opinion, we need not provide detail on the
four claims of trial court error. Those claims are the trial court erred: 1) in
applying offsets, 2) applying Pa.R.C.P. 1560(a) rather than Pa.R.C.P. 1560(b)
or (c), 3) using an average valuation of the appraisals, and 4) considering
evidence of Appellee’s [Dwayne G. Weaver] residence.
J-S33020-19
We refer to the trial court opinions dated September 4, 2018 and
January 2, 2019 for a brief review of the underlying facts.
On February 1, 2016, Dwayne Weaver (“Dwayne”) filed a Civil
Complaint for Partition and Division of Property which named his
brother, George Weaver (“George”) as the Defendant. On
February 26, 2016, George filed an Answer and New Matter to the
Complaint for Partition. Upon agreement of the parties, the Court
entered an Order Directing Partition of the property in question on
March 28, 2018. Also on March 28, 2018, the Court held a Non-
Jury Trial on this matter, which included a view of the property
subject to partition. Both parties submitted Proposed Findings of
Fact and Conclusions of Law on April 13, 2018.
Trial Court Opinion, 9/4/2018, at 1.
Further,
This case arises from a Complaint in Partition filed by [Dwayne G.
Weaver] seeking division of property held by brothers Dwayne and
George as tenants-in-common. This case proceeded to a Non-
Jury Trial on March 28, 2018. Before the Court took testimony,
the parties agreed to the entry of an Order directing partition of
the property. The Court dictated said Order, but through an
administrative error, the Order was never produced and filed of
record. The Court proceeded to take testimony and evidence and
issued an Opinion and Verdict on May 9, 2018. [George Weaver]
filed an appeal on June 11, 2018 and the Superior Court remanded
the case due to the procedural defect. This Court then entered a
Part 1 Order directing partition on September 4, 2018 and, on that
same date, re-issued its Opinion and Verdict.
Trial Court Opinion, 1/2/2019, at 1-2.2
____________________________________________
2 Kapcsos v. Benshoff, 194 A.3d 139 (Pa. Super. 2018) (en banc), makes it
clear that the Pennsylvania Rules of Civil Procedure require two separate
orders in a partition action. Pursuant to Kapcsos, the Part 1 order determines
whether the property is properly subject for partition and what portion(s) of
the property are at issue. The Part 1 order determines the parameters of the
pie (this metaphor is taken from Kapcsos) that is to be divided. This order
may be immediately appealed. Once the Part 1 parameters have been set,
the Part 2 order actually partitions the property. This order is also appealable.
-2-
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As noted above, George Weaver’s first two issues address the
jurisdictional question raised by the initial ministerial omission regarding the
stipulated order directing partition. First, George Weaver posits the trial court
had no jurisdiction to conduct the non-jury trial without the Part 1 order having
been filed, and second, he claims the subsequent entry of the Part 1 order, on
remand, with the re-entry of the verdict, failed to correct the error. George
Weaver relies on Kapcsos, supra, and Jacobs v. Stephens, 204 A.3d 402
(Pa. Super. 2019) to support his claim. We disagree.
All parties agree that such a stipulation occurred and that the Part 1
order was meant and anticipated to be filed. Accordingly, all parties agreed
to proceed with the non-jury trial. Because the order directing partition was
stipulated to between the parties, there was no reason to wait for the 30-day
appellate period to expire before taking testimony on the substance of the
issue. Clearly, no one complained at the time that the non-jury trial was
premature. Had the Part 1 order been filed as expected, this would not have
been at issue.
It was not until George Weaver appealed the judgment that the Superior
Court noticed, sua sponte, that the Part 1 order had not been entered of
record, rendering the appeal premature. The Superior Court also noticed that
George Weaver had filed his appeal prior to the trial court ruling on his post-
trial motion. Without a ruling on his post-trial motion, no judgment could be
entered. Without a judgment, the appeal was again, premature. Therefore,
the appeal was quashed. See Order, 8/23/2018.
-3-
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Interestingly, the sua sponte, per curiam order of our Court only
recognized that the failure to enter the Part 1 order divested the trial court of
jurisdiction to enter the Part 2 order and therefore rendered that appeal
premature. Specifically, our Court stated:
Even if post-trial motions were denied, this appeal is premature.
A review of the trial court docket reveals that an order directing
partition was not entered prior to the May 11, 2018 order.[3] “The
Pennsylvania Rules of Civil Procedure 1551-1557 split a partition
into two distinct, chronological parts. Each part, by rule, must
produce its own, distinct, appealable order.” Kapcsos v.
Benshoff, ___ A.3d ___, 2018 WL 3598666, at *2 (Pa. Super.
July 27, 2018). Failure to secure and record a Part 1 order
deprives the trial court of jurisdiction to enter a Part 2 order. Id.
at *5.
Order, 8/23/2018.
The order did not inform the trial court that Part 2 hearing was held
without jurisdiction, it told the trial court that the failure to record the Part 1
order divested the trial court of jurisdiction to enter the Part 2 order. This
interpretation of the order is the most logical. While in Kapcsos our Court
determined the trial court was required to retry Part 2 de novo,4 the
distinguishing features of the instant matter do not mandate that remedy. In
Kapcsos, the parties did not seek a Part 1 order and the trial court never
issued or entered a Part 1 order. This complete failure to adhere to the Rules
of Civil Procedure rendered the Part 2 order a nullity. Instantly, the parties
____________________________________________
3 The May 11, 2018 order contained the findings of fact and verdict.
4 See Kapcsos, 194 A.3d at 145.
-4-
J-S33020-19
sought a Part 1 order, the parties entered into a stipulation agreeing to the
requirements of a Part 1 order, and the trial court dictated the Part 1 order,
apparently to the satisfaction of the parties. Only a ministerial error prevented
the order from being docketed. The factual underpinnings of Kapcsos are far
different from those instantly present. Nonetheless, as the 8/23/2018 order
of our Court indicated, the failure to record the Part 1 order divested the trial
court of the jurisdiction to enter a final Part 2 order. In this circumstance, it
is the order that matters, procedurally, not the hearing. Kapcsos makes clear
that it is the Part 2 order that divides the property that is unsupportable
without the Part 1 order.
Accordingly, because the Part 1 order had been sought, was agreed to,
and was dictated, but inadvertently not docketed, we do not believe the
Kapcsos decision divested the trial court of the jurisdiction to take evidence
that would be used to determine the Part 2 order. The trial court and the
parties all knew the parameters of the Part 1 order before the non-jury trial
commenced. All of the procedural safeguards embodied in the Part 1 order
and required by Kapcsos existed. The failure to docket the Part 1 order had
no effect on the information collecting process that occurred during the non-
jury trial. The failure to docket the Part 1 order merely rendered the
subsequent Part 2 order a nullity.
We note as well that if the sua sponte order of August 23, 2018 was
meant to nullify the non-jury trial, there would have been no need to discuss
the failure to rule upon the post-verdict motions. If the sua sponte order was
-5-
J-S33020-19
meant to be interpreted as nullifying the non-jury trial, then the post-verdict
motions would have become legally irrelevant – objections to a trial that
legally never occurred.
George Weaver also argues that once our Court quashed the prior
appeal, the trial court’s order memorializing the Part 1 stipulation and then
re-issuing the original verdict was infirm pursuant to Jacobs v. Stephens,
204 A.3d 402 (Pa. Super. 2019). In Jacobs, the trial court combined the Part
1 and Part 2 orders in a single order that did not allow for appeals from each
order. Accordingly, our Court ruled upon the challenges raised in the Part 1
appeal, but quashed those issues related to the Part 2 appeal. Once again,
the instant facts are distinguishable. While it is true that after the prior appeal
was quashed, the trial court entered separate Part 1 and Part 2 orders on the
same day, making it impossible to appeal both orders. Unlike Jacobs, it was
apparent to the trial court from before the original appeal that there would be
no challenge to the Part 1 order, which was stipulated to by both parties.
George Weaver did not object to the stipulated Part 1 order when it was
dictated by the trial court, did not object to the order in the first appeal, and
has no objection to the merits of the stipulated Part 1 order now. Admitting
that there was a technical error in entering the required two orders on the
same day, the error was harmless in that the Part 1 order has never been,
and is currently not challenged. Because George Weaver never sought to
renege on his stipulated agreement, he was not harmed by the entry of dual
orders on the same day.
-6-
J-S33020-19
George Weaver has presented arguments regarding the Part 1 order
that track, in many ways, the Kapcsos and Jacobs cases. However, the
factual differences between the instant matter and those cases that we have
highlighted, lead us to distinguish this appeal. While George Weaver’s
arguments may appear at first glance to be inviting, strict application of
Kapcsos and Jacobs would lead to an absurd result. Here, the protections
required by separate Part 1 and Part 2 orders were provided, in fact, although
the Part 1 order was not docketed due to an administrative error. Strictly
applying Kapcsos would require the parties to spend extra time and money
retrying this matter to the same verdict.5
Similarly, if we were to vacate the Part 2 order and remand the matter
to allow the 30-day appeal period for the Part 1 order, George Weaver, who
has never, including now, sought to challenge any aspect of the Part 1 order,
would simply allow the 30-day period to expire and then refile this appeal,
bringing all parties back to the current position, except, of course, for the
additional time and money spent. We see no particular reason to impose this
burden upon the parties and the trial court.
In all other regards, we rely upon the able analysis of the trial court in
disposing of George Weaver’s remaining issues.
____________________________________________
5 There is nothing of record to suppose new evidence exists that could change
the verdict, nor is there any reason to suppose the trial court would change
any of the complained of rulings. Accordingly, the outcome would be the
same.
-7-
J-S33020-19
Regarding the four claims of trial court error, we have reviewed the
certified record, as well as the submissions by the parties, and find the trial
court’s reasoning on these claims to be supported by the record and free from
legal error. Accordingly, we rely on the trial court opinion in this regard.
George Weaver is not entitled to relief on these claims.
Judgment affirmed. Parties are directed to attach a copy of the trial
court’s 9/4/2018 and 1/2/2019 opinions in the event of further proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/08/2019
-8-
Received 2/22/2019 3 28:51 PM
Circulated Court Middle
Superior10/10/2019 District
10:12 AM
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
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OPINION AND VERDICT
On February I, 2016, Dwayne Weaver ("Dwayne") filed a Civil Complaint for Partition
an