Quarello, J. v. Clinger, K.

J-S55019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN W. QUARELLO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KATHRYN M. CLINGER : No. 544 WDA 2020

Appeal from the Judgment Entered July 31, 2020
In the Court of Common Pleas of Blair County Civil Division at No(s):
2018 GN 3709

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 10, 2021

John W. Quarello (Appellant) appeals from the judgment entered July

31, 2020, in the Blair County Court of Common Pleas, in this partition action.

The trial court granted partition of a property jointly owned by Appellant and

Kathryn M. Clinger (Appellee), and awarded Appellee an undivided 100%

ownership interest. On appeal, Appellant contends the trial court erred when

it determined: (1) the six year statute of limitations did not limit Appellee’s

recovery; (2) Appellee demonstrated the affirmative defense of laches; (3)

Appellee was entitled to credit for property taxes she paid during her exclusive

possession of the property; (4) Appellee was entitled to owelty for repairs; (5)

Appellant abandoned his interest in the property; and (6) Appellant was not

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* Retired Senior Judge assigned to the Superior Court.
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entitled to owelty for the fair rental value of the property. For the reasons

below, we affirm.

In its January 2, 2020, opinion, the trial court issued extensive findings

of fact, which we summarize, supplemented with the trial testimony, as

follows. See Trial Ct. Op., 1/2/20, at 3-9.1 On August 17, 1995, Appellant

and Appellee, as joint tenants with the right of survivorship, purchased the

subject property — located at 1206 27th Avenue in Altoona, Pennsylvania —

from Appellee’s grandmother’s estate for $30,000. Id. at 3. The parties were

involved in a romantic relationship, and have a daughter, but never married.

N.T. Trial, 10/3/19, at 38, 90. They financed the property with a mortgage

from AVCO in the names of both parties. Trial Ct. Op., 1/2/20, at 3. On

October 31, 1996, the parties refinanced the mortgage through Mellon Bank

in the amount of $63,288.50. Id. at 4. Although the mortgage remained in

both of their names, the refinanced loan was in Appellant’s name only. 2 See

N.T., Trial, at 46, 83. Over the years, the mortgage was reassigned several

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1 The trial court issued three opinions in this case — the first on January 2,
2020, following trial, the second on March 19, 2020, following the
reconsideration hearing, and the third, on June 3, 2020, in response to
Appellant’s Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

2 Appellee testified they decided not to include her name on the refinanced
loan because the bank would have insisted the extra money be used to pay
off her loans. See N.T., Trial, at 83-84. However, the parties wanted to use
the extra money for renovations. Id.

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times, with Bayview Loan Servicing as the final mortgage holder. Trial Ct.

Op., 1/2/20, at 4.

The parties lived in the home together, and shared all expenses, for ten

years. Trial Ct. Op., 1/2/20, at 4. Appellant testified that, during that period,

he completed several remodeling projects. Id. In the summer of 2005, the

relationship between the parties deteriorated, and Appellee moved out of the

residence with their daughter.3 Id. at 5. During that time, Appellant lived at

the property himself and paid the mortgage. See N.T., Trial, at 130. The

following year, Appellee desired to move back to the house, and hired an

attorney since Appellant had changed the locks. Id. at 92. Appellant

eventually agreed to vacate the home in August of 2006, and Appellee and

their daughter moved back in. Id. at 94. Appellee “testified that when

[Appellant] moved out, he told her that he wanted nothing to do with the

property.” Trial Ct. Op., 1/2/20, at 5. From August of 2006 until the present,

Appellee has remained in exclusive possession of the property. Id.

Several months after moving back in, Appellee received a notice of

mortgage foreclosure. See N.T., Trial, at 97, 132. She testified she had been

worried because she was not receiving the mortgage statements, but was

unable to obtain any information from the mortgage company because her

name was not on the loan. Id. at 97. After receiving the foreclosure notice,

which indicated the loan was more than $2,500 in arrears, Appellee contacted
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3Appellee testified she asked Appellant to leave the home, but he refused.
N.T., Trial, at 91.

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a credit counseling service to assist her. Id.; Trial Ct. Op., 1/2/20, at 5.

However, she was unable to obtain their assistance because Appellant’s name

was on the loan, and he refused to agree to the financing. See N.T., Trial, at

100. Appellee “testified that in order to save the property, she filed for

bankruptcy on June 24, 2007 under Chapter 13.” Trial Ct. Op., 1/2/20, at 5.

Through the bankruptcy proceedings, which lasted until March of 2012,

Appellee paid $42,824.08 on the mortgage and arrears. Id. at 6; N.T., Trial,

at 104.

Appellee testified that sometime in 2007, Appellant contacted her and

requested $10,000 “to sign his name off of the deed.” N.T., Trial, at 124.

However, nothing could be done at that point because the property was

included in the bankruptcy proceedings. Id. Thereafter, in April of 2012,

Appellant’s attorney sent Appellee a letter requesting a key to the property

for access. Trial Ct. Op., 1/2/20, at 6. The letter requested information “in

preparation for the partition action [Appellant] authorized [counsel] to file[.]”

N.T., Trial, at 158. Appellee did not respond to that request, and no partition

action was filed at that time. See id. at 158; Trial Ct. Op., 1/2/20, at 6.

For the next six years, Appellee continued to pay the mortgage, taxes,

and all expenses on the property without any assistance from Appellant. Trial

Ct. Op., 1/2/20, at 6-7. From 2006 until 2018, Appellee paid a total of

$85,564.08 toward the mortgage obligation, and $21,432.80 in property

taxes. The parties’ daughter, who resided at the property with Appellee,

“helped her mother with expenses by giving her . . . $140.00 per month for

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approximately 9 years.” Id. at 6. Appellee also presented evidence at trial

of various improvements she made to the property during her exclusive

possession. See id. at 7.

Appellee testified that in June of 2018, “the mortgage statements

stopped coming to the residence and were apparently directed to [Appellant’s]

residence.” Trial Ct. Op., 1/2/20, at 6-7. Although she tried to contact

Bayview, it would not provide her with information because her name was not

on the loan. N.T., Trial, at 114. She then made one additional payment of

$1,000 in October of 2018 because she “wasn’t sure what was going on [and]

didn’t want the house to foreclose.” Id. at 116. During that time, Bayview

was in contact with Appellant seeking payment of the mortgage. Trial Ct. Op.,

1/2/20, at 7. In November of 2018, Appellant voluntarily paid the mortgage

balance of $5,553.47; he testified he did so because he was being contacted

by Bayview and “didn’t want to deal with these people” any more. Id.; N.T.,

Trial., at 49.

On December 14, 2018, Appellant filed a civil complaint with two counts

— one for partition of the property, and the second for unjust enrichment.

Appellant’s Complaint, 12/14/18, at 3-5 (unpaginated). Under the second

count, Appellant asserted he was entitled to reimbursement for his November

2018 pay-off of the mortgage, as well as “any fair rental value for the property

that [Appellee] continues [to] exclusively enjoy.” See id. at 4-5. On February

19, 2019, Appellee filed an answer with new matter and a counterclaim for

partition of the property. See Appellee’s Answer, New Matter and

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Counterclaim, 2/19/19. Appellee asserted that Appellant has abandoned any

interest in the property, and should be barred by the doctrine of laches and

unclean hands. Id. at 6-7 (unpaginated).

The case proceeded to a non-jury trial on October 3, 2019. That same

day, based upon the parties’ stipulation, the trial court entered an order

decreeing that the property is “subject to partition” and “is not capable of

division without spoiling the whole.” Order, 10/3/19, at 1. See Pa.R.C.P.

1557 (“If the court determines there shall be partition because of . . .

admission . . . , the court shall enter an order directing partition[.]”). The

trial, therefore, focused on the credits owed to each party and any fair rental

value. See N.T., 10/13/19, at 1. At the conclusion of the trial, the court

directed the parties to submit proposed findings of fact and conclusion of law.

Thereafter, on January 2, 2020, the trial court filed an order and opinion,

with findings of fact and conclusion of law, determining that Appellee is

entitled to “an undivided 100% ownership interest in the subject property.”

See Order, 1/2/20. Appellant filed a motion for reconsideration on January

10, 2020. On January 23rd, the trial court entered an order expressly granting

reconsideration and scheduled oral argument for February 24th. Following

argument, on March 19, 2020, the trial court entered an order denying

reconsideration. Appellant filed a notice of appeal on April 28, 2020, and

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timely complied with the trial court’s order to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).4

Appellant raises the following issues on appeal:

[1] Whether or not the Honorable Trial Court erred when it
determined that the six year statute of limitations did not apply to
and limit [Appellee’s] request for recovery and/or owelty?

[2]. Whether or not the Honorable Trial Court erred when it
determined that [Appellant] abandoned or renounced his interest
in the home in light of Pennsylvania law that provides no
mechanism for a person with perfect title and a fee simple interest
in property to abandon that interest?

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4 We note Appellant’s notice of appeal purported to appeal from the trial
court’s March 19, 2020, order denying reconsideration. Thus, on June 17,
2020, this Court issued Appellant a rule to show cause whether the trial court’s
March 19, 2020, order was a final and appealable order, which disposed of all
claims and counterclaims, and whether Appellant properly filed post-trial
motions. See Order, 6/17/20. Appellant responded to the rule on July 1,
2020, and explained that the trial court’s January 2nd order was the
appealable order, made final when the court disposed of Appellant’s post-trial
motion for reconsideration on March 19th. See Appellant’s Letter Response
to Show Cause Order, 7/1/20, at 1 (unpaginated). Appellant also averred that
the trial court’s decision disposed of both his claims, as well as Appellee’s
counterclaim. See id. at 2-3. Upon our review of the record, we agree.

This Court issued a second order, on July 27, 2020, directing Appellant
to praecipe for the entry of judgment on the trial court docket within 10 days.
See Order, 7/27/20, citing Brown v. Philadelphia College of Osteopathic
Med., 760 A.2d 863, 865 n.1 (Pa. Super. 2000) (“[A]n appeal to this Court
can only lie from judgments entered subsequent to the trial court's disposition
of any post-verdict motions, not from the order denying post-trial motions.”)
(citation omitted). Appellant complied with this Court’s directive, and
judgment was entered in the trial court on July 31, 2020. Thus, we will
consider Appellant’s notice of appeal filed after the entry of judgment. See
Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”).

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[3] Whether or not the Honorable Trial Court erred when it
determined that any delay in the filing of the original Complaint in
this matter prejudiced [Appellee] sufficient to support the
affirmative defense of laches?

[4] Whether or not the Honorable Trial Court erred when it
granted [Appellee] credit for property taxes paid during her time
of exclusive possession of the property in light of Bednar v.
Bednar, 688 A.2d 1200, 1205 (Pa. Super. 1997)?

[5] Whether or not the Honorable Trial Court correctly applied the
law regarding the award of owelty to [Appellee] for the
replacement of the roof, water line, sidewalk, front porch steps,
front porch railing, and tree removal?

[6] Whether or not the Honorable Trial Court erred when it failed
to correctly apply the law and award owelty to [Appellant] for the
fair rental value of the property when he was excluded from
enjoyment and use of the property by [Appellee]?

Appellant’s Brief at 6-7.5

Preliminarily, we note “[t]he purpose of partition is to afford those

individuals who no longer wish to be owners the opportunity to divest

themselves for a fair consideration.” Beall v. Hare, 174 A.2d 847, 849 (Pa.

1961). An action seeking partition of property is an equitable proceeding.

Appeal of Kelsey, 5 A. 447, 449 (Pa. 1886), aff'd sub. nom. Church v.

Kelsey, 136 U.S. 633 (1890). When considering a such a decision, our review

is guided by the following:

[T]he scope of appellate review of a decree in equity is
particularly limited, and . . . the findings of the [trial court]
will not be reversed unless it appears that the [court] clearly
committed an abuse of discretion or an error of law. Where
credibility of witnesses is important to a determination, the
findings of the [trial court] are entitled to particular weight
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5 We have reordered Appellant’s claims for purposes of disposition.

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because the [court] has the opportunity to observe their
demeanor.

We can review freely conclusions of law or factual determinations
that merely are derived from facts supported by the evidence.
Thus, we are limited to a determination of whether there was an
error of law, and the trial court’s conclusions will not be disturbed
unless they are not supported by the evidence or unless the court
clearly abused its discretion.

Marchetti v. Karpowich, 667 A.2d 724, 726 (Pa. Super. 1995) (citations

omitted).

In Kapcsos v. Benshoff, 194 A.3d 139 (Pa. Super. 2018), this Court

explained that a partition action involves two orders: the first “directs

partition of the parties’ legal interest into severalty[,]” and the second divides

the partitioned property or distributes the proceeds from the sale of the

property. Id. at 141-42. In the present case, the parties stipulated to the

entry of the first order — they agreed the property should be partitioned. See

N.T., 10/3/19, at 1-2. They also stipulated that the property “was not capable

of division without prejudice to or spoiling the whole.” Id. at 3-4. Thus, the

trial court’s October 3, 2019, order is not at issue. See Order, 10/3/19.

The Kapscos Court further explained that when a property cannot be

divided without prejudice to the whole:

[T]he court may give the whole [property] to one party and order
that person to pay the other parties for their respective shares.
See Pa.R.Civ.P. 1562. In this scenario, one party gets an order
of conveyance granting undivided title to the whole property
(which is recorded), and the other party receives a cash buy-out,
known as “owelty.” Id.

The court calculates the owelty based upon the equities of
what everyone invested in the land. It takes those investments

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and then divides them by each parties’ fractional interest in the
property, as determined in [the first order].

Kapcsos 194 A.3d at 143 (some citations omitted). In the present case, the

trial court awarded “the property in its entirety” to Appellee, and determined

Appellant is “guilty of laches and is now estopped from claiming a share of the

property.” See Trial Ct. Op., 1/2/20, at 12-13; Trial Ct. Op., 3/19/20, at 5.

With this background in mind, we address Appellant’s claims on appeal.

In his first issue, Appellant contends the trial court erred when it failed

to limit Appellee’s request for recovery and owelty pursuant to the six-year

statute of limitations.6 See Appellant’s Brief at 17. He argues all of Appellee’s

claims for owelty in her counterclaim that “pre-date the filing of the Complaint

by more than six (6) years” are barred by the statute of limitations. Id. at

18. Thus, he asserts the trial court erred when it “over-credited” Appellee for

payments she made for taxes and repairs/improvements prior to December

14, 2012 (six years before the complaint was filed). Id. at 18.

Appellant correctly states that “actions for contribution in a partition suit

are subject to a six-year statute of limitations.” See 42 Pa.C.S. § 5527(b)

(“Any civil action or proceeding which is neither subject to another limitation

specified in this subchapter nor excluded from the application of a period of

limitation by section 5531 (relating to no limitation) must be commenced

within six years.”); Bednar, 688 A.2d at 1204. Nevertheless, here, the trial
____________________________________________

6 Although neither party raised the statute of limitations defense in their
pleadings, the trial court permitted both parties to orally amend their
pleadings at trial. See N.T., 10/3/19, at 70-71.

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court did not apply the statute of limitations because it concluded Appellant’s

claim is “barred by laches.” Trial Ct. Op., 3/19/20, at 5. The court opined:

[T]he statute of limitations does not require us to ignore the
totality of the circumstances in determining an equitable result as
far as apportioning ownership of the property. Ownership of the
property fairly belongs to [Appellee], as she has solely maintained
and paid for the property since 2006. When [Appellee] assumed
total financial responsibility for the property, it was encumbered
by a significant mortgage responsibility which she managed to
take care of with rather heroic efforts. To say that only her past
six (6) years of efforts counts as far as the Court’s determining an
equitable result for portioning the property is not how we find the
statute is to be applied.

Id. at 5-6.

We agree. Chapter 55 of the Judicial Code sets forth the relevant

limitation periods for civil and criminal actions, providing, generally, that “an

action . . . must be commenced within the time specified in or pursuant to this

chapter[.]” 42 Pa.C.S. § 5501(a). While the limitation periods in Chapter 55

apply to equitable matters, Section 5501(c) explicitly states that “[n]othing in

this chapter shall modify the principles of waiver, laches and estoppel and

similar principles heretofore applicable in equitable matters.” 42 Pa.C.S.

§ 5501(c) (emphasis added). In United Nat. Ins. Co. v. J.H. France

Refractories Co., 668 A.2d 120 (Pa. 1995), the Pennsylvania Supreme Court

explained that “prior to the enactment of section 5501(c) [in 1978], the

‘equitable principle’ of laches at operation in this Commonwealth was that,

although statutes of limitation often provided guidance in determining if an

action was timely, they did not control that determination.” Id. at 125. Thus,

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prior to the enactment of Section 5501(c), the Supreme Court “allowed suits

in equity to proceed despite significant delays in bringing the action” and, in

other cases, found that “laches may bar an action even though it would not

be barred by the analogous statute of limitations.” Id. at 124-25.

Accordingly, the Court determined that “to give meaning to the ‘heretofore

applicable’ language in section 5501(c), . . . equity courts may not rely solely

on statutes of limitation in determining if a claim is timely.” Id. at 125. Thus,

“[f]or an action in equity, the applicable statute of limitations is used only as

a frame of reference to evaluate any purported delay in support of a claim of

laches.” In re Estate of Moskowitz, 115 A.3d 372, 379 (Pa. Super. 2015)

(footnote and citations omitted).

Here, Appellant insists that, in considering Appellee’s counterclaim for

owelty, the trial court should not have considered any of her contributions to

the maintenance of property before December of 2012. See Appellant’s Brief

at 18. However, he fails to acknowledge that the court determined his

partition action was barred by laches; thus, its award of relief to Appellee

was a consequence of his untimely request for owelty, not the merits of

Appellee’s counterclaim. No relief is warranted.

Next, Appellant argues the trial court erred when it found he abandoned

his interest in the property. Appellant’s Brief at 21. Relying on Pocono

Springs Civic Ass’n, Inc. v. MacKenzie, 667 A.2d 233 (Pa. Super. 1995),

Appellant asserts that there is no authority in Pennsylvania that “allows for

the abandonment of real property when owned in fee simple with perfect title.”

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Appellant’s Brief at 22. Furthermore, Appellant insists that even if the court

credited Appellee’s claim that Appellant told her “he wanted nothing to do with

the property, this statement alone is wholly inadequate to relieve [Appellant]

of his interest in the property.” Id. at 24.

In concluding Appellant abandoned his interest in the property, the trial

court explicitly credited Appellee’s testimony “concerning statements made to

her by [Appellant] that he wanted nothing to do with the property.” Trial Ct.

Op., 3/19/20, at 2-3. See Marchetti, 667 A.2d at 726. To the extent

Appellant insists his statements alone were insufficient to establish

abandonment, we note the trial court also found Appellant’s “subsequent

behavior [that] was consistent with those statements.” Trial Ct. Op., 3/19/20,

at 3. The court explained:

Since the time of his departure in 2006, [Appellant] did not
assume any responsibility for his one-half share of the loan
payments, property taxes or upkeep of the property. While
[Appellee] did have exclusive use of the property, she also had
exclusive responsibility for the property and paid [Appellant’s] half
of these expenses for 10 years without receiving any contribution
from him. It was not until the mortgage holder started pressing
him for payment in the Fall of 2018 that [Appellant] took any
financial responsibility for the property, and from his own
testimony it was not out of any sense of responsibility, but rather
to stop the creditors from calling him.

Id. Furthermore, the court emphasized that when Appellee moved back to

the property in 2006, the mortgage was in arrears, and she had to file for

bankruptcy to save the property from foreclosure. Id. Moreover, despite the

fact that she was approved for consumer credit counseling, Appellee was

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unable to “complete the process without the cooperation of [Appellant] as his

name was on the loan,” and he refused to cooperate. Id. Indeed, the court

concluded “[t]he fact that the home is now paid in full and has no liens against

it has very little to do with [Appellant].” Trial Ct. Op., 1/2/20, at 12. Our

review of the record reveals ample support for the court’s findings.

In addition, we find the facts in Pocono Springs distinguishable. In

that case, the appellants were the sole owners of a vacant lot in appellee’s

development. Pocono Springs Civic Ass’n, 667 A.2d at 234. When they

were unable to sell the lot, they abandoned it, and claimed they were “relieved

from any duty to pay the association fees sought by appellee.” Id. at 234-

35. The trial court disagreed, and this Court affirmed on appeal, concluding:

[A]ppellants have not relinquished their rights, title, claim and
possession of their lots. They remain owners of real property in
fee simple, with a recorded deed and ‘perfect’ title. Absent proof
to the contrary, possession is presumed to be in the party who
has record title.

Id. at 235.

Thus, in Pocono Springs, the appellants argued they abandoned their

own property in order to avoid paying fees. See Pocono Springs Civic

Ass’n, 677 A.2d at 234-35. Here, however, Appellee’s claim that Appellant

abandoned their jointly owned property was made in order to prevent him

from obtaining a financial windfall. Thus, Appellant’s second claim is

meritless.

Next, Appellant argues the court erred or abused its discretion when it

determined his claim was barred by laches. Appellant’s Brief at 25.

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Specifically, he contends Appellee presented no evidence that she was

prejudiced by his alleged delay in filing the partition action. Id. at 27. Rather,

he insists “any delay prior to 2012 was caused by [Appellee] herself, as her

bankruptcy prevented any action being taken against the property.” Id.

Thereafter, the letter his counsel sent to her in 2012 put her “on notice that

he remained steadfast in his desire to have access to or partition the

property.” Id. at 28. Moreover, Appellant asserts Appellee “took no action of

her own to resolve the matter.” Id. at 29. Instead, Appellant contends:

[A]s long as [Appellee] avoided the question, she continued to
exclusively enjoy the property at no additional cost to her.
Avoidance provided her with a profit.

Id.

“The doctrine of laches is an equitable bar to the prosecution of stale

claims[.]” Fulton v. Fulton, 106 A.3d 127, 131 (Pa. Super. 2014).

The question of whether laches applies is a question of law; thus,
we are not bound by the trial court’s decision on the issue. The
question of laches itself, however, is factual, and is determined by
examining the circumstances of each case.

Id. (citations omitted). In order for laches to bar the prosecution of a claim,

the defendant must demonstrate the following elements: “(1) a delay arising

from [the plaintiff’s] failure to exercise due diligence; and (2) prejudice to the

[the defendant] resulting from the delay.” Kern v. Kern, 892 A.2d 1, 9 (Pa.

Super. 2005). Sufficient evidence of prejudice may include “that a witness

has died or become unavailable, that substantiating records were lost or

destroyed, or that the defendant has changed his position in anticipation that

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the opposing party has waived his claims.” Fulton, 106 A.3d at 131 (citation

omitted). The Pennsylvania Supreme Court has explained:

Prejudice may be found where there has been some change in the
condition or relations of the parties which occurs during the period
the complainant failed to act.

Stilp v. Hafer, 718 A.2d 290, 294 (Pa. 1998).

In the present case, the trial court concluded Appellant’s claim was

barred by laches. The court found that Appellant “did not assume any

responsibility for his one-half share of the loan payments, property taxes or

upkeep of the property” since he left the property in 2006. Trial Ct. Op.,

3/19/20, at 3. Rather, Appellant — without any notice to Appellee — allowed

the property to go in mortgage arrears, which forced Appellee to file for

bankruptcy in order to avoid foreclosure. See id. While the court

acknowledged that Appellant could not seek partition of the property during

the bankruptcy proceedings (from 2007 until 2012), it concluded “the

bankruptcy did not prevent [Appellant] from assuming some financial

responsibility for the property.” Id. at 4. However, Appellant did nothing,

except request a key in April of 2012. See id. Although Appellee did not

respond, Appellant took no action for another six years until he paid off the

mortgage in 2018. The trial court noted Appellant “had a financial

responsibility, which he purposely ignored and thus expected [Appellee] to

shoulder the full financial responsibility for both her share and his share of the

property.” Id.

With regard to prejudice, the trial court opined:

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[Appellee] relied on the statements and behavior of [Appellant] in
effectively “washing his hands” of the property and [Appellee]
took responsibility for the entirety of the property. [Appellee]
relied on the fact that [Appellant] had no interest in the property
and she acted in accordance with that reasonable belief to
maintain the property to the best of her ability. [Appellant] cannot
now come forward and demand his share of the property and
expect the Court to ignore the extended period of time that
[Appellant] assumed no role in maintaining the property.

Trial Ct. Op., 3/19/20, at 4-5. Thus, the court concluded:

Equity will not allow [Appellant] to benefit from his years of
disinterest in the property knowing, or at the very least,
presuming that [Appellee] was paying for everything associated
with the property. The fact that the home is not paid in full and
has no liens against it has very little to do with [Appellant].

Trial Ct. Op., 1/2/20, at 12.

Upon our review of the record, the parties’ briefs, and the relevant case

law, we detect no basis to disagree with the decision of the trial court.

Appellant moved out of the property in 2006. From that time, until late 2018,

he made no financial contributions to the mortgage, property taxes, or

maintenance. We agree Appellant’s 12-year delay in asserting his right to the

property “constituted sufficient delay for purposes of the doctrine of laches.”

See Fulton, 106 A.3d at 134 (nine to eleven-year passage of time from when

property was conveyed to filing of equity action seeking to set aside

conveyances was sufficient delay to establish laches).

Further, we agree with the trial court that the fact Appellant could not

seek partition during the bankruptcy proceedings is of no consequence.

Appellant refused to assist Appellee when she tried to avoid filing bankruptcy,

and took no action to assist her in paying the mortgage, taxes or arrears.

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Although he did request a key to the property in 2012, he took no further

action for six years after she failed to respond to his request. Thus, we

conclude, as did the trial court, that Appellant cannot ignore his financial

responsibilities for 12 years and then benefit from Appellee’s actions to pay

off the mortgage.

Furthermore, we agree Appellee demonstrated sufficient prejudice to

establish laches. Because of Appellant’s complete repudiation of his financial

obligation to the property, Appellant was forced to file bankruptcy in order to

avoid foreclosure. For the ensuing 12 years, Appellee paid the mortgage,

arrears, property taxes, and maintenance costs associated with the property

with no contribution from Appellant. Had Appellant promptly asserted a claim

for partition or even assisted Appellee when she attempted to obtain credit

counseling, Appellee may have avoided filing bankruptcy, which will have a

lasting impact on her credit rating. Instead, Appellant waited until the

mortgage was almost paid off — and the property increased in value — before

asserting his claim. We agree with the trial court that Appellee demonstrated

sufficient prejudice as a result of Appellant’s failure to assert his rights to the

property for 12 years. Accordingly, Appellant’s third claim fails.

Next, Appellant contends the trial court erred when it granted Appellee

credit for the property taxes she paid from 2006 until 2018, while she was in

exclusive possession of the property. See Appellant’s Brief at 19. Relying

upon Lohr’s Estate, 200 A. 135 (Pa. 1938) and Bednar, 688 A.2d 1200,

Appellant maintains that in a partition action, “[p]arties are not entitled to

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reimbursement for taxes paid voluntarily on behalf of the co-tenant.”

Appellant’s Brief at 19. Indeed, pursuant to the Local Tax Collection Law,7 a

joint tenant need only pay “his proportionate part of the amount of taxes due

thereon.” 72 P.S. § 5511.12. Thus, Appellant argues Appellee was not

entitled to credit for making payments “she was under no obligation to

make[.]” Appellant’s Brief at 21.

Appellee insists, however, the facts in the present case are

distinguishable from those in Bednar and Lohr’s Estate. See Appellee’s

Brief at 45-50. We agree.

In Lohr’s Estate, the Pennsylvania Supreme Court held: “To entitle

one to contribution [in a partition action], the payment must be compulsory

in the sense that the party paying was under legal obligation to pay.” Lohr’s

Estate, 200 A. at 136 (citation omitted). Because under the prior local tax

law there was “no joint obligation upon the tenants in common . . . to pay the

whole tax . . . in order to protect his undivided interest,” the Court concluded

that any such payment was voluntary, and thus that the payee was not

entitled to contribution. Id.

In Bednar, this Court relied upon the holding in Lohr’s Estate when it

concluded two co-tenants, who had paid taxes on property they jointly owned

with a third co-tenant, were not entitled to contribution from the co-tenant

because they “were under no legal obligation to pay [the co-tenant’s]
____________________________________________

7 72 P.S. §§ 5511.1–5511.42.

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proportionate share of property taxes.” Bednar, 688 A.2d at 1203-04.

However, the co-tenants in Bednar argued that their payment was not

voluntary because the mortgage on the property “required the payment of

property taxes[; thus, they] were legally compelled by the mortgage’s terms

to pay the property taxes.” Id. Without deciding if the terms of the mortgage

“converted the voluntary payment of a co-tenant’s proportionate share of

property taxes into a legal obligation,” this Court concluded that the co-

tenants were not entitled to contribution in any event because “actions for

contribution in a partition suit are subject to six-year statute of limitations”

and the mortgage in that case had been paid off for more than six years prior

to the filing of the partition action. Id. at 1204.

Here, the mortgage required the “Mortgagor” — in this case both parties

— to “pay when due all taxes, assessments, levies, and other charges on or

against the Mortgaged Property[.]” Mellon Bank Mortgage, 10/31/96, at 1

(Appellee’s Ex. 1). The document further provided that upon a breach of any

of the terms, “Mortgagee may foreclose upon the Mortgaged Property[.]” Id.

at 3. This mortgage was not paid off until 2018. Thus, we agree with Appellee

that she was legally compelled by the terms of the mortgage to pay all

property taxes, and was entitled to credit in the partition action for the taxes

she paid for 12 years. Accordingly, Appellant is entitled to no relief on this

claim.

In his fifth claim, Appellant contends the trial court erred when it

awarded owelty to Appellee for repairs she made to the property during her

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time of exclusive possession. Appellant’s Brief at 30. Specifically, he asserts

Appellee “did not present any evidence that any of these repairs were

necessary to safeguard or preserve the residence.” Id. at 31.

In Bednar, this Court explained:

“As a general rule, where a cotenant places improvements on the
common property, equity will take this fact into consideration on
partition and will in some way compensate him for such
improvements, provided they are made in good faith and are of a
necessary and substantial nature, materially enhancing the value
of the common property.”

Bednar, 688 A.2d at 1205 (citations omitted). In that case, this Court

affirmed the ruling of the trial court, which declined to give co-tenants credit

for certain improvements they made to the residence. See id. at 1204-06.

We concluded the claim failed for several reasons: (1) the co-tenants’

counterclaim did not include a demand for improvements; (2) the co-tenants

failed to prove the improvements were made within the statute of limitations;

and (3) the co-tenants “failed to provide any evidence concerning the degree

to which the improvements enhanced the property value.” See id.

Conversely, in the present case, the trial court, sitting as fact finder,

determined Appellee was entitled to credit for certain improvements she

made, which were “necessary . . . to preserve, safeguard and protect the

integrity of the property[,]” including a repair of the sewer, a new roof,

replacement of a water line, a new sidewalk, front steps and railing, and the

removal of a tree struck by lightning. See Trial Ct. Op., 1/2/20, at 10.

Appellee testified regarding the necessity of these repairs/improvements, and

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provided detailed documentation of the costs. See N.T., 10/3/19, at 120-23.

We detect no abuse of discretion on the part of the trial court in determining

these repair/improvements were made in good faith, and necessary to

preserve or enhance the value of the property.8 See Bednar, 688 A.2d at

1205; Marchetti, 667 A.2d at 726.

Lastly, Appellant insists the trial court erred when it failed to award him

owelty for the fair rental value of the property during the time Appellee was

in exclusive possession. Appellant’s Brief at 32. He maintains he established

“a fair rental value of . . . $950 per month” through the testimony of real

estate appraiser Matthew Stultz, which the trial court improperly rejected. Id.

at 35.

Pursuant to 68 P.S. § 101, “in case of partition of . . . real estate held

in common . . . , the parties in possession shall have deducted from their

distributive shares of said real estate the rental value thereof to which their

co-tenant or tenants are entitled.” 68 P.S. § 101. Accordingly,

Two requirements must be satisfied before recovery of the fair
rental value of the premises will be permitted: (1) the complaining
party must show he is not in possession of the premises; and (2)
it must be shown that the remaining tenant in common occupies
exclusive possession of the premises.

____________________________________________

8In fact, we note that Appellee also requested credit for kitchen countertops
she installed, but the court did not included that cost in her eligible credits.
See Trial Ct. Op., 1/2/20, at 7, 10.

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Sciotto v. Sciotto, 288 A.2d 822, 823–24 (Pa. 1972). The Sciotto Court

explained that the party seeking recovery of the fair rental value need not

prove they were excluded from the property. See id. at 824.

Although Appellant may have been entitled to recover for the fair rental

value of the property under other circumstances, here, the trial court

determined Appellant “financially abandoned” the property and his claim for

owelty was barred by laches. See Trial Ct. Op., 3/19/20, at 4-5. Thus,

Appellee asserts, and we agree, that Appellant’s request for rental income is

similarly barred.9 See Appellee’s Brief at 39-40.

Nevertheless, even if we were to address this claim on the merits, we

would conclude no relief is warranted. The trial court found the testimony

regarding a fair rental value for the property was “not convincing[,] seemed

speculative and was based on inaccurate information.” Trial Ct. Op., 3/19/20,

at 6. In particular, the court noted that the appraiser ignored the credible

testimony of Appellee that the property lacked a working furnace. See id.

The trial court opined: “This fact alone renders the testimony offered by Mr.

Stultz to be of no value to the Court on the issue of fair rental value.” Id.

As noted supra, in an equity action, we defer to the trial court’s

credibility determinations, and will not disturb the court’s factual finding

“unless they are not supported by the evidence or . . . the court clearly abused

____________________________________________

9It is well-settled that we may affirm the ruling of the trial court on any basis.
Wilson v. Parker, 227 A.3d 343, 347 n.3 (Pa. Super. 2020).

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its discretion.” Marchetti, 667 A.2d at 726. Our review of the record reveals

ample support for the court’s findings. Stultz acknowledged that his first

appraisal, dated August 8, 2019, was limited to the fair market value of the

property. See N.T., 10/3/19, at 25; Residential Appraisal, Joint Ex. 2. He

then provided, based upon Appellant’s request, an amended appraisal, which

included a fair rental value of the home, without any rental comparisons or

additional information. See N.T., 10/3/19, at 24-25; Amended Appraisal,

Appellant’s Exhibit 2 at 5 (unpaginated) (deeming a fair rental value of $950

per month based on “comparable rental single family homes with 4 bedrooms

and similar square footage”). Stultz conceded the updated appraisal

“should’ve been more detailed,” but he “was under the impression it was a

time sensitive” matter. N.T., 10/3/19, at 25. The day before trial, Stultz

provided several rental comparisons, and referred to them during his

testimony. See id. at 6-7, 17-18. However, he testified that his appraisal

was based on the property having a functioning furnace, despite Appellee’s

testimony that the furnace had not been operating since she moved back to

the property in 2006.10 See N.T., 10/3/19, at 32, 87-89. Accordingly,

because the trial court’s findings are supported by the record, Appellant’s final

claim fails.

____________________________________________

10 Appellee testified that, because she did not have the funds to replace the
furnace, she installed a gas heater in the front room to heat the first and
second floors, and her daughter used an electric heater for the third floor.
See N.T., 10/3/19, at 89.

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Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2021

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