concurring and dissenting:
The majority holds that a pending action in equity to partition property owned by husband and wife as tenants by the entireties is not superseded or preempted by a subsequent action in divorce brought by one of the spouses and containing a request for equitable distribution of marital property. For reasons hereinafter appearing, I agree with the majority’s holding. However, I disagree with the majority’s further conclusion that after entireties property has been partitioned between the spouses, it loses its status as “marital property” and is no longer subject to equitable distribution under Section 401(d) of the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(d).
Jerome Goldstein and Helene Goldstein were married on August 27, 1972. In November, 1981, prior to separation, Helene Goldstein withdrew approximately $43,680 from a joint savings account. Alleging a wrongful misappropriation of entireties property, Jerome Goldstein filed an action in equity asking for partition of the joint account and all other property owned jointly by him and his wife. On March 2, 1982, Helene Goldstein filed preliminary objections in the nature of a motion to dismiss the complaint on grounds that she had filed an action for divorce and that “[t]he Divorce Code of 1980 ha[d] superseded and preempted all other property related remedies between the parties.” The trial court agreed and dismissed the complaint in equity for partition.
The general rule is that neither spouse may partition entireties property prior to divorce. Shapiro v. Shapiro, *503424 Pa. 120, 136, 224 A.2d 164, 173 (1966); Gray v. Gray, 275 Pa.Super. 131, 133, 418 A.2d 646, 648 (1980). An exception exists, however, where one spouse has appropriated entireties property for his or her own use. In that situation, the misappropriation is deemed an “offer” of an agreement to destroy the entireties estate which is “accepted” when the innocent spouse commences an action in partition. Stemniski v. Stemniski, 403 Pa. 38, 42, 169 A.2d 51, 53 (1961); Gray v. Gray, supra; Vento v. Vento, 256 Pa.Super. 91, 94, 389 A.2d 615, 617 (1978). This fictional offer and acceptance is triggered when an appropriation of entireties property is made by one spouse for his or her own use to the detriment of the other. Livingston v. Livingston, 288 Pa.Super. 22, 27, 430 A.2d 1193, 1196 (1981). All entireties property then becomes subject to partition, not only the property which has been misappropriated. Gray v. Gray, supra.
When entireties property has been misappropriated by one of the spouses, an action of partition is appropriate irrespective of whether the parties are subsequently divorced. A reading of the Divorce Code of 1980 does not disclose an express direction by the legislature that an action for partition of entireties property shall be superseded or preempted by a subsequent divorce action which contains a request for equitable distribution of marital property. Similarly, there is no Supreme Court rule which requires such a result. Can it nevertheless be said that the two proceedings, i.e., partition and equitable distribution in divorce, are so irreconcilably inconsistent that the legislatively created right of equitable distribution, by necessary implication, was intended to supersede the right of action for partition of entireties property? I think not.
The two actions are separate and distinct. They are not necessarily in conflict. There is no absolute need invariably to delay an action to partition entireties property until the same or another court gets around to distributing marital property in what may well be a protracted divorce action. On the other side of the marital coin, however, I would hold that a decree partitioning property owned by the entireties *504does not affect the right of either spouse to obtain equitable distribution of marital property under the Divorce Code. Although partition proceedings may result in an equal division of entireties property, the property so divided remains marital property and continues to be subject to the power of a divorce court to decree equitable distribution.1
To hold that an action to partition entireties property is invariably subject to dismissal whenever a divorce action is thereafter commenced would have unfortunate consequences. In the first place, it would vest in the misappropriating spouse the power to delay relief otherwise available by partition to the non-appropriating spouse. By the expedient of filing an action in divorce, which the misappropriating spouse may or may not pursue and may or may not be able to prosecute successfully, the misappropriating spouse can impair substantially the right of the non-appropriating spouse to prompt relief which is available in the partition action. The misappropriating spouse may in this manner be able to deprive the nonappropriating spouse of the use of his or her interest in entireties property during the entire pendency of a divorce action. Equitable distribution of marital property, we have held, cannot take place until a decree in divorce has been entered. See: Drumheller v. Marcello, 351 Pa.Super. 139, 505 A.2d 305 (1986); Laxton v. Laxton, 345 Pa.Super. 450, 498 A.2d 909 (1985); Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985). Where there is delay in decreeing equitable distribution for several years — a not unusual phenomena in cases which have ultimately arrived before this Court — substantial prejudice to the non-appropriating spouse is more than an unlikely possibility.
Appellee’s reliance upon the decision in Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982), as the majority has observed, is misplaced. The Platek court held merely that a divorce court which has been requested to make equitable distribution of marital property does not fulfill its responsi*505bility to decree equitable distribution by ordering partition of entireties property. The decision did not purport to do away with or supersede procedurally an action to partition entireties property in all instances where an action for divorce and equitable distribution of marital property is subsequently commenced. Indeed, it is questionable whether an intermediate appellate court has the power to decree such a result in view of the present state of the law, both substantive and procedural, in this Commonwealth.
The majority’s position that partitioned entireties property “is not marital property by virtue of section 401(e)(4), which excludes from the definition of marital property ‘[property acquired after separation ... ’ ”2 misconceives the nature of entireties property.
A tenancy by the entireties is an estate “per tout et non per my.” Maxwell v. Saylor, 359 Pa. 94, 96, 58 A.2d 355, 356 (1948). “The incidents of such an estate are unity of interest, title, time and possession....” Berhalter v. Berhalter, 315 Pa. 225, 227, 173 A. 172, 173 (1934). Each spouse has title to the whole of the property and not to any share or divisible part thereof. Zipperlein Estate, 367 Pa. 622, 624, 80 A.2d 817, 818 (1951); Gallagher Estate, 352 Pa. 476, 478, 43 A.2d 132, 133 (1945).
Werner v. Quality Service Oil Co., Inc., 337 Pa.Super. 264, 270, 486 A.2d 1009, 1012 (1984). The nature of a tenancy by the entireties can be understood by visualizing two persons holding a pole, one person on either end. Each person holds the entire pole, but jointly with the spouse holding the other end of the pole. If the pole is partitioned by severing the pole into two equal parts, neither person acquires anything which he or she did not have before the severence took place. The parties merely hold by themselves one-half of the whole which they previously held together. It cannot be said under such circumstances that either party has “acquired” new or additional property.
I would hold that after a decree in partition has been entered, the two equal parts owned by the spouses continue *506nevertheless to be “marital property.” These equal parts may be further divided or distributed by a divorce court which is called upon- to make equitable distribution of marital property between the parties.
If a divorce court determines that an undetermined partition proceeding will impair the court’s ability to make an equitable distribution of marital property, the court is not powerless to act. Section 401(c) of the Divorce Code3 authorizes a divorce court to “issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act.” This power may be used, if necessary, to stay a partition action pending in the same court or to enjoin the prosecution of a partition action in another jurisdiction. Moreover, there seems to be no reason why a partition action pending in the same court should not, where appropriate, be consolidated into the divorce action. Section 301(a)(1) of the Divorce Code4 specifically vests in a matrimonial court the power to partition property held as tenants by the entireties.
There can be no question, therefore, that a divorce court possesses the means to insure that it will be able to perform its responsibility of effecting equitable distribution of marital property as directed by the Divorce Code. These means, available when necessary in the discretion of the divorce court, are more elastic and, therefore, preferable to an inelastic rule which either (1) requires an automatic dismissal of a partition action whenever a divorce action is subsequently brought, or (2) permits the partition action to be used as a device to avoid a decree of equitable distribution pursuant to the provisions of the Divorce Code.
I would reverse the order dismissing the partition action and remand for further proceedings consistent with this opinion.
ROWLEY and McEWEN, JJ., join this opinion.. The means to protect against a spouse’s dissipation of partitioned entireties property is provided by Sections 403(a) and 403(d) of the Divorce Code (23 Pa.C.S. § 403(a) and (d)).
. At p. 649.
. 23 P.S. § 401(c).
. 23 P.S. § 301(a)(1)