Evans, D. v. Evans, J.

J-S64044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANIEL A. EVANS AND DONNA L. IN THE SUPERIOR COURT OF
EVANS, H/W PENNSYLVANIA
Appellant
v.
JEFFREY S. EVANS AND ANDREA L.
EVANS, H/W
Appellee No. 616 EDA 2016
Appeal from the Order Entered January 22, 2016
In the Court of Common Pleas of Northampton County
Civil Division at No(s): CV-2010-10924
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 20, 2016
Appellants Daniel A. Evans and Donna L. Evans appeal from the order
of the Court of Common Pleas of Northampton County denying their Motion
to Disperse Escrow Account several years after Appellants had settled their
dispute with their son and daughter-in-law, Appellees Jeffrey S. Evans and
Andrea L. Evans. As we find the trial court abused its discretion in
disbursing the escrowed funds in equal proportions, we vacate the trial
court’s order and remand for distribution of the rental income consistent
with this decision.
The trial court summarized the factual background as follows:
This case originates from an action involving partition of
commercial real estate that was commenced by way of a writ of
summons dated September 27, 2010. By way of background,
*Former Justice specially assigned to the Superior Court.
J-S64044-16
when the real estate property at issue (hereinafter, “Property”)
was purchased, Appellants obtained a 5/7 fractional ownership
interest, and [Appellees] obtained a 2/7 fractional ownership
interest. See Complaint, 4/18/11, at ¶ 5.
The individual from whom the parties purchased the Property
was not ready to vacate the Property upon the purchase. See,
Notes of Testimony (N.T.) at pp. 4-5. Consequently, the parties
agreed to allow this individual (hereinafter, “tenant”) to remain
on the Property for a period of twenty-five months. Id. at p. 5.
In turn, the tenant provided the parties with $25,000 in credit
towards the purchase of the Property. Id. at pp.2; 4-5. The
tenant actually remained at the Property for a total of twenty-
eight (28) months, and as a result of the extra three months
during which he remained at the Property, the tenant paid an
extra $3,000.00 in rental income to the parties. Id. In the
meantime, the parties commenced litigation on the partition
action. Pending resolution of the partition action, the rental
income in the amount of $3,000.00 was held in escrow by the
Honorable Samuel P. Murray, who, prior to his election to the
bench and during the relevant partition action, served as co-
counsel for Appellees.
The case ultimately resulted in a settlement agreement between
the parties in 2012 whereby Appellees agreed to purchase
Appellants’ interest in the Property. See, Stipulation/Order of
Court, 4/5/2012, p.3.1 At the time of the settlement agreement,
distribution of the rental income in the amount of $3,000.00 was
overlooked and remained unresolved. As a result, on January
22, 2016, counsel for Appellees filed a “Motion to Disperse
Escrow Account.” In this Motion, Appellees averred that the
$3,000.00 in rental income was the only rent the parties had
received. Appellees further averred that the existence of the
$3,000.00 was discovered by Judge Murray when he was
preparing to close his practice in order to assume a position on
the bench. See; Motion to Disperse Escrow Account at ¶¶ 3, 5.
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1
On August 16, 2012, upon praecipe by Appellants’ counsel, the
Northampton County Prothonotary noted on the docket that the partition
action had been “settled, discontinued, ended with prejudice and costs paid.”
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Based on Appellees’ Motion, the undersigned heard brief
testimony and argument from both parties’ counsel while sitting
for Motions Court on January 22, 2016. At the conclusion of the
hearing, the undersigned entered an Order which directed that
“the $3,000.00 escrow being held by Leonard M. Mellon [FN1] is
to be divided between the parties 50/50.”
[FN1:] The parties had agreed that Leonard M.
Mellon, counsel for Appellees, could hold the
$3,000.00 in escrow pending distribution by the [trial
court]. See, Appellee’s Motion to Disperse Escrow
Account at ¶ 6.
On February 1, 2016, Appellants filed a Motion for Post-Trial
Relief in which Appellants requested a modification of the
January 22, 2016 Order to reflect a distribution of the $3,000.00
that would be equivalent to the parties’ fractional ownership
interest of the Property at the time they owned the Property. In
other words, Appellants asked [the trial court] to disperse the
rental income so that Appellants would receive 5/7 of the
$3,000.00 and Appellees would receive 2/7 of the $3,000.00.
On February 3, 2016, [the trial court] denied Appellants’ Motion
for Post-Trial Relief.
Trial Court Opinion, 3/18/16, at 1-3. Appellants filed a notice of appeal on
February 18, 2016.
As an initial matter, we must determine whether this appeal is timely.
Our rules of appellate procedure require that a notice of appeal be filed
within thirty days after the entry of the order from which the appeal is
taken. Pa.R.A.P. 903(a). As the trial court entered an order on January 22,
2016 dispersing the escrowed funds, Appellants’ notice of appeal filed on
February 18, 2016 is timely filed.
In addition, we note that we need not discuss whether Appellants
properly preserved their claims with a timely post-trial motion under
Pennsylvania Rule of Civil Procedure 227.1, as this procedural rule is
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inapplicable to this case. While Appellants styled their February 1, 2016
filing as a motion for post-trial relief, it can be more appropriately
characterized as a motion for the trial court to reconsider its decision to
disperse the escrow account contents.2 The note in Rule 227.1(c) provides
that “[a] motion for post-trial relief may not be filed to orders disposing of
preliminary objections, motions for judgment on the pleadings or for
summary judgment, motions relating to discovery or other proceedings
which do not constitute a trial.” Note to Pa.R.C.P. 227.1(c). See also
Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family Markets,
Inc., 617 Pa. 265, 295, 52 A.3d 1233, 1251 (2012) (holding that Rule 227.1
did not apply to a proceeding after remand where the trial court recalculated
the damages award based upon facts and contract terms already in the
record, as this proceeding was not a “trial”).
We may now proceed to the merits of Appellants’ appeal. In its
1925(a) opinion, the trial court explained its rationale in finding that the
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2
It is well-settled that a trial court may consider a motion for
reconsideration if the motion is filed within thirty days of the entry of the
disputed order. PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226
(Pa.Super. 2007); 42 Pa.C.S. § 5505. However, the prescribed thirty-day
time period for taking an appeal is only tolled if the trial court expressly
grants reconsideration. See Pa.R.A.P. 1701. As noted above, Appellants
filed this timely appeal on February 18, 2016, which was within thirty days
of the trial court’s January 22, 2016 order resolving Appellees’ Motion to
Disperse Escrow Account.
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most equitable resolution was to distribute the rental income equally
between the parties:
If there was a prior history of distribution of rental monies
between the parties, then we would have considered same prior
to issuing our Order. However, no such history existed. Further,
considering the significant amount of time that passed since the
settlement agreement and the fact that neither of the parties
independently recalled the existence of the $3,000.00 at issue
until Judge Murray discovered it in his escrow account, we did
not find that the fractional ownership interests of the parties at
the time they purchased the Property should govern the
distribution of this rental income.
Trial Court Opinion, 3/18/16, at 4.
As stated above, Appellants contend that the trial court improperly
distributed the contents of the parties’ rental income in equal proportions as
at the time of the rental. Specifically, Appellants argue that they were
entitled to a 5/7 share of the rental income commensurate with their 5/7
ownership interest in the property at the time the parties rented the
property to the tenant. In support of their claim, Appellants cite to
Trembach v. Trembach, 615 A.2d 33 (Pa.Super. 1992), in which this Court
found the trial court abused its discretion in equitable distribution
proceedings by awarding the wife, who had been dispossessed from the
marital residence, a credit for the entire rental value of the former marital
home when she only held a one-half interest in the property.
In response, Appellees echo the trial court’s rationale in dividing the
rental income in equal proportions. In addition, Appellees claim that the trial
court should have inferred that a partnership existed between the parties to
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rent the property to the tenant and allege that the rental income was
partnership property to be divided equally without regard to the parties’
proportional interests. Appellees do not cite to any authority or offer any
analysis in making this argument.
Like the analogous situation in Trembach, the parties’ proportional
ownership interests in the property should have controlled the percentage of
the rental income that they received. Viewing the parties’ contentious
relationship, there is no indication that the parties would ever have agreed
to share the rental income equally or be equal members of a partnership. In
fact, the parties placed rental income in escrow because they could not
reach an agreement on how to divide the proceeds. While both parties
forgot about the existence of the escrowed proceeds once the partition was
discontinued, this is not a factor that should be solely held against
Appellants. Accordingly, we agree with Appellants that the trial court erred
in dividing the rental income equally. Thus, we vacate the trial court’s
January 22, 2016 order and remand for distribution of the rental income
consistent with this decision.
Order vacated; Remanded; Jurisdiction Relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2016
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