Russo, F. v. Polidoro, R.

J-A23022-17
2017 Pa. Super. 386
FRANCES A. RUSSO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROSEMARIE POLIDORO AND CAROL :
TRAMA, :
: No. 134 EDA 2017
Appellant :
Appeal from the Order December 5, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 150703451
BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD*, J.
OPINION BY DUBOW, J.: FILED DECEMBER 11, 2017
Appellants, Rosemarie Polidoro and Carol Trama, appeal from the
December 5, 2016 Order entered in the Court of Common Pleas of
Philadelphia County, which granted Partition in favor of Appellee, Frances A.
Russo, after finding that the Deed restriction did not bar Appellee from filing
an Action in Partition. After careful review, we reverse.
This matter arises out of a dispute between family members over title
to nine properties located in Philadelphia, Pennsylvania (“the properties”).1
In two separate transactions in 1984 and 1985, Frank Russo, Sr., acquired
title to the properties. In 2007, he initiated a Quiet Title Action to invalidate
a purportedly fraudulent deed, alleging that a 1991 Deed conveying the
____________________________________________
1 The properties are located at 717, 718, 720, 722, 724 and 726 Manton
Street and 725, 727 and 729 Latona Street in Philadelphia, Pennsylvania.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A23022-17
properties to his son and two other individuals was invalid because his son
had forged the signature. All parties entered into a Settlement Agreement
prior to trial to invalidate the 1991 Deed and convey the properties from
Frank Russo, Sr., to his three daughters, Appellants and Appellee, as tenants
in common, each with a one-third interest.
On September 14, 2009, the court entered an Order, which confirmed
the Settlement Agreement and ordered Frank Russo, Sr., to prepare and
record a new Deed transferring the Properties from himself to Appellants and
Appellee as tenants in common, subject to the restriction that:
No disposition of the properties or any action concerning
the properties may be taken without the express written
agreement of at least two of the deed holders; and further,
that all expenses of the properties are to be borne equally
by the three deed holders.
Order, dated 9/14/09 (“the restriction”). Consequently, Frank Russo, Sr.,
conveyed title to the properties to Appellants and Appellee as tenants in
common by Deed dated October 15, 2009, and recorded October 19, 2009.
The Deed expressly incorporated the September 14, 2009 Order and the
Order was attached to the recorded Deed. As required by the Order, the
Deed contains the restriction.
In July 2015, Appellee filed a Complaint in Equity initiating a Partition
Action against Appellants, her sisters. Appellants filed Preliminary
Objections in the form of a demurrer, arguing that the language of the
restriction precludes an Action in Partition. The trial court overruled the
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Preliminary Objections. Appellants then filed an Answer with a New Matter,
raising the same argument.
On October 5, 2016, the trial court ordered the parties to submit
memoranda of law solely on the issue of whether the restriction deprived the
parties of the equitable relief of Partition, and subsequently held oral
argument on the issue.
On December 5, 2016, after hearing oral argument and considering
the memoranda, the court entered an Order directing Partition of the
properties. Appellants timely appealed.2
Appellants raise the following four issues on appeal:
1) Whether the trial court erred in holding that the trial court’s
Order of September 14, 2009, which provided that “no
disposition of the properties or any action concerning the
properties may be taken without the express written
agreement of at least two of the deed holders . . .” did not
preclude [Appellee] from bringing an [A]ction for [P]artition of
those properties?
2) Whether the restriction contained in the Deed by which the
parties obtained title, which included both the language of the
September 14, 2009 Order and the Order itself, precludes
Plaintiff’s [A]ction in [P]artition?
3) Whether [Appellee]’s [A]ction for [P]artition is barred by the
doctrine of collateral estoppel, as the same issue, the
ownership of the properties, was established in the earlier
quiet title action and the parties here were in privity to the
____________________________________________
2 The trial court did not order Appellants to file a Pa.R.A.P. 1925(b)
Statement. On March 7, 2017, the trial court issued an Opinion pursuant to
Pa.R.A.P. 1925(a).
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parties in that action, which was resolved in the September
19, 2009 Order?
4) Whether [Appellee] waived any right to seek partition by
accepting title to the properties subject to the restriction
against disposition and further action contained in the deed?
Appellants’ Brief at 5 (some capitalization omitted).
When reviewing a trial court’s decision to grant a petition to partition,
this Court is limited to whether the court’s findings of fact are supported by
competent evidence, whether the court committed an error of law, or
whether the court abused its discretion. In re Kasych, 614 A.2d 324, 326
(Pa. Super. 1992); Hercules v. Jones, 609 A.2d 837, 839 (Pa. Super.
1992). Instantly, Appellants specifically challenge the trial court’s
interpretation of the Deed restriction. A trial court’s construction of a deed
is a question of law, which compels de novo review. Murphy v. Karnek,
160 A.3d 850, 859 (Pa. Super. 2017).
When interpreting deeds, this Court’s primary objective must be to
ascertain and effectuate the intent of the parties. Id. at 858. When the
language of the deed is free from ambiguity, “the intent of the parties must
be determined from the language of the deed.” Hercules, supra at 841
(citation omitted). Conversely, when the language is ambiguous, “intent is
determined by the situation and conduct of the parties, surrounding
circumstances, the object they had in view and the nature of the subject
matter.” Id. (citation omitted). Further, if the language in a deed is
ambiguous, “then all of the attending circumstances existing at the time of
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the execution of the instrument should be considered to aid in determining
the apparent object of the parties.” Starling v. Lake Meade Prop.
Ownders Ass’n, Inc., 162 A.3d 327, 341 (Pa. 2017) (citation omitted;
emphasis in original).
We recognize that “the right to partition is an incident of a tenancy in
common, and an absolute right.” Bernstein v. Sherman, 902 A.2d 1276,
1278 (Pa. Super. 2006) (citation and quotation omitted). “The purpose of
partition is to afford those individuals who no longer wish to be owners the
opportunity to divest themselves for a fair compensation.” Kasych, supra
at 326 (citation and quotation omitted). While owners of property generally
have an absolute right to partition, parties are free to restrict that right. Id.
Moreover, “partition is a possessory action; its purpose and effect being to
give to each of a number of joint owners the possession to which he is
entitled ... of his share in severalty. It is an adversary action and its
proceedings are compulsory.” Bernstein, supra at 1278 (citation and
quotation omitted). “[T]he purpose of the action of partition is to divide
property, not to sell it. A sale may become an incident, but is not the
objective point of it.” Seiders v. Giles, 21 A. 514 (Pa. 1891).
In their first two issues on appeal, Appellants aver that the restriction
contained in the September 14, 2016 Order, and subsequently in the Deed
conveying title of the properties to the parties, precludes Appellee from
bringing an Action in Partition and, therefore, the trial court erred when it
granted Partition. Appellants’ Brief at 5. Appellants assert that because two
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of the Deed holders are not in agreement with Partition, the restriction in the
Deed precludes the remedy of Partition. Id.
Finally, Appellants argue that the intent of the parties was to create a
further restriction of the rights of the owners, beyond their rights as tenants
in common. Id. at 13. Appellants claim that the second clause of the
restriction, which requires that all expenses of the properties “are to be
borne equally by the three deed holders,” shows an intent contrary to the
effect of an action for partition. Id. Appellants explain that if the properties
are partitioned, the properties are distributed among the owners, with each
owner only responsible for expenses attributable to their individual
properties. Id. They contend that such attribution runs counter to the
restriction. Id.
Appellee avers that the purpose of the restriction was to prevent the
sale of the properties or the conveyance of an interest to a third party unless
two or more deed holders agreed. Appellee’s Brief at 4 (unpaginated).
Appellee further avers that the restriction does not preclude an Action for
Partition, which is a possessory action rather than a conveyance. Id. at 3,
6.
We must look to the plain language of the deed to determine the
intent of the parties. See Murphy, supra at 858; Hercules, supra at 841.
As stated above, the deed restriction provides:
No disposition of the properties or any action concerning
the properties may be taken without the express written
agreement of at least two of the deed holders; and further,
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that all expenses of the properties are to be borne equally
by the three deed holders.
Deed, recorded 10/18/2009.
Appellants concede that “disposition of the properties” denotes a
transfer or sale of the properties. Appellants’ Brief at 12-13. An Action in
Partition, however, involves the division of the property but not necessarily a
transfer or sale of the property. See Seiders, supra. As such, we conclude
that the language prohibiting “disposition of the properties” does not
preclude an Action in Partition. However, our analysis does not stop here.
The restriction also prohibits “any action concerning the properties . . .
without the express written agreement of at least two of the deed holders.”
While this language may be broad, it is not ambiguous. Certainly, filing an
Action in Partition to divide the properties constitutes “action concerning the
properties.” Additionally, we agree with Appellants that the second clause of
the restriction, which compels the owners to share the expenses of all of the
properties, demonstrates the parties’ intent to preclude division of the
properties, and consequently division of the expenses, without the consent
of at least two of the owners. Therefore, without the express written
consent of two of the deed holders, the restrictive language in the deed that
prohibits “any action concerning the properties” precludes Appellee from
taking the action of filing an Action in Partition and subsequently dividing the
properties.
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In conclusion, the restriction in the Deed precludes Appellee from filing
an Action in Partition without the express written consent of two of the deed
holders. Accordingly, the trial court erred when it granted Partition in favor
of Appellee and, thus, we reverse the Order granting Partition. As the first
two issues are dispositive of the outcome, we decline to address Appellants’
remaining issues.
Order reversed.
Judge Panella joins the opinion.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2017
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