Carr, H. v. Craft, D.

J-A26013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HOWARD CARR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID M. CRAFT,
Appellant No. 1797 MDA 2013
Appeal from the Order Dated September 4, 2013
In the Court of Common Pleas of Northumberland County
Civil Division at No(s): CV-2012-554
BEFORE: BOWES, MUNDY, and JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 16, 2014
David M. Craft has filed the present appeal from a September 4, 2013
order finding him in contempt of court and imposing a sanction of $500.
We affirm since Mr. Craft does not actually challenge the order in question.
Appellee Howard Carr instituted this action in partition against
Mr. Craft and alleged the following. The parties owned a parcel of real
estate as joint tenants with right of survivorship located in Coal Township,
Northumberland County. A copy of the deed to the real estate in question
joint names. Mr. Carr claimed that Mr. Craft occupied the property with
another person and to the exclusion of Mr. Carr. Mr. Carr asked that the
property be partition
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various costs.
In his answer and counterclaim, Mr. Craft admitted that the subject
ut averred the following. The
note and mortgage on the property solely as an accommodation party.
Mr. Craft made the down payment on the premises and had satisfied all the
mortgage payments and other expenses associated with its upkeep, whereas
Mr. Carr had contributed no money toward either the purchase or
ject property which is
Mr. Craft additionally requested that he not be required to pay Mr. Carr any
Mr. Carr then moved for an order directing partition pursuant to
Pa.R.C.P. 1557. That rule states in relevant part that if the trial court
after a hearing or trial, the court shall enter an order directing partition
which shall set forth the names of all the co-tenants and the nature and
-transcribed hearing,
the trial court executed an order dated September 19, 2012. That order
provided:
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1) Defendant David M. Craft shall have a period of ninety (90)
days in which to arrange for the purchase of the property listed
in the complaint, or to otherwise arrange an agreement
satisfactory to both parties and to any creditors that
accomplishes the goal of removing Plaintiff Howard Carr from the
title and mortgage on the property listed in the complaint.
2) Should Defendant [David Craft] be unable to satisfy the terms
of this court order in the prescribed period, the property shall be
listed for sale with a bona fide realtor agreed upon by both
parties.
3) Should the parties be unable to agree upon a realtor within
fifteen (15) days, they shall notify the Court, and the Court will
select a realtor with which to list the property for sale.
Trial Court Order, 9/19/12, at 1.
On January 7, 2013, Mr. Craft filed a motion for clarification of the
order, but the motion essentially operated as objections to it. He asserted
sole
owner of the property. Mr. Craft again claimed that Mr. Carr was a signatory
to the mortgage merely as an accommodation. Mr. Craft asked that the
status quo be maintained since the mortgage was not in default. That
motion was not resolved.
On January 15, 2013, Mr. Carr filed a motion to compel a real estate
listing. Therein, he averred that the September 19, 2012 order operated as
an order in partition. He stated that Mr. Craft had not refinanced the
mortgage or purchased the property and that the parties could not agree on
a realtor. Mr. Carr asked that the property be listed for sale. On
January
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a realtor from Danville to sell the property, and the court ordered and
directed
1.
On February 20, 2013, Mr. Carr filed a petition for contempt averring
that Mr. Craft had failed to execute the real estate listing, as required by the
January 17, 2013 order. The petition for contempt was granted by order
dated September 4, 2013. Sanctions were also imposed in the order in that
deducted
Mr. Craft filed the present appeal from the September 4, 2013 order
finding him in contempt. However, his challenges on appeal all relate to the
propriety of the September 19, 2012 order that required him either to enter
satisfactory arrangements with Mr. Carr regarding the mortgage and sale of
the property or to list the property for sale.1 He raises no objections to the
____________________________________________
1
The issues raised in this appeal are:
I. Did the Court err in denying Defendant's, Mr. David M.
Craft's, request that Plaintiff, Mr. Howard Carr, be ordered to
specifically perform his guarantee of Mr. Craft's home loan in the
above entitled action and is said decision inequitable in light of
the interests of Mr. Craft who has a reasonable expectancy in the
transaction, is making his payments and has expended
substantial sums in establishing himself in the home and in
repairing and renovating the same?
(Footnote Continued Next Page)
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propriety of the order finding him in contempt of the January 17, 2013
order, which clearly required Mr. Craft to execute a listing agreement.
Initially, we observe that the September 4, 2013 order finding
Mr. Craft in contempt and awarding Mr. Carr sanctions is an appealable
order. Rhoades v. Pryce, 874 A.2d 148 (Pa.Super. 2005) (order finding
litigant in contempt and imposing sanctions is final and appealable). While
Mr. Craft ostensibly filed this appeal from that order, it is clear that this
appeal does not involve the contempt order to any extent. Rather, the
present appeal solely pertains to the propriety of the September 19, 2012
order. Mr. Carr filed a motion to quash, arguing that this appeal is untimely.
_______________________
(Footnote Continued)
II. Did the Court err in not applying the doctrine of promissory
estoppel to hold Plaintiff, Mr. Howard Carr, to his guarantee of
Defendant's, Mr. David M. Craft's, home loan in the above
entitled action and is said decision inequitable in light of the
interests of Mr. Craft who has a reasonable expectancy in the
transaction, is making his payments and has expended
substantial sums in establishing himself in the home and in
repairing and renovating the same?
III. In light of Plaintiff Carr's admission through counsel that he
claims no interest in the real property and that he was able to
obtain credit with the existence of this mortgage obligation, is
simply forcing the sale of a party's home to satisfy Mr. Howard
Carr's arbitrary and capricious personal falling out with
Defendant Craft inequitable and an abuse of discretion?
below. However, Mr. Craft appears to be asserting a claim to sole ownership
of the property and that Mr. Carr was an accommodation party on the
mortgage, which he raised in his counterclaim. He also is objecting to a
forced sale of the property and seeks to maintain the status quo, as outlined
in his motion asking that the September 19, 2012 order be clarified.
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Mr. Craft counters that this appeal is not untimely because the
September 19, 2012 order is interlocutory. We conclude that we lack
jurisdiction at this juncture over the September 19, 2012 order.
We observe that the September 19, 2012 order can be construed as
request for partition and since it required Mr. Craft either to purchase the
order directing partition is an interlocutory order appealable as of right under
Pa.R.A.P. 311(a)(7) (An appeal may be taken as of right and without
Mr. Craft could have appealed from the September 19, 2012 order within
thirty days of its entry but failed to do so.
In this appeal, he is precluded from challenging the propriety of the
September 19, 2012 order in this Court until a final resolution, on the
merits, of this matter. Pa.R.A.P. 311(g), waiver of objections, states that if
an interlocutory order is made immediately appealable under that rule, the
shall not
constitute a waiver of the objection to the order and the objection may be
raised on any subsequent appeal in the matter from a determination on the
merits.
the trial court has yet to decide the respective interests of the parties,
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whether damages are to be awarded, and how the proceeds of the sale are
to be distributed.
Mr. Craft presents an alternative characterization of the September 19,
2012 order. He insists that it was merely an interlocutory order mandating
one directing partition but merely interlocutory, we nevertheless lack
one certified by the trial court as final; 2) an interlocutory order as of right;
Estate of
Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009)
(citation omitted). The September 19, 2012 order fails to fall within any of
those categories.
property of the September 19, 2012 order in this appeal. The appeal herein
either is an untimely as to that order, if it effectuated partition, or is from an
interlocutory order directing the sale of real property. Furthermore,
Appellant fails to present any challenges to the final contempt order from
which this appeal was properly filed. Hence, we must affirm that order.
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Motion to quash appeal is denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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