J-S52004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VERNA MOLEK,                                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

FRANK MOLEK,

                            Appellee              No. 1044 WDA 2014


            Appeal from the Judgment Entered on August 19, 2014
             in the Court of Common Pleas of Washington County
                      Civil Division at No(s): 2009-5216


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 20, 2015

       Appellant, Verna Molek (“Verna”), appeals from the judgment entered

in favor of her brother, Frank Molek (“Frank”), following the denial of her

exceptions to the Master’s report and recommendation in her consolidated

partition and detrimental reliance-based actions.1 Upon review, we affirm in

part, and we reverse and remand in part.

____________________________________________


1
    In Verna’s notice of appeal, she indicated that this appeal was from the
June 4, 2014 order denying her exceptions. On August 8, 2014, we issued a
rule to show cause why this appeal should not be dismissed as interlocutory
because judgment had not been entered. After receiving a timely response
and supporting documentation indicating that judgment had been entered,
we discharged the rule on August 27, 2014. Consequently, we will treat this
appeal as if it was filed after the entry of judgment on August 19, 2014,
which is the appealable order. See Pa.R.A.P. 905(a) (“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
(Footnote Continued Next Page)
J-S52004-15


      The trial court summarized the facts and procedural history of this

case as follows:

            By deed dated February 5, 1976, and recorded in the
      Recorder of Deeds Office of Washington County, Pennsylvania, in
      Deed Book Volume 1649, page 298, Mike Molek, the father to
      the parties of the instant action, deeded a tract of real property
      situated in West Pike Township, Washington County,
      Pennsylvania, consisting of 20.41 acres (hereinafter “Original
      Tract”) to [Verna] . . . , her brother, [Frank] . . ., and Joseph
      Molek, the brother to the parties of this action (hereinafter
      “Joseph Molek”), as joint tenants with rights of survivorship.

             Mike Molek died intestate on August 28, 1984. [Frank]
      testified that his father had informed him that there was money
      stored in the basement wall of the farm house.            [Frank]
      extracted the money, which totaled approximately $40,000 cash.
      Thereafter, Joseph Molek, [Verna], and [Frank] met to discuss
      their father’s finances.     At the meeting, the three family
      members divided the cash into 14 shares, in order to bestow
      each of their siblings with approximately two thousand dollars
      each. Joseph Molek and [Frank] expressed that they were not
      interested in living at the farm house, so it was further agreed
      that [Verna] could move into the farm house. [Verna] was given
      an additional sum of $10,000 from the cash found in the farm
      house in order to make repairs to the house.           Testimony
      demonstrated that no decisions were made regarding the
      Original Tract at that time.

            On September 7, 1984, due to an impending divorce,
      Joseph Molek deeded his interest in the Original Tract to [Verna]
      and [Frank], as joint tenants with right of survivorship.

            Thereafter, [Frank] discussed with [Verna] his interest in
      building a house on the Original Tract. By deed dated June 15,
      1987, and recorded with the Recorder of Deeds Office of
      Washington County, Pennsylvania in deed book volume 2286,
      page 430, [Verna] conveyed her interest in a portion of the
                       _______________________
(Footnote Continued)

thereof.”); Sagamore Estates Property Owners Ass’n v. Sklar, 81 A.3d
981, 983 n.3 (Pa. Super. 2013).



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     Original Tract, consisting of approximately 4.895 acres, to
     [Frank] and his wife, Bonnie Molek, as tenants by the entireties.

           After his divorce proceedings concluded, Joseph Molek
     inquired with [Verna] and [Frank] about putting his name back
     on the deed to the Original Tract. However, as an alternative,
     [Verna] and [Frank] agreed to convey their interest to 5 acres of
     the Original Tract to Joseph Molek on June 26, 1990.
     Accordingly, [Verna] and [Frank] owned, as joint tenants with
     rights of survivorship, the remainder of the Original Tract which
     consisted of approximately 10.515 acres (hereinafter referred to
     as “Property”).

            [Verna] testified at the proceedings before the Master that
     she was under the belief that she solely owned the farm house
     and that the parties agreed to divide the Original Tract evenly
     into 7 acre allotments. To support this claim, [Verna] testified
     that she paid all of the house bills, taxes, mortgage payments
     and upkeep totaling approximately $128,000.           She further
     testified that she paid [Frank] for supplies and labor for any
     maintenance he completed at the farm house.

           Conversely, [Frank] testified that there was no agreement
     to divide the property as [Verna] proposed and any payments
     made to him by [Verna] were for reimbursement of supplies
     only. However, [Frank] did concede that he did not pay any
     taxes or mortgage payments for the farm house.

           Following the completion of the agreement to deed
     acreage to Joseph Molek in 1990, [Verna] requested that [Frank]
     remove his name from the deed to the remaining Property
     including the farm house. [Frank] declined [Verna’s] request on
     numerous occasions. Thereafter, [Verna] filed this Complaint
     seeking partition of [P]roperty.

Trial Court Opinion, 3/17/15, at 3–5 (footnotes omitted).

           On or about June 23, 2009, [Verna] . . . filed a civil action
     seeking partition of a certain 10 acre parcel of property located
     in West Pike Township, Washington County, Pennsylvania. The
     Complaint alleged that [Frank] . . ., [Verna’s] brother and the
     joint owner, had made an agreement for the partition of the
     property and/or that a “parol partition” of the property had
     occurred. On May 11, 2012, [Verna] filed a separate civil action

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     alleging that [she] relied on the alleged agreement with [Frank]
     for partition of the property to her detriment.

           On or about September 6, 2012, in consideration of
     [Verna’s] Motion, William H. Knestrick, Esquire, was appointed
     as Master in Partition to the instant matter. It was further
     ordered that cases 2009-5216 and 2012-3032 be consolidated
     under case number 2009-5216.

           On April 10, 2013, a hearing was held before court
     appointed Master William H. Knestrick, Esquire (hereinafter the
     “Master”).     The Master entered a Master’s Report and
     Recommended Order on June 17, 2013. Notably, the report
     found that the 10.515 acre tract should be divided according to
     the appraisal conducted by C. Roberta Aul, certified appraiser,
     valuing the farm house and approximately 1.4 acres at $75,000
     and the remaining 9.115 acres at $75,000. On June 27, 2013,
     [Verna] filed timely Exceptions to the Master’s Report.
     Thereafter, on May 29, 2014, argument was held on [Verna’s]
     Exceptions. The Trial Court entered an Order on June 4, 2014,
     denying [Verna’s] Exceptions and approving the Master’s
     Recommended Order.

Id. at 1–2.     This timely appeal followed.    Verna and the trial court have

complied with Pa.R.A.P. 1925.

     Verna presents the following questions for our consideration:

     1.       Did the trial court [err] in concluding that there was
              insufficient evidence to establish that a parol partition of
              the original tract of 20.41 acres occurred or alternatively,
              that there was insufficient evidence to establish that a
              parol partition of the current tract consisting of 10.515
              acres occurred?

     2.       Alternatively, to the extent that the trial court’s conclusion
              that no parol partition occurred is affirmed, did the trial
              court [err] as a matter of law by adopting and approving
              the Master in Partition’s analysis in support of partition
              and/or in concluding there existed sufficient evidence for
              the Master’s recommended order of partition of the current
              tract of 10.515 acres that was approved?


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      3.    Did the trial court [err] by not ruling upon the Appellant’s
            detrimental reliance claims set forth in the Complaint in
            Civil Action at Washington County Civil Action Number
            2012-3032 and consolidated with the Complaint in
            Partition filed at Washington County Civil Action Number
            2009-5216?

Verna’s Brief at 4.

            The scope of appellate review of a decree in equity is
      particularly limited and such a decree will not be disturbed
      unless it is unsupported by the evidence or demonstrably
      capricious.... The test is not whether we would have reached
      the same result on the evidence presented, but whether the
      judge’s conclusion can be reasonably drawn from the
      evidence.... Where a reading of the record reasonably can be
      said to reflect the conclusions reached by the lower court sitting
      in equity, we cannot substitute our judgment for that of the
      lower court.

Lombardo v. DeMarco, 504 A.2d 1256, 1258 (Pa. Super. 1985); In re

Kasych, 614 A.2d 324 (Pa. Super. 1992); Moore v. Miller, 910 A.2d 704

(Pa. Super. 2006). “Conclusions of law or fact, being derived from nothing

more than the chancellor’s reasoning from underlying facts and not involving

a determination of credibility of witnesses, are reviewable.” In re Kasych,

614 A.2d at 326 (citation omitted).

      Verna first argues that the Master erred in determining there was

insufficient evidence to support a finding that she and her brothers

effectuated a parol partition of the Original Tract. According to Verna, “the

deeds granting to Frank and Joseph tracts out of the [O]riginal [T]ract and

their subsequent occupation of those tracts reveal evidence of the execution

of the parol partition agreement.” Verna’s Brief at 19. In response, Frank


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J-S52004-15


contends that there was no evidence of a parol partition of the Original Tract

and that he and Verna “acted until 2009 like the joint tenants that they were

and not as complete owners over a ‘purpart’.”2 Frank’s Brief at unnumbered

3, 7.

              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. The rule is
        that the right to partition is an incident of a tenancy in common,
        and an absolute right.

Lombardo, 504 A.2d at 1258; Bernstein v. Sherman, 902 A.2d 1276,

1278 (Pa. Super. 2006).

        More than a century ago, the Pennsylvania Supreme Court explained

the law of parol partition as follows:

        It was settled as early as Ebert v. Wood, 1 Bin. 216, that a
        parol partition between tenants in common is valid and
        conclusive. Chief Justice Tilghman puts the decision mainly on
        the ground of part performance, which the English courts of
        equity had held to take such contracts out of the bar of the
        statute of frauds. But another and equally weighty reason might
        be added from the nature of tenancy in common. As each
        tenant has not only title, but joint and several possession of the
        whole and of every part, the change to a title in severalty in any
        specified part is not such a transfer of title to land as is within
        the mischief contemplated by the statute of frauds. This reason
        was indicated in Mellon v. Reed, 114 Pa. St. 647, 8 Atl. 227,
        and again more fully in McKnight v. Bell, 135 Pa. St. 358, 19
        Atl. 1036, where it is said by our late Brother Clark: “A partition
____________________________________________


2
  A “purpart” is “[a] share of an estate formerly held in common; a part in a
division; an allotment from an estate to a coparcener.”         BLACK’S LAW
                       th
DICTIONARY at 1355 (9 Ed. 2009).




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      which merely severs the relation existing between tenants in
      common in the undivided whole, and vests title to a
      correspondent part in severalty, is not such a sale or transfer of
      title as will be affected by the statute of frauds. The reason of
      this rule rests in this: That the partition is not an acquisition or
      purchase of land, nor is it in any proper sense a transfer of the
      title to land. It is a mere setting apart in severalty of the same
      interest held in common, not in other, but in the same, lands.”

Byers v. Byers, 38 A. 1027, 1028 (Pa. 1898); Merritt v. Whitlock, 49 A.

786, 786–788 (Pa. 1901). See also Runco v. Ostroski, 65 A.2d 399 (Pa.

1949) (acknowledging a tenancy by entireties in real estate may be ended

by parol partition; citing Merritt).

      However, “[t]he cases have drawn the line between a mere parol

agreement to partition and an agreement followed by acts of the parties on

the land itself, indicating several possession taken in execution of the

agreement. The former is inoperative, but the latter is valid.” Byers, 38 A.

at 1028. “The execution of a parol partition, which is required by the cases,

means such acts of the parties upon the land as show a part performance of

the agreement, sufficient . . . to bring it within the equity of enforcement.”

Id.   In short, an agreement to partition and execution of that agreement

must be demonstrated by all parties acting in a manner that recognizes each

party’s individual, exclusive possession of their purpart.

      Here, the trial court concluded there was insufficient evidence of an

agreement regarding partition of the Original Tract:

            It is apparent that [Verna] made an agreement with
      [Frank] and Joseph Molek to survey and subdivide tracts of land
      from the Original Tract for their benefit, terminating the joint

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       tenancy as to those out parcels. Unfortunately for [Verna], what
       it [sic] is equally clear from the record is that [Frank] and Joseph
       Molek made no such agreement for a subdivision of the [10.515
       acres] for [Verna]. The record demonstrates that [Frank] and
       Joseph Molek intended for [Verna] to have and reside in the
       farm house, but not to subdivide the Original Tract or [10.515
       acres] into equal tracts upon termination of the joint tenancy.

             The fact remains . . . that there is substantial competent
       evidence to support the Trial Court’s determination. . . . [3] There
       was an opportunity for [Verna] and [Frank] to come to an
       agreement and subdivide their interest in the Original Tract at
       the time the [Original Tract] was surveyed to convey a parcel to
       [Frank], and then again three years later when [Verna and
       Frank] deeded a portion of the Original Tract to Joseph Molek.
       However, when [Verna] inquired of [Frank] if he would remove
       his name from the deed of the [10.515 acres] he refused,
       indicating that there was no agreement to subdivide the [10.515
       acres].

Trial Court Opinion, 3/17/15, at 8–9.

       Upon review of the record, we discern no basis on which to disturb the

trial court’s conclusion.     Other than her own testimony, id. at 52–53, 62,

72–73, 92, 102–103, 114, 119–122, 127–129, Verna proffered no evidence

of an agreement among the three siblings to partition the Original Tract.

Moreover, even if there were such an agreement, Verna did not present

____________________________________________


3
   The trial court opined, “Had [Frank] agreed to subdivide the Original Tract
or [10.515 acres] into equal 7 acre tracts, the subdivision would have been
executed in writing. No such writing for the transfer or conveyance of land
has been executed . . . .” Trial Court Opinion, 3/17/15, at 9. We disagree
that an agreement to divide the property would have to be executed in
writing. The crux of a parol partition is an oral agreement to subdivide a
joint tenancy, accompanied by conduct of the parties conducive to the oral
agreement; no writing is necessary. Byers, 38 A. at 1028.




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evidence of acts by “the parties on the land itself, indicating several

possession taken in execution of the agreement.”      Byers, 38 A. at 1028.4

Thus, an agreement alone—if one had been proven—would be “inoperative.”

Id.

       Verna testified that when their father died, she and her brothers talked

about Verna taking the house, but they did not discuss acreage.           N.T.,

4/10/13, at 44–45, 118, 155. According to Verna, about six months later,

she and Frank discussed each sibling taking seven acres.        Id. at 52–53,

102–103, 155.        Yet, despite opportunities to recognize Verna’s several

interest in the Original Tract in 1986, 1987, and 1990, the parties did not do

so. Id. at 67, 120–121, 125–127, 129–131, 216.

       Contrarily, Frank testified that Verna suggested he build a house on

the Original Tract; so he did, on 4.895 acres, and she did not object. Frank

asserted that Verna never said anything to him about seven acres. Id. at

50–52, 244, 250.        Joseph testified that Verna told him to take what he

____________________________________________


4
   Compare Howell v. Mellon, 42 A. 6, 7–8 (Pa. 1899) (“The partition
averred is a division of the land into two nearly equal parts by a line running
east and west, of which the north half was taken by Llewellyn, and the south
half by John and Phillip. There is evidence of a line having been adopted or
run; fences erected in accordance with it; cultivation on their respective
sides of the line; old stone corner indicating the course of the line; building
of brick dwelling houses for the sons Llewellyn and John,—first, Llewellyn’s
was built on the northern half, and his initials were put on the house with
the date, then John, contemplating marriage, built a brick house on his side
of the line, and put on it his initials with the date, 1839; he did marry, and
took up housekeeping in that house.”).



                                           -9-
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wanted in July 1986; so he did, taking five acres, and Verna did not object.

Joseph asserted that Verna never said anything to Joseph about limiting his

share to seven acres. Id. at 267, 272, 286, 294. Then, in August of 1990,

Frank, as a joint tenant with right of survivorship (“JTWROS”), co-signed a

mortgage secured by Verna to remodel the farm house.          Id. at 71, 135,

251. Additionally, Frank and Joseph took fewer than ten acres combined, so

the remaining 10.515 acres would continue to qualify for the tax advantage

afforded by the Clean and Green Act.5 N.T., 4/10/13, at 250. Frank desired

the Clean and Green tax advantage for Verna, who had been paying all of

the real estate taxes on the Original Tract.       Id. at 251–252, 256.   As a

farmer, Joseph was familiar with the Clean and Green Act, and he agreed to

take five acres in order to preserve the designation. Id. at 267, 288, 299.

       As evidenced by his recommendation, the Master credited Frank’s and

Joseph’s testimony and rejected Verna’s parol-partition argument. We will

not disturb that determination where no extraordinary circumstances exist,

as in this case. Accord In re Novosielski, 992 A.2d 89, 104 (Pa. 2010)

____________________________________________


5
   The Pennsylvania Farmland and Forest Land Assessment Act of 1974 is
commonly known as the Clean and Green Act. 72 P.S. §§ 5490.1–5490.13.
“In order to encourage conservation, the Clean and Green Program often
‘provides a lower tax rate appropriate for land devoted to farming and forest
reserve purposes’ by enabling landowners to apply for preferential
assessments.” Feick v. Berks County Board of Assessment Appeals,
720 A.2d 504, 505 (Pa. Cmwlth. 1998). Land comprised of ten or more
contiguous acres that is in forest reserve is eligible for preferential
assessment. 72 P.S § 5490.3(3).



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(“Absent extraordinary circumstances, an appellate court will not substitute

its judgment for that of the fact-finder.”).   Thus, we conclude that the

evidence of record refutes Verna’s argument that a parol partition of the

Original Tract occurred.   Frank and Joseph denied that an agreement

existed, and the parties’ actions do not indicate several possession of the

Original Tract taken in execution of an agreement. Byers, 38 A. at 1028.

     Additionally, the evidence does not support Verna’s argument that a

parol partition resulted in Verna’s sole ownership of the 10.515 acres. The

Master found that there was no agreement for a parol partition and no actual

partition of the 10.515 acres, and the trial court affirmed this finding.

Master’s Report (Findings of Fact), 6/17/13, at ¶¶   2h and 2i; Trial Court

Opinion, 3/17/15, at 9. The record supports this finding. Fatal to Verna’s

contrary position is the following evidence: Joseph helped to maintain the

10.515 acres and kept cattle on that parcel until 1987 or 1988.        N.T.,

4/10/13, at 59, 269. Joseph paid for and built the garage in 1978, and he

continued to use it as a workshop until 2009.     Id. at 111, 270.    Frank

expressly retained his JTWROS interest in the 10.515 acres by refusing to

convey it to Verna on several occasions, by contributing to maintenance of

the garage Joseph built, the farm house and driveway, and the 10.515 acres

(e.g., tearing down a chicken coop, cutting the grass, and harvesting hay),

and by co-signing a mortgage secured by Verna in August of 2009 to

remodel the farm house. N.T., 4/10/13, at 71, 75, 198, 213–220, 223, 251,


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253.   This evidence does not demonstrate a parol partition of the 10.515

acres whereby the JTWROS turned their joint possession of the 10.515 acres

into several possession. Frank and Verna did not partition the 10.515 acres

into purparts, agree on the division line, occupy their individual parts as

such, and recognize the respective titles in severalty in each other. Byers,

38 A. at 1028.

       In sum, the evidence demonstrates an understanding among the

siblings that Verna would live in the farm house, and the brothers would live

on their own acreage. In support of that understanding, Verna remodeled

and moved into the farm house, and the siblings executed a severance of

the joint tenancy and two subdivisions of the Original Tract, all supported by

deeds, whereby Frank and Joseph established their own homes on separate

parcels. Therefore, based on the evidence and credibility determinations, we

discern no abuse of the trial court’s discretion or error of law in the denial of

Verna’s exceptions to the Master’s determination that no parol partition

occurred with regard to the Original Tract or the 10.515 acres.

       Next, Verna argues that the trial court erred in adopting the Master’s

recommended, appraisal-based partition of the 10.515 acres between Verna

and Frank. According to Verna, “[t]here is insufficient evidence to support

the order of partition recommended by the master and approved by the

lower court,” i.e., that the 10.515 acres “could be divided into two purparts




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without prejudice to or spoiling of the whole property and in purparts

proportionate to the parties[’] interests.”   Verna’s Brief at 28.

      Pa.R.C.P. 1560 governs partitions and provides as follows:

      If division can be made without prejudice to or spoiling the
      whole, the property shall be divided as follows:

      (a) into as many purparts as there are parties entitled thereto,
      the purparts being proportionate in value to the interests of the
      parties;

      (b) if it cannot be divided as provided in Subdivision (a), then
      into as many purparts as there are parties entitled thereto,
      without regard to proportionate value;

      (c) if it cannot be divided as provided in Subdivisions (a) or (b),
      then into such number of purparts as shall be most
      advantageous and convenient without regard to the number of
      parties.

Pa.R.C.P. 1560(a-c).

      Verna presents four specific challenges to the Master’s recommended

partition.   First, Verna argues that the Master and the trial court ignored

evidence that Verna relies upon a cistern supplied by water from the roof of

the barn located on Frank’s proposed purpart for all of her non-drinking

water. Verna’s Brief at 30. According to Verna, the recommended partition

does not account for the devaluation of Verna’s purpart caused by the

omission of her non-drinking water source, nor does it account for the fact

that Verna will have to obtain a new source of non-drinking water.          Id.

Consequently, Verna contends, the proposed partition violates Pa.R.C.P.




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1570 6 because it fails to consider “division of the property, value of the

purparts and the calculation of credits or charges for amounts paid by a

party.” Id. at 31.

       The trial court addressed this challenge with the following analysis:

       Bearing in mind that [Verna] initiated this action for partition, it
       is curious that this matter was not contemplated at the Master’s
       hearing. In [Verna’s] Exceptions to the Master’s Report, filed
       June 27, 2013, [Verna] asserted that the barn was the source of
       all non-drinking water.26      Despite this contention, during
       argument held on [Verna’s] Exceptions this matter was not
       addressed.
              26
                  [Verna’s] Exceptions to Masters Report. Pg. 1 ¶
              3; Pg. 2 ¶ 9. Filed June 27, 2013.

              Thus, the [t]rial [c]ourt asserts that after a thorough
       review of the record, and consideration of the two appraisals
       submitted for the [t]rial [c]ourt’s review, there is no evidence
       that supports [Verna’s] contention that the barn is the source of
       all non-drinking water for [Verna’s] residence, or that partition of
       the barn would have any consequence to the value of [Verna’s]
       purpart.

Trial Court Opinion, 3/17/15, at 10–11.

       Upon review, we conclude that the trial court’s resolution of this

challenge is not supported by the record. We note that the cistern was not

discussed at the hearing on Verna’s exceptions. However, when asked by

the trial court about any other issues, Verna’s counsel responded, “There are

other minor errors, Your Honor, in there. It’s in my brief.” N.T., 7/31/14, at

____________________________________________


6
  Pa.R.C.P. 1570(a) and (b) govern the contents of a partition decision and
order, respectively.



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22. Included in the brief was Verna’s argument that failure to include the

cistern in her proposed purpart results in the loss of her non-drinking water

source and a devaluation of her property.             Memorandum in Support of

Plaintiff’s Exceptions to Master’s Report, 3/11/14, at 8, 10.         Thus, Verna’s

cistern argument was presented to the trial court for consideration.

       Moreover, Verna submitted language from the two appraisals prepared

by certified appraiser C. Roberta Aul, indicating that “the water source for

the dwelling is a 3500 gallon (?) cistern,” and “the water runs from the barn

roof to [the] cistern near the dwelling.” Verna’s Brief at 29–30 (citing Joint

Exhibits 9 and 10).7 Thus, contrary to the trial court’s finding, the record

does contain evidence that Verna relied on the barn for provision of her non-

drinking water.        The Master failed to address this evidence in the

recommended partition, and the trial court erred in failing to consider it

when reviewing the Master’s recommendation.

       Next, Verna challenges the Master’s reference to the garage that

Joseph built as “Frank’s Garage.”          Verna’s Brief at 31.   Our review of the

notes of testimony indicates that no one disputes it was Joseph who built

and maintained the garage referenced by the Master as “Frank’s Garage.”
____________________________________________


7
    Joint Exhibit 9 is the October 4, 2011 Residential Appraisal Report
prepared by C. Roberta Aul, which valued the farm house and two acres
(including the garage Joseph built and the barn) at $81,800.00. Joint
Exhibit 10 is the September 28, 2011 Residential Appraisal Report, prepared
by C. Roberta Aul, which valued the farm house and 1.4 acres (excluding the
garage Joseph built and the barn) at $75,000.00.



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N.T., 4/10/13, at 25, 110, 200–201, 270. Moreover, the Master’s reference

is not offensive when read in the proper context. The Master found that:

       [Verna], since on or around 1986, has resided in an
       improvement located on the [10.515 acres], being a frame
       dwelling having an address of 244 Grange Road, Coal Center, PA
       15423 (hereinafter the “House”), and has maintained the House
       and another improvement located on the [10.515 acres], being a
       garage located beside the House (hereinafter “Verna’s Garage”).

                                   * * *

       Frank, since on or around 1986, has maintained the remainder
       of the [10.515 acres], i.e., excluding the House and Verna’s
       Garage, by landscaping the [10.515 acres] and cutting the
       hayfields on the [10.515 acres], and by maintaining other
       improvements located on the [10.515 acres], being a barn
       located behind the House (hereinafter the “Barn”), and being a
       garage located behind the House and in front of the Barn
       (hereinafter “Frank’s Garage”).

Master’s Report, 6/17/13, at p. 6 ¶¶ k, n. Clearly, the Master defined the

respective improvements that Verna and Frank used and maintained for the

sole purpose of identifying which buildings and land would be included in

each party’s purpart. Because the garage that Joseph built in 1978 would be

included in Frank’s purpart, the Master designated it as “Frank’s Garage.”

Thus, Verna’s challenge to the Master’s terminology lacks merit.

       To the extent Verna challenges inclusion of the garage in Frank’s

proposed purpart, the evidence indicates that Joseph used the garage as a

workshop to repair tractors and machinery until 2009.      N.T., 4/10/13, at

270.   Joseph did not try to include the garage in his acreage because it

would have divided the property in an undesirable way. Id. at 301. Verna


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J-S52004-15


did not use the garage. Id. at 25, 110, 220. In fact, Verna did not want the

garage because “[i]t’s in the way. It needs money spent on it to fix it up.”

Id. at 151. Frank, on the other, did want the garage. Id. at 227. In light

of the testimony, we conclude that inclusion of the garage in Frank’s

proposed purpart is supported by the record. However, because the garage

is situated between the farm house and the barn and Verna does not want

the garage, but the barn is Verna’s source of non-drinking water, the Master

will have to re-evaluate the recommended partition to reach an equitable

result with regard to ownership of the garage and the barn.

      Verna’s third argument challenges the Master’s calculation of monies

owed to Verna for the payment of necessary home improvements.

According to Verna, the Master’s conclusion “that Frank’s payment for half of

the necessary improvements amounted to $5,769.50” was erroneous

because:

      the [M]aster and the trial court failed to consider Verna’s $371
      expenditure in having a new water pump installed, and
      installation of a new hot water heater and filters for $333.77[,]
      and payment of $500.00 to Frank for his labor in installing the
      hot water heater and filters, . . . [and] the charge of $184.87 for
      hardware for a door at Verna’s residence.

Verna’s Brief at 32 (internal citations omitted).

      The Master made the following findings of fact and conclusions of law

with regard to necessary improvements:

      l.    [Verna] made certain repairs or improvements necessary
            to preserve, safeguard and protect the integrity of the
            House and Verna’s Garage for the common benefit of her

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J-S52004-15


            and [Frank]. During the six (6) year period prior to the
            date of filing of [Verna’s] Complaint, [Verna] paid
            $8,600.00 for repairs to the roof of the House ($7,600.00)
            and the roof of Verna’s Garage ($1,000.00). These repairs
            were made in good faith, were of a necessary and
            substantial nature, and materially enhanced the value of
            the [10.515 acres].

      m.    [Verna’s] other repairs and maintenance expenses, siding,
            paint, etc., during the six (6) period prior to the date of
            filing of [Verna’s] Complaint through the present, were
            cosmetic enhancements or otherwise no necessary
            improvements.

                                     * * *

      p.    [Verna], since on or around 1988, has paid all
            homeowner’s insurance premiums regarding the [10.515
            acres]. During the six (6) year period prior to the date of
            filing of [Verna’s] Complaint through and including 2009,
            [Verna] paid $2,939.00 in homeowner’s insurance
            premiums.

                                     * * *

       e.   [Frank] shall contribute to [Verna] fifty percent (50%) of
            the home insurance premiums paid by [Verna] in
            connection with the [10.515] acres during the six (6) year
            period prior to the date of filing of [Verna’s] Complaint
            through and including 2009, totaling $1,459.50 (i.e.
            $2,939.00 / 2).

      f.    [Frank] shall contribute to [Verna] fifty percent (50%) of
            the cost of necessary improvements paid by [Verna] in
            connection with the [10.515] acres during the six (6) year
            period prior to the date of filing of [Verna’s] Complaint,
            totaling $4,300.00 (i.e. $8,600 / 2).

Master’s Report, 6/17/13, at 6–7, 10. We note that the trial court did not

discuss this particular challenge in its opinion.




                                      - 18 -
J-S52004-15


      “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 v.

Bednar, 688 A.2d 1200, 1205 (Pa. Super. 1997) (quoting 68 C.J.S.

Partition, § 139(a)). Thus, the improvements for which Verna seeks credit

must have been necessary to preserve or safeguard the residence.             Id.

Moreover, they must have accrued within six years before she filed her

complaint. Id. at 1204; 42 Pa.C.S. § 5527(b).

      Here, the Master’s report does not include a finding about the

additional items for which Verna seeks credit.     Yet, Verna and Frank both

testified about the need for a new water pump, and Verna provided evidence

of the cost for the water pump, hot water heater, filters, and door hardware.

N.T., 4/10/13, at 35, 220–221, Exhibits P-3 and P-4.           Common sense

dictates that a functioning water pump and a secure door materially enhance

the value of a farm house. These expenses accrued in 2009 and, therefore,

were timely as items subject to contribution.     Id.   As a JTWROS, Frank is

liable for one-half of the $1,389.64 Verna paid for the water pump, the hot

water heater and filters, labor, and the door hardware, which is $694.82.

Thus, the Master erred in not adding this sum to the amount Frank owed to

Verna, and the trial court erred in affirming that part of the Master’s report.


                                     - 19 -
J-S52004-15


      Lastly, Verna challenges the Master’s use of Verna’s recollection

regarding a $3,400.00 per acre signing bonus offered for gas rights to the

10.515 acres in 2008. According to Verna, the Master erred in (a) assuming

the amount offered in 2008 would have the same value in 2011; (b)

overlooking that the bonus was for the entire 10.515 acres, not just Frank’s

proposed purpart, (c) failing to consider the potential impact on the value of

royalties from a gas lease on the 9.115 acres to be partitioned to Frank; and

(d) not employing appraisers pursuant to Pa.R.C.P. 1559 to properly value

the 10.515 acres, instead reaching a valuation “cobbled together from

different time periods.” Verna’s Brief at 36.

      “Of course, the accuracy of an appraisal cannot be assailed on the

ground of the subsequent appreciation of the property.” Appeal of Black,

18 A. 1064, 1065 (Pa. 1890).       However, where the value of the land is

affected by the discovery upon it of a valuable resource, e.g., “a mine or the

like, it would be equitable to order a revaluation of it.” Id.

      Here, the 2008 gas signing bonus figure was three years old as of the

2011 appraisals. Moreover, the appraiser did not include the signing bonus

in her valuations of the farm house with 1.4 acres (Joint Exhibit 9), the farm

house with 2.0 acres (Joint Exhibit 10), or the balance of the 10.515 acres

eventually allotted to Frank.    N.T., 5/29/14, at 17.      Rather, the Master

added the $3,400.00 bonus to the value of Frank’s proposed purpart.

Master’s Report, 6/17/13, at ¶ 2s. Furthermore, the per-acre valuation of


                                     - 20 -
J-S52004-15


the real estate was not a Clean and Green valuation; it was an actual

acreage valuation and, as discussed below, incongruous. N.T., 4/10/13, at

257.    Thus, we conclude the partition recommended by the Master and

affirmed by the trial court is not supported by the record.

       As for Verna’s general sufficiency challenge to the recommended

partition, we recognize that equity is “the body of principles constituting

what is fair and right.”   BLACK’S LAW DICTIONARY   at 619 (9th ed.). Applying that

definition to the record at hand, we conclude that the Master erred in

dividing the 10.515 acres into “as many purparts as there are parties

entitled thereto, the purparts being proportionate in value to the interests of

the parties,” pursuant to Pa.R.C.P. 1560(a). Rather, we hold that the record

compels a partition pursuant to Pa.R.C.P. 1560(b), which provides that the

property shall be divided “into as many purparts as there are parties entitled

thereto, without regard to proportionate value.”          Then, being capable of

division under Rule 1560(b), the 10.515 acres should have been “awarded

equitably among the parties with appropriate provisions for owelty,”

pursuant Pa.R.C.P. 1562. The disparate values of the proposed purparts and

the parties’ specific needs and wants warrant this approach.

       Having identified the water source for the farm house as “fair-cistern

water,” the appraiser explained,

       MARKETABILITY: Typically, homes with cisterns have much
       lower marketability except to a cash buyer because most lenders
       will not grant a mortgage on them unless there is a letter from
       the township that they are typical for the area, and even then it

                                      - 21 -
J-S52004-15


      is questionable as to whether the lenders will accept them for
      conventional financing. Cisterns are not acceptable for VA or
      FHA financing.

Joint Exhibit 9, 10/4/11, at 4; Joint Exhibit 10, 9/28/11, at 4. The appraiser

further opined that:

      the barn and the garage near the barn are in fair to poor
      condition and have minimal contributory value. If the 0.6 acres
      in question were to be put on the market, it would also be
      considered an unmarketable property because there is no
      individual road access. The property is landlocked and can only
      be reached by driving through Frank Molek’s property or from
      the [farm house], and there are no public utilities. This parcel
      has no value to anyone but the Moleks, and it does not enhance
      the value of the 1.4 acres with the dwelling and the garage.

Joint Exhibit 9, 10/4/11, at 4.

      Contradicting the appraiser’s opinion that the garage and the barn do

not enhance the value of Verna’s proposed purpart are indications on Joint

Exhibit 9 that, based on comparable sales, the two acres have a value of

$3,800.00, and the outbuildings have a value of $3,000.00. Joint Exhibit 9,

10/4/11, at 2. Thus, the difference in valuation of Verna’s purpart with and

without those outbuildings and supporting acreage is $6,800.00 ($81,800.00

minus $75,000.00 equals $6,800.00).

      Also incongruous is the Master’s $75,000.00 valuation of Frank’s

proposed purpart.      Master’s Report, 6/17/13, at ¶ 2s.   Using the Master’s

calculation results in a $7,855.18-per-acre valuation of Frank’s proposed




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J-S52004-15


           8
purpart,        which greatly exceeds the range of values for vacant land

submitted by the appraiser, i.e., $4,294.00 to $4,626.00 per acre.                  Joint

Exhibits 9 and 10 at Comments Regarding Land Values. Using the average

per-acre land value provided by the appraiser, i.e., $4,438.00, the signing

bonus, and the value of the outbuildings results in a much lower value for

Frank’s proposed purpart of $46,852.37.9 Joint Exhibit 9, 10/4/11, at 2 and

Comments Regarding Land.             Thus, we conclude that the record does not

support        the   Master’s   proportion-based   partition   or   the   trial   court’s

affirmance.

       Additionally, Verna does not want the garage, but she relies on the

barn for non-drinking water. N.T., 4/10/13, at 151; Joint Exhibits 9 and 10.

She also would like to retain the farm character of her parcel by having

additional acreage on which she can keep small animals and plant fruit trees.

Id. at 102, 149–150, 159. On the other hand, Frank already owns 4.895

acres from the Original Tract, and he wants an additional eight acres,

including the garage and the barn. Id. at 81, 218, 227.

       Simply giving Verna and Frank proportional purparts does not comport

with the principles of what is fair and right. Rather, the partition should be

____________________________________________


8
  $75,000.00 minus $3,400.00 equals $71,600.00; $71,600.00 divided by
9.115 acres equals $7,855.18 per acre.
9
  9.115 acres multiplied by $4,438.00/acre plus $3,400.00 plus $3,000.00
equals $46,852.37.



                                          - 23 -
J-S52004-15


based on what the parties are entitled to without regard to proportionate

value and awarded equitably among the parties with appropriate provisions

for owelty if warranted.      Pa.R.C.P. 1560(b); Pa.R.C.P. 1562.       Therefore,

equity requires that the Master reevaluate a partition of the 10.515 acres

based on an updated appraisal that considers potential gas rights for all

10.515 acres and the Clean and Green designation, as well as the parties’

particular needs and wants.

        Verna’s final issue concerns her detrimental-reliance claim. The trial

court    consolidated   Verna’s   partition    action   and   detrimental-reliance

complaint by order of court dated September 6, 2012.           Verna argues that

the Master and trial court addressed only the partition action and not her

detrimental-reliance claim.    Verna’s Brief at 38.     Frank responds that the

Master “considered the relevant facts and laws and reached a complete

decision . . . including [Verna’s] Equitable Plea for ‘Detrimental Reliance’.”

Frank’s Brief at unnumbered page 9. We agree with Frank.

        “Detrimental reliance is another name for promissory estoppel.”        16

SUMM. PA. JUR. 2D, Commercial Law § 1:40 (2d ed.) (citing Matarazzo v.

Millers Mut. Group, Inc., 927 A.2d 689 (Pa. Cmwlth. 2007)). To maintain

a promissory estoppel action, a claimant must aver the following elements:

(1) the promisor made a promise that it should have reasonably expected

would induce action or forbearance on the part of the promisee, (2) the

promisee actually took action or refrained from taking action in reliance on


                                      - 24 -
J-S52004-15


the promise, and (3) injustice can be avoided only by enforcing the promise.

V-Tech Services, Inc. v. Street, 72 A.3d 270 (Pa. Super. 2013).

      Here, the trial court addressed this challenge as follows:

      [A]ll issues at docket number 2012-[3032] have been
      addressed. In the Complaint in the civil action filed at that
      docket, [Verna] claimed she relied on the agreement to partition
      the property to her detriment because, “[Verna], Defendant
      Frank Molek and Joseph Molek mutually agreed to divide the
      property deeded to them by their father. . .”23 In the findings of
      fact of the Master’s Report, that was adopted by the [t]rial
      [c]ourt, the Master found that “there was no agreement, either
      written or oral, between [Verna] and [Frank], not at the time of
      [the] death of Mike Molek, not at the time of any of the above
      stated deed transfers, and not at any other time, regarding the
      partition or ownership of the [10.515 acres].24 The Master also
      found, “there was no promise or assurance, either written or
      oral, by [Frank] to [Verna], regarding the partition or ownership
      of the [10.515 acres].25
            23
              Plaintiff’s Complaint in Civil Action pg. 7 ¶4. Filed
            May 5, 2012.
            24
                 Master’s Report. Pg 5 ¶g. June 17, 2013.
            25
                 Master’s Report. Pg 5 ¶j. June 17, 2013.

            Therefore, the [t]rial [c]ourt finds that the claims raised in
      the civil action docketed at No. 2012-3032 that were
      consolidated with No. 2009-5216 have been addressed, and the
      record supports this finding.

Trial Court Opinion, 3/17/15, at 10.

      Upon review, we discern no error.         During a break in Verna’s direct

testimony at the partition hearing, Frank’s counsel, Mr. Haines, had “a

question about what has occurred so far.”          N.T., 4/10/13, at 96.     The

following exchange occurred:


                                       - 25 -
J-S52004-15


             THE MASTER: Let me rephrase the question. Let’s say
      you come back and you have a few more direct questions, plus
      redirect of Ms. Molek, and let’s say either before lunch or after
      lunch you do the testimony of her additional witnesses. If you
      finish your case in chief and Mr. Haines presents his evidence,
      you are not seeking a separate case in chief on the partition
      action?

            [Verna’s Counsel] Mr. JULIAN: No.

           THE MASTER: Once you’re done, you’re done. Does that
      answer your question?

              MR. HAINES: That was my question completely. I was a
      little confused procedurally as to where we were on this.

                                   * * *

            MR. JULIAN: I’m not separating the two cases.

N.T., 4/10/13, at 97–98. According to Mr. Julian, the Master was presented

with both cases, thus disproving Verna’s contrary argument.

      Moreover, Verna’s detrimental reliance case was based on an alleged

oral agreement to partition the Original Tract and/or the 10.515 acres. After

receiving testimonial and documentary evidence, the Master specifically

found, “There was no promise or assurance, either written or oral, by

[Frank] to [Verna], regarding the partition or ownership of the [10.515

acres].”   Master’s Report, 6/17/13, at ¶ 2j.   Having determined that no

promise or assurance existed, the Master implicitly rejected Verna’s

detrimental-reliance case.   Thus, we discern no error by the trial court in

denying Verna’s exception to the Master’s ruling on the detrimental-reliance

claim.


                                    - 26 -
J-S52004-15


      In sum, we affirm those parts of the trial court’s order denying Verna’s

exception to the Master’s determination that no parol partition occurred, her

exception to the Master’s “Frank’s Garage” terminology, and her exception

to the Master’s resolution of the detrimental-reliance claim.     However, we

find error in the Master’s failure to consider the barn as the source of Verna’s

non-drinking water, failure to include $694.82 in the sum Frank owes to

Verna, failure to use current and complete appraisals for valuation of the

entire 10.515 acres, and failure to propose a partition pursuant to Pa.R.C.P.

1560(b).    Accordingly, we reverse those parts of the trial court’s order

denying Verna’s exceptions to the Master’s recommended partition and

remand for proceedings consistent with this Memorandum.

      Judgment affirmed in part and reversed in part.         Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




                                     - 27 -
