J-A34031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HATTIE VICCHIARELLI;                             IN THE SUPERIOR COURT OF
EXECUTRIX OF THE ESTATE OF JOHN J.                     PENNSYLVANIA
HRABOVSKY, SR.

                         Appellant

                    v.

MARY C. HRABOVSKY

                         Appellee                     No. 520 MDA 2015


             Appeal from the Judgment Entered March 19, 2015
              In the Court of Common Pleas of Dauphin County
                Civil Division at No(s): 2005 CV 4301 EQUITY

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 13, 2016

      Hattie Vicchiarelli, personal representative of the estate of John

Hrabovsky (“Husband”), appeals from a judgment entered in favor of Mary

Hrabovsky (“Wife”) in Vicchiarelli’s action for partition of the former marital

residence. We affirm.

      We begin by detailing the factual and procedural history of this case.

In 1963, Husband and Wife purchased a residence at 505 Beech Avenue in

Hershey, Pennsylvania and held it as tenants by the entireties.      In 1977,

Husband left the marital residence, never to return. In 1981, Husband and

Wife divorced via judicial decree. Prior to the decree, Wife filed a claim for

equitable distribution, but the court did not decide this claim.
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      Wife, who is now in her nineties, has continued to reside in the Beech

Avenue property since 1977 and has paid all property taxes, homeowners

insurance, mortgage payments and maintenance costs.           Husband moved

into a separate residence with Vicchiarelli, where they lived together from

1977 until Husband’s death in 2004.

      Husband and Wife never changed the deed to the Beech Avenue

property, so it remained in both Husband’s and Wife’s names after their

divorce.   Husband kept physical possession of the deed for the rest of his

life. Wife never asked for the deed or requested Husband to execute a new

deed conveying his interest in the house to her. During Husband’s life, he

never took any steps to force partition, list the house for sale or demand

rent from Wife. Husband did, however, jointly execute a mortgage with Wife

on the house in 1993 for $30,000.00. Wife paid the mortgage by herself,

and the mortgage was marked satisfied.

      In 2005, after Husband died, Vicchiarelli, in her capacity as Husband’s

personal representative, filed a complaint in partition, alleging that Husband

and Wife held the house as tenants in common at the time of his death.

Wife filed preliminary objections raising the unresolved equitable distribution

claim left over from the 1981 divorce proceedings. On November 30, 2007,

the court held a hearing on the laches issue in which Vicchiarelli testified.

On April 29, 2008, the court held that Wife’s equitable distribution claim was




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barred by laches. Wife appealed, and this Court affirmed at 952 MDA 2008

on the ground that Wife’s 24 year delay prejudiced Vicchiarelli.

      After remand, Wife filed an answer and new matter raising numerous

affirmative defenses to the partition action, including laches, waiver,

estoppel, parol partition, and an assertion that Husband intended for Wife to

keep the house.     On January 5, 2011, the court denied the parties’ cross

motions for summary judgment.

      On January 6, 2011, the court held an evidentiary hearing in which

three of the couple’s children and Vicchiarelli testified. Wife did not testify.

      One of the couple’s daughters, Jan McKnight, testified that she asked

Husband on one occasion whether Vicchiarelli would want the house if he

died. Husband answered: “Jan, you don’t have to worry. The house is your

mother’s.” N.T., 1/6/11, at 58. Counsel for Mother asked: “Did [Husband]

say to you that the house is going to be your Mother’s?”                McKnight

answered: “The house is your mother’s. You don’t have to worry.” Id. A

second daughter, Mary Slyman, testified that on multiple occasions in the

summer of 2004, the year before Husband’s death, Husband voluntarily told

her that Wife “had the house.” Id. at 70-71. Vicchiarelli was present during

these conversations and made no objection.          Id.    Indeed, according to

Slyman, Vicchiarelli stated that “the house was [Slyman’s] mother’s.” Id.

      A third child, John Jr. (“Son”), testified that shortly before Husband

died, Husband told Son that he (Husband) was working on his will and trust


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and getting things in order. N.T., 1/6/11, at 87. Son testified that Husband

said that “if anything happens to me, [Son] would be part of the trust or the

executorship to help distribute … whatever it said in the will.” Id. Son then

testified: “[Husband] goes, you’ll get the truck, you’ll get my gun collection.

I said, does mom get the house. He said, yes, your mother gets the house.

At that point, [Vicchiarelli] was in the room because she had said, ‘oh

Johnny, don’t you worry, your mother’s going to get the house.’ “ Id. at 87-

88.   Although Husband executed estate planning documents, he made no

specific provision in the documents for the house.

      Vicchiareili testified that after Husband died, she gave McKnight the

deed to the house and said “give this to your mother.” N.T., 1/6/11, at 40.

Vicchiarelli testified during another hearing that she gave the deed to

Husband’s children because she “was told to do that,” i.e., instructed to give

the deed to the children.    N.T., 11/30/07, at 18.    McKnight corroborated

Vicchiarelli on this point during the January 6, 2011 hearing.       McKnight

testified that a few days after Husband’s death, Vicchiarelli “handed me an

eight by ten and said, ‘your dad wanted your mom to have this,’ and inside

was the deed to the house.” N.T., 1/6/11, at 61.

      On March 31, 2011, the court denied Vicchiarelli’s claim for partition

and denied Wife’s claim that the house was gifted to her. Both parties filed

post-trial motions, which the court denied on August 29, 2011. Vicchiarelli

and Wife filed cross appeals in this Court at 1692 and 1696 MDA 2011. The


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trial court stated in its Pa.R.A.P. 1925(a) opinion that these appeals were

interlocutory because

      [t]he evidence presented at the hearing failed to establish a
      basis on which the court could rule on the competing claims for
      ownership; no party presented testimony of the value of the
      property, valuation of rental, a complete history of maintenance
      expenses or taxes. Both parties presented only general claims as
      to ownership, which failed to satisfy their respective burdens and
      enable the court to fully resolve their claims to the property…

Trial Court Opinion, 4/26/12, at 4-5. On May 18, 2012, this Court held at

1692 and 1696 MDA 2011 that the case was not ripe for review because of

the need for further hearings.

      Following remand, the trial court held two more hearings in 2013. On

January 3, 2013, the parties presented expert testimony on the fair market

value of the house. The court also admitted Vicchiarelli’s expert report on

the rental value of the house from 1999 through 2012. On July 11, 2014,

Vicchiarelli presented expert testimony on the rental value of the house from

1981 through 1998. Wife presented evidence on the amount of Husband’s

retirement benefits.

      The parties submitted proposed findings of fact and conclusions of law.

On October 16, 2014, the court entered findings of fact and conclusions of

law in favor of Wife.   The court found as fact that “Husband stated to his

children that Wife would receive the house, yet no actions were taken to

memorialize the stated intention.” Findings Of Fact, 10/16/14, at ¶ 8. The

court concluded that “full ownership” of the house lies with Wife, without any


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payment to Vicchiarelli as Husband’s executrix. In reaching this conclusion,

the court considered Wife’s ownership interest as a tenant by the entirety,

the value of the residence, and Wife’s satisfaction of the mortgage and

payment of all taxes, insurance and property maintenance. Conclusions Of

Law, 10/16/14, at ¶¶ 17-18.        The court further ruled that Viccharielli

presented no cognizable claim for rent, because Husband made no claim for

rent during his lifetime, and because Wife’s payments described above more

than offset any claim for rent.   Id., at ¶¶ 19-20.

      Vicchiarelli filed timely post-verdict motions, which the court denied.

Vicchiarelli entered judgment and filed a timely appeal and a timely

Pa.R.A.P. 1925(b) statement.      The court filed a short Pa.R.A.P. 1925(a)

statement that “the trial court properly decided as a matter of equity that

the sole ownership interest in [the residence] rests with [Wife] without

payment to [Vicchiarelli].” Pa.R.A.P. 1925(a) Statement, 7/15/15, at 1. The

court submitted its October 6, 2014 findings of fact and conclusions of law in

lieu of a Pa.R.A.P. 1925 opinion. Id.

      Vicchiarelli raises the following issues in this appeal, which we have re-

ordered for purposes of disposition:

   1. Was it an abuse or an error of law for the court to hear and
      decide this matter in equity rather than according to the rules
      and law governing partition?

   2. Did the court abuse its discretion or commit an error of law in
      concluding that [Vicchiarelli], executrix of [Husband’s estate],
      presented no cognizable claim for rent of the subject property,


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      pursuant to 68 P.S. § 101, because no claim for the same was
      presented by [Husband] during his life?

   3. Was it an error of law or abuse of discretion for the lower court
      to conclude at law that full ownership of 505 Beech Avenue,
      Derry Township, County, lies with [Wife]?

   4. Was it an abuse of discretion for the lower court to consider the
      satisfaction of a mortgage on the subject property, said
      mortgage being granted subsequent to the divorce terminating
      the marriage of [Husband and Wife], as an element in
      determining that full ownership of the property rested in [Wife]?

   5. Did the court abuse its discretion or commit an error of law by
      failing to apportion debits and credits such as [Wife’s] payment
      of homeowners’ insurance premiums on the subject property,
      and any compensation due the estate of [Husband] for his rent?

   6. Did the court abuse its discretion by failing to find as fact the
      rental value of the subject property, said being offered by
      uncontradicted expert testimony?

   7. Was it an abuse of discretion or an error of law for the trial court
      to disregard the six year statute of limitations (42 Pa.C.S. §
      5527) by failing to limit the debits and credits to be apportioned
      between the parties to that period of time beginning six years
      prior to the institution of the action in partition, said being raised
      as an affirmative defense by [Wife] and in [Vicchiarelli’s] post
      trial motion?

   8. Was it an abuse of discretion or an error of law for the trial court
      to deny [Vicchiarelli’s] motion for post-trial relief?

Brief For Appellant, at 5-7.

      In her first argument, Vicchiarelli claims that the trial court erred by

deciding this matter in equity instead of under law. According to Vicchiarelli,

the court should have decided this partition action strictly as a matter of law

under 23 Pa.C.S. § 3507(a) (“Division Of Entireties Property Between

Divorced Persons”). Section 3507(a) states:

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        Whenever married persons holding property as tenants by
        entireties are divorced, they shall, except as otherwise provided
        by an order made under this chapter, thereafter hold the
        property as tenants in common of equal one-half shares in
        value, and either of them may bring an action against the other
        to have the property sold and the proceeds divided between
        them.

23 Pa.C.S. § 3507(a).

        Vicchiarelli overlooks the fact that section 3507(a) is neither the sole

nor the exclusive remedy for partition between divorced spouses. The Rules

of Civil Procedure provide for equitable partition of real property formerly

held by spouses as tenants by the entireties. See Pa.R.Civ.P. 1551 through

1574.     Because section 3507(a) and Rules 1551-74 relate to the same

subject matter, the partition of property, we must read the statute and rules

in pari materia to give effect to all provisions.          See Lohmiller v.

Weidenbaugh, 469 A.2d 578, 580 (Pa.Super.1982) (68 P.S. § 501, the

predecessor to section 3507(a), must be read in pari materia with equitable

distribution rules in Pa.R.Civ.P. 1551 et seq., since “equitable partition

pursuant to Pa.R.Civ.P. 1551-1574 is another means of partitioning property

formerly held by the entireties”); Spears v. Spears, 769 A.2d 523, 526-27

(Pa.Super.2001) (following Lohmiller in partition action brought under




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section 3507(a)).1 Accordingly, we hold that the trial court properly applied

equitable principles to this case.

       In her second argument, Vicchiarelli objects to the trial court’s

determination that she failed to present a cognizable claim for rent because

Husband did not make any claim for rent during his lifetime.

       Our scope of review in equity matters

       [n]ormally … is limited to a determination of whether the
       chancellor committed an error of law or abused his discretion. A
       final decree in equity will not be disturbed unless it is
       unsupported by the evidence or demonstrably capricious.
       Further, the test is not whether we, the appellate court, would
       have reached the same result had we been acting as the hearing
       judge who saw and heard the witnesses, but rather whether a
       judicial mind, on due consideration of the evidence, as a whole,
       could reasonably have reached the conclusion of the chancellor.

Moser v. DeSetta, 588 A.2d 679, 681 (Pa.1991).         “Where there are any

apparently reasonable grounds for the trial court’s decision, we must affirm

it.”   Viener v. Jacobs, 834 A.2d 546, 554 (Pa.Super.2003).         And when

reviewing the results of a non-jury equity trial, “we are bound by the trial
____________________________________________


1
   Spears noted that in Werner v. Werner, 573 A.2d 1119, 1121
(Pa.Super.1990), the Superior Court held that a former husband waived his
right to assert laches and the statute of limitations as defenses to his former
wife’s partition action under 68 P.S. § 501 by failing to plead them as
affirmative defenses in his new matter. Spears suggested in dicta that
laches and the statute of limitations would have been available as defenses
had the husband raised them in his pleadings: “[The Werner] Court
concluded only that the husband [] had waived those defenses by failing to
raise them in his New Matter as required under Rule 1030, not that these
defenses were unavailable.” Spears, 769 A.2d at 525. In the present case,
there is no waiver issue, because Wife raised laches and parol partition as
defenses in her new matter.



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court’s findings of fact, unless those findings are not based on competent

evidence.” Id.

      The trial court held that Vicchiarelli “presents no cognizable claim for

rent in that [Husband] made no claim to [Wife] for rent of the subject

property during his life.” We construe the court to mean that Vicchiarelli’s

claim for rent is barred under the doctrine of laches, and we agree with this

determination.

      The doctrine of laches applies in equity cases.      See 42 Pa.C.S. §

5501(c) (“nothing in this chapter [defining limitations of actions] shall

modify the principles of waiver, laches and estoppel and similar principles

heretofore applicable in equitable matters”). Laches bars relief

      when the complaining party is guilty of want of due diligence in
      failing to promptly institute the action to the prejudice of
      another. Thus, in order to prevail on an assertion of laches,
      respondents must establish: a) a delay arising from petitioner’s
      failure to exercise due diligence; and, b) prejudice to the
      respondents resulting from the delay. Moreover, the question of
      laches is factual and is determined by examining the
      circumstances of each case.

Fulton v. Fulton, 106 A.3d 127, 131 (Pa.Super.2014).

      Laches bars Vicchiarelli’s partition action against Wife. Husband never

sought rent from Wife during his lifetime. Vicchiarelli did not commence her

partition action until 2005, 24 years after Husband and Wife divorced and 28

years after Husband left the marital residence. Such delay reflects complete

lack of due diligence. Cf. Fulton, 106 A.3d at 134 (laches barred action by

administratrix of decedent’s estate, in which she sought to set aside

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conveyances of real property by decedent’s agent and impose constructive

trust upon the conveyed properties, where nine to eleven years passed from

time of conveyances until Administratrix instituted suit in equity).             It is

equally clear that Wife has suffered prejudice from the delay.                  Since

Husband left in 1977, Wife has functioned as if she were sole owner by

paying all mortgage payments, taxes, insurance premiums and maintenance

costs. Had Wife expected Husband to demand rent or to otherwise act as a

co-owner, she could have asked Husband to contribute to these payments.

Because Wife substantially changed her financial position by shouldering

these costs herself, Vicchiarelli’s (and Husband’s) delay in demanding rent

has    caused    Wife   prejudice.     See      Fulton,   106    A.3d     at   134-35

(administratrix’s eleven year delay in filing action to set aside conveyances

of    real   estate   caused   prejudice   to   defendants,     thereby    precluding

administratrix’s action under laches doctrine, where defendants expended

sums relating to upkeep, maintenance, or improvements to properties

during eleven year period). Moreover, Wife is now in her nineties, well past

the age where she can reasonably be expected to work for a living to pay a

quarter century of rent.

       In one sense, this case has come full circle.          In the first appeal in

2009, we held that laches barred Wife’s claim for equitable distribution that

she failed to litigate in the 1981 divorce proceedings but attempted to

resurrect a quarter century later in response to Vicchiarelli’s partition action.


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We observed that Vicchiarelli was prejudiced by Wife’s delay in pursuing

equitable distribution for several reasons: Wife had no first-hand knowledge

of certain marital assets or documents corroborating her entitlement to

these assets, and Husband was deceased, thus depriving Vicchiarelli of

Husband’s testimony on this subject. Vicchiarelli v. Hrabovsky, 952 MDA

2008, at 3-4 (7/27/09).          Today, we hold that the prejudice to the parties

cuts both ways, in that Wife has incurred prejudice due to the decades of

delay in bringing this partition action.

         In her third argument, Vicchiarelli contends that the court erred in

concluding that full ownership of the house lies with Wife. Once again, we

disagree on the basis of laches. Almost 25 years elapsed between the date

of divorce and Vicchiarelli’s action for partition and concomitant claim of

ownership. This extreme delay reflects lack of due diligence in asserting a

claim of ownership. Moreover, Wife has suffered prejudice by substantially

changing her financial position by functioning as if she were sole owner. In

view of laches, the trial court properly held that Vicchiarelli has no cause of

action for partition, and that full ownership of the residence belongs to

Wife.2

____________________________________________


2
  We note that Wife presented multiple witnesses (three of the couple’s
children) for the proposition that Husband gifted the marital residence to her
during his lifetime. It does not appear, however, that the trial court agreed
with Wife’s gift claim. In order to prove a gift, Wife had to demonstrate,
inter alia, that Husband had present donative intent, i.e., that he “inten[ded]
(Footnote Continued Next Page)


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      We address Vicchiarelli’s fourth through seventh issues together.

Vicchiarelli argues that the court (1) should not have considered Wife’s

satisfaction of a mortgage as evidence of her full ownership; (2) failed to

award rent to Vicchiarelli; (3) failed to determine the appropriate amount of

rent due to Vicchiarelli; and (4) failed to take the six year statute of

limitations into account for purposes of accounting between rent due to

Vicchiarelli and payments for which Wife deserves credit. These issues rest

on the presumptions that Vicchiarelli is a co-owner of the residence and is

entitled to rent for Wife’s occupancy of the residence. These presumptions

obviously are invalid, for we have held above that laches bars Husband’s

claims of ownership and rent.           Thus, Vicchiarelli’s fourth through seventh

claims fail.


                       _______________________
(Footnote Continued)

to make the gift then and there …” In Re Rynier’s Estate, 32 A.2d 736,
738 (Pa.1943). Despite the children’s testimony, the trial court did not find
that Husband had present donative intent. The court merely found that
Husband promised to give the house to Wife in the future. Findings Of Fact,
10/16/14, at ¶ 8 (Husband stated to his children that Wife “would receive”
the house, “yet no actions were taken to memorialize the stated intention”)
(emphasis added). Nor do the court’s conclusions of law state that Husband
gifted the residence.

Although we might have reached a different conclusion on the gift issue if we
were the factfinders, we decline to do so in our role as an appellate court.
Moser, 588 A.2d at 681 (“the test is not whether we, the appellate court,
would have reached the same result had we been acting as the hearing
judge who saw and heard the witnesses”). Instead, we base our decision
solely on the basis of laches.




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     Vicchiarelli’s eighth and final claim is that the trial court erred in

denying her post-trial motions, in which Vicchiarelli raised the same issues

that she now raises on appeal.       For the reasons provided above, we

determine that this issue lacks substance.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2016




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