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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J-A23022-17


           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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J-A23022-17



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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J-A23022-17



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,

                                        -6-
J-A23022-17


         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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J-A23022-17



      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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