J-S54032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ARDELL J. LONG-TEMPLE AND                 :   IN THE SUPERIOR COURT OF
 WILLIAM K. TEMPLE                         :        PENNSYLVANIA
                                           :
                     Appellants            :
                                           :
                                           :
              v.                           :
                                           :
                                           :   No. 582 MDA 2019
 RAMONA HOLDER                             :

                Appeal from the Order Entered April 9, 2019
  In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                               10420-2016


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

CONCURRING MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 25, 2020

      I concur with the Majority’s determination that we are constrained to

quash the instant appeal for want of a Rule 1557 order. I write separately to

emphasize the proper procedure required when pursuing an action for the

partition of real estate.

      “Pennsylvania Rules of Civil Procedure 1551[–]1574 split a partition

action into two, distinct, chronological parts. Rules 1551[–]1557 govern Part

1, and Rules 1558[–]1574 govern Part 2. Each part, by rule, must produce

its own, distinct, appealable order.” Kapcsos, 194 A.3d at 142. “Part 1”

concludes with the court determining parties’ fractional interests in a property.

See id.   (“The first order, under Pa.R.Civ.P. 1557, directs partition of the

parties’ legal interests into severalty.”). Our rules require the court—not the

master—to first enter an order directing partition before proceeding to “Part
J-S54032-19



2.” See Pa.R.C.P. 1557 (“If the court determines that there shall be partition

because of a default or admission or 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 extent of their interests in the property.”)

(emphasis added); see also Zablocki v. Beining, 155 A.3d 1116, 1118 (Pa.

Super. 2017) (“[A]n order directing partition . . . must be filed prior to master

proceedings.”).

      The Kapcsos Court contemplated the importance of a “Part 1” order,

even where property is later determined to be incapable of partition, in the

following passage:

      [T]he entry and recording of a Part 1 order directing partition is
      essential to terminate a joint tenancy. Following that, Part 2 is
      purely an equitable proceeding where the trial judge or master
      balances the equities to decide what form the partitioning will
      take. If the property were a pie, the trial court must decide how
      best to serve it to the parties. There are three ways “to slice” the
      “pie.”

      First, the court may determine that the pie should be cut into
      several pieces and award the pieces of property to the parties as
      their severally owned parcels (i.e., “purparts”) of land. See
      Pa.R.Civ.P. 1560. This typically occurs when the pie is so large
      and the parties so few in number that everyone can receive a fairly
      sizable and valuable piece. If the court takes this course, in the
      end, it will convey ownership to the parties by its Part 2 order,
      which the Recorder of Deeds will record. No deed is executed,
      because the order serves as the conveyance.              The court
      determines the size and location of each party’s parcel based upon
      the parties’ interests and what the court deems to be equitable
      given the facts and circumstances of the case.

      Second, the court might determine that the pie cannot be cut
      without ruining it. If that happens, the court may give the whole
      pie to one party and order that person to pay the other parties for

                                      -2-
J-S54032-19


       their respective shares. See Pa.R.Civ.P. 1562. In this scenario,
       one party gets an order of conveyance granting undivided title to
       the whole property (which is recorded), and the other party
       receives a cash buy-out, known as “owelty.” Id.

                                           ...

       Finally, if neither of the first two scenarios [is] possible, the court’s
       third option is to order a sale of the pie to the general public and
       divide the proceeds (if any) among the parties. Once all court
       costs, attorneys’ fees, mortgages, etc. are satisfied from the sale’s
       proceeds, the court awards any remaining funds to the parties
       according to their investments in the land, divided by their
       fractional interests, as determined in Part 1.

Kapcsos, 194 A.3d at 142–43.

       Instantly, the court never entered a Rule 1557 order.             See Order,

1/24/17, at 1. Rather, the court appointed a master to hear “all issues in

[p]artition pursuant to Pa.R.C.P. 1557 and 1559[.]” Id. The order, therefore,

proceeded to “Part 2” under Pa.R.C.P. 1558 without first concluding “Part 1”

by entering an order determining the parties’ fractional interests, rendering

all subsequent action a nullity.1 See Kapcsos, 194 A.3d at 144 (rendering all
____________________________________________


1 Though the master’s recommendation is rendered a nullity by lack of a “Part
1” order, we nonetheless note that during the subsequent proceedings, the
master erroneously conflated Pa.R.C.P. 1562 and Pa.R.C.P. 1563. Master’s
Report, 2/16/18, at 3 (“Pursuant to Rule 1562[,] the [m]aster has determined
that the property is not capable of division without prejudice.            And,
consequently, the property shall be awarded among the parties with
provisions for owelty.” Rule 1563, not Rule 1562, governs properties not
capable of division without prejudice. See Pa.R.C.P. 1563(a) (“[P]roperty not
capable of division without prejudice to or spoiling the whole shall be offered
for private sale confined to the parties.”). Further, property not capable of
division is not subject to owelty. See Pa.R.C.P. 1563(a)–(b) (making no
mention of owelty). Rather, it is Rule 1562, pertaining to property “not
capable of division under Rule 1560(a) but capable of division under Rule
1560(b) or (c)[,]” which states that such property “shall be awarded equitably
among the parties with appropriate provisions for owelty.” Pa.R.C.P. 1562.

                                           -3-
J-S54032-19



relief obtained in “Part 2” a nullity without entry of “Part 1” order); see also

Pa.R.C.P. 1558(a) (“The court, after the entry of the order directing partition,

shall direct the parties or their attorneys to appear for a preliminary

conference[.]”) (emphasis added).     While acknowledging the complexity of

partition actions, and to avoid further confusion, I urge all involved in the

instant litigation to heed the process outlined by our Rules of Civil Procedure

and further explicated by the Kapcsos Court.




                                     -4-
