J-A16016-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

ALBERT DETILLO AND TAMARA                 :     IN THE SUPERIOR COURT OF
DETILLO,                                  :           PENNSYLVANIA
                                          :
                     Appellees            :
                                          :
              v.                          :
                                          :
ELIZABETH HUZDOVICH,                      :
                                          :
                     Appellant            :    No. 941 WDA 2015

                  Appeal from the Order Dated May 14, 2015
              in the Court of Common Pleas of Allegheny County
                   Family Court at No(s): FD94-006674-008


ALBERT DETILLO AND TAMARA                 :     IN THE SUPERIOR COURT OF
DETILLO,                                  :           PENNSYLVANIA
                                          :
              v.                          :
                                          :
ELIZABETH HUZDOVICH, F/K/A                :
ELIZABETH DETILLO                         :
                                          :
APPEAL OF: TAMARA DETILLO,                :
                                          :
                     Appellant            :    No. 993 WDA 2015


                  Appeal from the Order Dated May 14, 2015
              in the Court of Common Pleas of Allegheny County
                   Family Court at No(s): FD94-006674-008

BEFORE:     SHOGAN, OLSON, and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
                                   FILED DECEMBER 20, 2016

      I join that part of the Majority’s decision that affirms Tamara’s cross-

appeal, although it is my belief that she should not be involved in this matter



*Retired Senior Judge assigned to the Superior Court.
J-A16016-16


as she is not an indispensable party to the litigation between the former

spouses. “In Pennsylvania, an indispensable party is one whose rights are so

directly connected with and affected by litigation that he must be a party of

record to protect such rights, and his absence renders any order or decree of

court null and void for want of jurisdiction.” Van Buskirk v. Van Buskirk,

590 A.2d 4, 7 (Pa. 1991) (citation omitted).     Such is not the case here:

Tamara’s interest in the property does not pre-date the parties’ divorce, nor

do any rights she may have accrued have any effect on the equitable

distribution of Husband and Wife’s marital property.   Nonetheless, I agree

with the Majority that Tamara’s appellate claims are without merit.

     With respect to Husband’s appeal, I am unconvinced that Husband has

met his burden of presenting proof of a delay or prejudice such that laches

applies to any of Wife’s claims. Although the trial court found it “incumbent

on Wife to move her claim for equitable distribution forward,” Trial Court

Opinion, 9/21/2015, at 7, nothing barred Husband from litigating the claims

raised in the divorce action, and Husband’s failure to do so was no less

unreasonable than Wife’s. Husband cannot now benefit from sitting on his

own rights. See Downey v. Downey, 582 A.2d 674, 680 (Pa. Super. 1990)

(holding, with respect to the application of laches, that appellee-wife’s

conduct cannot be deemed prejudicial to appellant-husband, since both

parties could have moved the litigation forward in order to secure a division




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of the property and protect his or her interests.)     Because Husband was

equally able to assert his rights in the years between the divorce and trial,

the trial court’s decision resulted in an inexplicable windfall to Husband and

served to punish Wife for conduct that was equally attributable to Husband.

      With respect to Wife’s substantive claims, the court erred in finding

laches when setting the valuation date as the date of the divorce. The court

based its decision, in large part, on the increased value to the property

generated by improvements made by Husband and Tamara while they were

living on the property.   Yet the trial court ignored the fact that they were

living there rent-free.   As this Court has held, “a later valuation date will

ordinarily be most equitable in order to prevent a distribution based on stale

financial data.” Zeigler v. Zeigler, 530 A.2d 445, 447 (Pa. Super. 1987)

(citation omitted). Here, valuation at the date of distribution would have

allowed Wife to receive credit for fair rental on the property, while Husband

could be credited with the value of the improvements. Valuation at the date

of divorce serves to pay Wife today in 1995 dollars. Had Wife received her

share in 1995, she would have had the use of these funds, with attendant

interest, for some 20 years.       Either the property should be valued at




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distribution, or if at divorce, Wife should get interest. Under the trial court’s

analysis, approved by the Majority, Wife is deprived of her fair share.1

      The same analysis shows that the trial court erred when it applied the

principles of laches in awarding Husband APL credit. Had Husband moved to

terminate APL, undoubtedly equitable distribution would have proceeded.

Although Wife did not receive her equitable distribution until now, in lieu of it

she was receiving APL. The trial court and the majority hold she is entitled

to neither.

      Further, I disagree with the trial court’s decision with respect to the oil

and gas rights. Again, laches is inapplicable, and Wife, as an owner of the

property, is entitled to a share of any profits realized from drilling on the

property. The trial court erroneously placed the burden on Wife to assert oil

and gas lease rights that she already held. Additionally, I disagree with the

court’s decision to grant Wife only a one-third share in the oil and gas

profits, and to terminate her interest upon transfer of the property via an

arm’s length sale. There is no indication where “one-third” comes from, but

it would appear to result from the fact that there are three parties in the

case. As stated previously, Tamara’s interests in the land, if any, do not

have an effect on the distribution of property between the former spouses.

Accordingly, Wife is entitled to half of the mineral rights when and if the

1
  I agree with the Majority with respect to the issues surrounding valuation
of the farm equipment and join that portion of the Memorandum.


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J-A16016-16


property is sold.   Moreover, because the sale price will presumably reflect

the mineral rights, Wife should be entitled to distribution of those profits.

Wife is correct that the “award” as it stands is merely illusory and should be

vacated.




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