J-S43014-18

                             2019 PA Super 32

GINA K. JACOBS, FORMERLY KNOWN AS               IN THE SUPERIOR COURT
GINA K. STEPHENS                                   OF PENNSYLVANIA

                         Appellant

                    v.

TIMOTHY L. STEPHENS

                         Appellee                 No. 1697 WDA 2017


            Appeal from the Order entered October 16, 2017
           In the Court of Common Pleas of Venango County
                     Civil Division at No: 872-2015
____________________________________________________________

GINA K. JACOBS, FORMERLY KNOWN AS               IN THE SUPERIOR COURT
GINA K. STEPHENS                                   OF PENNSYLVANIA

                         Appellant

                    v.

TIMOTHY L. STEPHENS

                         Appellee                 No. 1698 WDA 2017


              Appeal from the Order entered November 1, 2017
              In the Court of Common Pleas of Venango County
                        Civil Division at No: 872-2015
J-S43014-18


____________________________________________________________

GINA K. JACOBS, FORMERLY KNOWN AS                 IN THE SUPERIOR COURT
GINA K. STEPHENS,                                    OF PENNSYLVANIA

                          Appellee

                     v.

TIMOTHY L. STEPHENS

                          Appellant                  No. 1770 WDA 2017


               Appeal from the Order entered October 16, 2017
              In the Court of Common Pleas of Venango County
                        Civil Division at No: 872-2015

BEFORE: STABILE, DUBOW AND NICHOLS, JJ.

OPINION BY STABILE, J.:                       FILED FEBRUARY 8, 2019

      In these consolidated appeals, Gina K. Jacobs and Timothy L. Stephens

cross-appeal from an order finding that the parties owned a property as

tenants in common, directing partition of the property, and awarding

$27,726.73 to Jacobs. We affirm the portion of the order finding that the

parties own the property as tenants in common and directing partition of the

property in equal shares. We vacate the order in all other respects, and quash

these appeals in all other respects, because the trial court lacked jurisdiction

to decide any other issues under our recent decision in Kapcsos v. Benshoff,

194 A.3d 139 (Pa. Super. 2018) (en banc).

      The history of this case begins with Stephens’ prior marriage to an

individual named Kim Schwab. In January 2001, Stephens and Schwab held

a wedding ceremony in Jamaica.        At the time of their wedding, Stephens


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believed that their marriage was legal. Later that year, Stephens purchased

a residential property at 174 Carey Lane in Cranberry Township. Stephens

paid for the property entirely with his own money, and the deed did not list

Schwab as an owner due to her poor credit. Stephens and Schwab separated

in 2002, and there were no divorce proceedings. In 2005, Schwab married

another man.

     Stephens and Jacobs met in July 2009, and they married on September

11, 2009. Before they married, Stephens told Jacobs that he previously had

a wedding ceremony in Jamaica, but he had consulted an attorney and did not

believe that the Jamaican marriage was valid.

     On September 19, 2009, Stephens and Jacobs executed a deed

conveying the property at 174 Carey Lane from themselves, as “husband and

wife,” to themselves as “tenants by the entireties.”    On August 6, 2013,

Stephens and Jacobs separated. On February 7, 2014, the trial court annulled

their marriage, finding that Stephens’ Jamaican marriage to Schwab was valid

and that Stephens had failed to divorce Schwab.

     On July 17, 2015, Jacobs filed a complaint seeking partition of the Carey

Lane property and an award of reasonable rental value of the property from

the date of separation onward.      Stephens filed a counterclaim seeking

reimbursement for various expenditures on the property, including repairs for

the garage and kitchen, payments on a roof loan, and payment of real estate

taxes and homeowner’s insurance premiums.




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      On October 16, 2017, following a non-jury trial, the trial court entered

an order finding that the parties held the property as tenants in common. The

court directed partition of the property. Further, the court determined that

Stephens had been in sole possession of the property since the date of

separation, the value of the property was $145,000.00, and the value of each

party’s share was fifty percent of the total value, or $72,500.00. The court

credited Stephens with $44,773.77 in payments for repairs to the premises,

real estate taxes, and homeowners’ insurance premiums. After subtracting

this credit from Jacobs’ one-half share of the value of the premises, the court

entered an order in Jacobs’ favor in the amount of $27,726.23.

      On October 19, 2017, Jacobs filed post-trial motions. Stephens did not

file post-trial motions. On October 30, 2017, Stephens filed a motion to strike

or dismiss Jacobs’ post-trial motions on the ground that Pa.R.Civ.P. 1557 did

not permit exceptions to an order directing partition. On November 1, 2017,

the trial court dismissed Jacobs’ post-trial motions on the ground that she

“[could] not file a motion for post-trial relief in response to an order directing

partition.” Order, 11/1/17, at 1.

      On November 13, 2017, Jacobs filed notices of appeal from the October

16, 2017 and November 1, 2017 orders at 1697 and 1698 WDA 2017,

respectively. On November 27, 2017, Stephens filed a notice of appeal from

the October 16, 2017 order at 1770 WDA 2017. Both parties and the court

complied with Pa.R.A.P. 1925. Jacobs subsequently filed a praecipe to reduce

the October 16, 2017 order to judgment.

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      In Jacobs’ appeals at 1697 and 1698 WDA 2017, she raises four

questions that we reorganize for the sake of convenience:

      1. Did the trial court err in giving [Stephens] credit for the
      payment of real estate taxes in the sum of $8,352.39 and credit
      for the payment of homeowners’ insurance premiums in the
      amount of $3,779.48?

      2. Did the trial court err as a matter of law or abuse its discretion
      in failing and/or refusing to award [Jacobs] for her fair and
      reasonable rental value claim, in the amount of $325.00 per
      month, plus utilities from August 6, 2013 through October 16,
      2017 and monthly thereafter, when the evidence was clear and
      uncontroverted that [Jacobs] was not in possession of the
      premises and [Stephens] enjoyed exclusive possession of the
      subject premises at all times relevant to the claim?

      3. Did the trial court err in its November 1, 2017 [order] in
      granting [Stephens’] motion to strike/dismiss [Jacobs’] motion for
      post-trial relief without conducting a hearing on [Jacobs’] motion?

      4. Did [Stephens’] failure to file a post-trial motion for relief
      constitute a waiver of all of the issues in his cross-appeal?

Jacobs’ Brief at xi-xii (some capitalization omitted).

      Stephens raises three issues in his cross-appeal at 1770 WDA 2017:

      1. Given that the sole reason for the transfer of the subject
      property from [] Stephens to [] Stephens and [] Jacobs was the
      erroneous belief that the [p]arties were legally married, did the
      trial court err when it failed to find said transfer was void under
      the law of restitution and unjust enrichment, conditional gift, [or]
      gift made in reliance on a relation?

      2. Did the trial court err when it failed to credit [] Stephens, as an
      offset to partition, the amount expended by him for the initial
      purchase price of the subject property?

      3. Did the trial court err when it failed to credit [] Stephens, as an
      offset to partition, the value of the labor expended by him for the



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      necessary repairs, maintenance and preservation of the subject
      property?

Stephens’ Brief at 23-24 (some capitalization omitted).

      We must first consider sua sponte whether the trial court possessed

jurisdiction to enter the October 16, 2017 order. Turner Const. v. Plumbers

Local 690, 130 A.3d 47, 63 (Pa. Super. 2015) (“[W]e can raise the issue of

jurisdiction sua sponte”). “[A]s a pure question of law, the standard of review

in determining whether a trial court has subject matter jurisdiction is de novo

and the scope of review is plenary.” S.K.C. v. J.L.C., 94 A.3d 402, 406 (Pa.

Super. 2014) (internal alteration, quotation marks, and citation omitted). In

accordance with Kapcsos, we hold that the trial court’s jurisdiction was

limited to deciding whether the property was subject to partition and

identifying the nature and extent of Jacobs’ and Stephens’ interests in the

property. We quash the cross-appeals to the extent that they involve issues

falling outside these boundaries.

       “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 . . . The rule is that the right to partition is an incident

of a tenancy in common, and an absolute right.” Lombardo v. DeMarco,

504 A.2d 1256, 1260 (Pa. Super. 1985). “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.” Russo v. Poliduro, 176 A.3d 326, 329

(Pa. Super. 2017).      Any one or more co-tenants may bring an action for

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partition, and all other co-tenants must be joined as defendants. Pa.R.Civ.P.

1553.

        Kapcsos describes the law of partition procedure as follows:

        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.

        The first order, under Pa.R.Civ.P. 1557, directs partition of the
        parties’ legal interests into severalty . . .

        The second order, under Pa.R.Civ.P. 1570, does one of three
        things. A Rule 1570 order may (1) divide the partitioned property
        among the parties, (2) force one or more of the parties to sell
        their interest in the land to one or more of the parties, or (3) sell
        the land to the general public and distribute the proceeds among
        the parties.

        In Part 1, the court must determine whether the property is
        partitionable under law. In other words, Part 1 is to ascertain:

              I.    Do the parties jointly own the real estate in
                    question?

              II.   If so, what fractional legal interests in the
                    property does each party hold?

        The answers to these questions may be admitted in the pleadings,
        or, if they are not, a hearing or jury trial may be needed. If the
        trial court answers both questions and finds that the plaintiff has
        established a right to partition, Rule 1557 dictates:

              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.
              No exceptions may be filed to an order directing
              partition.

        Critically, any party may immediately appeal that order under
        Pennsylvania Rule of Appellate Procedure 311(a)(7) (permitting
        some interlocutory appeals as of right). After a Part 1 order of

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     partition becomes final (either because no one appeals or an
     appellate court affirms it), only then may parties proceed to Part
     2, where the actual division, award, or sale of the partitioned
     property occurs . . . .

     Therefore, the 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.

Id., 194 A.3d at 141-43.     At Part 2’s conclusion, the court must enter a

decision and order configured as follows:

     (a) The decision shall include findings of fact as follows:

     (1) whether the property is capable of division, without prejudice
     to or spoiling the whole, into purparts proportionate in value to
     the interests of the co-tenants;

     (2) the number of purparts into which the property can be most
     advantageously divided, if partition proportionate in value to the
     interests of the parties cannot be made;

     (3) the value of the entire property and of the purparts;

     (4) the mortgages, liens and other encumbrances or charges
     which affect the whole or any part of the property and the amount
     due thereon;

     (5) the credit which should be allowed or the charge which
     should be made, in favor of or against any party because of
     use and occupancy of the property, taxes, rents or other
     amounts paid, services rendered, liabilities incurred or
     benefits derived in connection therewith or therefrom;

     (6) whether the interests of persons who have not appeared in
     the action, or of defendants who have elected to retain their
     shares together shall remain undivided;




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     (7) whether the parties have accepted or rejected the allocation
     of the purparts or bid therefor at private sale confined to the
     parties; and

     (8) whether a sale of the property or any purpart not confined to
     the parties is required and if so, whether a private or public sale
     will in its opinion yield the better price.

     (b) The order shall include:

     (1) an appropriate award of the property or purparts to the
     parties subject to owelty where required;

     (2) if owelty is required, the amount of the awards and
     charges which shall be necessary to preserve the
     respective interests of the parties, the purparts and parties
     for or against which the same shall be charged, the time of
     payment and the manner of securing the payments;

     (3) the protection required for life tenants, unborn and
     unascertained remaindermen, persons whose whereabouts are
     unknown or other persons in interest with respect to the receipt
     of any interest; and

     (4) a public or private sale of the property or part thereof where
     required.

Pa.R.C.P. 1570 (emphasis added).

     Kapcsos was a partition action between two co-tenants, Kapcsos and

Benshoff. Instead of entering the Part 1 order required under Rule 1557, the

trial court skipped Part 1, moved directly to Part 2 proceedings, and

conditionally awarded the property to Kapcsos subject to (among other things)

payment of owelty to Benshoff. Benshoff appealed to this Court. An en banc

panel of this Court unanimously quashed the appeal, reasoning:

     [A] Part 1 order must precede Part 2. [The] failure of the parties
     to secure and record a Part 1 order partitioning the property
     deprived the trial court of jurisdiction to conduct Part 2. If the

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      property is never partitioned via a Part 1 order, the court has
      nothing to divvy-up in Part 2, because the parties still own
      undivided interests in the whole. A Part 1 order must first
      disentangle their legal interests and extinguish rights of
      survivorship.   Also, recording a Part 1 order is absolutely
      imperative to protect the various rights of the parties and their
      heirs.

      In conclusion, by not seeking a Part 1 order to divide their legal
      interests in the property into severalty, the parties never
      completed Part 1 of these proceedings. Thus, the Part 2 trial that
      occurred and all relief that Mr. Kapcsos and Ms. Benshoff obtained
      from it were “nullit[ies].” See Mischenko v. Gowton, [] 453
      A.2d 658, 660 ([Pa. Super.] 1982). As a result, once the trial
      judge partitions the joint property via a Part 1 order and the
      Recorder of Deeds has recorded it, the parties must retry Part 2
      de novo, where both parties may present any evidence of
      monetary contributions as off-sets toward the owelty . . .

      Until all of this occurs, we may not decide the merits of the case,
      for the General Assembly has commanded that we “shall have
      exclusive appellate jurisdiction of all appeals from final orders of
      the courts of common pleas . . . .” 42 Pa.C.S.A. § 742 (emphasis
      added). Because the appealed-from order is a legal nullity, it
      cannot be a final order. Thus, this Court has no appellate
      jurisdiction over such an order.

Id., 194 A.3d at 145.

      The legal principles articulated in Kapcsos govern this case, although

the facts herein are slightly different. Here, unlike in Kapcsos, the trial court

did not skip over Part 1. Instead, it combined Part 1 and Part 2 proceedings

and entered a single order that: (a) the property was subject to partition in

equal shares to Jacobs and Stephens as tenants in common, a Part 1 ruling;

(b) the property’s real market value was $145,000.00, a Part 2 ruling; (c)

Stephens was entitled to $44,773.77 in credit, a Part 2 ruling; and (d)

subtraction of this credit from Jacobs’ one-half share of the value of the

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premises resulted in an award to Jacobs of $27,726.23, a Part 2 ruling. The

court only had jurisdiction to enter Part 1 rulings, not Part 2 rulings. Kapcsos,

at 145 (Part 2 trial and order were “nullities” because parties never completed

Part 1). Consequently, we only have jurisdiction to decide Part 1 arguments

in these appeals but not Part 2 arguments.

      The first three arguments in Jacobs’ brief object to the amount of credit

awarded to Stephens for payment of real estate taxes and homeowners’

insurance, the trial court’s refusal to award Jacobs rent for Stephens’ exclusive

possession of the premises after the date of separation, and the trial court’s

denial of Jacobs’ post-trial motions relating to these issues. All of these are

Part 2 arguments concerning the “division of the pie.” Kapcsos, at 143 (in

Part 2, “if the property were a pie, the trial court must decide how best to

serve it to the parties”). Similarly, the final two arguments of Stephens’ brief

object to the court’s refusal to award him credit for the original purchase price

of the property and for the value of his labor to maintain the property. These,

too, are Part 2 arguments relating to the appropriate “division of the pie.” We

lack jurisdiction to decide any of these issues.

      We do have jurisdiction, however, to address two Part 1 arguments

raised by the parties.   First, Stephens’ first argument—his transfer of the

property to Jacobs was void due to the lack of a valid marriage—relates to the

Part 1 inquiry of whether the property “is partitionable.” Kapcsos, at 142.

Next, Jacobs’ fourth and final argument asserts that Stephens waived all


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issues in his cross-appeal by failing to file post-trial motions.       We have

jurisdiction to address this to the extent it concerns Stephens’ Part 1 argument

that his transfer to Jacobs was void. We lack jurisdiction to address Jacobs’

fourth argument to the extent it concerns Stephens’ arguments on Part 2

subjects.1

       Turning to the merits of the Part 1 arguments, the trial court rejected

Stephens’ argument that his September 19, 2009 transfer to Jacobs was void,

reasoning:

       [I]n Pennsylvania, even if the parties transferring property
       amongst one another are not legally married, a valid deed still
       exists, as held in Thornton et al, v. Pierce et al., 194 A. 897
       (Pa. 1937). See also Fredrick v. Southwick, 67 A.2d 802 (Pa.
       Super. 1949). In Thornton, the plaintiff was married to her first
       husband and lived with him until he abruptly deserted her . . .
       Three years after he left, the plaintiff bought the property at issue
       in the case exclusively with her own money. Having not heard
       from her first husband for eleven years, plaintiff entered into a
       marriage with the defendant to her subsequent action . . . Shortly
       after her marriage to the defendant, a deed conveyed the property
       the plaintiff had purchased to herself and the defendant, as


____________________________________________


1 We note that the parties timely filed their notices of appeal on the Part 1
issues. Jacobs timely appealed under Pa.R.A.P. 311(a)(7) on November 13,
2017, less than thirty days after the Part 1 determination that Jacobs and
Stephens were co-tenants who each held fifty percent interests in the
property. Pa.R.A.P. 903(a) (except in circumstances not relevant here, “the
notice of appeal . . . shall be filed within 30 days after the entry of the order
from which the appeal is taken”). Stephens timely filed his cross-appeal
fourteen days after Jacobs’ appeals.             Pa.R.A.P. 903(b) (except in
circumstances not relevant here, “if a timely notice of appeal is filed by a
party, any other party may file a notice of appeal within 14 days of the date
on which the first notice of appeal was served, or within the time otherwise
prescribed by this rule, whichever period last expires”).


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     husband and wife, stating that “[t]he purpose of this deed is to
     vest in the grantees named herein an estate by entireties.”

     Five years later, the plaintiff’s first husband suddenly reappeared,
     and the plaintiff went to live with him and subsequently procured
     an annulment of her marriage to the defendant. Plaintiff also filed
     the action that was the subject matter of Thornton, in which she
     alleged that the instrument that deeded her and the defendant
     the property at issue as tenants by entireties should be decreed
     null and void, based upon the fact that they were never lawfully
     married. In deciding the matter, the Pennsylvania Supreme Court
     stated as follows:

           It is true that tenancy by entireties is limited to the
           case of a husband and wife, and therefore [plaintiff]
           and [defendant] could hold title only as joint tenants
           or tenants in common. But the fact that in this respect
           the deed was ineffective did not wholly invalidate it,
           nor prevent the grantees from receiving and holding
           title under such form of tenancy as was appropriate
           under the circumstances.            In cases where
           conveyances have been made to persons described as
           husband and wife, because believed to be such by the
           grantors and by themselves, it being either expressly
           stated or impliedly intended that they were to take by
           entireties, but where it was discovered that they were
           not lawfully married and therefore could not hold
           under such a tenancy, they have been allowed to take
           the estate either as joint tenants or tenants in
           common.

     Id.

     As noted in Thornton above, a deed that fails to deliver property
     to two persons as tenants by the entirety, based on the false belief
     that they are legally married, is not void. But rather, it still acts
     as a valid deed in that they receive interests in the property as
     either joint tenants or tenants in common.

Trial Court Op., 2/12/18, at 14-15.

     We agree with this analysis and add several observations. Thornton

held that when a deed purports to convey property to tenants by the

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entireties, but the parties are not actually married, the deed is ineffective to

create a tenancy by the entireties. Id., 194 A. at 899. The deed, however,

does not necessarily become a nullity, “there being no reason why the

grantees, like any other two persons, cannot take title in some form of dual

ownership appropriate under the circumstances.”       Maxwell v. Saylor, 58

A.2d 355, 356 (Pa. 1948) (citing Thornton).         “The appropriate form of

tenancy is to be determined by the intention of the parties, the ultimate guide

by which all deeds must be interpreted.” Riccelli v. Forcenito, 595 A.2d

1322, 1325 (Pa. Super. 1991) (citations omitted) (although purchasers who

were not married could not take title to property as tenants by entireties,

evidence showed they intended to create right of survivorship, and thus, they

held estate as joint tenants with right of survivorship; language in deed, which

included form of estate taken, “tenants by the entireties,” was sufficiently

specific to create survivorship rights); see also Teacher v. Kijurina, 76 A.2d

197, 202 (Pa. 1950) (where no language evidencing intent to create

survivorship interest, i.e., no language indicating form of estate, appeared in

deeds, deed operated to convey estate of tenancy in common); Estate of

Bruce, 538 A.2d 923 (Pa. Super. 1988) (deeds conveying property to grantee

and his “wife,” where grantee and “wife” were not actually married, did not

create joint tenancy with right of survivorship but rather tenancy in common,

where deed did not express form of estate and clear expression of intent to

include right of survivorship was thus lacking); DeLoatch v. Murphy, 535


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A.2d 146, 149 (Pa. Super. 1987) (deed naming plaintiff, who was married to

another, and defendant, with whom plaintiff was living at the time, as tenants

by the entireties created joint tenancy with right of survivorship).

      The trial court made clear that it found Stephens honestly but

mistakenly believed that his first marriage to Schwab was invalid, and that

the parties intended to convey the property to Stephens and Jacobs as tenants

by the entireties. Trial Ct. Op., at 14-15. While the deed was ineffective to

create a tenancy by the entireties, see Thornton, it did signify the parties’

intent to convey some interest in the property to Jacobs.        The trial court

enforced the parties’ intent by concluding that Jacobs obtained title as a tenant

in common.

      Stephens contends that the deed is void under our decision in Estate

of Sacchetti v. Sacchetti, 128 A.3d 273 (Pa. Super. 2015), but we find

Sacchetti distinguishable.    There, Mario Sacchetti married Linda Sacchetti

unaware that Linda was already married to another man. Mario bequeathed

his residence to Linda in his will and executed a deed conveying his residence

to himself and Linda.    Two years later, Mario died.      His executor filed a

declaratory judgment action demanding that Linda return the residence to

Mario’s estate. The Orphans’ Court ruled in favor of the estate. This Court

affirmed, holding that Linda procured the deed by fraud and

      presented no proof that Mario would have bestowed on her
      survivorship rights to his property if he had known that she
      fraudulently induced him to marry her and would not perform her
      marital obligations. The evidence clearly established that Mario

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      did not know that [Linda] was married to Mr. Kai when he married
      her. In addition, [Linda] fraudulently induced Mario into believing
      that, in return for [the residence] and $25,000, she would provide
      companionship and cook and clean for him during what was
      intended to be a marriage of short duration, given Mario’s
      advanced age, heart problems, and diabetes.

Id., 128 A.3d at 287. In contrast to Sacchetti, neither party in this case

acted fraudulently.   Both parties executed the deed under the honest but

mistaken assumption that Stephens’ prior marriage was invalid. Since both

parties intended for Jacobs to obtain an ownership interest in the property, it

would be improper to proclaim the deed void.

      Further, we reject Jacobs’ argument that Stephens waived his Part 1

argument by failing to file exceptions to the October 16, 2017 order’s directive

to partition the property. Pa.R.Civ.P. 1557 barred Stephens from filing post-

trial motions on this issue. See id. (“No exceptions may be filed to an order

directing partition”). Stephens’ only recourse was to take a timely appeal,

which he did.

      Accordingly, we affirm the October 16, 2017 order to the extent it

concerns Part 1 of this case, i.e., to the extent it holds that Stephens and

Jacobs own the property as tenants in common and directs partition of the

property. We vacate the October 16, 2017 order to the extent it disposes of

Part 2 issues and quash the parties’ appeals to the extent they concern Part 2

issues. We direct the trial court to enter an amended order that recites only




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the Part 1 decision. Once the Recorder of Deeds has recorded this amended

order, the parties shall retry Part 2 de novo.2

       Judgment vacated. Appeals quashed to the extent they relate to Part 2

of the partition proceedings. Order of October 16, 2017 affirmed in part and

vacated in part. Case remanded for further proceedings in accordance with

this opinion. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2019




____________________________________________


2Although we direct that a Part 2 hearing be conducted de novo, if the parties
so choose, nothing herein would prevent them from stipulating into evidence
at the de novo hearing evidence and/or testimony already heard by the trial
court.

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