J-A26013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HOWARD CARR,                                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DAVID M. CRAFT,

                         Appellant                  No. 1797 MDA 2013


              Appeal from the Order Dated September 4, 2013
         In the Court of Common Pleas of Northumberland County
                   Civil Division at No(s): CV-2012-554


BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 16, 2014

      David M. Craft has filed the present appeal from a September 4, 2013

order finding him in contempt of court and imposing a sanction of $500.

We affirm since Mr. Craft does not actually challenge the order in question.

      Appellee Howard Carr instituted this action in partition against

Mr. Craft and alleged the following.    The parties owned a parcel of real

estate as joint tenants with right of survivorship located in Coal Township,

Northumberland County. A copy of the deed to the real estate in question



joint names.   Mr. Carr claimed that Mr. Craft occupied the property with

another person and to the exclusion of Mr. Carr.     Mr. Carr asked that the

property be partition
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various costs.

      In his answer and counterclaim, Mr. Craft admitted that the subject

                                             ut averred the following. The



note and mortgage on the property solely as an accommodation party.

Mr. Craft made the down payment on the premises and had satisfied all the

mortgage payments and other expenses associated with its upkeep, whereas

Mr. Carr had contributed no money toward either the purchase or



                                                      ject property which is



Mr. Craft additionally requested that he not be required to pay Mr. Carr any



      Mr. Carr then moved for an order directing partition pursuant to

Pa.R.C.P. 1557.   That rule states in relevant part that if the trial court



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

                                                       -transcribed hearing,

the trial court executed an order dated September 19, 2012.      That order

provided:




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      1) Defendant David M. Craft shall have a period of ninety (90)
      days in which to arrange for the purchase of the property listed
      in the complaint, or to otherwise arrange an agreement
      satisfactory to both parties and to any creditors that
      accomplishes the goal of removing Plaintiff Howard Carr from the
      title and mortgage on the property listed in the complaint.

      2) Should Defendant [David Craft] be unable to satisfy the terms
      of this court order in the prescribed period, the property shall be
      listed for sale with a bona fide realtor agreed upon by both
      parties.

      3) Should the parties be unable to agree upon a realtor within
      fifteen (15) days, they shall notify the Court, and the Court will
      select a realtor with which to list the property for sale.

Trial Court Order, 9/19/12, at 1.

      On January 7, 2013, Mr. Craft filed a motion for clarification of the

order, but the motion essentially operated as objections to it. He asserted

                                                                            sole

owner of the property. Mr. Craft again claimed that Mr. Carr was a signatory

to the mortgage merely as an accommodation.         Mr. Craft asked that the

status quo be maintained since the mortgage was not in default.             That

motion was not resolved.

      On January 15, 2013, Mr. Carr filed a motion to compel a real estate

listing. Therein, he averred that the September 19, 2012 order operated as

an order in partition.     He stated that Mr. Craft had not refinanced the

mortgage or purchased the property and that the parties could not agree on

a realtor.    Mr. Carr asked that the property be listed for sale.           On

January


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a realtor from Danville to sell the property, and the court ordered and

directed



1.

        On February 20, 2013, Mr. Carr filed a petition for contempt averring

that Mr. Craft had failed to execute the real estate listing, as required by the

January 17, 2013 order.          The petition for contempt was granted by order

dated September 4, 2013. Sanctions were also imposed in the order in that

                                                                      deducted



        Mr. Craft filed the present appeal from the September 4, 2013 order

finding him in contempt. However, his challenges on appeal all relate to the

propriety of the September 19, 2012 order that required him either to enter

satisfactory arrangements with Mr. Carr regarding the mortgage and sale of

the property or to list the property for sale.1 He raises no objections to the


____________________________________________


1
     The issues raised in this appeal are:

        I. Did the Court err in denying Defendant's, Mr. David M.
        Craft's, request that Plaintiff, Mr. Howard Carr, be ordered to
        specifically perform his guarantee of Mr. Craft's home loan in the
        above entitled action and is said decision inequitable in light of
        the interests of Mr. Craft who has a reasonable expectancy in the
        transaction, is making his payments and has expended
        substantial sums in establishing himself in the home and in
        repairing and renovating the same?
(Footnote Continued Next Page)


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propriety of the order finding him in contempt of the January 17, 2013

order, which clearly required Mr. Craft to execute a listing agreement.

      Initially, we observe that the September 4, 2013 order finding

Mr. Craft in contempt and awarding Mr. Carr sanctions is an appealable

order.   Rhoades v. Pryce, 874 A.2d 148 (Pa.Super. 2005) (order finding

litigant in contempt and imposing sanctions is final and appealable). While

Mr. Craft ostensibly filed this appeal from that order, it is clear that this

appeal does not involve the contempt order to any extent.          Rather, the

present appeal solely pertains to the propriety of the September 19, 2012

order. Mr. Carr filed a motion to quash, arguing that this appeal is untimely.
                       _______________________
(Footnote Continued)

      II. Did the Court err in not applying the doctrine of promissory
      estoppel to hold Plaintiff, Mr. Howard Carr, to his guarantee of
      Defendant's, Mr. David M. Craft's, home loan in the above
      entitled action and is said decision inequitable in light of the
      interests of Mr. Craft who has a reasonable expectancy in the
      transaction, is making his payments and has expended
      substantial sums in establishing himself in the home and in
      repairing and renovating the same?

      III. In light of Plaintiff Carr's admission through counsel that he
      claims no interest in the real property and that he was able to
      obtain credit with the existence of this mortgage obligation, is
      simply forcing the sale of a party's home to satisfy Mr. Howard
      Carr's arbitrary and capricious personal falling out with
      Defendant Craft inequitable and an abuse of discretion?


below. However, Mr. Craft appears to be asserting a claim to sole ownership
of the property and that Mr. Carr was an accommodation party on the
mortgage, which he raised in his counterclaim. He also is objecting to a
forced sale of the property and seeks to maintain the status quo, as outlined
in his motion asking that the September 19, 2012 order be clarified.



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Mr.   Craft   counters   that   this   appeal   is   not   untimely   because   the

September 19, 2012 order is interlocutory.            We conclude that we lack

jurisdiction at this juncture over the September 19, 2012 order.

      We observe that the September 19, 2012 order can be construed as



request for partition and since it required Mr. Craft either to purchase the



order directing partition is an interlocutory order appealable as of right under

Pa.R.A.P. 311(a)(7) (An appeal may be taken as of right and without



Mr. Craft could have appealed from the September 19, 2012 order within

thirty days of its entry but failed to do so.

      In this appeal, he is precluded from challenging the propriety of the

September 19, 2012 order in this Court until a final resolution, on the

merits, of this matter. Pa.R.A.P. 311(g), waiver of objections, states that if

an interlocutory order is made immediately appealable under that rule, the

                                                                         shall not

constitute a waiver of the objection to the order and the objection may be

raised on any subsequent appeal in the matter from a determination on the

merits.

the trial court has yet to decide the respective interests of the parties,




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whether damages are to be awarded, and how the proceeds of the sale are

to be distributed.

      Mr. Craft presents an alternative characterization of the September 19,

2012 order. He insists that it was merely an interlocutory order mandating



one directing partition but merely interlocutory, we nevertheless lack



one certified by the trial court as final; 2) an interlocutory order as of right;

                                                                       Estate of

Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009)

(citation omitted). The September 19, 2012 order fails to fall within any of

those categories.



property of the September 19, 2012 order in this appeal. The appeal herein

either is an untimely as to that order, if it effectuated partition, or is from an

interlocutory order directing the sale of real property.            Furthermore,

Appellant fails to present any challenges to the final contempt order from

which this appeal was properly filed. Hence, we must affirm that order.




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     Motion to quash appeal is denied. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2014




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