J-A01038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUZANNE I. WARD,                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                     v.

MICHAEL S. ARNOLD,

                           Appellant                No. 705 WDA 2014


              Appeal from the Judgment entered April 15, 2014,
                in the Court of Common Pleas of Erie County,
                     Civil Division, at No(s): 2010-11015


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED JANUARY 21, 2015

      Michael S. Arnold, (“Appellant”), appeals from the judgment entered in

favor of Suzanne I. Ward, (“Ward”), following the partition of a home which

Appellant and Ward previously owned as tenants in common. We affirm.

      On September 17, 2013, this matter was heard before Master Thomas

S. Kubinski, Esquire, (“Master Kubinski”). On November 20, 2013, Master

Kubinski issued a report containing findings of fact, conclusions of law, and

recommendations to the trial court.       See generally Master’s Report,

11/20/13. On January 15, 2014, the trial court adopted the Master’s Report.

See Order, 1/15/14, at 1.

      The Master’s Report detailed the factual and procedural background

relative to this action:

           The Property [located at 606 Pasadena Drive, Erie,
      Pennsylvania] was purchase[d] by the parties on December 3,
J-A01038-15


     2003 for the sum of $140,000.00. The value of The Property at
     the time of sale to [Ward] was $167,000.00. The parties were
     jointly liable for the liens that existed against The Property at the
     time of the sale, which totaled $106,002.00. The Property was
     conveyed to [Ward] on February 8, 2012 pursuant to court
     order.     The net equity was $61,000.00.           [Appellant] was
     excluded from The Property by order of the Honorable Elizabeth
     Kelly on August 18, 2011.

           The parties first lived together continuously in the mid
     1990s in a home purchased by [Ward] in Girard, Ohio. The real
     estate was titled in [Ward’s] name and encumbered by mortgage
     in [Ward’s] name as well as a home equity line of credit in the
     name of both of the parties. The parties then purchased a
     property in Dayton, Ohio, known as the Galloway property which
     was titled in [Ward’s] name with a mortgage in [Ward’s] name.
     The parties then purchased another property in Dayton, Ohio,
     known as the Fairborn home on Warmsprings Drive, titled in
     both parties' names and encumbered by a mortgage in both
     parties' names. This property is presently subject to a partition
     action in the state of Ohio. During the time that the parties
     resided together, they actively rented the three Ohio properties
     referenced hereinabove.

           The parties purchased The Property at 606 Pasadena
     Drive, Erie, Pennsylvania on December 3, 2003 for the sum of
     $140,000.00.     The grantee clause in the deed to the 606
     Pasadena Drive property had a handwritten notation after
     [Ward’s] name, near [Appellant’s] name that stated "her
     husband". The parties resided together at The Property until
     August 1[8], 2011 when [Appellant] was excluded from The
     Property by court order.     [Ward] continues to live at The
     Property up until this day.

           The parties had two children born to them while residing in
     the state of Ohio: Joseph, [], and Steven, []. In approximately
     1996 the parties held a purported wedding ceremony for family
     and friends, but had not obtained a marriage license. The
     marriage ceremony was arranged because the parties did not
     intend to have a legal marriage, but wanted to maintain the
     health insurance coverage that they held at the time which
     would have been forfeited if they were legally married. The
     parties at some time both believed that there was a common law
     marriage between them. The parties filed joint federal and state
     income tax returns as a married couple. However, after [Ward]

                                     -2-
J-A01038-15


     discovered that the couple was not married, she amended the
     2006 through 2009 joint federal and state income tax returns.

           In 2006, the parties began to have relationship problems
     to the point that [Ward] requested [Appellant] to leave the
     home. The Honorable Ernest DiSantis of the Erie County Court
     of Common Pleas granted an order of court dated April 13, 2009
     ruling that the parties were not common law husband and wife,
     nor were they husband and wife as a matter of law. The action
     was filed at Erie County No. 14896-2008. The parties continued
     to reside together against the wishes of [Ward] until August 18,
     2011, when [Appellant] was excluded from the home.

            [Ward] filed an action in partition against [Appellant] for
     The Property at 606 Pasadena Drive on March 8, 2010.
     Attorney Thomas S. Kubinski was appointed Master by order of
     court dated March 18, 2011. On September 20, 2011, the
     parties entered into an agreement that The Property would be
     sold to [Ward] for the sum of $167,000.00, contingent upon
     [Ward] obtaining financing approved within 60 days of the
     signing of the agreement. On November 15, 2011, the Master
     filed a Petition to Sell Real Estate to [Ward] under the terms and
     conditions of the consent agreement. The only contingency in
     the order at the time was that [Ward] obtain financing to
     complete the purchase. The order was signed by Judge Garhart.
     [Ward] obtained a notice of approval of financing from Marquette
     Savings Bank on November 17, 2011.

            Upon obtaining commitment from Marquette, the Master
     notified [Appellant] on December 1, 2011 that the mortgage
     approval was obtained and a closing was being scheduled. The
     Master also notified [Appellant] that he would need to make
     arrangements soon to sign the closing documents. The Master
     informed [Appellant] that once he received the signed closing
     documents back from [Appellant], he would hold them in escrow
     until the date of the closing, which the Master anticipated would
     take place on December 15th or 16, 2011.                [Appellant]
     responded to the Master's email communications in early
     December, asking that the closing documents be forwarded to
     his brother-in-law (an attorney) who would explain them to him.
     The Master sent the closing documents which consisted of a
     deed and an affidavit for [Appellant] to sign to the effect that he
     was not a "Michael Arnold" who is subject to two liens in Erie
     County, Pennsylvania for criminal convictions.        The Master


                                    -3-
J-A01038-15


     requested that [Appellant] execute the documents and return
     them to him no later than December 12, 2011.

           [Appellant] thereafter sent objections to the Master via
     email on the bases that there was no HUD or loan statements
     included in the documents, that the deed sent to him for
     signature was "not a deed'' and that [Ward] was untruthful and
     that the financing really was not lined up because "a line of
     credit for the entire amount of both mortgages would be very
     unusual financing". [Appellant] also asked about a credit report
     and stated that he needed more details before he would sign a
     deed. He was also angry that his name was the subject of a title
     search in Erie County without his permission.

            As a result of [Appellant’s] refusal to cooperate, and after
     petition by [Ward’s] attorney, an Order of court was issued by
     Judge Garhart on December 16, 2011 empowering the Master to
     transfer the property by Affidavit or Order of Court.          The
     attorney for [Ward] requested counsel fees in the amount of
     $900.00 to be paid by [Appellant] for refusing to abide by the
     agreement.

           The Property was transferred in February of 2012. As per
     the consent agreement, the Master retained the sum of
     $25,000.00 from the equity in The Property to be held until
     determination of Master's hearing regarding the distribution of
     equity to the parties.     [Ward] received the equivalent of
     $36,000.00 in equity from the sale of The Property at the time of
     the closing because the payoffs on the liens were not as high as
     estimated.

           [Ward] was a full time employee at Erie Insurance
     Exchange from the date of the purchase of The Property until the
     present. During that same time period [Appellant] was never
     employed by a third party, except for work he did for his father
     in return for windows that he provided for The Property. No
     evidence was submitted to show the value of the windows.
     [Appellant] testified that he had occasional "handy man" type
     jobs which he performed for other parties for pay or for trade.
     An example is that he performed work at a house and received a
     heat pump in return. [Appellant] provided no evidence of the
     amount of payments received, either in cash or assets.
     [Appellant] testified that he performed property management
     and maintenance duties on the properties located in Ohio. No
     evidence was provided for the amount of time or expenses in


                                    -4-
J-A01038-15


     doing so. [Appellant] testified that his other contributions to the
     household were grocery shopping, cleaning, maintenance and
     repair of The Property, and child care services. The child care
     continued until 2006, at which time the children were placed in
     day care when [Ward] was at work, which was paid for by
     [Ward]. No evidence was provided to show the amount paid for
     child care. [Ward] testified that she did as much or more of the
     household chores as [Appellant], shopping for groceries, doing
     her own laundry, and much of the cooking.

          Between December 2003 and the present, the parties
     maintained the following bank accounts:

        a. Erie Community Federal Credit Union savings account in
        [Ward’s] name;

        b. Erie Community Federal Credit Union checking account
        in joint names;

        c. National City account in joint names; and

        d. Northwest Savings Bank account in joint names, which
        account was closed in May 2010 and reopened in [Ward’s]
        name.

            At the time the Northwest Savings Bank account was
     closed, the sum of $400.00 was paid to [Appellant] as his share
     of the account. [Ward’s] paychecks were deposited into the
     credit union accounts which were used as the main household
     operating accounts. [Ward] also testified credibly that other
     than small amounts of money occasionally received by
     [Appellant], the source of the funds in those accounts consisted
     of her paychecks. Some deposits were made into the accounts
     from funds received from the Ohio properties when the parties
     first resided in Erie, but no evidence was provided to show the
     amounts. Other than his share of the rents, no meaningful
     contributions to the account were made by [Appellant].

            [Ward] provided a spreadsheet … uncontested by
     [Appellant], of the payments made for The Property from the
     household account for the mortgage, second mortgage, taxes,
     electricity, gas, water, sewer, trash collection, telephone, and
     Lakeshore Country Club dues. The total amount paid for those
     items between January 1, 2004 and December 31, 2011 was
     $144,891.63.



                                    -5-
J-A01038-15


           [Appellant’s] repairs of the Ohio rental properties could
     have maintained or increased the value of the Ohio properties
     which value is presently contained in those properties. No
     testimony regarding the nature of the repairs was presented by
     [Appellant]. Rental income in excess of costs would have been a
     contribution toward the parties' expenses, but no evidence was
     shown or testimony given as to what those rental incomes were.
     Credible testimony was given that the rental income after
     expenses, would be minimum.

            [Appellant] made improvements to The Property including
     replacing the kitchen cabinets, which he received from his
     parents after a fire in the parents' house, replaced the tile floor
     in the kitchen with tile that was received from his parents after
     the fire at their house, replaced a sink, faucets and a counter
     top, which counter top was received in trade for services.
     [Appellant] did some work on both bathrooms, although neither
     of the bathrooms were completed; he also replaced 22 windows
     in The Property, which windows were given to him by his
     parents. [Appellant] presented no testimony regarding either
     the number of hours spent at these tasks nor the fair market
     value of the work completed. Photographic evidence … provided
     by [Ward] of the repairs that were made by [Appellant] to The
     Property showed incomplete and substandard work, including
     ineffective roof repairs, incomplete work on the bathrooms, the
     kitchen ceiling, the kitchen flooring, the ceiling in the garage, the
     ceiling in the son's room, and gutter and trim work. The hall
     bathroom had no bath tub, shower or walls, and only expose[d]
     studs and insulation were present. Part of the roof repair was
     accomplished by placing a bucket and a piece o[f] tin [in] the
     attic above their son's bedroom to funnel leakage into the
     bucket.

            As of the date of this Report the Master fees amount to
     $5,272.50. Costs, including an appraisal report were $430.50.
     [Ward] has paid to the Master the sum of $2,056.00 and has
     paid her share in the amount of $82.52 for the court reporter's
     bill for the Master's hearing. [Appellant] has paid the sum of
     $1,000.00 and has not paid the $82.52 for the court reporter.
     Therefore, as of this date, [Ward] owes the sum of $795.50 to
     the Master. [Appellant] owes the sum of $1,851.50 to the
     Master and $82.50 to the court reporter.

          The Master concludes that [Ward’s] contribution toward
     The Property was $144,891.00 in cash and the household duties

                                     -6-
J-A01038-15


     which she performed during the ownership of the property such
     as cooking, cleaning, caring for the children and paying for the
     child care. There was no quantitative testimony to describe the
     dollar value of these contributions other than the cash
     payments. The contribution of [Appellant] toward The Property
     was his share of income derived from the ownership of the Ohio
     properties that was deposited into the household account, the
     repair of The Property, cleaning, buying groceries, and child
     care. There was no quantitative testimony to describe the dollar
     value of any of those contributions. The Master concludes that
     the non-monetary contributions to the household by the parties
     is impossible to quantify accurately, either because of its nature
     or because of lack of specific details. Most of the non-monetary
     contributions did not have the effect of increasing the value of
     The Property, including many of the household repairs performed
     by [Appellant]. Likewise, the unspecified rents from the Ohio
     properties, which would have been a contribution by both
     parties, and the payment of child care services by [Ward], are
     also unknown. The Master concludes that the vast majority of
     the increase in value of The Property was the result of the
     $144,891.00 in cash that was paid almost exclusively by [Ward].
     The Master concludes that neither party should receive credit for
     an increase in the equity in The Property for their performance in
     household chores including cleaning, buying groceries, child
     care, payment of child care costs or cooking. Further, the
     Master concludes that the upkeep, repairs and other work done
     on The Property by [Appellant] have some role, however small,
     in increasing the value of The Property. There is little testimony
     regarding the dollar value of such upkeep and repairs but the
     Master believes it would be unfair not to ascribe a small
     proportion of the equity for that work.

           For these reasons, the Master recommends the award of
     the equity in The Property in the amount of $61,000.00 should
     be distributed in the amount of $57,000.00 to [Ward], and
     $4,000.00 to [Appellant]. This would require the payment of
     $21,000.00 of the amount held in escrow by the Master to
     [Ward] and $4,000.00 to [Appellant]. Further, an award of
     $900.00 should be made in favor of [Ward] and against
     [Appellant] for the attorney fees incurred in obtaining the court
     order that was required to convey The Property due to
     [Appellant’s] refusal to cooperate.         Lastly, the Master
     recommends that the Master's fees and expenses be divided
     equally between the parties. The amount owed at this time by


                                   -7-
J-A01038-15


      [Ward] is $795.50 and the amount owed by [Appellant] is
      $1,851.50. [Appellant] must also pay $82.52 to the [court
      reporter] Ferguson & Holdnack.

Master’s Report, 11/20/13, at 1-11 (unnumbered) (headings and numerical

paragraph formatting omitted).

      On January 15, 2014, the trial court adopted the Master’s Report. On

April 15, 2014, Ward filed a praecipe for judgment consistent with the trial

court’s January 15, 2014 order.    On the same date, a final judgment was

entered consistent with the trial court’s January 15, 2014 order. On May 5,

2014, Appellant filed a notice of appeal. The trial court and Appellant have

complied with Pa.R.A.P. 1925.

      Appellant presents one issue for our review:

      I.    Whether the trial court committed an error of law, not
            supported by the evidence and rising to the level of a clear
            abuse of discretion, by failing under Pa. Rule 1569(c) and
            Pa. Rule 1570(a)(5) to modify the Master’s Report filed
            November 20, 2013 (7% of equity to appellant) so as to
            award Appellant, a former co-tenant, his lawful and/or
            equitable share of home equity (50%) in as much as he
            rendered services and [Ward] derived benefits from the
            same?

Appellant’s Brief at 7.

      In reviewing this appeal, we are mindful of the following:

      Partition of real property is governed by the Rules of Civil
      Procedure. See Pa.R.C.P. 1551–75[,] [Reviewing a partition
      order is] a question concerning interpretation of these Rules, and
      thus is a question of law. Therefore, our standard of review is
      de novo. LaRue v. McGuire, 885 A.2d 549, 553 (Pa. Super.
      2005). Further, “[p]artition 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.

                                     -8-
J-A01038-15


     It is an adversary action and its proceedings are compulsory.
     The rule is that the right to partition is an incident of a tenancy
     in common, and an absolute right.” Lombardo v. DeMarco, 350
     Pa. Super. 490, 504 A.2d 1256, 1260 (1985) (quotation and
     citations omitted).

Bernstein v. v. Sherman, 902 A.2d 1276, 1278 (Pa. Super. 2006).

     Appellant contends that the trial court erred by “failing under Pa. Rule

1569(c) and Pa. Rule 1570(a)(5) to modify the Master’s Report.” Appellant’s

Brief at 7. Pennsylvania Rules of Civil Procedure 1569 and 1570 provide:

     Rule 1569. Master's Report. Exceptions

     (a)   A master who is appointed by the court shall file a report
           with respect to the matters submitted. []

                                   ***

     (b)   Within ten days after notice of the filing of the report[,]
           exceptions may be filed by any party to rulings on
           evidence, to findings of fact, to conclusions of law and to
           the proposed order. The [trial] court may, with or without
           taking testimony, remand the report or enter a decision in
           accordance with Rule 1570 which may incorporate by
           reference the findings and conclusions of the master in
           whole or in part.

     Rule 1570. Decision and Order

     (a) The [trial court’s] decision shall include findings of fact as
     follows:

                                   ***

     (5) [regarding] 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;

Pa.R.C.P. 1570(a)(5).



                                    -9-
J-A01038-15



     Specifically, Appellant argues that the trial court erred because:

           In essence, the trial court gave Appellant no credit under
     Pa.R.C.P. 1570(a)(5), no credit for being a co-tenant and co-
     mortgagee, and no credit for even the passive appreciation of
     the real property, which would have amounted to an award of
     $[30],500 to [Appellant]. The trial court’s Order defies all logic,
     other than to establish that it stripped Appellant of his property
     rights and a large portion of his life savings in the form of the
     real property’s equity. Appellant should have been awarded
     $30,500 of the real property’s equity, [which] amount[s] to a
     50% share [of the equity].

Appellant’s Brief at 25.   Appellant contends that he rendered services to

[Ward] (tangible and intangible), and [Ward] derived benefits (tangible and

intangible) from said services, all pursuant to Pa.R.C.P. 1570(a)(5).

Appellant’s Brief at 18. Appellant emphasizes:

           During the parties’ entire relationship, Appellant stayed
     home, provided companionship to [Ward] and raised the parties’
     two boys, whereas [Ward] worked outside of the home.
     Appellant was also responsible for managing three rental
     properties in Ohio that the parties’ comingled funds from and
     paid bills with, Appellant purchased groceries and did other
     shopping, home maintenance/repair, and cooking.

Appellant’s Brief at 18 (citations to the hearing transcript and record

omitted).

     Master Kubinski explained that in partitioning the Property’s equity, he

considered the contributions of the parties, the testimony and evidence

adduced at the hearing or lack thereof, and equities to be applied to the

circumstances. See Master’s Report, 11/20/13, at 9-11 (unnumbered). Our




                                   - 10 -
J-A01038-15



review of the record and applicable case law supports the trial court’s

adoption of the Master’s report and the trial court’s entry of judgment.

      Appellant concedes that “his contributions to the relationship were

intangible, whereas [Ward’s] were more tangible.” Appellant’s Brief at 18.

Appellant, however, stresses that he “did laundry, shopped for groceries,

prepared dinners, did miscellaneous housework, and home repairs.” Id. at

22 (citations to hearing transcript omitted).    Nonetheless, the housework

and repairs referenced by Appellant do not mandate an award. In affirming

a trial court’s order adopting a Master’s denial of a credit for improvements

to real estate which was being partitioned, we explained:

             “As a general rule, where a cotenant places improvements
      on the common property, equity will take this fact into
      consideration on partition and will in some way compensate him
      for such improvements, provided they are made in good faith
      and are of a necessary and substantial nature, materially
      enhancing the value of the common property.”            68 C.J.S.
      Partition, § 139(a), see also Weiskircher v. Connelly, 248 Pa.
      327, 93 A. 1068 (1915) (contribution allowed in partition action
      where “it was necessary to remodel, improve and alter the
      building erected upon the land so conveyed to [the parties].”);
      and Appeal of Kelsey, 113 Pa. 119, 125, 5 A. 447, 449 (1886)
      (“[A] tenant in common is liable to his co-tenant for repairs
      absolutely necessary [.] ) (emphasis added). The Master also
      recognized this principle and found that credits can be claimed
      only for those improvements “that may be necessary to preserve
      and protect the integrity of the existing premises for the
      common benefit of all the co-tenants.” (Findings of Fact and
      Conclusions of Law at 3.). Thus, as a threshold matter, the
      improvements for which appellants seek credit must have
      been “necessary” to preserve or safeguard the residence.
      Appellants provide no authority for their claim that remodeling a
      bathroom, placing aluminum siding on a house, erecting a sun
      porch or landscaping are “necessary” improvements within the
      meaning of our law. In the absence of such authority, we are

                                    - 11 -
J-A01038-15


      unwilling to find that these enhancements, which appear to be
      essentially   cosmetic    in  nature,  constitute “necessary”
      improvements. Thus, appellants' claim fails.

                                   ***

             The Master also found that appellants had failed to provide
      any evidence concerning the degree to which the improvements
      enhanced the property value. Similarly, in their brief, appellants
      note only that the property value increased from its purchase
      price of $5,500 in 1970 to its stipulated value of $50,000 in
      1995. While we agree with appellants that some of this value
      may be attributable to the improvements at issue, appellants'
      offer is simply too speculative to provide any reasonable basis
      for a credit against appellee's share of the residence. See In re
      Huffman's Estate, 349 Pa. 18, 21, 36 A.2d 638, 639 (1944)
      (“Without evidence on which the auditor could make a finding
      that the value of the property was enhanced by this expenditure
      [for a water supply system], it was properly disallowed.”).

Bednar v. Bednar, 688 A.2d 1200, 1205 (Pa. Super. 1997) (emphasis

supplied).

      Here, Appellant has not demonstrated that his installation of kitchen

cabinets, his replacement of 22 windows, and his replacement of kitchen

floor tiles, sink, faucets, and a countertop were “as a threshold matter, …

necessary to preserve or safeguard” the Property.         Id.   Significantly,

Appellant has further failed to demonstrate how the “incomplete and

substandard work, including ineffective roof repairs, incomplete work on the

bathrooms, the kitchen ceiling, the kitchen flooring, the ceiling in the

garage, the ceiling in the son’s bedroom, and gutter and trim work” met the

foregoing criteria. Master’s Report, 11/20/13, at 8 (unnumbered); Bednar,

supra, at 1205. Therefore, based on the evidence presented and testimony

received at the hearing, Master Kubinski could have properly recommended,

                                    - 12 -
J-A01038-15



and the trial court could have properly adopted, a denial of any credit to

Appellant for the improvements to the Property.

     Instead, Master Kubinski, concluded that “the upkeep, repair and other

work done on The Property by [Appellant] have some role, however small, in

increasing the value of The Property. There is little testimony regarding the

dollar value of such upkeep and repairs but the Master believes it would be

unfair not to ascribe a small proportion of the equity for that work.”

Master’s Report, 11/20/13, at 10 (unnumbered). Therefore, since Bednar

would have allowed the Master, and the trial court by adoption, to deny any

credit to Appellant, we do not find that the trial court erred or abused its

discretion in exercising its equitable powers in adopting the Master’s Report,

which awarded Appellant $4,000 of the Property’s equity. See Krosnar v.

Schmidt, Krosnar, McNaughton, Garrett Co., 423 A.2d 370, 374 (Pa.

Super. 1980) (a partition order will be affirmed if it is supported by

competent evidence, and the trial court has not misapplied the law or

manifestly abused its discretion); Lombardo v. DeMarco, 504 A.2d 1256

(Pa. Super. 1985) (affirming partition order supported by record).

     Accordingly, we affirm the judgment which was entered consistent

with the trial court’s order adopting the Master’s November 20, 2013 Report.

     Judgment affirmed.




                                    - 13 -
J-A01038-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2015




                          - 14 -
