J-S33020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DWAYNE G. WEAVER                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GEORGE E. WEAVER                           :
                                               :
                       Appellant               :   No. 210 MDA 2019

                 Appeal from the Order Entered January 2, 2019
                 In the Court of Common Pleas of Centre County
                        Civil Division at No(s): 2016-395


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 08, 2019

       George E. Weaver appeals from the order entered January 2, 2019, in

the Court of Common Pleas of Centre County, denying his post-verdict motions

and making final the trial court’s judgment entered on September 4, 2018.

This timely appeal is taken from a non-jury trial regarding land partition issues

between brothers, George E. and Dwayne G. Weaver. George Weaver now

raises two jurisdictional issues and four claims of trial court error. After a

thorough review of the certified record, submissions by the parties and

relevant law, we affirm based on the trial court opinion. We provide additional

reasoning regarding the challenge to jurisdiction.1

____________________________________________


1 Because we rely on the trial court opinion, we need not provide detail on the
four claims of trial court error. Those claims are the trial court erred: 1) in
applying offsets, 2) applying Pa.R.C.P. 1560(a) rather than Pa.R.C.P. 1560(b)
or (c), 3) using an average valuation of the appraisals, and 4) considering
evidence of Appellee’s [Dwayne G. Weaver] residence.
J-S33020-19



       We refer to the trial court opinions dated September 4, 2018 and

January 2, 2019 for a brief review of the underlying facts.

       On February 1, 2016, Dwayne Weaver (“Dwayne”) filed a Civil
       Complaint for Partition and Division of Property which named his
       brother, George Weaver (“George”) as the Defendant.             On
       February 26, 2016, George filed an Answer and New Matter to the
       Complaint for Partition. Upon agreement of the parties, the Court
       entered an Order Directing Partition of the property in question on
       March 28, 2018. Also on March 28, 2018, the Court held a Non-
       Jury Trial on this matter, which included a view of the property
       subject to partition. Both parties submitted Proposed Findings of
       Fact and Conclusions of Law on April 13, 2018.

Trial Court Opinion, 9/4/2018, at 1.

       Further,

       This case arises from a Complaint in Partition filed by [Dwayne G.
       Weaver] seeking division of property held by brothers Dwayne and
       George as tenants-in-common. This case proceeded to a Non-
       Jury Trial on March 28, 2018. Before the Court took testimony,
       the parties agreed to the entry of an Order directing partition of
       the property. The Court dictated said Order, but through an
       administrative error, the Order was never produced and filed of
       record. The Court proceeded to take testimony and evidence and
       issued an Opinion and Verdict on May 9, 2018. [George Weaver]
       filed an appeal on June 11, 2018 and the Superior Court remanded
       the case due to the procedural defect. This Court then entered a
       Part 1 Order directing partition on September 4, 2018 and, on that
       same date, re-issued its Opinion and Verdict.

Trial Court Opinion, 1/2/2019, at 1-2.2
____________________________________________


2 Kapcsos v. Benshoff, 194 A.3d 139 (Pa. Super. 2018) (en banc), makes it
clear that the Pennsylvania Rules of Civil Procedure require two separate
orders in a partition action. Pursuant to Kapcsos, the Part 1 order determines
whether the property is properly subject for partition and what portion(s) of
the property are at issue. The Part 1 order determines the parameters of the
pie (this metaphor is taken from Kapcsos) that is to be divided. This order
may be immediately appealed. Once the Part 1 parameters have been set,
the Part 2 order actually partitions the property. This order is also appealable.

                                           -2-
J-S33020-19



         As noted above, George Weaver’s first two issues address the

jurisdictional question raised by the initial ministerial omission regarding the

stipulated order directing partition. First, George Weaver posits the trial court

had no jurisdiction to conduct the non-jury trial without the Part 1 order having

been filed, and second, he claims the subsequent entry of the Part 1 order, on

remand, with the re-entry of the verdict, failed to correct the error. George

Weaver relies on Kapcsos, supra, and Jacobs v. Stephens, 204 A.3d 402

(Pa. Super. 2019) to support his claim. We disagree.

         All parties agree that such a stipulation occurred and that the Part 1

order was meant and anticipated to be filed. Accordingly, all parties agreed

to proceed with the non-jury trial. Because the order directing partition was

stipulated to between the parties, there was no reason to wait for the 30-day

appellate period to expire before taking testimony on the substance of the

issue.    Clearly, no one complained at the time that the non-jury trial was

premature. Had the Part 1 order been filed as expected, this would not have

been at issue.

         It was not until George Weaver appealed the judgment that the Superior

Court noticed, sua sponte, that the Part 1 order had not been entered of

record, rendering the appeal premature. The Superior Court also noticed that

George Weaver had filed his appeal prior to the trial court ruling on his post-

trial motion. Without a ruling on his post-trial motion, no judgment could be

entered. Without a judgment, the appeal was again, premature. Therefore,

the appeal was quashed. See Order, 8/23/2018.

                                      -3-
J-S33020-19



        Interestingly, the sua sponte, per curiam order of our Court only

recognized that the failure to enter the Part 1 order divested the trial court of

jurisdiction to enter the Part 2 order and therefore rendered that appeal

premature. Specifically, our Court stated:

        Even if post-trial motions were denied, this appeal is premature.
        A review of the trial court docket reveals that an order directing
        partition was not entered prior to the May 11, 2018 order.[3] “The
        Pennsylvania Rules of Civil Procedure 1551-1557 split a partition
        into two distinct, chronological parts. Each part, by rule, must
        produce its own, distinct, appealable order.” Kapcsos v.
        Benshoff, ___ A.3d ___, 2018 WL 3598666, at *2 (Pa. Super.
        July 27, 2018). Failure to secure and record a Part 1 order
        deprives the trial court of jurisdiction to enter a Part 2 order. Id.
        at *5.

Order, 8/23/2018.

        The order did not inform the trial court that Part 2 hearing was held

without jurisdiction, it told the trial court that the failure to record the Part 1

order divested the trial court of jurisdiction to enter the Part 2 order. This

interpretation of the order is the most logical. While in Kapcsos our Court

determined the trial court was required to retry Part 2 de novo,4 the

distinguishing features of the instant matter do not mandate that remedy. In

Kapcsos, the parties did not seek a Part 1 order and the trial court never

issued or entered a Part 1 order. This complete failure to adhere to the Rules

of Civil Procedure rendered the Part 2 order a nullity. Instantly, the parties


____________________________________________


3   The May 11, 2018 order contained the findings of fact and verdict.

4   See Kapcsos, 194 A.3d at 145.

                                           -4-
J-S33020-19



sought a Part 1 order, the parties entered into a stipulation agreeing to the

requirements of a Part 1 order, and the trial court dictated the Part 1 order,

apparently to the satisfaction of the parties. Only a ministerial error prevented

the order from being docketed. The factual underpinnings of Kapcsos are far

different from those instantly present. Nonetheless, as the 8/23/2018 order

of our Court indicated, the failure to record the Part 1 order divested the trial

court of the jurisdiction to enter a final Part 2 order. In this circumstance, it

is the order that matters, procedurally, not the hearing. Kapcsos makes clear

that it is the Part 2 order that divides the property that is unsupportable

without the Part 1 order.

      Accordingly, because the Part 1 order had been sought, was agreed to,

and was dictated, but inadvertently not docketed, we do not believe the

Kapcsos decision divested the trial court of the jurisdiction to take evidence

that would be used to determine the Part 2 order. The trial court and the

parties all knew the parameters of the Part 1 order before the non-jury trial

commenced. All of the procedural safeguards embodied in the Part 1 order

and required by Kapcsos existed. The failure to docket the Part 1 order had

no effect on the information collecting process that occurred during the non-

jury trial. The failure to docket the Part 1 order merely rendered the

subsequent Part 2 order a nullity.

      We note as well that if the sua sponte order of August 23, 2018 was

meant to nullify the non-jury trial, there would have been no need to discuss

the failure to rule upon the post-verdict motions. If the sua sponte order was

                                      -5-
J-S33020-19



meant to be interpreted as nullifying the non-jury trial, then the post-verdict

motions would have become legally irrelevant – objections to a trial that

legally never occurred.

      George Weaver also argues that once our Court quashed the prior

appeal, the trial court’s order memorializing the Part 1 stipulation and then

re-issuing the original verdict was infirm pursuant to Jacobs v. Stephens,

204 A.3d 402 (Pa. Super. 2019). In Jacobs, the trial court combined the Part

1 and Part 2 orders in a single order that did not allow for appeals from each

order. Accordingly, our Court ruled upon the challenges raised in the Part 1

appeal, but quashed those issues related to the Part 2 appeal. Once again,

the instant facts are distinguishable. While it is true that after the prior appeal

was quashed, the trial court entered separate Part 1 and Part 2 orders on the

same day, making it impossible to appeal both orders. Unlike Jacobs, it was

apparent to the trial court from before the original appeal that there would be

no challenge to the Part 1 order, which was stipulated to by both parties.

George Weaver did not object to the stipulated Part 1 order when it was

dictated by the trial court, did not object to the order in the first appeal, and

has no objection to the merits of the stipulated Part 1 order now. Admitting

that there was a technical error in entering the required two orders on the

same day, the error was harmless in that the Part 1 order has never been,

and is currently not challenged.     Because George Weaver never sought to

renege on his stipulated agreement, he was not harmed by the entry of dual

orders on the same day.

                                       -6-
J-S33020-19



       George Weaver has presented arguments regarding the Part 1 order

that track, in many ways, the Kapcsos and Jacobs cases.           However, the

factual differences between the instant matter and those cases that we have

highlighted, lead us to distinguish this appeal.       While George Weaver’s

arguments may appear at first glance to be inviting, strict application of

Kapcsos and Jacobs would lead to an absurd result. Here, the protections

required by separate Part 1 and Part 2 orders were provided, in fact, although

the Part 1 order was not docketed due to an administrative error. Strictly

applying Kapcsos would require the parties to spend extra time and money

retrying this matter to the same verdict.5

       Similarly, if we were to vacate the Part 2 order and remand the matter

to allow the 30-day appeal period for the Part 1 order, George Weaver, who

has never, including now, sought to challenge any aspect of the Part 1 order,

would simply allow the 30-day period to expire and then refile this appeal,

bringing all parties back to the current position, except, of course, for the

additional time and money spent. We see no particular reason to impose this

burden upon the parties and the trial court.

       In all other regards, we rely upon the able analysis of the trial court in

disposing of George Weaver’s remaining issues.


____________________________________________


5 There is nothing of record to suppose new evidence exists that could change
the verdict, nor is there any reason to suppose the trial court would change
any of the complained of rulings. Accordingly, the outcome would be the
same.

                                           -7-
J-S33020-19



      Regarding the four claims of trial court error, we have reviewed the

certified record, as well as the submissions by the parties, and find the trial

court’s reasoning on these claims to be supported by the record and free from

legal error.   Accordingly, we rely on the trial court opinion in this regard.

George Weaver is not entitled to relief on these claims.

      Judgment affirmed. Parties are directed to attach a copy of the trial

court’s 9/4/2018 and 1/2/2019 opinions in the event of further proceedings.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/08/2019




                                     -8-
                                                      Received 2/22/2019 3 28:51 PM
                                                                                  Circulated  Court Middle
                                                                                     Superior10/10/2019    District
                                                                                                        10:12 AM




   IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA

                                    CIVIL ACTION - LAW

DWAYNEG. WEAVER                               )
         Plaintiff:                           )
                                              )
       V.                                     )       No. 2016-395
                                              )
GEORGE E. WEA VER,                            )                                      (")
                                                                                                      "'"-'
                                                                                                      c:s,      -r,
                Defendant.                    )                                      fl.�-;.•;-,      (.,;:,    ,--
                                                                                                      ;...��    (,)
                                                                                                                •--.:.J
                                                                                                         .,)
Attorney for Plaintiff:                                       Robert Englert, Esquire/, .    r                    :}
                                                              Jessalyn L. Cool, Esquir« · J.,-                  •. ,,

Attorneyfor Defendant:                                        Joseph M. Scipione. Esquire ·:·�
                                                                                             .-
                                                                                                      ..
                                                                                    ,.   '        I   .,..._,

                                                                                                      ,...,



                                  OPINION AND VERDICT

        On February I, 2016, Dwayne Weaver ("Dwayne") filed a Civil Complaint for Partition

an<l Division of Property which named his brother, George Weaver ("George") as the Defendant.

On February 26, 2016, George filed an Answer and New Matter to the Complaint for Partition.

Upon agreement of the parties, the Court entered an Order Directing Partition of the property in

question on March 28, 2018. Also on Mardi 28, 2018, the Court hel<l a Non-Jury Trial in this

matter, which included a view of the property subject to partition. Both parties submitted

Proposed Findings of Fact and Conclusions on Law on April 13, 2018. After review of the

filings, the arguments of the parties, and the applicable law, the Court is prepared to render a

verdict in this matter.

                                      FINDINGS OF FACT


        1. Brothers Dwayne and George Weaver were given title to the property at issue

            ("Subject Property") in the case through a deed executed by Ruby L. Weaver on

            August 19, 1994. This deed is recorded in the Centre County Recorder of Deeds

            Office at Record Book 775, Page 848.

)<o   ORD OS
         2.   Dwayne and George own the Subject Property as tenants-in-common.

         J. The Subject Property consists of two noncontiguous parcels.

         4. The first parcel ("Parcel 1 ") is identified as Centre County Uniform Pared Identifier

              Number 03-8-32.

         5. The second parcel ('Parcel 2") is identified as Centre County Uniform Parcel

              Identifier Number 03-8-320.

         6. Parcel 1 has been assessed as containing 44.97 acres ofland.1

         7. Parcel 2 has been assessed as containing 91.95 acres ofland.

         8. A mobile home located on Parcel 2 has been assigned Centre County Uniform Pared

              Identifier Num her OJ-008-0J2G-OOI.

         9. The mobile home has been located on Parcel 2 since 1994.

         10. Parcel 1 consists almost entirely of tillable fields referred to by the parties as the

              North Fields.

         11. Parcel 2 consists of a Wooded Arca, a one acre section referred to as the Mobile

              I lorne Area, and tillable fields, referred to by the parties as the South Fields.

         12. When the parties received the property in 1994, Parcel l and the tillable portion of

              Parcel 2 were subject to agricultural leases. The parties stopped leasing the property

              for agricultural use in approximately 2011.

         13. From the time the agricultural leases ended, Dwayne began farming Pared 1 for

              grams.

         14. From the time the agricultural leases ended, George began farming Parcel 2 for hay.




1
  Although Plaintiff asserts that Parcel 1 was surveyed as containing 39.2 acres, this survey was not introduced at
trial and will therefore the Court will rely on the tax assessment records to determine the property's acreage. The
Court further notes that both parties' appraisers used 44.97 acres as the size of Parcel l.

                                                          2
15. Dwayne has undertaken efforts to improve the soil on Parcel I for the purpose of

   farming.

16. George has undertaken efforts to improve the soil on the tillable portions of Parcel 2

   for the purpose of fanning.

17. The mobile home on Parcel 2 is titled to George's daughter, Amy Weaver (£1k/a Arny

   Kolp).

18. Amv Weaver lived in the mobile home until December 6, 1996 when she and George

   first rented the mobile home and the surrounding acre of land out to other individuals.

   At the time of the Non-Jury Trial, Amy and George were still renting out the mobile

   home.

19. The parties have stipulated that George received $111,350 in rent for the mobile

   home from December of 1996 until the date of the non-jury trial.

20. George has claimed $15,394 for cleaning and maintenance, $2.000 in insurance

   expenses, 52,124 in utilities, and $621 in supplies for the mobile home in the tax

   years of 2007 through 2016.

21. George did not keep records of the expenses associated with the mobile home in the

   tax years of 1996 through 2006.

22. George testified that he believes $200 of mobile home rent per month could be

   reasonably attributed to use of the land.

23. Dwayne presented no testimony to indicate what portion of the mobile home rent

   should hi! attributed to use or the land and what portion should he attributed to use of

   the mobile home.




                                         3
24. The source of water for Dwayne's home is a well located on Pared 2, just across

   Mantown Road from Dwayne's home.

25. George presented an appraisal of the property which indicates the combined value of

   both parcels is S532,656.75.

       a. This appraisal lists the value of Parcel 1 as $237,837.43.

                i. This appraiser found that of Parcel l's 44.97 acres, 42.74 acres are

                     tillable and 2.23 acres arc wooded.

               11.   The appraiser valued the tillable land at SS,500 per acre and the

                     wooded land at S 1,241 per acre.

              111.   Based on these prices and areas of land, the value of the tillable land

                     on Parcel 1 would be $235,070 and the value of the wooded land on

                     Parcel l would be S2,767.43.

       b. This appraisal lists the value of Parcel 2 as $294,819.32.

                1.   This appraisal found that   or Parcel 2's 91.95 acres, 42.43 acres arc
                     tillable and 49.52 acres are wooded.

               11.   The appraiser valued the tillable land at SS,500 per acre and the

                     wooded land at S 1,241 per acre.

              in. Based on these prices and areas of land, the value of the tillable land

                     on Parcel 2 would be $233,365 and the value of the wooded land on

                     Parcel 2 would be $61,454.32.

26. Dwayne presented an appraisal of the property which indicates the combined value of

   both parcels is $735,000.

       a. This appraisal lists the value of Parcel 1 as $269�820.



                                           4
                        1.   The appraiser valued all land on Parcel 1 at $6,000 per acre and

                             indicated that Parcel I contained 44.97 acres of land.

               b. This appraisal lists the value of Parcel 2 as $465,435.

                        1.   The appraiser valued the wooded/residential land on Parcel 2 at S3.300

                             per acre and indicated that 31.95 acres of Parcel 2 are

                             wooded/residential.

                                 1. Therefore the value of wooded/residential land on Parcel 2

                                     would be $105,435.

                       u. The appraiser valued the tillable land on Parcel 2 at $6,000 per acre

                             and indicated that 60 acres of Parcel 2 arc tillable.

                                 1. Therefore, the total value of the tillable land on Pared 2 would

                                     be $360,000.


                                     CONCLUSIO�S OF LAW

       "An action for partition may be brought by any one or more co-tenants." Pa.R.C.P. 1553.

The defendants to such action must be all co-tenants not named as plaintiffs. Pa.R.C.P. 1553.

"Partition is a possessory action; its purpose and effect being to give each of a number of joint

owners to possession [to which] he is entitled ... of his share in severalty." Lombardo v.

De Marco, 504 A.2d 1256, 1260 ( 1985). Before the court may determine how the property will

be partitioned, the court must find that partition is appropriate and enter an order directing

partition. Pa.R.C.P. 1557.

       If possible, the court should partition the property "into purparts in proportion to the

value of the interests of the parties." Pa.R.C.P. 1560(a). If division into proportional purparts is

not possible, then the court may divide the property into a number of purparts that is equal to the


                                                    5
number of parties without taking proportionate value into account. Pa.R.C.P. 1560(b ). If the

court is unable to proceed under either of these methods, the court may divide the property into

"such number of purparts as shall be most advantageous without regard to the number of

parties." Pa.R.C.P. 1560(c).

       If the court divides the property pursuant to Pa.R.C.P. 1560(b) or (c), the court must

provide the proposed partition to the parties and provide twenty (20) days for the parties to object

lo the proposal. Pa.R.C.P. 1566(a). If a party objects to the proposal, the property shall be sold.

Pa.R.C.P. 1566(c).

                                          DlSCL'SSlON

       The Court finds that it can, and therefore must, divide the property at issue pursuant to

Pennsylvania Rule of Civil Procedure l 560(a). Under this subsection, the property must be

divided in proportion to the value of the interests of the parties. Though portions of the property

are suitable for different uses, the Court will attribute a value to each area ofland and divide the

property in accordance with the interest owned by each party. The two parties in this case would

he each entitled to half of the property, except that Dwayne has asked this Court to award him

additional property value to account for the amount of the mobile home's rental income that

George should have paid to Dwayne.

       George has been receiving rental income from the mobile home and one acre of

surrounding land in the amount of $450 per month since December of I 996. During trial, George

testified that he believed approximately $200 per month could be reasonably attributed to the

land. No other evidence was presented to indicate how much of this $450 rent should he

attributed to the mobile home and how much should be attributed to the land. The mobile home

was purchased by George's daughter, Arny, and George has taken on the responsibility of the



                                                  6
mobile home's upkeep. Based on the evidence presented at trial, Dwayne would be entitled lo

half of the rent attributed to leasing the one acre of land. The Court will not address the expenses

George claimed on his tax returns because those expenses were related to the mobile home and

not to the land. Therefore, Dwayne is entitled to $100 a month beginning in December of 1996

and ending in May of 2018. Because George owes Dwayne 258 months of rent, Dwayne is owed

$25,800. Dwayne has informed the Court that he wishes this to be repaid in the form of

additional acreage.

        The parties stipulated to the entry or the appraisal reports instead or calling the appraisers

as witnesses. Based solely on the reports, the Court finds it cannot determine the credibility or

each appraisal.As the evidence provided to the Court does not indicate either appraisal is more

credible than the other, the Court finds it most appropriate to average the values reported by the

two appraisers. The values listed for Parcel 1 (also referred to as the North Fields) are similar in

both appraisals. George's appraiser valued Parcel 1 at $237,837.43 and Dwayne's appraiser

valued Pared l al $269,820. Therefore, the Court will value Pared l al $253,828.72. The values

for Parcel 2, which consists of the South Fields, the Wooded Land, and the Mobile 1 Iome Area,

are much larther apart in the two appraisals. George' s appraiser listed the value Ior Parcel 2 a.s

$294J�19.J2, while Dwayne's appraiser listed Parcel 2 al $465,435. Therefore, the Court finds

the vaJue of Parcel 2 is $380,127.16. The total value of the two parcels is $633,955.88. George's

appraiser has valued all tillable land at $5,500 per acre, while Dwayne's appraiser valued all

tillable land at $6,000 per acre. Therefore, the Court will use $5, 750 as the value of a tillable acre

of land on these properties.

        If the Court were to split the land into two equal portions, each brother would be entitled

to $316,977.94 of the land value. However, as explained above, Dwayne is entitled to an



                                                   7
additional $25,800 of land value due the unpaid rental income. Therefore, the Court will devise a

partition that gives Dwayne $342,777.94 of land value and gives George the remaining

S291,177.94 of value.

         Both brothers presented evidence of profits received from the other's use of their jointly-

owned land. Dwayne has grown grain on the North Fields of Pared 1. George has sold hay that

he has grown on the South Fields of Parcel 2. George also testified that he at one point wanted to

graze his cows on Parcel 2, but Dwayne would not agree to allow George Lo erect a. fence. The

Court finds that both brothers have made use of the properties as joint tenants and does not find

that these uses warrant reimbursement of any kind. Neither party excluded the other as a result of

their use of the property. Therefore, the Court has considered previous uses of the land, other

than the mobile home rental, purely for the purpose of determining which specific areas of land

each party should be awarded. The Court has not considered this evidence in determining the

total land value due to each party.

         In crafting the division of Parcel 2, the Court is mindful of several factors. first, the

Court has crafted the division set forth in its Verdict so as to assure that Dwayne has control over

the tillable lands of Parcel 2 that contain his water well. Second, the Court has sought to assure

that George has appropriate access to his tillable portions of Parcel 2 by use of the existing

access near the speed limit sign, as access does not appear to be possible from Harter Lane

because Parcel 2 does not abut Harter Lane", access is not possible from the remainder of Parcel

2 awarded to George due to the large, steep embankment in the wooded area adjacent to the

tillable lands, and, in the absence of a substantial excavation and interference with the use of the

land, access is severely limited from Mantown Road due to the steep embankment from the

2
 Harter Lane appears to be a private road entirely contained on the property of the neighboring property owner. The
Court is not aware of any legal obligation to the owner of the property to afford George access from Harter Lane and
across the portion of the neighbor's property that sits between Harter Lane and Parcel 2.

                                                         8
comer of the property near Harter Lane and extending along the property to near the existing

access point adjacent to the speed limit sign. Additionally, Dwayne has traditionally farmed the

North Fields, while George has fanned the South Fields. George has maintained and rented out a

mobile home and one acre of land located on Parcel 2 within the Wooded Area adjacent to Kolp

Lane. The Court has also sought to provide each party with a contiguous tract of land, while also

allowing each party ready access to their property.

       Upon consideration of all evidence presented by the parties, the Court finds it is most

equitable for Dwayne to take title to Parcel 1 and, to fulfill the remaining land value, for Dwayne

to take title to land from Parcel 2 in the amount of $88,949.22. As the Court has found tillable

land on these properties to have a value of $5,750, Dwayne's portion of Parcel 2 will consist of

15.47 acres. Included in this Opinion and Order at Attachment A is a diagram of the anticipated

boundaries.

                                             VERDICT

       AND NOW, this 4th day of September, 2018, having now entered an Order Directing

Partition, the Court hereby re-enters its Verdict originally filed on May 11, 20 IR to correct the

administrative error in which the Verdict was entered prior to the entry of an Order Directing

Partition. It is the intent of the Court that the time for filing Post-Trial Motions and Appeals shall

run from the date of this Verdict's reentry. The Court therefore ORDERS as follows:



   The parties shall secure a surveyor, and share the: costs eq ually of that survey, to di vide the

property identified by Centre County Uniform Parcel Identifier Number 03-8-32G to provide

Dwayne Weaver with 15.74 acres of said property. The property identified by Centre County




                                                  9
Uniform Parcel Identifier Number 03-8-32 shall be awarded entirely to Dwayne Weaver in this

division. Dwayne's portion of Parcel 03-8-320 will consist of:


    1. A northeastern boundary that stretches from the most northern comer of the Pared to the

       most northern point at which the Parcel's boundary adjoins I fog Back Road.

   2. The southeastern boundary shall travel parallel to Mantown Road, from the most northern

       point at which the Parcel's boundary touches Hog Back Road, to the edge of the tree line.

       From there, the southeastern boundary will continue along the tree line until the tree line

       ends.

   3. The southwestern boundary shall be parallel to Harter Lane and extend from the point at

       the end of the tree line to a point within the field to he determined by a survey of the land.

       This point shal I not he set within 100 feet of Mantown Road.

   4. The northwestern boundary shall run parallel to Mantown Road from the point described

       above in section 3 to a point in the tillable fields even with the speed limit sign located

       just beyond the small access road. This point shall not he set wi thin 100 feet of Mantown

       Road.

    5. From that point even with the speed limit sign: the boundary shall then travel to the point

       on Mantown Road where the speed limit sign is located.

   6. The northeastern boundary shall then follow Mantown Road to the most northern point of

       the Pared.

   7. The length of the southwestern boundary will be adjusted to achieve the goal of awarding

       Dwayne 15.74 acres ofland from Parcel 03-8-32G. Additionally, the boundary line

       extending from the northernmost property point on Hog Back Road to the tree line may

       he adjusted, after the land is surveyed, to achieve Dwayne's 15.74 acre award.


                                                 10
   8. The remainder of Parcel 03-8-320 shall be awarded to George Weaver.


       C pon completion of this survey map, the parties shall meet all subdivision regulations    or
the Centre County Goverrunent and Curtin T ownsbip. The parties will execute appropriate deeds

transferring all interests they hold in their property to the other within 30 days of che subdivision

approval.



                                                       nv Tl IE COURT:



                                                      �




                                                 11
N TTIE COLRT OF C0:\1MO� PLEAS OF CE�TRE COLll\TY, PE�NSYLVANlA
                           CIVIL ACTIO"l'-LA V\i



l)WAYNEG. WEAVER
                              Plaintiff,

       vs.                                                             KO. 2016-395



GEORGE E. WEA VER
                Defendant,


                                           �OTJCE




       Pursuant to Rule 236 of the Pennsylvania Rules of Civil Procedure, you are hereby

notified that on September 4. 20 I�. the following Opinion and Verdict has been entered upon the

above docket.




Mail Date of Notice: 09105/2018
                                                                                 Circulated 10/10/2019 10:12 AM




   IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                        CML ACTION - LAW

DWAYNE G. WEAVER
                         Plaintiff,

                 v.                                                  No. 2016-395

GEORGE E. WEAVER,
               Defendant,

Attorneyfor Plaintiff:                                       Robert Englert, Esquirel
                                                             Jessalyn L. Cool, Esquire
Attorney for Defendant:                                      Joseph M Scipione. Esquire


                                      OPINION AND ORDER
                                                                                      ,,.
                                                                                            - ' . ...
                                                                                             "    ..       '    -!

        Presently before the Court are the Second Omnibus Post-Trial Motion-and Excep't°t'ons -=J
                                                                                .. :-..\.:
                                                                           . .,..�,·.      .,.,
                                                                                            v   .;;?
                                                                                                 . )
filed by Defendant George Weaver ("George") on September 14, 2018. Plainti;ti-�a�
                                                                               1.-.
                                                                                                               g
                                                                                                               --
                                                                                                        t-.)   C5
Weaver (..Dwayne") filed a Response in Opposition to Defendant's Second Omnibus �t-Trial

Motion and Exceptions on October 3, 2018. A hearing in this matter was held on October 25,

2018. After review of the filings, arguments, and relevant Jaw, the Court is prepared to issue a

decision in this matter.


                                         BACKGROUND

       This case arises from a Complaint in Partition filed by Plaintiff seeking division of

property held by brothers Dwayne and George as tenants-in-common, Th.is case proceeded to a

Non-Jury Trial on March 28, 2018. Before the Court took testimony, the parties agreed to the

entry of an Order directing partition of the property. The Court dictated said Order, but through

an administrative error, the Order was never produced and filed of record. The Court proceeded

to take testimony and evidence and issued an Opinion and Verdict on May 9, 2018. Defendant

filed an appeal on June 11, 2018 and the Superior Court remanded the case due to the procedural

�o   ORD    Os
defect. This Court then entered a Part I Order directing partition on September 4, 2018 and. on

that same date, re-issued its Opinion and Verdict.


                                          DISCUSSION


        George raises eight (8) issues in his Post-Trial Motion. The Court will address each in

tum.


   I.      Lack of Jurisdiction


        George's first argument is that this Court lacked jurisdiction to re-enter its Opinion and

Verdict as the Part I Order directing partition was not final at the time the Opinion and Verdict

was entered. George contends the Part I Order would not become final under the time for filing

an appeal had run. In support of this argument, George cites to Kapcsos v. Benshoff, 194 A.3d

139 (Pa.Super. 2018). In Kapcsos, the court found that the trial court had no jurisdiction to enter

an Order equitably dividing the property because no Order had been entered that legally

terminated the joint ownership of the property. Id at 145. The court reasoned because the parties

had a joint tenancy with right of survivorship, and the deed reflected such, if one of the parties

died, the rights of the decedents heirs would be in jeopardy. Id. In the case at bar, no such

concerns exist. Although the Part I Order was not entered into the record until after the Non-Jury

Trial, the Part I Order was entered at the joint request of the parties and was dictated in the

presence of the parties. When the Part I Order was entered on the record, the Opinion and

Verdict was re-entered the same day. Though the Opinion and Verdict was entered before the

Part I Order became final, the parties had stipulated to partition. The parties also owned the

property as tenants-in-common, so their heirs' rights were not jeopardized. The Court finds the




                                                  2
concerns present in Kapcsos significantly differ from the case at bar and therefore, does not find

that a new Non-Jury Trial is necessary.


   II.        Effect of the Stipulation


         George claims the Court misconstrued the stipulation of the parties relative to the rents

George received from a mobile home on the property. George believes the Court improperly

used the stipulation to determine the amount of rent received for the mobile home. However, in

determining the amount of the offset, the Court relied, not on the stipulation of the parties, but

instead on George's testimony that $200 ofrent per month could properly be attributed to the

lease of the one acre of land surrounding the residential trailer. The Court applied the offset

because it found that Dwayne had been excluded from the one acre of land surrounding the

residential trailer. Additionally, as Dwayne and George owned the land as tenants-in-common,

each party was entitled to half of any rental income derived from the land. 68 P.S. § 101; Everly

v. Shannopin Coal Co., 11 A.2d 700 (Pa.Super, 1940).

    III.      Award of the Offset

           George argues the offset award includes damages outside the statute of limitations, was

not properly pied, and was not proven at trial. The Court partially addressed the reasons for

awarding an offset in discussing the effect of the stipulation. In addition to finding that George

had excluded Dwayne from use of the one acre of land surrounding the mobile home, the Court

also found that George failed to plead an affumative defense of statute of limitations. As noted in

Dwayne's Response in Opposition to Defendant's Omnibus Post-Trial Motions, Pennsylvania

Rule of Civil Procedure 1570(a)(5) states that the Court shall include in its findings of fact,

           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 or other amounts
           paid, services rendered, liabilities incurred or benefits derived in connection therewith or

                                                     3
         therefrom ...

Pa.RC.P. 1570(a)(5). Included in Dwayne's Complaint for Partition is that allegation that,

"Defendant cut a tract of land without consulting Mr. Weaver or obtaining his permission to do

so and constructed a residence with utility connections. which Defendant, in turn, leased to third

parties without sharing rents received with Mr. Weaver." Complaint,� 9. For these reasons, the

Court found it proper to award Dwayne an offset for the rents received for land owned as

tenants-in-common.

   IV.       Division under Pa.R.C.P. 1560(a)

         George claims it was improper for this Court to divide the property pursuant to

Pennsylvania Rule of Civil Procedure I S60(a) and that division under subsection (b) or

subsection (c) was necessary. Rule 1560(a) directs that "if division can be made with.out

prejudice to or spoiling the whole, the property shall be divided ... into as many purparts as there

are parties entitled thereto, the purparts being proportionate in value to the interests of the

parties." Subdivision (b) of Rule 1560 is only applicable if the property cannot be divided as

provided by Subdivision (a) and Subdivision (c) only applies if the property cannot be divided as

directed by Subdivisions (a) or (b). Therefore, if division is possible under Subdivision (a). the

property must be divided in that fashion. The Court finds that it was necessary to divide the

property in question in accordance with Subdivision (a) because the Court was able to divide the

property into two purparts with value proportionate to the interests of the parties. Although

Dwayne's purpart is not contiguous. the Court did not find this was a. bar to dividing the property

in a manner that awarded each party with property value that is proportionate to the party's

interest in the entire property.




                                                   4
   V.        Treatment of the Appraisals

          In determining the value of the property, the Court used an average of the two appraisals.

The parties chose to each submit appraisal reports rather than have the appraisers testify as

witnesses. Without the benefit of each appraiser's testimony, the Court had little information to

rely upon in determining the credibility of each appraisal. After review of the appraisal reports, it

appeared to the Court that each appraiser undervalued the land historically used by his client and

overvalued the land historically used by the opposing party. Therefore, the Court found that

calculating the land value based on an average of the two values for each type of land contained

in the parcels would provide the most accurate results.

    VI.       Division of the Woodland

          George claims this Court erred in using an average valuation of the woodlands and in

failing to consider that neither party wanted the woodland. The Court has addressed the reason

for using an average valuation above. While the Court was aware that neither party wanted to be

awarded the wooded portions of land, the Court was tasked with dividing the parcels between the

two parties and as part of that task. one of the parties had to receive wooded land. As Defendant

had historically used a portion of the wooded land to lease the residential trailer, the Court found

that the most appropriate division would give Defendant the wooded lands.

    VIL       Consideration of the Water Well

          George argues the Court erred in using Dwayne's residence and the location of Dwayne's

water well as factors in dividing the property. The Court did consider the location of Dwayne's

water well as a factor in fashioning the partition, as Dwayne's use of the water well across the

street from his home was a prior use ofjointly owned property. The Court did not otherwise

consider the location of Dwayne's residence when dividing the property. Dwayne was awarded


                                                   5
land across from his residence and behind his residence due mostly in part to the court's

consideration of prior usage, the need for both parties to access their newly fashioned parcels,

and the need to award Dwayne sufficient land to satisfy the offset for unpaid rents.

   VIII. Ouster from the Tillable Portions

       George's final claim is that the Court erred in failing to find that George was ousted by

Dwayne from the tillable and grazing portions of the property and in failing to award an offset

for such ouster. The Court did not find George had been ousted by Dwayne's refusal to consent

to George's plan to erect a fence on the property. Rather, if George had built a fence on the

property, this would have been ouster of Dwayne, as George would have been using the land to

the exclusion of Dwayne. Because Dwayne did not prevent George from making any use of the

grazing and tillable lands, the Court found that George had not been ousted.



                                             ORDER

        AND NOW, this 2nd day of January, 2019, Defendant's Omnibus Post-Trial Motion and

Exceptions are DENIED.



                                                              BY THE COURT:




                                                                /�
                                                              Bri�dge




                                                  6
