J-S64044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL A. EVANS AND DONNA L.                   IN THE SUPERIOR COURT OF
EVANS, H/W                                           PENNSYLVANIA

                           Appellant

                      v.

JEFFREY S. EVANS AND ANDREA L.
EVANS, H/W

                           Appellee                 No. 616 EDA 2016


              Appeal from the Order Entered January 22, 2016
           In the Court of Common Pleas of Northampton County
                   Civil Division at No(s): CV-2010-10924


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                FILED SEPTEMBER 20, 2016

      Appellants Daniel A. Evans and Donna L. Evans appeal from the order

of the Court of Common Pleas of Northampton County denying their Motion

to Disperse Escrow Account several years after Appellants had settled their

dispute with their son and daughter-in-law, Appellees Jeffrey S. Evans and

Andrea L. Evans.       As we find the trial court abused its discretion in

disbursing the escrowed funds in equal proportions, we vacate the trial

court’s order and remand for distribution of the rental income consistent

with this decision.

      The trial court summarized the factual background as follows:

      This case originates from an action involving partition of
      commercial real estate that was commenced by way of a writ of
      summons dated September 27, 2010. By way of background,
*Former Justice specially assigned to the Superior Court.
J-S64044-16


       when the real estate property at issue (hereinafter, “Property”)
       was purchased, Appellants obtained a 5/7 fractional ownership
       interest, and [Appellees] obtained a 2/7 fractional ownership
       interest. See Complaint, 4/18/11, at ¶ 5.

       The individual from whom the parties purchased the Property
       was not ready to vacate the Property upon the purchase. See,
       Notes of Testimony (N.T.) at pp. 4-5. Consequently, the parties
       agreed to allow this individual (hereinafter, “tenant”) to remain
       on the Property for a period of twenty-five months. Id. at p. 5.
       In turn, the tenant provided the parties with $25,000 in credit
       towards the purchase of the Property. Id. at pp.2; 4-5. The
       tenant actually remained at the Property for a total of twenty-
       eight (28) months, and as a result of the extra three months
       during which he remained at the Property, the tenant paid an
       extra $3,000.00 in rental income to the parties. Id. In the
       meantime, the parties commenced litigation on the partition
       action. Pending resolution of the partition action, the rental
       income in the amount of $3,000.00 was held in escrow by the
       Honorable Samuel P. Murray, who, prior to his election to the
       bench and during the relevant partition action, served as co-
       counsel for Appellees.

       The case ultimately resulted in a settlement agreement between
       the parties in 2012 whereby Appellees agreed to purchase
       Appellants’ interest in the Property. See, Stipulation/Order of
       Court, 4/5/2012, p.3.1 At the time of the settlement agreement,
       distribution of the rental income in the amount of $3,000.00 was
       overlooked and remained unresolved. As a result, on January
       22, 2016, counsel for Appellees filed a “Motion to Disperse
       Escrow Account.” In this Motion, Appellees averred that the
       $3,000.00 in rental income was the only rent the parties had
       received. Appellees further averred that the existence of the
       $3,000.00 was discovered by Judge Murray when he was
       preparing to close his practice in order to assume a position on
       the bench. See; Motion to Disperse Escrow Account at ¶¶ 3, 5.


____________________________________________


1
   On August 16, 2012, upon praecipe by Appellants’ counsel, the
Northampton County Prothonotary noted on the docket that the partition
action had been “settled, discontinued, ended with prejudice and costs paid.”



                                           -2-
J-S64044-16


      Based on Appellees’ Motion, the undersigned heard brief
      testimony and argument from both parties’ counsel while sitting
      for Motions Court on January 22, 2016. At the conclusion of the
      hearing, the undersigned entered an Order which directed that
      “the $3,000.00 escrow being held by Leonard M. Mellon [FN1] is
      to be divided between the parties 50/50.”

            [FN1:] The parties had agreed that Leonard M.
            Mellon, counsel for Appellees, could hold the
            $3,000.00 in escrow pending distribution by the [trial
            court]. See, Appellee’s Motion to Disperse Escrow
            Account at ¶ 6.

      On February 1, 2016, Appellants filed a Motion for Post-Trial
      Relief in which Appellants requested a modification of the
      January 22, 2016 Order to reflect a distribution of the $3,000.00
      that would be equivalent to the parties’ fractional ownership
      interest of the Property at the time they owned the Property. In
      other words, Appellants asked [the trial court] to disperse the
      rental income so that Appellants would receive 5/7 of the
      $3,000.00 and Appellees would receive 2/7 of the $3,000.00.
      On February 3, 2016, [the trial court] denied Appellants’ Motion
      for Post-Trial Relief.

Trial Court Opinion, 3/18/16, at 1-3. Appellants filed a notice of appeal on

February 18, 2016.

      As an initial matter, we must determine whether this appeal is timely.

Our rules of appellate procedure require that a notice of appeal be filed

within thirty days after the entry of the order from which the appeal is

taken. Pa.R.A.P. 903(a). As the trial court entered an order on January 22,

2016 dispersing the escrowed funds, Appellants’ notice of appeal filed on

February 18, 2016 is timely filed.

      In addition, we note that we need not discuss whether Appellants

properly preserved their claims with a timely post-trial motion under

Pennsylvania Rule of Civil Procedure 227.1, as this procedural rule is

                                     -3-
J-S64044-16



inapplicable to this case.       While Appellants styled their February 1, 2016

filing as a motion for post-trial relief, it can be more appropriately

characterized as a motion for the trial court to reconsider its decision to

disperse the escrow account contents.2 The note in Rule 227.1(c) provides

that “[a] motion for post-trial relief may not be filed to orders disposing of

preliminary objections, motions for judgment on the pleadings or for

summary judgment, motions relating to discovery or other proceedings

which do not constitute a trial.”          Note to Pa.R.C.P. 227.1(c).   See also

Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family Markets,

Inc., 617 Pa. 265, 295, 52 A.3d 1233, 1251 (2012) (holding that Rule 227.1

did not apply to a proceeding after remand where the trial court recalculated

the damages award based upon facts and contract terms already in the

record, as this proceeding was not a “trial”).

       We may now proceed to the merits of Appellants’ appeal.              In its

1925(a) opinion, the trial court explained its rationale in finding that the




____________________________________________


2
    It is well-settled that a trial court may consider a motion for
reconsideration if the motion is filed within thirty days of the entry of the
disputed order. PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226
(Pa.Super. 2007); 42 Pa.C.S. § 5505. However, the prescribed thirty-day
time period for taking an appeal is only tolled if the trial court expressly
grants reconsideration. See Pa.R.A.P. 1701. As noted above, Appellants
filed this timely appeal on February 18, 2016, which was within thirty days
of the trial court’s January 22, 2016 order resolving Appellees’ Motion to
Disperse Escrow Account.



                                           -4-
J-S64044-16



most equitable resolution was to distribute the rental income equally

between the parties:

               If there was a prior history of distribution of rental monies
        between the parties, then we would have considered same prior
        to issuing our Order. However, no such history existed. Further,
        considering the significant amount of time that passed since the
        settlement agreement and the fact that neither of the parties
        independently recalled the existence of the $3,000.00 at issue
        until Judge Murray discovered it in his escrow account, we did
        not find that the fractional ownership interests of the parties at
        the time they purchased the Property should govern the
        distribution of this rental income.

Trial Court Opinion, 3/18/16, at 4.

        As stated above, Appellants contend that the trial court improperly

distributed the contents of the parties’ rental income in equal proportions as

at the time of the rental.        Specifically, Appellants argue that they were

entitled to a 5/7 share of the rental income commensurate with their 5/7

ownership interest in the property at the time the parties rented the

property to the tenant.          In support of their claim, Appellants cite to

Trembach v. Trembach, 615 A.2d 33 (Pa.Super. 1992), in which this Court

found    the   trial   court   abused   its   discretion   in   equitable   distribution

proceedings by awarding the wife, who had been dispossessed from the

marital residence, a credit for the entire rental value of the former marital

home when she only held a one-half interest in the property.

        In response, Appellees echo the trial court’s rationale in dividing the

rental income in equal proportions. In addition, Appellees claim that the trial

court should have inferred that a partnership existed between the parties to


                                         -5-
J-S64044-16



rent the property to the tenant and allege that the rental income was

partnership property to be divided equally without regard to the parties’

proportional interests.   Appellees do not cite to any authority or offer any

analysis in making this argument.

      Like the analogous situation in Trembach, the parties’ proportional

ownership interests in the property should have controlled the percentage of

the rental income that they received.       Viewing the parties’ contentious

relationship, there is no indication that the parties would ever have agreed

to share the rental income equally or be equal members of a partnership. In

fact, the parties placed rental income in escrow because they could not

reach an agreement on how to divide the proceeds.         While both parties

forgot about the existence of the escrowed proceeds once the partition was

discontinued, this is not a factor that should be solely held against

Appellants. Accordingly, we agree with Appellants that the trial court erred

in dividing the rental income equally.     Thus, we vacate the trial court’s

January 22, 2016 order and remand for distribution of the rental income

consistent with this decision.

      Order vacated; Remanded; Jurisdiction Relinquished.




                                     -6-
J-S64044-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2016




                          -7-
