Common Mistake Leads to Quashing of Partition Appeal

18 Feb

Feb 10, 2017

The Superior Court just quashed a Partition case, based on a common misunderstanding of the appellate rules.  In Zablocki v. Beining, 2017 Pa. Super 32,  an appeal was taken after the Court adopted the Report of a Master and Ordered the sale of the property. Both parties assumed that an appellate rule (Pa.R.A.P. 311(a)(7)), which permits appeals from orders directing partition, applied. Both parties were wrong. (See  http://www.pacourts.us/assets/opinions/Superior/out/J-A33032-16o%20-%2010298815116012089.pdf?cb=1 )

WHAT IS PARTITION

In a partition action  two or more property owners ask a Court to either divide up the property, or force a sale.  Courts don’t usually divide up property because subdivision is expensive and it takes a lot of time.  These cases are usually time sensitive. Often one owner is tired of paying all the taxes and the mortgage.  Family properties are often the subject.  Parents die and leave the old family farm to their children.  The children have no good reason for being partners in a property that they must share.  Often a child dies and his or her children become the owners.  You can imagine the mess.  In order to speed these cases, the Court will often appoint a Master to take testimony and make recommendations. A Master is a lawyer appointed by the Court.

SOURCE OF CASES

Family properties are often the subject of partition actions.  Parents die and leave the old family farm to their children.  The children have no good reason for being partners in a property that they must share.  Often a child dies, and his or her children become the minority owners.  You can imagine the mess.  ANother common source of these cases is where unmarried persons buy property together and then break up.  In order to speed these cases, the Court will often appoint a Master to take testimony and make recommendations. A Master is a lawyer appointed by the Court.

Early in this type of case, the Court usually enters an Order granting partition.  This is BEFORE appointing a master. It is this Order that may be appealed.  The Order adopting the Master’s report is not final and therefore, not appealable.

This case is a good example of why partition actions require special expertise.

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