Forkal, M. v. Forkal, R.

• Court: Superior Court of Pennsylvania
• Decided: October 8, 2020
• Docket: 1363 MDA 2019
• Status: Unpublished

Opinion

J-S17030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK FORKAL IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

RANDOLPH FORKAL

Appellee No. 1363 MDA 2019

Appeal from the Judgment Entered August 14, 2019 In the Court of Common Pleas of Susquehanna County Civil Division at No: 2007-1140 CP

BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 08, 2020

Appellant, Mark Forkal (“Mark”), appeals from the August 14, 2019

judgment entered in the partition action Appellant filed against Appellee,

Randolph Forkal (“Randolph”). We vacate and remand.

The procedural history is long and very complex, with the parties having

proceeded through several appeals already. For purposes of the instant

appeal, we offer the following summary. The parties are brothers, and this

action involves two non-contiguous tracts of farmland devised to the brothers

by their mother, Virgie Forkal, who passed away in October of 2002. One

tract covered 137 acres, including 90 acres of tillable land (“the 137-acre

plot”). The other covered 197 acres, including 60 acres of tillable land and a

dairy barn with 95 stalls (“the 197 acre plot,” and, collectively with the 137-

acre plot, “the Properties”). Pursuant to Mrs. Forkal’s will, Mark and Randolph J-S17030-20

own the Properties as tenants in common. Mark lived on and farmed the 137-

acre plot beginning in 2003, but he claims he has not visited the Properties

since July of 2015 because of Randolph’s threats of violence. Randolph has

lived on and farmed the 197-acre plot since Mrs. Forkal passed away. While

they were cotenants, the parties signed separate lease agreements with

different gas companies for the subsurface rights to the Properties.1

Mark filed this partition action on August 10, 2007, seeking to have the

Properties equally divided between parties. He also requested fair rental value

of the land and farming equipment on the 197-acre plot. Randolph filed an

answer and new matter seeking payment for one-half of the value of the crops

Mark raised on the 137-acre plot and payment for caring for cattle that Mark

owned. The trial court appointed a master, who concluded the Properties

could not be equally divided between the parties. The trial court denied

Randolph’s exceptions to the master’s report, and this court affirmed. Forkal

v. Forkal, 1485 MDA 2012 (Pa. Super. May 15, 2013) (unpublished

memorandum). Thereafter, the parties proceeded through several private

sales. The first private sale, at which Mark was the high bidder, took place on

July 9, 2014. The trial court set that sale aside by order of September 15,

2014. Mark was again the high bidder at the second sale, which the trial court

____________________________________________

1 The private sale presently at issue, conducted on September 17, 2018, was for the surface rights only.

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confirmed by order of October 27, 2015. On December 20, 2016, this Court

vacated the order confirming the sale and remanded for a new valuation

hearing, concluding that the trial court failed to enforce one of its own orders;

that discovery was incomplete; and that the master failed to serve on the

parties its petition to proceed with the private sale. Forkal v. Forkal, 2053

MDA 2016 (Pa. Super. December 20, 2016).2

The new valuation hearing occurred on May 23, 2018. At the private

sale presently at issue, conducted on September 17, 2018, Randolph was the

high bidder, at $1,655,000. Mark’s losing bid was $1,651,000. Randolph

promptly paid a 10% deposit in accord with the master’s letter describing the

terms and conditions of the private sale, but failed to pay the remaining

balance3 within 20 days, as per the master’s instructions. On November 8,

2019, Mark filed a petition asking for sanctions, noting that Randolph had

failed to pay his winning bid. Mark asked that Randolph’s 10% payment

toward his bid be forfeited and that Mark be named the winning bidder. On

January 18, 2019, the trial court entered an order denying Mark’s requested

relief but directing Appellant to pay a $390,000.00 portion of the balance due

on his bid within ten days. Randolph has paid that amount.

2 This memorandum addressed four consolidated appeals. This Court quashed the appeals at three of the four docket numbers and remanded at number 2053.

3 In total, Randolph was required to pay half of his winning bid, or $827,500.00, in order to buy out Mark’s ownership share of the surface rights.

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On February 7, 2019, Mark filed a petition requesting reconsideration of

the January 18, 2019 order. In that petition, Mark asked, among other things,

for the trial court to name him the successful bidder in light of Randolph’s

failure to pay his successful bid as per the court-ordered time schedule.

Failing that, Mark requested a new private sale. The trial court conducted a

hearing on these matters, as well as a trial on the valuation of some farm

property, on February 13, 2019. On May 14, 2019, the trial court entered an

order directing Randolph to pay Mark $28,475 (half the value of farming

equipment in Randolph’s possession); $69,700 (half the market value of

Randolph’s house minus a credit for real estate taxes he paid); and directing

Mark to pay Randolph $10,800 (half the value of the tillable acreage on the

137-acre plot).

The parties filed competing motions challenging the May 14, 2019 order.

Mark challenged, among other things, the noncompliance of the master and

trial court with Pa.R.C.P. No. 1573, a matter we will discuss in more detail

below. Similarly, Randolph’s motion requested confirmation of the September

18, 2018 sale price. The trial court scheduled a hearing on these motions for

August 7, 2019. At the hearing’s conclusion, the trial court entered an order

directing, among other things, the master to file a proposed order within ten

days. Judgment was entered on August 14, 2019, before the master

complied.

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On August 7, 2019, the trial court entered an order denying the parties’

competing post-trial motions, and directing the master to file a return of sale

and proposed order with the prothonotary, pursuant to Pa.R.C.P. No. 1573.

Judgment was entered on August 14, 2019, with no further filing from the

master. This timely appeal followed.

Mark presents four questions. In his first argument, which is based on

Randolph’s failure to pay for his successful bid at the September 17, 2018

private sale, Mark claims the trial court erred in denying his request to be

named the successful bidder or, in the alternative, his request for a new

private sale. Second, Mark claims the trial court erred in crediting Randolph

for real estate taxes Randolph paid on behalf of the Properties. Third, Mark

claims the trial court erred in failing to credit him for Randolph’s periods of

exclusive use of the Properties. Fourth, Mark claims he is entitled to

continuing rent for Randolph’s exclusive use of the Properties because the trial

court has not entered a proper partition order in accordance with governing

law. Appellant’s Brief at 4-5.

Partition of property, which is governed by the Pennsylvania Rules of

Civil Procedure, presents a question of law to the extent we must interpret the

rules. Our standard of review as to questions of law is de novo and our scope

of review is plenary. Bargo v. Kuhns, 98 A.3d 686, 689–90 (Pa. Super.

2014). We observe, also, that partition is an equitable remedy. Marchetti

v. Karpowich, 667 A.2d 724, 727 (Pa. Super. 1995). This Court’s scope of

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appellate review in equity matters is narrow and is limited to determining

whether findings of fact are supported by competent evidence, whether an

error of law has been committed or whether there has been a manifest abuse

of discretion. Hercules v. Jones, 609 A.2d 837, 839 (Pa. Super. 1992).

“[T]rial courts have broad equitable powers to effectuate justice and we will

find an abuse of discretion only if the trial court has misapplied the law or

failed to follow proper legal procedures. Nicholson v. Johnston, 855 A.2d

97, 102 (Pa. Super. 2004), appeal denied, 868 A.2d 453 (Pa. 2005).

In his first argument, Mark claims the trial court, in failing to force

Randolph to pay his winning bid, committed an error of law and abuse of

discretion. Appellant relies in part on Rule 1573 of the Pennsylvania Rules of

Civil Procedure, titled “Return of Sale and Schedule of Distribution,” which

provides in relevant part as follows:

(a) Where the sale has been conducted by a master, the master shall promptly file with the prothonotary a return of sale together with a proposed order which shall

(1) confirm the sale;

(2) authorize the master to execute and deliver to the purchaser all necessary deeds and other instruments of title;

(3) contain appropriate provisions for the protection of life tenants, unborn and unascertained remaindermen, persons whose whereabouts are unknown, or other persons in interest and for the release or discharge of such interests;

(4) direct distribution of the proceeds to the persons or parties entitled; and

(5) provide for the payment of costs.

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Pa.R.C.P. No. 1573(a).4

Upon review of the record, we conclude that a remand is necessary for

compliance with the clear mandates of Rule 1573. The record does not reflect

that the master ever filed a return of sale after the September 17, 2018

private sale. A return of sale is an obvious and necessary prerequisite to a

court entering an order confirming the sale. Implicit in Rule 1573 is that

payment of the proceeds be made after sale so that the master may prepare

a proper return of sale and proposed court order that, inter alia, must direct

distribution of the proceeds to persons or entities entitled to them. The trial

court here never entered an order confirming the sale as is required under

Rule 1573(a)(1), nor does it appear that the court would have been able to

do so. See 122 Standard Pennsylvania Practice 2d 105 (“A sale in partition is

a judicial sale. It is made under an order of the court, its subject is in the

hands of the court, the proceeds are necessarily brought into court for

distribution, and the whole proceeding is directly the act of the court.”).

Nonetheless, despite the August 7, 2019 order directing the master to file a

proposed order within ten days, judgment was entered seven days later

without a return of sale or proposed order from the master. The only

subsequent motion the master filed was his October 2, 2019 motion for

4Pennsylvania Rules of Civil Procedure 1551 to 1590, which govern partition actions, were promulgated in 1955. Prior to that time, partition actions were governed by statutes. The Rules of Civil Procedure suspended those statutes. See Beall v. Hare, 174 A.2d 847, 849 (Pa. 1961).

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withdrawal as partition master (a motion the trial court granted on October 8,

2019).

In summary, there is no record of the master’s compliance with Rule

1573 or with the trial court’s August 7, 2019 order directing the master’s

compliance with Rule 1573. In turn, the trial court did not and could not file

an order confirming the September 17, 2018 sale. Furthermore, the record

does not reflect that Mark could have received the proceeds to which he is

entitled under Rule 1573(a)(4).5 See 122 Standard Pennsylvania Practice 2d

133 (“Where a sale has been conducted by a master, the master must

promptly file with the prothonotary a proposed order, which must direct

distribution of the proceeds to the persons or parties entitled.”). Given the

lack of compliance with the clear mandates of Rule 1573, we are constrained

to vacate the judgment and remand for compliance with Rule 1573.6 We are

5 It is noted that the master’s correspondence describing the terms and conditions of the private sale required that the proceeds be paid within twenty days after sale, a condition which was not met. Mark attached a copy of the Master’s August 1, 2018 correspondence as an unlettered exhibit to his November 18, 2018 petition for sanctions.

6 Randolph argues that Mark raised noncompliance with Rule 1573 too late, citing it for the first time in his May 24, 2019 motion for reconsideration of the trial court’s January 18, 2019 order. Randolph equates Mark’s May 24, 2019 motion to a post-trial motion, inasmuch as it followed the trial on the parties’ competing claims as to valuation and rental value of certain items on the Properties. Randolph cites Rule 227.1(b)(2), which requires the movant to specify where the grounds for post-trial relief are preserved. Randolph’s reliance on Rule 227.1(b)(2) is misplaced for several reasons. First, Mark consistently complained that Randolph never paid the amount he owed for his

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cognizant that Mark has asked to be named the successful bidder and/or for

a new private sale. If, upon remand, Randolph is unable to pay the remaining

amount due on his bid if permitted and as directed by the trial court, we leave

it to the trial court’s equitable discretion to determine an appropriate remedy.7

The remainder of Appellant’s issues arise from the February 13, 2019

valuation trial. Having reviewed the parties’ briefs, the record, the trial court

opinion, and the applicable law, we discern no abuse of discretion in the trial

court’s valuations of the various items in dispute. In particular, we note the

absence of any legal authority that the trial court should not have credited

successful bid at the September 18, 2018 private sale and Rule 1573 is the vehicle for confirming the result of a private sale and distributing proceeds accordingly. Second, the lack of compliance with Rule 1573, by both the trial court and the master, is unrelated to the matters in dispute at the valuation trial. Finally, Rule 1573(c) provides that if the court approves of the return of sale in whole or in part, it shall enter an appropriate order that shall become final, unless a motion for post-trial relief is filed within 10 days. The trial court’s entry of judgment in this matter without ever receiving the master’s return of sale and proposed order in accord with Rule 1573, deprived Mark of any ability to file exceptions to a proposed 1573 order. For these reasons, we cannot conclude that Mark waived his Rule 1573 argument.

7 While the Rules of Civil Procedure governing partition actions provide both for a private or public sale of property and for confirmation of a sale, the rules do not address procedure in the event there is a default in payment. The partition sale rules are distinct in this respect from the Real Estate Tax Sale Law, 72 P.S. § 5680.101 et. seq, which governs judicial sales of real property for delinquent payment of property taxes. It provides that the purchaser of a property at an upset sale is to pay the entire purchase money on the date of sale or no later than one hour before close of business or at the designated time. Id. at § 5680.606. If not so paid, the sale shall be voided and the property put up again at the same sale, if possible, or at any adjournment, readjournment or continuation of the sale. Id.

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Randolph for the real estate taxes he paid on behalf of the Properties. Further,

Mark develops no legal argument as to why the trial court’s remaining

valuation decisions amounted to an abuse of its equitable discretion. We

therefore reject Appellant’s remaining arguments based on pages four through

eight of the trial court’s May 14, 2019 opinion.

In summary, we have vacated the judgment and remanded for

compliance with Rule 1573. Appellant’s remaining arguments do not merit

relief.

Judgment vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/8/2020

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