Lohmiller v. Weidenbaugh

469 A.2d 578, 503 Pa. 329, 1983 Pa. LEXIS 783

• Court: Supreme Court of Pennsylvania
• Decided: December 30, 1983
• Docket: 97 E.D. Appeal Docket 1982
• Status: Published

Opinions

OPINION OF THE COURT

LARSEN, Justice.

Appellant, Joan Lohmiller Weidenbaugh, and appellee, Harold Y. Lohmiller, were married on August 20, 1960. During their marriage, appellee’s mother, Hazel Lohmiller, transferred to appellant and appellee, as tenants by the entireties, a 40% undivided interest in her 170 acre farm located in Montgomery County, Pennsylvania. Hazel Lohmiller retained a 60% undivided interest in the farm, as a tenant in common with appellant and appellee. On July 9, 1976, appellee and appellant were divorced.

On June 23, 1977, appellee filed the present equity action pursuant to the Act of May 10, 1927, as amended, 68 P.S. § 501 et seq.1 (hereinafter The Act), against appellant, seeking partition of the couples 40% interest in the farm held by the appellant and appellee as tenants by the entireties. In response, appellant sought dismissal of appellee’s complaint by filing a preliminary objection that challenged appellee’s failure to join co-tenant, Hazel Lohmiller, as an indispensible party. On November 23, 1977, the lower court dismissed appellant’s preliminary objection. On July 31, 1980, the lower court ordered only appellee’s and appellant’s 40% interest in the farm partitioned and appointed a trustee to arrange a public sale and distribute the proceeds. Appellant appealed and the Superior Court affirmed. Lohmiller v. Weidenbaugh, 302 Pa.Super. 174, 448 A.2d 583, (1982). On November 1, 1982, this Court granted allocatur.

In affirming the lower court’s dismissal of appellant’s preliminary objection raising the non-joinder of Hazel Lohmiller, the Superior Court stated:

The Act of May 10, 1927 provides a complete procedure to be followed (except for claims preserved under the Divorce Code of 1980) when parties who have been divorced, partition property formerly held as tenants by the entireties. Lykiardopoulos [v. Lykiardopoulos], 453 Pa. [290] at 293 [309 A.2d 548 (1973) ]. Looking at the Act, it provides only for a husband or wife to bring an action against his or her spouse; and not against third parties....

Appellant argues that in Pennsylvania all co-tenants must be joined as parties to the partition action. She relies on Rule 1553, Pa.R.C.P. which reads:

An action for partition may be brought by any one or more co-tenants. All other co-tenants shall be joined as defendants.

Adopted April 26, 1955, effective Nov. 1, 1955.

However as indicated in a note following the Act of 1927 (68 P.S. § 503), Rule 1553, does not suspend or affect the division of entireties’ property after a final decree of divorce. See Rule 1591 (10) Pa.R.C.P. Therefore, the rules governing the partition of non-entireties real property, Rule 1551, et seq. do not apply to the current case. See Goodrich-Amram 2d. § 1551:8.

While the Act provides a complete remedy for the partition of property formerly held by the entireties, it is neither the sole nor exclusive remedy.² Equitable partition pursuant to Pa.R.Civ.P. 1551-1574 is another means for the partition of property formerly held by the entireties.³ The Superior Court’s holding that Pa.R.Civ.P. 1551-1574 are inapplicable to the present case disregards established principles of statutory⁴ construction. Since the Act and Pa.R. Civ.P. 1551-74 relate to the same subject matter, the partition of property, the two provisions must be read in pari materia so that effect can be given to both. Pa.Stat.Ann. tit. 1, § 1932 (Purdon Supp.1983); Girard School District v. Pittenger, 481 Pa. 91, 392 A.2d 261 (1978).

When the Act and Pa.R.Civ.P. 1551-1574 are construed together, it is apparent that while a former husband may initiate an action for the partition of property formerly held by the entireties pursuant to the Act, all other co-tenants must be joined as defendants pursuant to Pa.R.Civ.P. 1553. This construction presents no conflict between the provisions and gives them both effect. Furthermore, it is obvious that appellant’s interest in the farm would be worth far less if only 40% of a co-tenant’s interest in the farm is sold, rather than the entire farm. Who would bid a fair market price to be a minority co-tenant with a stranger majority co-tenant? Moreover any successful bidder could petition the court to partition the whole property and thus accomplish that which appellee has sought to avoid. The law should never provide such a tortured route to the inevitable. It is this very result that Pa.R.Civ.P. 1553 prevents. The lower court erred in dismissing appellant’s preliminary objection.

Accordingly, the order of the Superior Court affirming the lower court’s dismissal of appellant’s preliminary objection is reversed, and appellee’s complaint is dismissed without prejudice to the right of appellee to institute a new action wherein all necessary and indispensible parties are made parties to the action.

ZAPPALA, J., filed a dissenting opinion, joined by ROBERTS, C.J.

1 . 68 P.S. § 501 (Purdon 1965) provides:

Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit in the court of common pleas, sitting in equity, of the county where the property is situate, against the other to have the property sold and the proceeds divided between them. The summons in such suit shall be served in the same manner and with like effect as in cases of partition at law.

At the hearing on such suit both husband and wife shall be competent witnesses. The value of the property shall be proven by the testimony of at least two impartial and disinterested witnesses.

68 P.S. § 501 et seq. was amended after the commencement of appellee’s action. However, the amendment made no changes pertinent to this case.

2 . The Act does not expressly state that it provides the sole and exclusive remedy for partition of property formerly held by the entireties.

3 . Upon divorce, property held by tenants by the entireties is converted to property held by tenants in common by operation of the Act. Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973). Any co-tenant may bring an action pursuant to Pa.R.Civ.P. 1551-1574. Pa.R.Civ.P. 1553.

4 . Rules of Civil Procedure promulgated by this court have same force and effect as statutes passed by the legislature. Dombroski v. City of Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968).