Russo, F. v. Polidoro, R.
176 A.3d 326
Pa. Super. Ct.2017Background
- Nine Philadelphia rowhouse properties were titled to Frank Russo, Sr.; a 2009 settlement and court order invalidated a 1991 deed and directed Frank to convey the properties to his three daughters (appellants Polidoro and Trama, and appellee Russo) as tenants in common, each owning one-third.
- The September 14, 2009 court Order (incorporated into the October 2009 deed) contained a restriction: “No disposition of the properties or any action concerning the properties may be taken without the express written agreement of at least two of the deed holders; and further, that all expenses of the properties are to be borne equally by the three deed holders.”
- In July 2015 appellee Frances Russo filed an equity complaint seeking partition of the properties against her two sisters.
- Appellants demurred and argued the deed restriction barred any partition action because it prohibited “any action concerning the properties” without two owners’ written consent and required shared expenses, indicating intent to prevent division.
- The trial court granted partition; on appeal the Superior Court reviewed de novo the deed construction and whether the restriction precluded an action for partition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the September 14, 2009 Order/deed restriction precludes an action for partition | Russo: restriction prevents sale or transfer but does not bar partition because partition is a possessory action, not a conveyance | Polidoro/Trama: restriction bars any action concerning the properties without two deedholders’ written consent, so partition is precluded | Court held the restriction barred filing a partition action without the written consent of two deedholders; trial court erred in granting partition |
| Whether the restriction in the recorded deed (which incorporated the Order) precludes partition | Russo: incorporated restriction limits dispositions to cases with two consents, but does not forbid possessory partition | Polidoro/Trama: deed language and expense-sharing clause show intent to prevent division of properties absent two owners’ consent | Court interpreted the deed language to prohibit “any action concerning the properties” and ruled it precluded partition absent two-owner written consent |
| Whether collateral estoppel bars appellee’s partition claim because ownership was resolved in the prior quiet title action | Russo: (argued) partition is a distinct possessory remedy and not barred | Polidoro/Trama: prior quiet title/order resolved ownership and should preclude relitigation | Court did not reach this issue (declined to address after resolving deed-construction issues) |
| Whether appellee waived right to partition by accepting title subject to the restriction | Russo: accepting title did not waive partition because right is inherent to tenancy in common unless validly restricted | Polidoro/Trama: acceptance of deed with explicit restriction waived any right to partition | Court did not reach this issue (declined to address after resolving deed-construction issues) |
Key Cases Cited
- Murphy v. Karnek, 160 A.3d 850 (Pa. Super. 2017) (deed construction is a question of law reviewed de novo)
- Starling v. Lake Meade Prop. Owners Ass’n, Inc., 162 A.3d 327 (Pa. 2017) (use surrounding circumstances to interpret ambiguous deed language)
- In re Kasych, 614 A.2d 324 (Pa. Super. 1992) (partition standard and appellate review scope)
- Hercules v. Jones, 609 A.2d 837 (Pa. Super. 1992) (intent of parties in deed interpretation; when unambiguous, court enforces language)
- Bernstein v. Sherman, 902 A.2d 1276 (Pa. Super. 2006) (right to partition is an incident of tenancy in common but parties may restrict it)
- Seiders v. Giles, 21 A. 514 (Pa. 1891) (partition is a possessory action to divide property, not primarily a sale)