Wolf, M. v. Nearing, S. ( 2022 )

J-A02028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARY M. WOLF & CHARLES E. WOLF, : IN THE SUPERIOR COURT OF
HUSBAND AND WIFE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 438 WDA 2021
SARAH E. NEARING, NOW BY :
MARRIAGE SARAH E. COY :
Appeal from the Order Entered March 12, 2021
In the Court of Common Pleas of Elk County
Civil Division at 2020-529
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: JANUARY 21, 2022
Mary M. Wolf (Wolf) & Charles E. Wolf (Charles), husband and wife
(collectively, Appellants), appeal from the trial court’s order sustaining
preliminary objections in the nature of a demurrer filed by Sarah E. Nearing,
now by marriage Sarah E. Coy (Coy), and dismissing Appellants’ complaint for
partition of real property. We affirm.
On January 2, 2001, James M. Nearing and Elizabeth A. Nearing (the
Nearings) conveyed by deed certain real property situated in Wilcox, Jones
Township, Elk County, Pennsylvania (the Wilcox property). Complaint,
7/16/21, ¶ 3; see also id., Exhibit A (Elk County DBV 417, page 13) (the
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* Retired Senior Judge assigned to the Superior Court.
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2001 deed). The Nearings conveyed the Wilcox property to their daughters,
Wolf and Coy, as joint tenants with right of survivorship. Id. ¶ 3.
After the transfer of the Wilcox property, Wolf married Charles. Id. ¶
4. On May 22, 2020, Wolf executed a deed (the 2020 deed) conveying her
one-half (1/2) interest in the Wilcox property to herself and Charles as tenants
in common. See Elk County Document #2020-001341. On July 13, 2020,
Appellants filed a complaint for partition of the Wilcox property. Appellants
claimed that the 2020 deed severed the joint tenancy of Wolf and Coy,
resulting in Coy, Wolf and Charles holding title as tenants in common. Id. ¶
7. According to the complaint, Coy refused to reimburse Appellants for her
one-half (1/2) share of the maintenance costs of the Wilcox property. Id. ¶
9. Further, Coy refused to partition the Wilcox property or execute a listing
agreement to facilitate its sale. Id. Appellants therefore requested partition
of the Wilcox property, and Coy’s reimbursement of one-half of Appellants’
maintenance expenditures. Id. ¶ 10.
Coy filed preliminary objections demurring to the complaint. Coy
averred the joint tenancy created by the 2001 deed cannot be destroyed
without the agreement of all joint tenants. Preliminary Objections, 8/17/20,
¶ 7. Coy asserted the complaint fails as a matter of law because Appellants
failed to establish that the original joint tenants agreed to partition. Id. ¶¶ 8-
9.
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In its March 12, 2021 opinion, the trial court concluded neither the 2020
deed nor the partition action severed Wolf’s joint tenancy with Coy. Trial Court
Opinion, 3/12/21, at 4.1 The trial court further opined the joint tenancy
“cannot be vitiated without the agreement” of both Wolf and Coy. Id. at 5.
Consequently, the court sustained Coy’s preliminary objections and dismissed
Appellants’ complaint. Trial Court Order, 3/12/21.
Appellants filed this timely appeal, followed by a court-ordered Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. The trial court
filed a Rule 1925(a) opinion, in which it noted the death of Wolf, although “no
suggestion of death has been filed nor does the record . . . otherwise refer to
her death.” Trial Court Opinion, 6/14/21, at 1.
Appellants present the following issues for our review:
I. Whether the trial court committed an error of law and/or abused
its discretion in ruling that the deed from … [Wolf] to [Wolf] and
Charles [], wife and husband[,] did not sever the joint tenancy
with the right of survivorship as between [Wolf] and [Coy]?
II. Whether the trial court committed an error of law and/or
abused its discretion in ruling that joint tenancy with right of
survivorship was not severed by the deed of conveyance from
[Wolf] to [Wolf] and Charles [], especially considering that the
mere filing of an action in partition does not sever a joint tenancy
and the action in partition would to have been completed prior to
the death of [Wolf]?
III. Whether the trial court committed an error of law and/or
abused its discretion in ruling that [Appellants’] complaint be
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1The pages are unnumbered; for ease of discussion, we reference each page
as though numbered.
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dismissed where a deed of transfer occurred prior to the filing of
the action for partition and [prior] to the death of [Wolf]?
IV. Whether the trial court committed an error of law and/or
abused its discretion by granting [Coy’s] preliminary objections
and dismissing [Appellants’] complaint, effectively eliminating any
legal remedy for [Appellants]?
Appellants’ Brief at 4 (most capitalization omitted).
As our Supreme Court has explained,
[o]ur standard of review in [an] appeal arising from an order
sustaining preliminary objections in the nature of a demurrer is de
novo, and our scope of review is plenary. We recognize a
demurrer is a preliminary objection to the legal sufficiency of a
pleading and raises questions of law; we must therefore accept as
true all well-pleaded, material, and relevant facts alleged in the
complaint and every inference that is fairly deducible from those
facts. A preliminary objection in the nature of a demurrer should
be sustained only in cases that clearly and without a doubt fail to
state a claim for which relief may be granted.
Raynor v. D’Annunzio, 243 A.3d 41, 52 (Pa. 2020) (citations omitted).
Although Appellants present four issues in their statement of questions
involved, the argument section of their brief addresses the claims together.
See Appellants’ Brief at 10 (acknowledging Appellants “address all four (4)
issues under one section of their argument” because the issues are
“interrelated”). Accordingly, we address Appellants’ issues together.
Appellants challenge the trial court’s conclusion that the 2020 deed did
not sever the joint tenancy created by the 2001 deed. Id. at 11. Quoting
Allison v. Powell, 481 A.2d 1215 (Pa. Super. 1984), Appellants argue the
conveyance from Wolf — to Wolf and Charles — severed the joint tenancy.
Appellants’ Brief at 12. Appellants assert Coy’s failure to agree to severance
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“is of no legal import.” Id. at 13. As further support, Appellants rely on Gen.
Credit Co. v. Cleck, 609 A.2d 553 (Pa. Super. 1992), which held the
execution of a mortgage by a joint tenant was sufficient to sever a joint
tenancy with the right of survivorship. Appellants’ Brief at 13. Appellants
claim that, by conveying the property from one joint tenant to that joint tenant
and her husband, “severance of the joint tenancy is completed, and the parties
then hold title to the property as tenants in common.” Id. at 14. Thus,
Appellants argue Coy’s permission was not necessary to sever the joint
tenancy. Id.
Coy counters that Wolf conveyed the Wilcox property to herself and her
husband because Wolf had been diagnosed with a terminal illness. Coy’s Brief
at 2.2 Coy relies upon our Supreme Court’s decision in Sheridan v. Lucey,
149 A.2d 444 (Pa. 1959), as holding initiation of a partition action is not
sufficient to abrogate the interest of a joint tenant with survivorship rights.
Coy’s Brief at 4. Coy additionally states that in Allison, supra, this Court
concluded a partition action did not sever a joint tenancy. Id. at 5. We agree.
This Court has explained,
[t]he essence of a joint tenancy created in this Commonwealth is
the four unities: interest, title, time and possession. Furthermore,
specific intent of survivorship is required to create a joint tenancy,
otherwise the interest is presumed to be a tenancy in common.
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2The pages in Coy’s brief are unnumbered; we reference each page as though
numbered.
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Each joint tenant holds an undivided share of the whole estate.
. . . During h[er] lifetime, however, a joint tenant may convey
h[er] interest to a third party, or [s]he may have the joint tenancy
property partitioned, or h[er] interest may be seized and sold by
h[er] creditors in execution.
Cleck, 609 A.2d at 556 (citations omitted). Thus,
[a] joint tenancy . . . is severable by the act, voluntary or
involuntary, of either of the parties. When this occurs, the
tenancy becomes one in common. Although the joint tenancy
may be severed by a joint tenant’s act which destroys one of the
four unities, that act must be of sufficient manifestation that
the actor is unable to retreat from the position of creating
a severance of the joint tenancy.
Allison, 481 A.2d at 1217 (emphasis added, citation omitted). “Although a
voluntary act on the part of one of the joint tenants is adequate to work a
severance, that act must be of sufficient manifestation that the actor is unable
to retreat from h[er] position of creating a severance of the joint tenancy.”
Sheridan, 149 A.2d at 446.
Here, the trial court concluded Appellants’ 2020 deed did not destroy
the unity of title created by the 2001 deed. Trial Court Opinion, 3/12/21, at
4. As the trial court explained, Wolf “did not convey her interest just to a third
party, but rather conveyed that interest to herself and her husband[.]” Id.
Thus, “[t]he retention of an interest in the subject property by [] Wolf militates
against severance of the survivorship tenancy.” Id. We agree.
Our review confirms the conveyance effected by the 2020 deed was not
“of sufficient manifestation that the actor is unable to retreat from [her]
position of creating a severance of the joint tenancy.” Sheridan, 149 A.2d at
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446. Specifically, the 2020 deed resulted in no divestiture of Wolf’s interest
in the Wilcox property. Under the 2020 deed, Wolf retained her undivided
one-half interest in the Wilcox property, although purportedly as a tenant in
common with Charles. Consequently, the 2020 deed failed to extinguish Wolf
and Coy’s joint tenancy. See Trial Court Opinion, 3/12/21, at 4; see also
Estate of Quick, 905 A.2d 471 (Pa. 2003) (to sever a joint tenancy, a joint
tenant’s voluntary act “must be of sufficient manifestation that the actor is
unable to retreat from his position of creating a severance of the joint
tenancy.”).
We further conclude Appellants’ present partition action failed to sever
the joint tenancy. In Allison, this Court recognized:
The commencement of a partition action is alone insufficient to
sever a joint tenancy, because the plaintiff-joint tenant can always
retreat from his demand for partition so long as a final judgment
has not been entered. It follows that in the event a joint tenant
dies during the pendency of the action to partition, title to the
jointly owned real estate passes by right of survivorship to the
surviving joint tenant.
Allison, 481 A.2d at 1217 (citations omitted). Applying Allison, Appellants’
partition action failed to sever Wolf’s joint tenancy with Coy. See id.; cf.
Vargas v. Brinton, 451 A.2d 687, 688 (Pa. Super. 1982) (recognizing a
partition action taken to judgment is sufficient to sever a joint tenancy).
Discerning no error, we affirm the trial court’s order sustaining Coy’s
preliminary objections and dismissing Appellants’ complaint.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2022
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