J-A23003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY T. PAGNOZZI AND JEAN M.                  IN THE SUPERIOR COURT OF
PAGNOZZI, HIS WIFE                                     PENNSYLVANIA

                            Appellants

                       v.

CYNTHIA A. PARTRIDGE, A SINGLE
WOMAN

                            Appellee                 No. 1812 WDA 2015


                Appeal from the Order Entered October 19, 2015
                In the Court of Common Pleas of Fayette County
                    Civil Division at No(s): 347 of 2012, G.D.


BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 30, 2016

        Anthony T. Pagnozzi and Jean M. Pagnozzi, husband and wife

(“Pagnozzis”), appeal from the order entered in the Court of Common Pleas

of Fayette County granting in part and denying in part Cynthia Partridge’s

exceptions to the master’s report and recommendations in this action for

partition and payment of rents due. Upon careful review, we affirm.

        On October 18, 2007, the Pagnozzis and Partridge purchased the

property known as 78 Station Street, Uniontown, Fayette County. They took

title as tenants-in-common, with the Pagnozzis together holding an

undivided one-half interest and Partridge also holding an undivided one-half

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*
    Retired Senior Judge assigned to the Superior Court.
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interest. At the time of the purchase, it was the intention of the parties that

Partridge would occupy the premises with the Pagnozzis’ son, Frank, and

their respective children. The couple resided together on the property from

October 2007 until December 2010, when Frank left and never returned.

Partridge has remained living on the property since that time.                The

Pagnozzis have never lived there.

        The parties attempted to sell the property on the open market in 2011,

but were unable to locate a buyer.             On February 18, 2012, the Pagnozzis

filed a “Complaint in Equity for Partition of Real Property and for Accounting

and Payment of Rents Due,” naming Partridge as defendant. After the close

of pleadings, the trial court conducted a preliminary conference and

thereafter granted partition. The court appointed a master to determine the

manner in which the property should be sold and to recommend how the

relative contributions of the parties to the real estate should be allocated.

        The master held a hearing on November 27, 2013, at which the

Pagnozzis and Partridge all testified. The master issued his report on April

27, 2015. Relevant to this appeal, the master concluded that the Pagnozzis

were entitled to rent from Partridge in the amount of $300 per month1 from

November 1, 2007 (immediately after the parties purchased the property)

until such time as a private sale is effectuated. Partridge filed exceptions to


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1
    The Pagnozzis do not dispute the rental value arrived at by the master.



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that finding (among others not relevant here) and, on October 15, 2015, the

trial court issued an opinion and order in which it concluded that the master

had erred in awarding rent for the entire period of ownership, given that the

Pagnozzis purchased the property with the intent of providing a home for

their son to live in with Partridge. Accordingly, the court modified the award

of rent to include only the period of time since Frank vacated the premises,

or since January 2011.       The Pagnozzis filed a timely notice of appeal,

followed by a court-ordered statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      The Pagnozzis raise the following issue for our review:

      Whether the [Pagnozzis] should be given credit for a portion of
      monthly rent due between November 1, 2007 and January 2011
      which represents the time that [the Pagnozzis’] son and
      grandson lived with [Partridge]?

Brief of Appellants, at 4.

      We begin by noting that “[t]he scope of appellate review of a decree in

equity is limited. Absent an abuse of discretion or an error of law, we are

bound to accept the findings of the trial court or master.”        Spears v.

Spears, 769 A.2d 523, 524 (Pa. Super. 2001), quoting Werner v. Werner,

573 A.2d 1119, 1121 (Pa. Super. 1990).

      Here, the trial court found that the master erred in awarding rent to

the Pagnozzis for the period in which their son resided with Partridge at the

property. The report of a master is entitled to great consideration in that he

has heard and seen the witnesses, and it should not be lightly disregarded.


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Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super. 2000).            However,

the master’s report is advisory only; the reviewing court is not bound by it

and it does not come to the court with any preponderate weight or authority

which must be overcome. Id., citing Arcure v. Arcure, 281 A.2d 694, 695

(Pa. Super. 1971). A master’s report is not controlling, either on the lower

court or on the appellate court. Id.

      Pursuant to 68 Pa.S. § 101, a co-tenant not in possession is granted a

cause of action against a co-tenant in possession to recover “his or their

proportionate part of the rental value of said real estate for the time such

real estate shall have been in possession” of the co-tenant. 68 P.S. § 101.

      Two requirements must be satisfied before recovery of the fair
      rental value of the premises will be permitted:            (1) the
      complaining party must show he is not in possession of the
      premises; and (2) it must be shown that the remaining tenant in
      common occupies exclusive possession of the premises. As
      correctly stated in Hoog v. Diehl, [] 3 A.2d 187, 189 ([Pa.
      Super.] 1938): “For plaintiffs to be entitled to a share of the
      rental value of the premises sold in partition, it must appear that
      plaintiffs were out of possession, and that defendant was in
      exclusive possession. The statute is not automatically operative.”

Sciotto v. Sciotto, 288 A.2d 822, 823–24 (Pa. 1972). The Court in Sciotto

stated that “[t]he best definition of ‘exclusive possession’ for purposes of the

Act is . . . that one tenant alone occupied the property and exercised the

rights of an owner such as making repairs and changes to suit his

convenience without consulting the others.”         Id. at 824 (citation and

quotation marks omitted).




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      Here, the Pagnozzis argue that they, themselves, were not in

possession of the premises at any time and Partridge resided on the

property exclusively of them. Further, they assert that Partridge “exhibited

exclusive behavior by making repairs and changes [to the property] without

consulting” them.    Brief of Appellants, at 9.     Accordingly, the Pagnozzis

assert that they are entitled to rent for not only the period in which Partridge

lived alone on the premises, but also for the period in which their son

resided with Partridge on the premises.

      In declining to adopt the master’s recommendation on this issue, the

court found that the Pagnozzis and Partridge “purchased the residence . . .

together with the understanding that [Partridge] would reside at the home

with [the Pagnozzis’] son and grandson.” Trial Court Opinion, 10/15/15, at

2.   As such, the court concluded that “[t]he master’s recommendation to

award rent for the entire period of ownership is unfair considering the

understanding between [the parties].” Id. at 2-3.

      At the master’s hearing, Anthony Pagnozzi testified that, at the time

the parties purchased the premises, they intended that Frank Pagnozzi

would reside there with Partridge. See N.T. Master’s Hearing, 11/27/13, at

17. Additionally, Partridge testified as follows:

      Q: [A]t the time of the purchase of the premises, had you and
      the Pagnozzis and Frank discussed what your intentions were
      and why you were purchasing the property as you did?

      A: Yes, because in the past, Frank and his son lived in my home
      with me and my children, and it was strictly my home prior to
      buying the Station Street house. And they said that they would

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       put half the money down on the house so that we could share in
       expenses and actually do it the right way. They would own half
       and I would own half so it wouldn’t have to be all my purchase.

Id. at 35-36.

       The trial court’s decision in this matter is supported by the record.2

Based upon the clear intention of the parties as revealed through their

testimony, we cannot conclude that the court abused its discretion by not

requiring Partridge to pay rent to the Pagnozzis for the period in which Frank

Pagnozzi resided on the premises. In essence, the Pagnozzis assigned their

right of possession to their son, who exercised that right until he and

Partridge ended their romantic relationship.      Only then did Partridge’s

possession of the property truly become exclusive of the Pagnozzis.

Sciotto, supra. Accordingly, the trial court was within its discretion to deny

rent to the Pagnozzis from November 2007 through December 2010.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016

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2
 We note that the master’s recommendation in this matter was not based
on findings of credibility.



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