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HomeMy WebLinkAbout2004-2149 ELIZABETH A. WIAN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – EQUITY : NO. 04-2149 EQUITY VINCENT C. MCCUE. : Defendant : MEMORANDUM AND ORDER Our most recent hearing in this matter was held on June 20, 2011. Additional testimony was taken. Specifically, the plaintiff demonstrated that little or no maintenance had been performed on the real estate located at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania. The defendant attempted to demonstrate that the rental value of said property does not exceed $800.00 per month. Even accepting this recently proffered testimony as true, there is no effect on the ultimate outcome of the case. Accordingly, we will continue to use the various valuations arrived at in our order of January 31, 2011. We do agree, however, with the plaintiff that we have erred in charging her for the entire cost of the taxes and real estate maintenance during the period when she was out of possession. Instead, she is chargeable with one-half the taxes or $1,187.50, and one-half the maintenance or $925.00, for a total owed of $2,112.50. By the same token, she is entitled to one-half the rental value of the property or $6,000.00 per year. There is, therefore, an annual debt in her favor of $3,887.50 which, over a period of thirty years exceeds $116, 600.00. When this is added to her one-half share of the real estate of $92,500.00, her interest in the real estate exceeds its value by more than $15,000.00. Since our last order in this matter, Jeffrey Fedder has been granted leave to intervene. He is a mortgagee of the 460 St. Johns Drive property. There is no dispute that he had constructive notice of this partition action. He claims, however, that the court lacks jurisdiction because of a prior divorce action in which the real estate was subject to equitable distribution. Our order of May 17, 2011, however, declared that issues of equitable property distribution were not properly pled or preserved in the prior divorce action of the parties. Perhaps more importantly, Mr. Fedder, as an intervenor, is bound by the provisions of Rule Pa.R.C.P. 2329(1) and cannot maintain claims or defenses which are not in subordination to and in recognition of the propriety of the action. In short, he cannot intervene in a partition action for the purpose of asserting that the court lacks jurisdiction. To quote pertinent case authority, the “intervenor takes the litigation as he finds it.” Sell v. Douglas Tp. Zoning Hearing Board, 613 A.2d 162 at 164 (Pa.Cmwlth. 1992) citing Appeal of the Municipality of Penn Hills, 546 A.2d 50 (Pa. 1988). ORDER AND NOW, this day of July, 2011, following hearing, the defendant, Vincent C. McCue, is directed, not later than forty-five (45) days from the date of this order, to vacate and thereafter be excluded from the residence at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania. Within the same time period, the defendant is ordered and directed to convey the premises, by deed, to the plaintiff, Elizabeth A. Wian. Unless said deed is forthcoming from counsel for the defendant, counsel for the plaintiff may prepare the deed for appropriate signature. BY THE COURT, _______________________________ Kevin A. Hess, J. Robert L. O’Brien, Esquire For the Plaintiff James M. Robinson, Esquire For the Defendant P. Richard Wagner, Esquire For the Intervenor 2 ELIZABETH A. WIAN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – EQUITY : NO. 04-2149 EQUITY VINCENT C. MCCUE. : Defendant : ORDER AND NOW, this day of July, 2011, following hearing, the defendant, Vincent C. McCue, is directed, not later than forty-five (45) days from the date of this order, to vacate and thereafter be excluded from the residence at 460 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania. Within the same time period, the defendant is ordered and directed to convey the premises, by deed, to the plaintiff, Elizabeth A. Wian. Unless said deed is forthcoming from counsel for the defendant, counsel for the plaintiff may prepare the deed for appropriate signature. BY THE COURT, _______________________________ Kevin A. Hess, J. Robert L. O’Brien, Esquire For the Plaintiff James M. Robinson, Esquire For the Defendant P. Richard Wagner, Esquire For the Intervenor