author: TAMILIA, Judge: WIEAND, Judge, BROSKY, Judge,

text:
    512 A.2d 635
    Phillip MARINELLO, Appellant v. Karin MARINELLO.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1985.
    Filed June 9, 1986.

      Sallie A. Radick, Pittsburgh, for appellant.

      Before SPAETH, BROSKY, ROWLEY, WIEAND, MCEWEN, CIRILLO, OLSZEWSKI, MONTEMURO and TAMILIA, JJ.

       Judge Spaeth did not participate in the final vote in this case as he left the bench in retirement before its conclusion.

   TAMILIA, Judge:

This is an appeal from an order dismissing appellant’s exceptions to a decree of equitable distribution subsequent to divorce. A brief chronology of crucial events is in order.

On January 1, 1980, appellant/husband filed a complaint in divorce in Allegheny County alleging indignities. Appel-lee’s answer of February 1st sought dismissal. In October appellant commenced an action for partition of entireties property by filing his complaint in Westmoreland County. Three weeks later appellee filed a petition with the Allegheny County court to proceed under the new Divorce Code, and was allowed to amend her answer to the complaint to include a request for equitable distribution. Two years later, appellant petitioned the Allegheny County Court to amend his complaint to conform to the Divorce Code. Ap-pellee’s answer again requested equitable distribution. In October of 1982, a hearing was held by a Westmoreland County Master on the partition action which is still unresolved as of this writing. In February 1983, after a hearing in the Allegheny County Court of Common Pleas, a divorce was granted and the distribution Order underlying this appeal issued.

The parties had been married on July 17, 1976. For the nine years prior to that time appellee had leased at nominal rental a house owned by her grandmother. The parties resided there together before the marriage, and for approximately one year afterward. Three months after the wedding appellee’s grandmother deeded the property to her daughter, appellee’s mother, who then, with her husband, transferred it to the parties. One year after the transfer the house was sold, and the proceeds used as a down payment on the marital residence which forms the major object of the partition action. The parties lived in that house until appellant removed himself by mutual agreement in October 1979. In June of the same year, appellant ceased all contributions to maintenance of or payment for the house.

Appellant has presented us with three issues. The first challenges the jurisdiction of the Allegheny County court over the subject matter of the distribution Order; the second and third claim error in the court’s treatment of marital property for the purposes of equitable distribution, and the formula under which the property was apportioned between the parties.

The real question posed by the train of events in this case, however, is the procedural connection between partition of entireties property independent of the divorce proceeding, and equitable distribution under the Divorce Code of 1980: does the former segue into the latter, and if so how? To ask the question another way, is partition of entireties property superceded by a request for equitable distribution under the new Divorce Code? The most definitive answer we can give, as will appear below, is “not quite.”

The pivotal point from which various interpretations radiate is 23 Pa.S.A. § 301(a)(1), which provides that, “in conjunction with any decree granting a divorce,” the court shall “determin[e] and disposfe] of property rights and interests between spouses ... including the partition of property held as tenants by the entireties or otherwise ...” Equitable distribution becomes a factor when either party requests it, and the property to be divided is “marital property” as defined by section 401.

There are three major approaches which have been taken to define the problem, each of which presents its own peculiar defects. The first, espoused by the Allegheny County judge hearing appellant’s divorce and appellee’s claim for equitable distribution, proceeds from the presumption that the Allegheny County divorce court retained jurisdiction to equitably distribute the property involved after and however Westmoreland County disposed of the partition action. In other words it was concluded that entireties property, although halved between the parties, remained marital possessions subject to (re)distribution according to the precepts of the Divorce Code. The obvious problem with this schema, redundancy apart, is that no trial court has the authority to reexamine the issues of a case disposed of by another court at the same level. Also we are faced with the 401(e)(4) exception to marital property in that any property acquired as separate property during separation (an order of partition creates separate property) until the date of divorce, is not construed to be marital property subject to equitable distribution.

The second proposed solution protects the status quo ante, rejecting any attempt to reconcile the conflicts engendered by the “hither and yon” school of paper filing in domestic relations cases. This solution is in fact none at all as it ignores the policy behind passage of the Divorce Code,, that is, “to effectuate economic justice between the parties.” 23 Pa.S.A. § 102(a)(6). In so doing this combination filing race/hands off approach allows, under the guise of jurisdictional purity, the sort of retrograde treatment of marital disputes which prompted passage of the Divorce Code to begin with. See Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1975), where the Pennsylvania Supreme Court refused to remedy unequal consideration in the creation of entireties estates. See also Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981).

The third tack is that of preemption, its theory being that the filing of a request for equitable distribution results in the indiscriminate extinction of a prior partition action, regardless of its motivation or basis in fact. If for example partition was sought prior to entry of a divorce decree in order to arrest or deter dissipation of entireties assets, equitable distribution, which must wait upon finalization of the divorce, would dislodge the suit for partition. During the pendency of the divorce litigation, the property could be disposed of altogether, absent injunctive relief under Pa.R.C.P. 1920.43(a), and the accounting need not necessarily factor in (its dissolution) as a debit to the wastrel. Distribution under such circumstances could hardly be termed equitable. Further, preemption is in derogation of section 301 which clearly reserves partition as a prerogative of the court, given a claim.

Case law has in fact made provision for unilateral dissipation of assets, viz, the classic Vento partition. Vento v. Vento, 256 Pa.Super. 91, 389 A.2d 615 (1978). However, planned deliquescence is by no means the only obstacle in the way of achieving real economic parity between divorcing spouses. Although partition is theoretically implicit in equitable distribution, given the facts which would dictate its adoption as a means to accomplish equity, (and we offer this as an apologia for the retention of partition as an always available option, despite its apparent inconsistency with the avowed objectives of the Code), the reverse, that equality encompasses equity, is not always true. As this Court held in Platek v. Platek, 309 Pa.Super. 16, 24, 454 A.2d 1059, 1063 (1982),

It is apparent ... that the court’s power to direct partition of property is qualified by its duty to divide marital property in an equitable way ... For partition is an even division ... But an equitable division often will not be even; the essence of the concept of an equitable division is that “after considering all relevant factors,” the court may “deem[] just” a division that awards one of the parties more than half, perhaps the lion’s share, of the property.

Indeed equitable distribution is a misleading concept, as equity has yet to be achieved in practice. While courts have paid lip service to the notion that the nurturing partner’s contribution to marriage is equivalent in value to that of the wage earner, “equitable distribution”, as thus far applied, has resulted in an immediate 73 per cent drop in the standard of living enjoyed by divorced wives and their children, while the ex-husbands experience a corresponding 42 per cent increase. L. Weitzman, The Divorce Revolution (1985).

It is, therefore, our task to devise a means of accommodating partition as an “equitable” practice in order to achieve substantial justice, and in instances such as the one herein to avoid duplication of judicial procedures. That objective is best accomplished, we believe, by active retention of both methods of allocating property as options available to the court. Preservation, in turn, can be achieved procedurally by the following: complaints in partition will require, at the outset, factual averments, consonant with a set of criteria to be established beforehand, e.g. Vento situation; such allegations must then be proven. In post-divorce partition, pursuant to 68 P.S. § 501, a statement that the parties were husband and wife, acquired certain property by the entireties and were subsequently divorced, will suffice to activate equal division. Olivieri v. Olivieri, 242 Pa.Super. 457, 364 A.2d 361 (1976). The only set off or deduction in such case would be liens entered of record and not matters such as support or equitable adjustments that might be considered under equitable distribution proceedings. See Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973). Subsequently filed equitable distribution requests, pursuant to a divorce action, will not oust, but will stay Vento styled partition actions, and at the same time operate as the mechanism through which consolidation of all divorce-related property claims may be channeled to the court where jurisdiction is proper. That court, with partition data already before it, or if too little time has elapsed, partition proof ready to be heard, can then evaluate the evidence, grant immediate partition if appropriate, and if not, enter the divorce decree and allocate property in accordance with the equities of the case, the partitioned property retaining its character as separate property. Under this formula, pre-divorce partition becomes a matter of proof in conjunction with the equities that are relevant to a claim for equitable distribution; post-divorce partition represents only one of an infinite number of proportional dispositions of marital property.

We believe this result to be dictated by a number of considerations the most important of which is the need to realize the intent of the legislature in enacting the Divorce Code, again, “to effectuate economic justice between the parties,” (supra) in cases where divorce is inevitable. The instant case offers an instructive, if ironic, example. Appellant requested partition of the property, although equitable distribution was available due to passage of the Act, largely we find because he felt that his award would be considerably larger. While this is not precisely a case of forum shopping, since the filing of partition actions involving real estate is governed by a specific venue provision, Pa.R.C.P. 1552, it is similar in objective. It is clear under the law that partition cannot lie during marriage except in the Vento situation, which allows partition when there has been misappropriation of entireties property during marriage by way of a legal fiction, which treats such action as an offer to terminate the entireties. Since we do not have the merits of the partition proceeding before us, we are not certain of the factual supports for the action, but it would appear that the partition action would not have been sustainable prior to the divorce. Had appellant chosen to request equitable distribution, which has no distinctive venue rules, he could have done so in Allegheny County, his choice for a divorce forum. While certainly appellant has the right to request partition, he also has the obligation to demonstrate its appropriateness. Given his subsequent election to bring his divorce claim under the new Code, we feel that he has shown only a strong penchant for economic expediency which is unconvincing in the context of equity.

This Court held in Gantz, v. Gantz, 338 Pa.Super. 528, 488 A.2d 17 (1985) that the joinder and counterclaim provisions of section 301(a)(1) were designed “to make mandatory, rather than permissive, the consolidation of all issues germane to the dissolution of a marriage so as to prevent fragmentation ...” Id., 338 Pa.Superior Ct. at 532, 488 A.2d at 19. In Altschuler v. Altschuler, 334 Pa.Super. 111, 482 A.2d 1106 (1984), support issues raised by the wife in one county were transferred and consolidated with the husband’s divorce, custody and equitable distribution claims raised in another. These cases clearly reflect our determination that the need for expeditious action includes within its definition comprehensiveness. The bifurcation of divorce and economic issues contemplated by the Code, and approved by this Court in Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983) is first of all for the court, not the parties, Id. (See also Thill v. Larner, 321 Pa.Super. 62, 467 A.2d 894 (1983); and secondly is meant to apply to a temporal hiatus between procedures taken under the aegis of one court, not a dispersal of juridical splinters to any court(s) within reach.

To reconcile the various governing rules, and clarify the question of where to consolidate the various procedural members in environmentally schizophrenic cases such as the one before us, we must decide the question raised by section 301 of proper jurisdiction (see footnote 6), and incidentally address appellant’s first challenge to the Allegheny County Order. Appellant claims that the Allegheny County court had no jurisdiction over the subject matter of the equitable distribution Order, that is, the realty and personalty situated in Westmoreland County. We agree, but not for the reasons or with the effect appellant advances. His grounds for objection are limited to the argument that appellee’s preliminary objections to the partition action filed in Westmoreland County were tantamount to a request there for proceedings under the new Divorce Code. Having delivered himself of this premise, appellant proceeds to deduce as follows: The court’s denial of the objections is equivalent to a removal of the cause from the ambit of the Code, which makes equitable distribution unavailable anywhere, since Gordon, supra, makes such Orders final, and no appeal therefrom was lodged. We decline to make the quantum leap this theory requires, and add that Gordon is extraordinarily liberal in its view on when applications to proceed under the Code should be granted, finding few if any reasons to deny such petitions. We note in this regard, that appellant made no objection to appellee’s request before the Allegheny County court to proceed under the Code, nor to her prayer for equitable distribution until three years later at the hearing thereon, after a second, similar request had been made.

The Westmoreland County court denied appellee’s preliminary objections to venue on the grounds that the partition action was properly placed there under Rule 1552, because there had been no prior request for equitable distribution in Allegheny County. Implicit in the Opinion is the theory that jurisdiction is vested in the court before whom a property related claim is first made. However, we repeat, no objection in any form was raised to the equitable distribution requests until the hearing in 1983.

We must now decide where jurisdiction obtained under section 301. In this context it is important “ ... to distinguish ‘venue’ from ‘jurisdiction’; the terms may not be used synonymously. While jurisdiction is the power and authority of the court to act, venue is the place where the power to adjudicate is to be exercised, that is, the place where the suit may be or should be heard.” 77 Am.Jur.2d Venue § 1.

We would now turn to the views expressed by Judge Wieand in his Concurring and Dissenting Opinion. We cannot agree with his conclusion that the result of any partition remains marital property, which is subject to the power of the divorce court to decree equitable distribution. Partition creates separate property whether it be prior to the divorce or subsequent to it. Once it is separate property, it is subject to the provisions of 401(d)(8) “The value of property set apart to each party," as one of the considerations in equitable distribution. This is so because pre-di-vorce partition is identical in effect to an agreement of the spouses during coverture to dissolve the entireties and to take the divided shares as separate property of each. In Berhalter v. Berhalter, 315 Pa. 225, 229, 173 A. 172, 173 (1934), the earliest case in our Supreme Court, on Partition during coverture, that court said:

(When) defendant appropriated to her own use, the funds which plaintiff and defendant agreed to hold in an estate by entireties and this constituted in law an election on her part to divide the fund. In this case, when appellee in a request for a conclusion of law asked for a division of the fund, this constituted an acquiescence in appellant’s offer or election to divide the fund. In other words, by act of the parties they agreed to divide the property subject to the estate by entirety, (emphasis added)

Since partition during marriage is a legal determination of an agreed division by the parties of their entireties property, each acquires a separate estate which is subject to one of the exceptions to the presumption created by the Divorce code, that all property is presumed to be marital property.

Section 401(e)(2) provides:

(e) For purposes of this chapter only “marital property” means all property acquired by either party during the marriage except:
2.) Property excluded by valid agreement of the parties entered into before, during or after marriage.

Partition then, by operation of law, creates the valid agreement to hold the partitioned property separately and not as marital property and brings into operation its exclusion from consideration of equitable distribution under sections 401(d)(8) and 401(e)(2). For this Court to hold, as Judge Wieand suggests, that partitioned property becomes matrimonial property, ignores the clear intent of the law and the reasonable and logical effect of partition, not to mention that the entire exercise of proceeding in partition would be rendered redundant and absolutely in conflict with the allowance of a proceeding in partition as opposed to relying on equitable distribution to determine the division of the marital property. Judge Wieand’s analogy of the divided pole misses the point. It is not what the pole was or is after division, it is the nature of its possession by the parties.

The evolution of division of entireties property has been a difficult if not painful one in Pennsylvania law. The genesis of partition of entireties property is derived from the Act of May 10, 1927, P.L. 884, 68 P.S. 501, which permitted partition of entireties property after divorce. Prior to this Act, entireties property retained its character even after divorce. Alles v. Lyon, 216 Pa. 604, 66 A. 81 (1907). After the Act of May 10, 1927, partition could be compelled, but if such action was not instituted, the entireties estate continued. Lazare v. Lazare, 365 Pa. 591, 76 A.2d 190 (1956).

Section 3 of the Act of 1927 provided, inter alia, “In any case where a husband and wife shall hereafter acquire property as tenants by entireties, and shall be divorced, the interest of each of the respective tenants by entire-ties, subsequent to said divorce, shall be conclusively deemed to be one-half of the value of the property, and, to accomplish the provisions of this act, the common-law rule relating to entireties is hereby modified.

The Lazare court, interpreting the act strictly in derogation of the common law, held that it did not permit a destruction of the entireties property, but simply apportioned one-half the value of the property. In that case, the second wife’s claim, for one-half share after the decease of the husband, failed as against the first wife since the property vested in the first wife before partition occurred. By the Amendment Act of May 17, 1949, P.L. 1394, it was provided that upon divorce, parties holding by the entireties “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 ... to have the property sold and the proceeds divided between them (reinacted 1978, April 28, P.L. 202, No. 53, § 2(a) (1692), effective June 27, 1980, P.P. 68 P.S. § 501. Under this Amendment, the effect of a partition action is to divide the property into separate estates and vest one-half share in each as separate property-

Even if one of the spouses dies before or during the partition action, the surviving spouse is not entitled to the entire property as a surviving tenant, but only one-half share. Keen by Van Kleef v. Keen, 315 Pa.Super. 161, 461 A.2d 846 (1983). As to married partners, an offer to partition (misappropriated property) is accepted by the nonappropriating spouse when he or she files suit to partition. Simon v. Simon, 286 Pa.Super. 403, 429 A.2d 1 (1981). Entireties relationship could always be ended by agreement of the parties. Berhalter, supra.

Thus it can be seen that within the past sixty (60) years in Pennsylvania, entireties property has evolved from virtually an indestructible entity that could only be abrogated by agreement of the parties, before or after divorce, Lazare, supra, modified by legislation to permit partition after divorce, (Act of 1927) further modified by legislation to become property held in common by operation of law, creating separate property upon partition (amending act of 1949) and finally, by offer (misappropriation) and acceptance (petition in partition) agreeing to terminate the entire-ties during marriage, permitting division of the estate into one-half shares to each spouse as separate property. Berhalter, supra. With this long involved legislative and judicial history to free entireties property at the time of divorce, from the iron bound rigidity of common law doctrine, it is inconceivable that we now should hold, as Judge Wieand would have us, that property resulting from any partition proceeding between spouses is reamalgamated into matrimonial property, which must undergo a second distribution. We are faced with two approaches to this problem. The first is to give value and effect to both partition and equitable distribution, or to have equitable distribution supersede partition. By retaining the validity of both partition and equitable distribution, we cannot adopt Judge Wieand’s position which gives equitable distribution a superseding value.

In summation, we would hold that where as here, a proper partition was filed in a different division of the same court or in a different county, and that action has not proceeded to judgment prior to action of divorce coupled with a claim for equitable distribution pursuant to section 401(c), such partition action will be stayed by the Divorce Court sua sponte or on motion of either party, enjoining the parties from continuing the partition and directing them to effect a motion for transfer, thereby obtaining jurisdiction over the partition action, which the court of primary jurisdiction (Divorce Court) will hear and determine, in consolidation and conjunction with the equitable distribution, according to the equities of the matter. Gantz, supra. In all pre-divorce partitions under a Vento claim, when no divorce action is filed prior to judgment, or in a post-divorce partition action pursuant to 68 P.S. § 501, when there has been no claim for equitable distribution, the practice remains the same.

Jurisdiction over the divorce in this case is properly in Allegheny County, according to the statute, and appellant’s choice. The partition was proper in Westmoreland County under the venue rule 1552, and because it was not appurtenant to a divorce decree. There was in fact nowhere else to go with it; appellant’s complaint had been filed under the Divorce Law of 1927 under which joinder of claims was problematical at best, with no provision for partition, and which did not provide for equitable distribution. The partition having been filed prior to appellee’s petition to proceed under the new Divorce Code and amended answer requesting equitable distribution, would properly lie in Westmoreland County and be governed by standard partition practice. Once the divorce decree issued however, partition not having been effected, it became simply a matter of proportionality of the property division, a matter placed within the authority of Allegheny County because of its prior jurisdiction over the divorce and claim for equitable distribution. There was no basis for partition pursuant to section 501, supra, as there was no property subject to partition following the divorce, as the order of equitable distribution determined the distribution of all marital (entireties) property. Had there been a basis for a pre-divorce partition due to misappropriation of funds, this would have been factored into the equitable distribution award itself, treating the partitioned amount as separate property. We further note that while appellant has objected to jurisdiction and allocation of the property, he has not and cannot argue that equitable distribution is per se an inapplicable or improper principle on which to divide the parties’ assets. Venue has, in effect, been waived by appellant’s combined sins of omission and commission, placing all matters ancillary to the divorce with the court given by appellant’s own choice the prerogative of hearing it. See Gantz, supra; Schulzendorf v. The Pittsburgh and Lake Erie RR Co., 340 Pa.Super. 230, 489 A.2d 927 (1985). See also Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985). (This Court may not consider, sua sponte, matters not properly raised or waived in the court below.)

We now address appellant’s claims that the property was improperly treated by the lower court as having been acquired by appellee prior to marriage, and that the property was inequitably divided. We find that we must agree with the former proposition, but not with the latter.

Of the property in question, the real estate although in all probability intended by appellee’s grandmother to be hers, was placed, at appellee’s direction, in the name of both parties during the term of the marriage. This occurence makes it per se marital property (along with much of the personalty). See section 401(f) and see DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975). It does not however, invest in appellant an equal share in or right to the property itself. The trial court awarded to appellant a distributive share equivalent to his financial participation in the property and the marriage. As this court has stated,

We note that there is no simple formula by which to divide marital property. The method of distribution derives from the facts of the individual case. The list of factors of 401(d) serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions. The con cept of equitable distribution is not an equal division of marital property.

Semasek v. Semasek, 331 Pa.Super. 1, 11, 479 A.2d 1047, 1052 (1984) (emphasis added). Also see our discussion on distribution of solely owned property as to increased value in Anthony v. Anthony, Pa.Super. (3430 Philadelphia, 1983). (Filed —/—/—).

With this share, appellant must rest content.

Order affirmed.

WIEAND, J., filed a concurring opinion which was joined by ROWLEY and McEWEN, JJ.

BROSKY, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I agree with the majority that the Court of Common Pleas of Allegheny County had jurisdiction to decree equitable distribution of marital property as part of the divorce action pending in that court. I also agree that the divorce court’s decree did not constitute an abuse of discretion. Therefore, I agree finally that the order appealed from should be affirmed. With respect to the relationship between the divorce action in Allegheny County and the partition action in Westmoreland County, however, I continue to adhere to the view expressed in my Concurring and Dissenting Opinion in Goldstein v. Goldstein, 354 Pa.Super. 490, 512 A.2d 644 (1986).

ROWLEY and McEWEN, JJ., join in the concurring opinion by WIEAND, J.

BROSKY, Judge,

concurring:

I concur in the result.

With regard to the relationship between concurrent partition and divorce proceedings, my views have been expressed in my dissenting opinion in Goldstein v. Goldstein, 354 Pa.Super. 490, 512 A.2d 644 (1986). To that dissent, I would add only the following observation.

The majority argues for retention of both actions seeking to allocate property. The partition action will somehow be stayed so that the court has “options.” Vento style partitions will be stayed and the cases will be consolidated. The court can then either enter a partition order or “issue a divorce decree and allocate property in accordance with the equities of the case.” This ignores, of course the onerous three-year separation provision in the Code that can postpone equitable distribution for the full 36 months and beyond. This gives enormous power to the spouse who seeks partition to increase or limit the award, while the other spouse may be compelled to file for or submit to a divorce to stop the partition.

It is clear that nothing can be done to stop a litigant from forcing his or her spouse to file a divorce action in response to a partition (unless the legislature acts to abolish partition), however, the law can fashion a remedy so as to not provide the spouse filing the partition action with the power to defeat equitable distribution when it is to his or her advantage. The majority assumes that since he does not have the facts of the partition allegations before him, it would have been denied. What if that assumption is false?

The majority states the issue before us as follows: “... is partition of entireties property superceded [sic] by a request for equitable distribution under the new Divorce Code?” The majority’s answer to this question then follows: “The most definitive answer we can give, as will appear below, is ‘not quite.’”

The indefinite nature of this answer will, I am afraid, not provide the guidance that is expected by the family bench and bar.

      . We note that another case similar in implications, if not in circumstances, to the one at bar, is also pending before this Court en banc. Goldstein v. Goldstein, 354 Pa.Super. 490, 512 A.2d 644 (1986).

      . Perlberger, in the 1985 Supplement to Pennsylvania Divorce Code, relies on Platek, infra, for the proposition that “a request for equitable distribution precludes a trial court from exercising its partition prerogatives in section 301(a)(1).” We obviously do not reach a similar conclusion since we believe it to be an impermissibly broad extrapolation of Judge Spaeth’s holding in Platek, and further, in contravention of the Code section cited which specifically preserves the partition option.

      . Although it is clear that, “intentional dissipation of marital assets by one party does not preclude its status as marital property in equitable distribution,” Semasek v. Semasek, 331 Pa.Super. 1, 8-9, 479 A.2d 1047, 1051 (1984), it should be equally obvious that one cannot get blood out of a turnip.

      . 68 P.S. § 501. Divorced tenants by entireties hold as tenants in common; suit for sale and division of proceeds.

      . Rule 1552. Venue
      An action for the partition of real property, including an action in which the Commonwealth is a party, may be brought in and only in a county in which all or any part of any property which is the subject matter of the action is located.

      . 23 P.S. § 301. Jurisdiction
      (a) The courts of this Commonwealth as defined in § 104 shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and where they have jurisdiction, shall determine in conjunction with any decree granting a divorce ... the following matters where raised in the complaint or the answer, an issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
      (1) the determination and disposition of property rights and interests between spouses ...

      . While the issue is not present in this case, in Goldstein v. Goldstein, 354 Pa.Super. 490, 512 A.2d 644 (1986) we would note that we establish some limitations on partition arising from a Vento scenario; that is instead of construing the total partition of the marital property, we will require partition of only that property which would thereby work an equitable result.

      . Pa.R.C.P. 1920.2 The action [in divorce], except a claim for custody, may be brought only in the county in which the plaintiff or the defendant resides.

      . The divorce filed by husband on January 1, 1980, was pursuant to the Divorce Code of 1927, as the 1980 Divorce Code did not become effective until July 1980.

      . "Not quite” is also inconsistent with Goldstein’s emphatic “no.”


source: Caselaw Access Project

author:
MONTEMURO, Judge: WIEAND, Judge,
      BROSKY, Judge,

license: Public Domain

text:
    512 A.2d 644
    Jerome GOLDSTEIN, Appellant, v. Helene GOLDSTEIN, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1985.
    Filed June 18, 1986.

      Neil H. Stein, Philadelphia, for appellant.
    Albert Momjian, Philadelphia, for appellee.

      Before SPAETH, President Judge, and BROSKY, ROW-LEY, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, MONTEMURO and TAMILIA, JJ.

       SPAETH, President Judge did not participate in the consideration or decision of this case.

   MONTEMURO, Judge:

The essential question presented in this appeal is whether a pending equity action seeking the partition of entireties property is pre-empted or superseded by a subsequently filed complaint in divorce which requests, inter alia, equitable distribution pursuant to the Divorce Code of 1980.

Appellant, Jerome Goldstein, and appellee, Helene Gold-stein, were married on August 27, 1972. On January 18, 1982, appellant filed an action in equity which alleged that appellee had misappropriated approximately $43,680 which had been held in the parties’ joint bank account. Appellant requested the partition of the joint account and all other property owned jointly by appellant and appellee. At the time of appellee’s misappropriation of the money, the parties were still residing together. Subsequent to the filing of appellant’s partition action, appellee, on January 27, 1982, filed an action in divorce under the Divorce Code of 1980, in which she sought the equitable distribution of marital property. In response to her husband’s partition action, appellee filed preliminary objections claiming that partition actions were “superseded and preempted” by the Divorce Code. The trial court, in an order entered July 13, 1982, sustained appellee’s preliminary objections and dismissed appellant’s partition action without prejudice to the parties’ respective property rights as they may be determined in the divorce proceedings. This appeal followed.

It is a general principle of the law of this Commonwealth that neither spouse may partition entireties property prior to divorce. Shapiro v. Shapiro, 424 Pa. 120, 136, 224 A.2d 164, 173 (1966); Livingston v. Livingston, 288 Pa.Super. 22, 430 A.2d 1193 (1981). An exception exists where one spouse has wrongfully appropriated entireties property for his or her own use and to the exclusion and detriment of the other spouse. Shapiro, supra; Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961); Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934); Gray v. Gray, 275 Pa. Super. 131, 418 A.2d 646 (1980); Vento v. Vento, 256 Pa.Super. 91, 389 A.2d 615 (1978). Such an appropriation “works a revocation of the estate by the fiction of appropriation’s being an offer of an agreement to destroy the estate and an acceptance of that offer when the spouse starts suit; the property is then fit for accounting and division.” Stemniski, supra 403 Pa. at 42, 169 A.2d at 53. The entireties property subject to partition is then divided equally, Lindenfelser v. Lindenfelser, 396 Pa. 530, 534-35, 153 A.2d 901, 905 (1959), with each spouse becoming the sole owner of his or her partitioned share of the property. Stemniski, supra; Fitzpatrick v. Fitzpatrick, 181 Pa.Super. 581, 124 A.2d 709 (1956).

Thus, at least since the Pennsylvania Supreme Court fashioned this exception some fifty years ago in Berhalter, a remedy has existed, prior to and separate from the filing of an action in divorce, which allows a spouse who has been excluded from the use and control of entireties property to preserve his or her interest in the misappropriated property. However, the trial court found, and the appellee argues, that pre-divorce partition has been pre-empted or superseded by the broad sweep of the 1980 Divorce Code, as that legislation was enacted to “effectuate economic justice between parties who are divorced or separated,” 23 P.S. § 102(a)(6), through the means of equitable distribution of marital property, id § 401(d), and that the “Solomon-like approach” of partition is inconsistent with the clear legislative intendment behind the Code. While we certainly agree as to the legislature’s general intention when enacting the current divorce provisions, we do not agree with the conclusion drawn by the trial court that the General Assembly abrogated Berhalter partitions when it restructured the divorce law of this Commonwealth.

No provision of the Divorce Code expressly prohibits a Berhalter partition, and our review of the legislative history has failed to unearth any discussion in the General Assembly prior to the enactment of the Code regarding the effect of a partition action vis-a-vis a subsequent request for equitable distribution. See generally, J. Fishman, The Legislative History of the 1980 Pennsylvania Divorce Law (Pittsburgh, QSP, Inc., 1981). In addition, the Pennsylvania Supreme Court has not promulgated any rule which would require the pre-emption or supersession of a pre-ex-isting partition action once a request for equitable distribution has been made under 23 P.S. § 401. See Pa. R.C.P. 1920.1-.92. Thus, there is no explicit supersession under the Divorce Code of Berhalter partition actions whenever a subsequent divorce action with a request of equitable distribution is filed.

Lacking a clear directive, the trial court looked to the broadly-written prefatory section of the Code in which the General Assembly expressed its intention in enacting the Code. The trial court specifically cited section 102(a)(6), which provides:

The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

The courts are instructed to consider section 102(a)(6) when construing the Divorce Code. 23 P.S. § 102(b). As the trial court noted, “economic justice” is effectuated between parties seeking divorce by means of equitable distribution. Id. § 401(d).

The above-quoted legislative intention regarding “economic justice” between spouses is not necessarily inconsistent with the purpose behind the judicially-created Berhalter partition proceeding, i.e., enjoining the wrongful dissipation of entireties property. Indeed, an action in divorce requesting equitable distribution is one which contemplates the termination of the marital relationship and an equitable settling of the parties’ accounts. On the other hand, a Berhalter partition addresses not the marital relationship, but rather the right of one spouse to preserve his or her property rights, rights which have become vulnerable by the actions of the other spouse. As such, the court, acting in equity, addresses each spouse’s property rights within the continuing marital relationship, and not spousal property rights after the termination of that relationship. Given the lack of an ineluctable conflict between the Code and a Berhalter partition, and in light of the absence of a specific statutory prohibition against the latter, we do not find that the legislature intended to pre-empt or supersede Berhalter partition when it drafted and enacted the current Divorce Code.

In her brief, appellee argues alternatively that whether or not the Divorce Code abrogated this Berhalter partition is “irrelevant” because of this court’s holding in Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982). A proper reading of Platek does not support appellee’s position. In Platek, we held that the trial court erred when it directed partition of certain entireties property despite the fact that prior to the partition request, a complaint in divorce had been filed which requested equitable distribution pursuant to the Divorce Code. In Platek, the procedural chronology was the reverse of that found in the instant appeal. This difference is important. Despite an extant divorce complaint and a request for equitable distribution, the lower court, following Vento, supra, partitioned certain entireties property. This court held that the partition was error, stating:

It is apparent ... that the court’s power to direct a partition of property is qualified by its duty to divide marital property in an equitable way. If the property is not marital property, the court may direct its partition. But if it is marital property, the court must instead, upon request of either party, direct its equitable division.

Platek, supra, 309 Pa.Superior Ct. at 24, 454 A.2d at 1062-63 (emphasis in original). However, that “duty” does not arise until a party requests equitable distribution. See 23 P.S. § 401(d).

Thus, in Platek this court held that when a trial court is presented with a request for equitable distribution under the Divorce Code, the court must first determine what property is subject to equitable distribution, i.e., determine what is marital property. Because a Berhalter partition transforms entireties property into separate property, the trial court in Platek was effectively removing certain en-tireties property from the area in which the Code’s writ may run. In other words, at the time the divorce action was filed, the entireties property which was eventually partitioned was marital property as that term is defined in the Code. See 23 P.S. §§ 401(e)-(f). Since a prior request had been made for the equitable distribution of all marital property, and because section 401(d) of the Code mandates equitable distribution of all extant marital property once such a request is made, “[i]t was ... the lower court’s responsibility to decide upon an equitable division.” Platek, supra, 309 Pa.Superior Ct. at 24, 454 A.2d at 1063.

In the instant case, there being no extant request for equitable distribution pursuant to section 401(d) at the time the partition action was filed, the trial court could have and should have proceeded with the partition action, applying the analysis as initially set forth by our supreme court in Berhalter and more recently explained by this court in Vento. If the court determines that partition is indeed appropriate and proper, the property is equally divided between the spouses, who then own their portion of the property separately. The property, having lost its designation as entireties property, is at that point not within the ambit of the marital property section of the Divorce Code. Thus, if the trial court is subsequently presented with a request for equitable distribution under section 401(d), the previously partitioned property does not become subject to equitable division. It is set aside, with all other separately held property, from the marital property to which the Code does apply.

In the instant case, because pre-divorce partition remains viable despite the passage of the Divorce Code, the trial court was capable of entertaining appellant’s partition action. If partition is deemed proper, an order should be entered directing the equal distribution of the misappropriated property, here the $43,680. When the court then addresses the subsequent request for equitable distribution, the money is not marital property by virtue of section 401(e)(4), which excludes from the definition of marital property “[pjroperty acquired after separation until the date of the divorce.” Cf. Hurley v. Hurley, 342 Pa. Super. 156, 492 A.2d 439 (1985) (In which Judge Wieand noted that a spouse’s unliquidated claim for personal injury, which became liquidated after the parties’ separation, is not marital property under section 401(e)). Under the circumstances of the instant case, appellant “accepted” appellee’s “offer” to end their entireties when he filed the partition action on January 18, 1982. Although a precise date cannot be gleaned from the record, the parties apparently separated sometime in November of 1981. Thus, when entertaining appellee’s equitable distribution request, these monies will not be involved.

As guidance to the trial courts, we conclude with the following. In situations such as the one found in this appeal where there has not yet been a partition at the time of the equitable distribution, it is clearly the better procedure to consolidate the consideration of both actions before the court presiding over the divorce action. We therefore instruct the courts to follow the consolidation procedure outlined in Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (E3005/85; filed June 9, 1986). Aside from conserving judicial resources, this approach enables one judge to handle all of the parties’ property disputes.

In addition, in holding today that pre-divorce, Berhalter partition is still viable, we are mindful of the language found in many partition cases to the effect that once partition is found applicable to one unit of entireties property, all entireties property is affected. See e.g. Shapiro, supra; Stemniski, supra; Watkins v. Watkins, 393 Pa. 284, 142 A.2d 6 (1958); Livingston, supra; Gray, supra; Damirgian v. Damirgian, 262 Pa.Super. 463, 396 A.2d 1263 (1978); Vento, supra. However, that language must be read in light of the purpose behind allowing pre-divorce partition. As our supreme court stated in Watkins, supra 393 Pa. at 287, 142 A.2d at 8:

[T]he Berhalter rule is not merely designed to afford the injured spouse a recovery of money actually taken. Implicit in the opinion is the conviction that the injured party should not be subjected to the risk of future misappropriation by a spouse who has disregarded the tenancy’s fundamental obligation.

In Watkins, the parties jointly owned four bank accounts, although only two of the accounts had been misappropriated. In light of the purpose behind the Berhalter decision, the court held that “it would be inconsistent with the policy of the Berhalter case to require plaintiff to wait until funds also are diverted from the two hitherto unwithdrawn accounts before suing to protect her interest in them.” Id., 393 Pa. at 287, 142 A.2d at 9.

In a situation such as the instant case in which a divorce action is filed after a separate partition action, the concern for future misappropriations does not exist. The injured spouse has a remedy in partition as to that property which has been misappropriated, while all other entireties property will be subject to the continuing supervision of the divorce court. As such, if future misappropriations do occur, the injured spouse can seek relief under sections 403(a) and 401(c) of the Divorce Code. See Lowenschuss v. Selnick, 324 Pa.Super. 193, 471 A.2d 529 (1984); Lazovitz v. Lazovitz, 307 Pa.Super. 341, 453 A.2d 615 (1982). Thus a court, sitting as it does in equity when it entertains a partition action, can fashion an equitable solution by limiting its order to those units of entireties property which have been misappropriated as described in Berhal-ter and its progeny. See Reifschneider v. Reifschneider, 413 Pa. 342, 196 A.2d 324 (1964). The court should therefore avoid the addressing other entireties property which has not been wrongfully appropriated.

The order of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

WIEAND, J., filed a concurring and dissenting opinion, joined by McEWEN and ROWLEY, JJ.

BROSKY, J., files a dissenting opinion.

SPAETH, President Judge, did not participate in the consideration or decision of this case.

WIEAND, Judge,

concurring and dissenting:

The majority holds that a pending action in equity to partition property owned by husband and wife as tenants by the entireties is not superseded or preempted by a subsequent action in divorce brought by one of the spouses and containing a request for equitable distribution of marital property. For reasons hereinafter appearing, I agree with the majority’s holding. However, I disagree with the majority’s further conclusion that after entireties property has been partitioned between the spouses, it loses its status as “marital property” and is no longer subject to equitable distribution under Section 401(d) of the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(d).

Jerome Goldstein and Helene Goldstein were married on August 27, 1972. In November, 1981, prior to separation, Helene Goldstein withdrew approximately $43,680 from a joint savings account. Alleging a wrongful misappropriation of entireties property, Jerome Goldstein filed an action in equity asking for partition of the joint account and all other property owned jointly by him and his wife. On March 2, 1982, Helene Goldstein filed preliminary objections in the nature of a motion to dismiss the complaint on grounds that she had filed an action for divorce and that “[t]he Divorce Code of 1980 ha[d] superseded and preempted all other property related remedies between the parties.” The trial court agreed and dismissed the complaint in equity for partition.

The general rule is that neither spouse may partition entireties property prior to divorce. Shapiro v. Shapiro, 424 Pa. 120, 136, 224 A.2d 164, 173 (1966); Gray v. Gray, 275 Pa.Super. 131, 133, 418 A.2d 646, 648 (1980). An exception exists, however, where one spouse has appropriated entireties property for his or her own use. In that situation, the misappropriation is deemed an “offer” of an agreement to destroy the entireties estate which is “accepted” when the innocent spouse commences an action in partition. Stemniski v. Stemniski, 403 Pa. 38, 42, 169 A.2d 51, 53 (1961); Gray v. Gray, supra; Vento v. Vento, 256 Pa.Super. 91, 94, 389 A.2d 615, 617 (1978). This fictional offer and acceptance is triggered when an appropriation of entireties property is made by one spouse for his or her own use to the detriment of the other. Livingston v. Livingston, 288 Pa.Super. 22, 27, 430 A.2d 1193, 1196 (1981). All entireties property then becomes subject to partition, not only the property which has been misappropriated. Gray v. Gray, supra.

When entireties property has been misappropriated by one of the spouses, an action of partition is appropriate irrespective of whether the parties are subsequently divorced. A reading of the Divorce Code of 1980 does not disclose an express direction by the legislature that an action for partition of entireties property shall be superseded or preempted by a subsequent divorce action which contains a request for equitable distribution of marital property. Similarly, there is no Supreme Court rule which requires such a result. Can it nevertheless be said that the two proceedings, i.e., partition and equitable distribution in divorce, are so irreconcilably inconsistent that the legislatively created right of equitable distribution, by necessary implication, was intended to supersede the right of action for partition of entireties property? I think not.

The two actions are separate and distinct. They are not necessarily in conflict. There is no absolute need invariably to delay an action to partition entireties property until the same or another court gets around to distributing marital property in what may well be a protracted divorce action. On the other side of the marital coin, however, I would hold that a decree partitioning property owned by the entireties does not affect the right of either spouse to obtain equitable distribution of marital property under the Divorce Code. Although partition proceedings may result in an equal division of entireties property, the property so divided remains marital property and continues to be subject to the power of a divorce court to decree equitable distribution.

To hold that an action to partition entireties property is invariably subject to dismissal whenever a divorce action is thereafter commenced would have unfortunate consequences. In the first place, it would vest in the misappropriating spouse the power to delay relief otherwise available by partition to the non-appropriating spouse. By the expedient of filing an action in divorce, which the misappropriating spouse may or may not pursue and may or may not be able to prosecute successfully, the misappropriating spouse can impair substantially the right of the non-appropriating spouse to prompt relief which is available in the partition action. The misappropriating spouse may in this manner be able to deprive the nonappropriating spouse of the use of his or her interest in entireties property during the entire pendency of a divorce action. Equitable distribution of marital property, we have held, cannot take place until a decree in divorce has been entered. See: Drumheller v. Marcello, 351 Pa.Super. 139, 505 A.2d 305 (1986); Laxton v. Laxton, 345 Pa.Super. 450, 498 A.2d 909 (1985); Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985). Where there is delay in decreeing equitable distribution for several years — a not unusual phenomena in cases which have ultimately arrived before this Court — substantial prejudice to the non-appropriating spouse is more than an unlikely possibility.

Appellee’s reliance upon the decision in Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982), as the majority has observed, is misplaced. The Platek court held merely that a divorce court which has been requested to make equitable distribution of marital property does not fulfill its responsibility to decree equitable distribution by ordering partition of entireties property. The decision did not purport to do away with or supersede procedurally an action to partition entireties property in all instances where an action for divorce and equitable distribution of marital property is subsequently commenced. Indeed, it is questionable whether an intermediate appellate court has the power to decree such a result in view of the present state of the law, both substantive and procedural, in this Commonwealth.

The majority’s position that partitioned entireties property “is not marital property by virtue of section 401(e)(4), which excludes from the definition of marital property ‘[property acquired after separation ... ’ ” misconceives the nature of entireties property.

A tenancy by the entireties is an estate “per tout et non per my.” Maxwell v. Saylor, 359 Pa. 94, 96, 58 A.2d 355, 356 (1948). “The incidents of such an estate are unity of interest, title, time and possession....” Berhalter v. Berhalter, 315 Pa. 225, 227, 173 A. 172, 173 (1934). Each spouse has title to the whole of the property and not to any share or divisible part thereof. Zipperlein Estate, 367 Pa. 622, 624, 80 A.2d 817, 818 (1951); Gallagher Estate, 352 Pa. 476, 478, 43 A.2d 132, 133 (1945).

Werner v. Quality Service Oil Co., Inc., 337 Pa.Super. 264, 270, 486 A.2d 1009, 1012 (1984). The nature of a tenancy by the entireties can be understood by visualizing two persons holding a pole, one person on either end. Each person holds the entire pole, but jointly with the spouse holding the other end of the pole. If the pole is partitioned by severing the pole into two equal parts, neither person acquires anything which he or she did not have before the severence took place. The parties merely hold by themselves one-half of the whole which they previously held together. It cannot be said under such circumstances that either party has “acquired” new or additional property.

I would hold that after a decree in partition has been entered, the two equal parts owned by the spouses continue nevertheless to be “marital property.” These equal parts may be further divided or distributed by a divorce court which is called upon- to make equitable distribution of marital property between the parties.

If a divorce court determines that an undetermined partition proceeding will impair the court’s ability to make an equitable distribution of marital property, the court is not powerless to act. Section 401(c) of the Divorce Code authorizes a divorce court to “issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act.” This power may be used, if necessary, to stay a partition action pending in the same court or to enjoin the prosecution of a partition action in another jurisdiction. Moreover, there seems to be no reason why a partition action pending in the same court should not, where appropriate, be consolidated into the divorce action. Section 301(a)(1) of the Divorce Code specifically vests in a matrimonial court the power to partition property held as tenants by the entireties.

There can be no question, therefore, that a divorce court possesses the means to insure that it will be able to perform its responsibility of effecting equitable distribution of marital property as directed by the Divorce Code. These means, available when necessary in the discretion of the divorce court, are more elastic and, therefore, preferable to an inelastic rule which either (1) requires an automatic dismissal of a partition action whenever a divorce action is subsequently brought, or (2) permits the partition action to be used as a device to avoid a decree of equitable distribution pursuant to the provisions of the Divorce Code.

I would reverse the order dismissing the partition action and remand for further proceedings consistent with this opinion.

ROWLEY and McEWEN, JJ., join this opinion.

BROSKY, Judge,

dissenting:

I dissent. The majority opinion sets up a competing alternative to equitable distribution that is both unwise on policy grounds and contrary to the Legislature’s intent in enacting the Divorce Code. I would hold, first, that the initiation of a divorce action acts to abate or stay a pending partition action. Second, I would hold that a temporary pre-distribution could protect the property from the sort of waste that partition is designed to prevent.

In holding that a partition action is not abated by a subsequent divorce proceeding, the majority has set the stage for the Divorce Code to be by-passed in a number of cases. In any case of marital discord in which it appears probable that one party will receive less than half of the marital property held in tenancy by the entireties, that party’s counsel would, now, be well-advised to file an action in partition, alleging waste, before the other party initiates a divorce action. The Divorce Code’s equitable distribution provisions were meant to be the vehicle by which marital property was divided; not an alternate method, to be bypassed if tactics so indicate.

The issue presently before this Court is whether the commencement of an action under the Divorce Code seeking the equitable distribution of marital property acts to abate a previously-instituted partition proceeding. Only one case exists which is directly on point (i.e., where the partition action was instituted prior to the divorce action), Daniels v. Daniels, 19 Pa. D & C 3d 36 (Berks 1981). There, the court held that a partition action was not preempted by a claim for equitable distribution in a subsequent divorce action. The rationale of the court mirrored that of appellant in this case. Specifically, the court stated that it was important to keep the integrity of a partition action intact. The court noted that while a partition action seeks to remedy wrongful appropriation of jointly held property, equitable distribution of marital property under the Divorce Code was not concerned with “wrongdoing” per se. 23 Pa.C.S. § 401(d). In addition, the court held that the partition action did not defeat a spouse’s rights to equitable distribution because the partitioned property would still be considered “marital property” subject to later equitable distribution. Lastly, the court noted that a spouse always had the protection of §§ 403(a) and 403(d) to prevent the dissipation of the partitioned marital property.

In all other cases which have addressed this basic issue— the interrelationship of a partition action and an action under the Divorce Code — it has been held that a subsequently filed partition proceeding is preempted by the equitable distribution provisions of the Divorce Code. In Platek v. Platek, 309 Pa.Super 16, 454 A.2d 1059 (1982), after determining that certain tort settlement proceeds constituted “marital” property, we held that the

court’s power to direct a partition of property is qualified by its duty to divide marital property in an equitable way. If the property is not marital property, the court may direct its partition. But if it is marital property, the court must instead, upon request of either party, direct its equitable division.

Id., 309 Pa.Superior Ct. at 24, 454 A.2d at 1062.

In Strock v. Strock, 22 Pa. D & C 3d 118 (Northampton 1982), the court, in holding that a partition action was superseded by the equitable distribution provisions of the Divorce Code, quoted language from Ferri v. Ferri, 129 P.L.J. 449 (1981) that the court would not entertain actions whose only function would be a “temporary redistribution” of the spouses’ marital property because that property would eventually be subject to redistribution under the provisions of the Divorce Code.

In finding support for its holding that the equitable distribution provisions would take precedence over the partition action, the Ferri court further stressed that

[e]ven a cursory examination of the extensive legislative history of the new Divorce Code yields the conclusion that the provisions made for equitable distribution of marital property and alimony are the bedrock upon which is founded the much-needed legal advancement which this act represents ... (Emphasis added).

129 P.L.J. at 450.

Consonant with the belief of the Ferri court as to the prominence of the equitable distribution provisions in the scheme of the new Divorce Code is an article written by Jack A. Rounick and Lynne Z. Gold-Biken which states that “the equitable distribution provisions, in conjunction with the alimony provisions, represent a giant step toward economic justice and financial independence for divorced spouses.” The authors believe that the act should be liberally construed “so that the progressive notions of modern-day family life, which are fundamental policies of the code, will be furthered.”

Lastly, and by way of analogy, the court in Kramer v. Kramer, 110 Montg. Co. L.R. 135 (1982), held that once a divorce action had been filed under the 1980 Divorce Code, an action in replevin could no longer lie against a spouse, even for the possession of allegedly separate property.

I turn next to the relevant statutory provisions of the new Divorce Code. Substantial equitable powers have been vested in the courts in order to effectuate the goals of the new code as exemplified by 23 Pa.C.S. § 401(c), which provides:

In all matrimonial cases, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause. (Emphasis added)

Section 401(c) was structured to “effectuate the purposes” of the Divorce Code, and these purposes are found in 23 Pa.C.S. § 102. Specifically relevant for our purposes are §§ 102(a)(6) and 102(b). It is the policy of the Commonwealth in § 102(a)(6) to “effectuate economic justice between parties who are divorced or separated ... and insure a fair and just determination and settlement of their property rights.” Section 102(b) further provides that “[t]he objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.” It is evident from these provisions alone that the express language of the statute is sufficient to justify a preemption of the partition action once an action under the Divorce Code has been instituted. I am, therefore, led to the conclusion that a partition action must be abated when an action is subsequently filed under the Divorce Code which seeks equitable distribution of the marital property.

Appellant, however, contends that if he is not permitted some present remedy, he could possibly lose the use of his property for as long as three years, should he choose to contest the divorce. The inequity of such a consequence is clear in cases, such as the present case, where the property in question consists of money held in a savings account. To allow such a result to occur clearly would not work to effectuate the “economic justice” contemplated by the code. 23 Pa.C.S. § 102(a)(6).

But even if appellant could not proceed with his partition action, he would not be left without relief under the Divorce Code. I would look to the broad equitable powers found in §§ 401 and 403 to provide relief. The proper remedy in the present case would be both to enjoin any waste or misappropriation of the marital property and to effectuate some type of pre-distribution or pre-use of the marital property by each of the spouses until their respective property rights are decided in the divorce proceeding.

The exercise of the broad equitable powers vested in the courts can be seen repeatedly in cases decided since the new code was enacted. For example, in Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984), when a wife withdrew over $75,000 from a joint bank account and then contended that it should not be part of the valuation of the “marital estate,” we held that the intentional dissipation of marital assets by one spouse did not preclude its status as marital property in equitable distribution. Citing 23 Pa.C.S. § 401(c), this court then stated that it was the duty of the court to “issue other orders which are necessary to protect the interests of the parties and may grant such other relief or remedy as equity and justice require....” Id., 331 Pa.Superior Ct. at 9, 479 A.2d at 1051.

In Lazovitz v. Lazovitz, 307 Pa.Super. 341, 453 A.2d 615 (1982), this court issued a preliminary injunction restraining a husband from proceeding with a Florida divorce action and from removing from Pennsylvania any assets jointly owned with his wife or in which his wife had a marital interest. In so doing, we held that the injunctive powers of 23 Pa.C.S. § 403(a) could be invoked to protect a party’s right to equitable distribution of property, even though this was not specifically enunciated in the statute. (See, supra, note 2).

In Kramer, cited previously, the “marital residence” per se ceased to exist and the court therefore concluded that it could not order that marital property be returned to it. Nevertheless, the court stated that “[w]hen the marital home as such no longer exists, furnishing and household goods must be tentatively divided between the parties, with each receiving items of comparable quality and use with which to establish separate households.” In this instance the court did in fact effectuate a type of pre-distribution of the marital property.

One more comment needs to be made about the court’s equity powers. Some trial courts have narrowly construed their power and have required the traditional showing of irreparable harm. They have reasoned that if there are sufficient fixed marital assets (real estate, for example) to compensate a spouse ultimately for the property appropriated by the other spouse, such appropriation will not give rise to an injunction. This needs to be changed as economic justice can and is certainly denied where one spouse “steals” all of the liquid assets and dissipates them while the other spouse is told by the court to eat the house. The trial court needs to exercise its equity powers more sweepingly to maintain the status quo and to protect against waste by either party where a divorce action is pending. If that is done, no harm will come from the preemption of the partition action since protection of the asset can be provided by interim equity orders, and the property will be available for later equitable distribution in accordance with the factors in the Code and ultimate fairness to the parties.

Once it becomes known to members of the family bar that partitioned property is removed from the “marital estate” and is not subject to equitable distribution, this must influence the advice they give their clients. The result of holding that no preemption occurs — that the trial court should have proceeded with the partition action — is the following chaotic scenario.

Let us imagine a situation where there exists a marital bank account with $50,000 in it. It is the major marital asset. The husband consults his lawyer who advises him to take the money from the account and invite a partition action. He offers this advice because he knows that if the matter goes to equitable distribution the facts would certainly support an equitable distribution of at least 80% of the fund to the wife. Partition will yield only 50%. The wife’s lawyer is perplexed. If he does not partition, the husband may spend all of the money and no immediate remedy will be available to halt the dissipation. On the other hand, if he files a partition action, his client will be awarded only 50%. Finally, if he files a divorce action (which may occur in a case where the wife does not want a divorce) to invoke the equity powers, the majority would compel that the court proceed with the partition notwithstanding the existence of a subsequent divorce action. This result would certainly not help do “economic” justice in divorce situations. In fact, it would simply encourage clever tactics to instigate a partition action to the detriment of the dependent spouse. Further, it must be recalled if the wife, who does not want a divorce, is forced to file an action to beat her husband to the courthouse, the court has encouraged divorce instead of reconciliation.

I respectfully submit that the action of partition, being in derrogation of the commands of the Divorce Code to equitably distribute and do economic justice, must not be capable of abuse by clever litigants. In those cases where a divorce action is not filed before or after partition, then the court should partition if the plaintiff meets the burden of proof under Vento and its progeny. However, where a party has filed a divorce action in response to a partition action and has required equitable distribution, the partition action should be stayed and the court’s considerable equitable powers should be exercised to prohibit dissipation and to maintain the status quo, thus protecting the asset to be partitioned.

Accordingly, I would conclude that while a partition action is the proper remedy when one spouse has wrongfully appropriated jointly owned property to the detriment of the other spouse, this action is preempted by a subsequent action seeking equitable distribution under the Divorce Code. The broad equitable powers granted under the Divorce Code are more than adequate to protect appellant’s interest in this case, and thus no compelling reason exists to permit the partition action to proceed. As I would decide this case, appellant could then seek judicial intervention pursuant to the equitable powers of the Divorce Code in order to effectuate an equitable pre-distribution of the savings account until the parties’ property rights are definitively settled in the divorce proceeding.

I would affirm.

      . Act of April 2, 1980, P.L. 63, No. 26, § 101, effective July 1, 1980, 23 P.S. § 101 et seq.

      . Appellee's divorce action and appellant's partition action were both filed in the Court of Common Pleas of Montgomery County. In Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986), argued the same day as the instant case, we addressed the same issue presented herein as it arises when the partition and divorce actions are filed in different jurisdictions.

      . Appellant filed preliminary objections to appellee’s preliminary objections wnich were also dismissed by the court below in its July 13, 1982 order.

      . As the trial court noted in its opinion written pursuant to Pa. R.A.P. 1925, the Common Pleas Courts of Pennsylvania have been divided as to the issue now before us. Slip op. at 3. See also ROUNICK, PENNSYLVANIA MATRIMONIAL PRACTICE § 18:11.1 at 186-87.

      . See generally, 23 P.S. § 102; see also Gold-Bickin and Rounick, The New Pennsylvania Divorce Code, 25 VILL. L.REV. 617 (1979-80).

      . In its conclusion, the trial court stated: "In the interest of judicial economy ... and in order to effectuate the legislative purposes behind the Divorce Code, partition actions cannot lie once a claim for equitable distribution is raised in a divorce action.” Slip op. at 8.

      . Indeed, the only mention of "partition” appears in section 301(a)(1) of the Code which gives the courts jurisdiction to determine and dispose "of property rights and interests between spouses ... including the partition of property held as tenants by the entireties or otherwise....” As such, if neither party requests equitable distribution under the Code, the court may partition property pursuant to 68 P.S. § 501. See Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976). The Divorce Code left 68 P.S. § 501 intact. 23 P.S. § 801; see generally Estep v. Estep, 326 Pa.Super. 404, 474 A.2d 302 (1984.)

      . There was discussion as to how the courts of this Commonwealth should be directed to distribute marital property under the Code after a divorce decree has been entered, i.e., "equitable” rather than "equal" distribution. Hearings on H.B. 640 Before the Pennsylvania House of Representatives, 1979 Pa. Leg. J. 1958-60; see also Rounick, supra; § 18:11.1 at 190.

      . One troubling consequence which could ensue if we adopt the trial court’s pre-emption theory relates to the spouse who seeks partition but not divorce. Such a spouse faces the dilemma of either filing a partition action under Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934), knowing that the action will be dismissed whenever the other spouse files under the Divorce Code, or filing an action in divorce in order to take advantage of the injunctive relief pursuant to sections 401(c) or 403 of the Divorce Code. Thus, the spouse seeking only partition is forced into litigation over the vitality of his or her marriage in order to protect his or her property rights within the marriage.

      . Unfortunately, the opinion in Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982) does not specifically state that equitable distribution was requested in that case. However, the Platek court did quote the lower court, which stated: " ‘By her conduct in this case, the wife may have forfeited her right to equitable distribution....’ ” Id., 309 Pa.Superior Ct. at 21, 454 A.2d at 1061. The equitable distribution section of the Divorce Code operates at the election of either party. 23 P.S. § 401(d) (“... the court shall upon the request of either party, equitably divide, distribute, or assign the marital property...’’). Although the Platek court was not explicit, we assume that a request under section 401(d) was made in that case. See Platek, supra, 309 Pa.Superior Ct. at 24-25, 454 A.2d at 1062-63 (discussion of section 401(d)).

      . See discussion infra and Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961).

      . In his dissent, Judge Brosky suggests that unless partition actions are abated when equitable distribution is sought, injustice in the form of waste or mismanagement of marital property will inevitably result. His proposed solution requires an injunction against such depredations followed by a "pre-distribution or pre-use of marital property until ... property rights are decided in the divorce proceeding.” However, the existence of an injunction obviates the necessity for "pre-distribution." Further, distribution cannot, under the Code, be made prior to the divorce, and no procedural or substantive law is cited as authority for the proposed division. Finally, assuming that the limits of equity could be expanded indefinitely, once divided, the property is no longer marital and is no longer subject to a second, "post”, distribution.

      . Judge Wieand, in his concurring and dissenting opinion chides us for “misconceivi[ng] the nature of entireties property.” At 653. However, it appears that he is confusing the "nature" of entireties property with the determination of whether or not such property exists.
      The decisions of our supreme court and of this court have been consistent in stating that a successful partition action works "to destroy the estate by entirety.” Berhalter v. Berhalter, 315 Pa. 225, 228, 173 A. 172, 173 (1934) (emphasis added); see also Stemniski v. Stemniski, 403 Pa. 38, 42, 169 A.2d 51, 53 (1961); Livingston v. Livingston, 288 Pa.Super. 22, 430 A.2d 1193 (1981); Gray v. Gray, 275 Pa.Super. 131, 418 A.2d 646 (1980). When the estate has been so destroyed, then the property is equally divided, Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966), and the divided property becomes the separate property of each spouse. Stemniski, supra; Lindenfelser v. Lindenfelser, 383 Pa. 424, 119 A.2d 87 (1956).
      Apparently, Judge Wieand would also find that the fictional offer and acceptance which is outlined in these partition cases acts "to destroy the entireties estate.” At 651. Oddly, he would also find that this "destruction” will not in any way alter the property’s “nature”. Our reading of Berhalter and its progeny leads us to conclude that once a partition has occurred, the property is no longer marital property but is instead the separate property of the parties who are now tenants in common.

      . Section 403(a) provides:
      Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate, or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached as provided by the Rules of Civil Procedure. The court may also issue a writ of ne exeat to preclude such removal.
      23 P.S. § 403(a).

      . See note 15 on page 500.

        15. Section 401(c) provides:
      In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

        Id. § 401(c).

      . As we noted above, under the particular circumstances of this case, the concern about possible future misappropriations of entireties property is greatly diminished. Thus the policy behind Berhalter as expressed by our supreme court in Watkins v. Watkins, 393 Pa. 284, 142 A.2d 6 (1958), does not require that "all” entireties property be partitioned.
      Indeed, even if the instant circumstances differed and no divorce action had subsequently been filed, we do not believe that appellant would necessarily be entitled to the partition of all entireties property upon a finding of the misappropriation of one unit of that property. The language found in the decisions of our supreme court and this court would find all such property somehow affected by the misappropriation of one unit. See supra at 649; see also Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979). However, this language notwithstanding, the supreme court, in Reifschneider v. Reifschneider, 413 Pa. 342, 196 A.2d 324 (1964), limited partition to that unit of entireties property which had been misappropriated, while affirming the lower court’s refusal to partition entireties property which had been properly used by one party. Our reading of Reifschneider in conjunction with these other opinions leads us to conclude that whenever a request is made under Berhalter for the partition of all entireties property, the court, upon finding misappropriation of some of the property, is still free to fashion a partition which reaches the most equitable result under the circumstances.

      . The means to protect against a spouse’s dissipation of partitioned entireties property is provided by Sections 403(a) and 403(d) of the Divorce Code (23 Pa.C.S. § 403(a) and (d)).

      . At p. 649.

      . 23 P.S. § 401(c).

      . 23 P.S. § 301(a)(1)

      . Short of holding that the partition is not abated, the majority would, I think, also have done better to hold that the property can be partitioned but is also subsequently subject to equitable distribution. This option has been advanced in Judge Wieand’s concurring and dissenting opinion. There is one major problem with this approach: the partition of the property would necessarily result in each party receiving 50% of the proceeds. This would not necessarily reflect the equities of the situation which, of course, a pre-distribution could accomplish by suiting the division to the circumstances of each particular case. See note 7, infra. Therefore, as I will indicate, in my view the best of the three options is to hold that the partition action is abated; the property is subject to pre-distribution to prevent waste; and is then subject to full equitable distribution after the divorce.

      . 23 Pa.C.S. §§ 403(a) & (d):
      (a) Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate, or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached as provided by the Rules of Civil Procedure. The court may also issue a writ of ne exeat to preclude such removal.
      (d) Any encumbrance or disposition of property to third persons who had notice of the pendency of the matrimonial action or who paid wholly inadequate consideration for such property may be deemed fraudulent and declared null and void.

      . 25 Vill.L.Rev. 617 (1980).

      . Id. at 627.

      . Id. at 661.

      . Judge Wieand's concurring and dissenting opinion in this case is also of this view. "This misappropriating spouse may in this manner be able to deprive the non-appropriating spouse of the use of his or her interest in entireties property during the entire pendency of a divorce action.” The cases cited in that concurring and dissenting opinion do not, as I read them, stand for the proposition that an interim, pre-distribution of property cannot be ordered. Even if they did, I would propose that this en banc court overrule them within the context presented here.


author: MONTEMURO, Judge:

text:
    512 A.2d 658
    JEFFERSON BANK, Appellant, v. Howard DAVIDSON and Gwendolyn A. McCurdy, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 12, 1986.
    Filed June 27, 1986.
    Reargument Denied Aug. 12, 1986.

      Mitchell L. Paul, Philadelphia, for appellant.
    Edward J. Hayes, Philadelphia, for appellees.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from an order dissolving a sheriffs sale of certain real property on the basis that no lien of judgment ever attached to the property against which the execution issued.

In December 1979, appellee Howard Davidson borrowed $20,000 from appellant bank, securing the loan with a 90 day demand note. In February, 1982, appellant entered judgment by confession on the note, and in August, 1983, initiated execution on the judgment, obtaining a writ of execution, and scheduling a sheriffs sale of real property. However, the property had from its acquisition been titled in the name of Howard E. Davidson Associates, a general partnership. Not until April 1982, two (2) months after entry of judgment, was the property transferred to Davidson personally. In June 1982, the title passed again, this time to appellee McCurdy, who held title at the time execution was attempted, and on whose petition the sheriffs sale was stayed. The court found, inter alia, that the property was after-acquired, and that there was no valid lien against it since the judgment had not been revived or execution reissued once title had passed from the partnership. The stay was therefore entered, and this appeal followed.

Appellant has presented us with four issues, the first two challenging the legitimacy of the partnership, and the last two questioning whether the court correctly assigned to appellee McCurdy the status of a good faith purchaser for value.

The partnership issues are couched in terms of whether the court properly applied the legal standard for determining the existence of a partnership, and then whether the evidence to be measured by the statutory test was sufficient. Appellant’s thesis, around which these issues are constructed, is that the partnership was a fabrication designed to protect Davidson’s property from creditors. The obvious corollary is that given the fictitious nature of the association, the property in fact belonged to Davidson alone when judgment was entered, and was therefore subject to attachment, obviating the necessity for any rejuvenative measures.

As is pointed out by both sides,

It is entrenched in the law of the Commonwealth that the existence of a partnership depends upon the intentions of the parties as to being partners and that no formal or written agreement need be executed in order for a valid partnership to exist.

Barbet v. Ostovar, 273 Pa.Super. 256, 265, 417 A.2d 636, 641 (1979). A review of the deposition testimony of Kenneth Aaron, the other partner in Davidson Associates, is most revealing on this point. Aaron, a former law partner of Davidson, had been associated with Davidson previously in another business venture. He was asked by Davidson to participate in the purchase of the real estate involved here as a minute partner, holding .01% interest, solely in order to prevent Davidson’s estranged wife from obtaining the property in a divorce contest. Aaron was to be shielded both from liability, and any potential profit which might accrue. The intent of both Aaron and Davidson was that the former should acquiesce in the initiation, and operation of an association formed as an accomodation to the latter’s domestic difficulties. This is clearly insufficient to fulfill the statutory criteria. Further, while we agree with the trial court that the size of an owner’s interest is not necessarily controlling, there is little which argues for the existence of a valid partnership, e.g., no partnership agreement nor any other formal indicium of association has been advanced. In fact, the quantum of (other) evidence necessary to demonstrate “clear mutual assent” of the persons aligned as partners, In re Jackson, 28 B.R. 559 (1983), is conspicuous by its absence. As a result, the property cannot be considered after-acquired, and, as the lien attached, no revival of judgment or reissue of execution was necessary, since title did not pass.

Nevertheless, the bank’s claim is overridden by McCurdy’s. It is argued that never having pleaded bona fide purchaser status, she cannot assert it now, and that she is not, in any event bona fide, as she took with notice of appellant’s claim.

The Fraudulent Conveyances Act, 39 Pa.C.S. § 359, reads in pertinent part as follows:

§ 359. Rights of creditors whose claims have matured
(1) Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may, as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from such a purchaser:
(a) Have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim; or
(b) Disregard the conveyance, and attach or levy execution upon the property conveyed.

To establish bona fides, the statute clearly requires that there be a purchaser for fair consideration (and appellant has made no charge that the purchase price for the property was symptomatic of, e.g., a straw transaction), who takes “without knowledge of the fraud at the time of the purchase.” (Emphasis added). Appellant’s agents attended settlement and made no mention of a fraudulent partnership. The counterfeit nature of the association does not, in fact, appear as a theory of action until one year after appellee’s petition to stay the sheriff’s sale, that is when appellant’s Answer to the petition was filed. Contrary to appellant’s assertion, therefore, appellee need not have advanced her status as a bona fide purchaser since she required no affirmative defense; the court’s introduction of this theme into the proceedings was perfectly proper as appellant’s Answer to the petition which made it an issue required no response.

Appellant’s final claim is that appellee was in fact not a bona fide purchaser as she (or her agent) had a duty to inquire further, knowing of the existence of a claim against Davidson. Again, appellant was present at the closing, presumably to distrain upon any available proceeds. If appellant had, at that point, a theory of sham partnership, it was under an obligation to inform the title company, appellee’s agent — otherwise there would have been no source from which to garner such information even had the question been asked. Had a claim of invalidity been made against the partnership by its creditor, no title insurance would have been forthcoming.

Therefore, even though there was a fabrication, appellant apparently had no notion of its character at the time appel-lee purchased the property, in which case appellee was in no position to discover its existence. If appellant was in fact aware of the fraud at closing, it waited too long to reveal its knowledge, if it wished to impute the same information to appellee. Neither appellee nor her agents is responsible for securing appellant’s interests. Appellant cannot now complain, having sat on its rights, that somebody else violated them.

Order affirmed.

      . We note that the property, two adjoining condominiums, were acquired in December, 1980, and August, 1981, respectively.

      . Uniform Partnership Act. 59 Pa. C.S. § 312.
      Rules for determining the existence of a partnership
      In determining whether a partnership exists, these rules shall apply:
      (1) Except as provided by section 328 (relating to partner by estoppel), persons who are not partners as to each other are not partners as to third persons.
      (2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.
      (3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.
      (4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:
      (i) As a debt by installments or otherwise.
      (ii) As wages of an employee or rent to a landlord.
      (iii) As an annuity to a surviving spouse or representative of a deceased partner.
      (iv) As interest on a loan, though the amount of payment varies with the profits of the business.
      (v) As the consideration for the sale of the goodwill of a business or other property by installments or otherwise.

      . We note that fraud is an affirmative defense to be raised in New Matter. Pa.R.C.P. 1030.