JAMES A. KUZIAK, CHERYL N. KUZIAK, AND ANDREA P. LENZI,

	Plaintiffs

vs

DOUGLAS P. KUZIAK AND KUZIAK ENTERPRISES, a purported limited partnership,

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CIVIL ACTION - LAW

CASE NO: 1576 of 1999 

	Defendants

APPEARANCES:

PAUL A. LOGAN, ESQUIRE; MALCOLM JACOBSON, ESQUIRE; and 
C. GRAINGER BOWMAN, ESQUIRE, Attorneys for Plaintiffs

DANIEL L. SULLIVAN, ESQUIRE, and TIMOTHY A. HOY, ESQUIRE,
Attorneys for Defendants

MAY 23, 2001.  JAMES, J.

OPINION

On November 23, 1999, plaintiffs filed a complaint at law against defendants seeking to declare a limited partnership and certain deeds null and void and seeking to declare a constructive trust on certain assets.  On March 16, 2000, plaintiffs filed a Motion for Partial Summary Judgment in regard to Count II of their complaint in which they seek to have three deeds declared null and void.

Based on the pleadings and filed affidavits, the undisputed facts are as follows:
1.	On March 16, 1999, Peter Kuziak died leaving a will dated September 23, 1997, which was probated in the Office of the Register of Wills of Columbia County, Pennsylvania, on March 19, 1999.  Letters Testamentary were granted to defendant Douglas P. Kuziak.

2.	Prior to January 19, 1984, Peter Kuziak was the fee owner of three farms totaling 528 acres, more or less, in Hemlock Township, Columbia County, Pennsylvania.

3.	On or about January 19, 1984, Peter Kuziak 
executed three deeds conveying ownership in the three farms to “Douglas Kuziak and Peter Kuziak trading as Kuziak Enterprises, 100 service Road, Bloomsburg, Pennsylvania, a limited partnership, GRANTEES” (hereinafter “Enterprises”).

4.	By written agreement dated January 1, 1984, Douglas Kuziak, as “General Partner,” and Peter Kuziak as “Limited Partner,” entered into a “Limited Partnership Agreement” called “Kuziak Enterprises.”

5.	A “Certificate of Limited Partnership of Kuziak Enterprises” dated January 1, 1984, was signed by both Douglas Kuziak and Peter Kuziak.  The certificate was never filed with the Department of State.

6.	Prior to Peter Kuziak’s death on March 16, 1999, a certificate of limited partnership for Enterprises had not been filed with the Pennsylvania Department of State.

7.	On December 21, 1999, Douglas Kuziak, under his sole signature dated December 20, 1999, filed a certificate of limited partnership for Enterprises with the Pennsylvania Department of State.

8.	At no time prior to the death of Peter Kuziak on March 16, 1999, was there any conveyance or purported conveyance of the farms from “Kuziak Enterprises” to any bona fide purchaser for value.

“Pursuant to Pa.R.C.P. 1035, summary judgment may be granted when the moving party is entitled to judgment as a matter of law and when there is no genuine issue of material fact.  Such judgment should only be granted where the right is clear and free from doubt.  In making this determination the trial court must examine the record in the light most favorable to the non-moving party.”  Peterson v. Philadelphia Housing Authority, 623 A.2d 904, 905 (Pa.Cmwlth. 1993), citing Mullen v. Borough of Parkesburg, 132 Pa.Commonwealth Ct. 321, 323, 572 A.2d 859, 960 (1990).
     The issue before this court is whether the three 1984 deeds into a purported limited partnership are void, where no certificate of limited partnership had been filed according to Pennsylvania law.  This court finds that the deeds are void.
A limited partnership is a creation of our legislature.  See Northampton Valley Constructors, Inc. v. Horne-Lang Associates, 310 Pa.Super. 559, 562, 456 A.2d 1077, 1078 (1983).  The Pennsylvania legislature has stated that “[I]n order to form a limited partnership, a certificate of limited partnership must be executed and filed in the Department of State."” 15 Pa.C.S. § 8511 (a).  The "effective date of formation" is governed by 15 Pa.C.S. §8511 (b):
A limited partnership is formed at the time of the filing of the certificate of limited partnership in the department or at any later time specified in the certificate of limited partnership if, in either case, there has been substantial compliance with the requirements of this section of the corresponding provisions of prior law.   

A limited partnership is not formed until parties comply with the requirements of the Limited Partnership Act.  Although there are few cases directly on point, the United States District Court, citing a Pennsylvania county case, stated:
     Under Pennsylvania law, where parties intend to enter into a limited partnership, but fail to comply with the requirements of the Limited Partnership Law, such as recording a proper certificate, the limited partnership is not formed, but the parties are treated as general partners as to third persons and creditors, and the partners obligations and liabilities are found under the Pennsylvania Uniform Partnership Act.  Wisocki, Adm. v. Howell, 37 D.&C.2d 667 IC.P. Franklin, 1965.

Ruth v. Crane, 392 F.Supp. 724, 733 (E.D.Pa. 1975).  See also, Peals v. Barnes, 1 A. 658 (Pa. 1885) (indicating that faulty articles of limited partnership render the partners general partners, not limited partners).  Accord, Fourth St. Nat. Bank v. Whitaker, 170 Pa. 297, 33 A. 100 (1895). 
In this case, the parties did not comply (or even substantially comply) with the Limited Partnership Act.  Therefore, the parties did not form a limited partnership prior to the execution of the three deeds or prior to the death of Peter Kuziak.  Thus, the limited partnership entity, Enterprises, did not exist on the date of the deed or at any time during the lifetime of Peter Kuziak.  “A deed that purports to convey real estate to a nonexistent corporation has no effect. Africa v. Trexler, 232 Pa. 493, 81 A. 707 (1911); Burns v. McCabe, 72 Pa. 309 (1873); McCabe v. Burns, 66 Pa. 356 (1870).”  Borough of Elizabeth v. Aim Sher Corporation, 462 A.2d 811, 812-813 (1983). The same principle applies to a limited partnership which, like a corporation, is a legal “person’, i.e., a creation of the legislature.  A deed that purports to convey real estate to a nonexistent limited partnership has no effect.1  The three 1984 farm deeds from Peter Kuziak to the nonexistent limited partnership, Enterprises, are void.

JAMES A. KUZIAK, CHERYL N. KUZIAK, AND ANDREA P. LENZI,

	Plaintiffs

vs

DOUGLAS P. KUZIAK AND KUZIAK ENTERPRISES, a purported limited partnership,

	Defendants

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CIVIL ACTION - LAW

CASE NO: 1576 of 1999 

ORDER

AND NOW, this 23rd day of May 2001, Plaintiff’s Motion for Partial Summary Judgment is GRANTED to the extent that the three deeds dated January 19, 1984, to the three farms, being deeds from “Peter Kuziak, Grantor” to “Douglas Kuziak and Peter Kuziak trading as Kuziak Enterprises, 100 Service Road, Bloomsburg, Pennsylvania, a limited partnership, Grantees,” recorded in Columbia County, Pennsylvania, in Deed Book 327, page 1102 et seq., Deed Book 327, page 1106 et seq., and Deed Book 327, page 1110 et seq., are hereby DECLARED NULL AND VOID AND OF NO EFFECT.  Plaintiffs’ other requests for relief in their Motion for Partial Summary Judgment are DENIED.
		BY THE COURT:

		_________________________________ 
		HONORABLE THOMAS A. JAMES, JR., J.