McCahill v. Roberts
| Decision Date | 19 April 1966 |
| Citation | 421 Pa. 233,219 A.2d 306 |
| Parties | David I. McCAHILL, Individually and as Executor of the Estate of Marie Kaye McCahill, David I. McCahill, Jr., and Marguerite McCahill Horning as Successors in Interest to Harmony Short Line Motor Transportation Company, Appellants, v. Frank C. ROBERTS, Jr., et al. Scheinman-Neaman Co., Intervening Appellee. 1 |
| Court | Pennsylvania Supreme Court |
Berkman, Ruslander, Lieber & Engel, Julian Ruslander, Robert Engel, Patrick J. Basial, Pittsburgh, for appellants.
C. Holmes Wolfe, Jr., William J. McCormick, Moorhead & Knox, Robert F. Barnett, Pittsburgh, for appellees.
Frank R. Sack, Pittsburgh, for intervenor Scheinman-Neaman Co.
Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
The plaintiffs-appellant alleging ownership of a certain building situated on land owned by the defendants, 2 instituted this action in equity seeking: (1) to have their title to the building judicially declared; (2) to enjoin any sale of the real estate in question which could prejudice their rights; and, (3) to obtain other relief deemed to be appropriate. To the complaint were affixed, as exhibits, copies of letters written by the plaintiffs to the defendants. As indicated by this correspondence, plaintiffs at first demanded the value of the building in cash. When this claim was rejected, they declared the lease contract rescinded and asserted full and absolute ownership in the building. To the complaint, the defendants filed preliminary objections which are still pending below.
Subsequently, the defendants filed a petition in the court below asserting that an agreement had been executed to sell the land and the building involved to a third party, and praying that the court enter an order permitting the sale to be consummated free of any lien of plaintiffs' equity action with the proviso that the net proceeds of the sale be held in escrow pending final adjudication of plaintiffs' rights. The court granted a rule to show cause which was served on all parties concerned. Later, after argument, the court entered an order releasing the entire real estate from any asserted claim of the plaintiffs and limiting the plaintiffs' relief in the equity action to the cash value of the building. To protect plaintiffs' claim, it directed that the net proceeds of the sale be held in escrow pending final adjudication of the equity action, and that a surety bond in an additional amount be filed to secure full payment to the plaintiffs of any amount determined to be due. Plaintiffs appealed from this order.
A motion has been filed to quash the appeal on the ground that the order appealed from is interlocutory. We cannot reach this conclusion. The court's order is final in that it effectively puts the plaintiffs 'out of court' so far as their present claim is concerned, i.e. full and complete ownership of the building with the right of removal. See, Posternack v. American Cas. Co. of Reading, 421 Pa. 2, 218 A.2d 350 (1966). The motion to quash will, therefore, be overruled.
We now turn to the merits.
Plaintiffs-appellant contend: (1) that absent statutory authority the lower court lacked the power to cancel the operation of lis pendens, which is statutory in nature; and, (2) that their rights cannot be adequately and fairly compensated with a cash award. We do not agree with either contention.
The first point in controversy centers around the effect of the Doctrine of Lis Pendens on judicial powers. Lis pendens literally means a pending suit: Black, Law Dictionary (4th ed. 1951), and Rose Valley Borough v. Rose Valley Acres, 31 Pa.Dist. & Co.R. 261 (1938). The use of the doctrine was applied in Pennsylvania as early as 1831, when it was held in Lodge v. Simonton, 2 Penr. & W. 439 (Pa.1831), that the rights of a party in real estate cannot be defeated by a conveyance thereof to a third party pending the adjudication of litigation, which has been properly filed and indexed, involving those rights.
Lis pendens is construed to be 'the jurisdiction, power, or control which courts acquire over property involved in a suit pending the continuance of the action, and until its final judgment therein.' Bungar v. St. Michael's Greek Catholic Ch., 272 Pa. 402, 404, 116 A. 389 (1922). The initial basis of the application of the doctrine was one of constructive notice to all the world of the pending litigation: Diamond v. Lawrence County, 37 Pa. 353 (1860). In later years, the courts determined that the doctrine was one of policy only, i.e. it would be unfair and an insult to the courts to permit the severance of rights in a property which they were then in the process of deciding: Dovey's Appeal, 97 Pa. 153 (1881). Having determined that the doctrine was founded on a policy, rather than conceptual basis, the next logical step was to decree the use of equitable principles in the application of the rule. 3 This point was reached in Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955), wherein we held that the doctrine does not establish an actual lien on the affected property, but rather merely gives notice to third parties that any interest that may be acquired in the property pending the litigation will be subject to the result of the action. Further, in Dice, we laid to rest the argument that lis pendens is a statutory right and that the court lacks power to rescind its operation. Therein, we decided that the court may cancel lis pendens if the equities indicate such...
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McCormick v. Allegheny General Hosp.
... ... § 422.1 et seq. (Supp.1986) ... 4 On remand, the court below can reconstruct in an opinion what transpired at oral argument. See McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306 (1966). Reliance can be had by reference to bench notes, if any, or to the court's own recollection of the ... ...