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DICE v. BENDER. (11/14/55)

November 14, 1955

DICE, APPELLANT,
v.
BENDER.



Appeal, No. 124, March T., 1955, from order of Court of Common Pleas of Allegheny County, April T., 1954, No. 3420, in case of G. A. Dice v. Margaret Jane Bender, formerly Margaret Jane Papapetrou and Ray Gibbons Bender. Order affirmed.

COUNSEL

Harry R. Levy, for appellant.

Arthur J. Diskin, for appellees.

Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.

Author: Stern

[ 383 Pa. Page 95]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Plaintiff, appellant, challenges the action of the court below in taking a property of defendants out of the operation of the doctrine of its pendens.

Plaintiff, a plumber, furnished certain material and performed certain work for defendant Margaret Jane Bender upon two properties owned by her, one at 350 Maple Avenue, and the other at 206 Oakview Street, in the Borough of Edgewood, Allegheny County. Claiming the sum of $5,623.70 with respect to the former and $47.70 with respect to the latter property he filed a complaint in equity to recover those amounts. In the complaint he averred that at the time the work was performed and the materials furnished defendant Margaret was the owner of the two properties but that, having married the other defendant, Ray Gibbons Bender, she conveyed them to her husband and herself as tenants by the entireties, that the conveyances were without consideration, that they rendered her insolvent, and that they were made with the intent to defraud plaintiff as her creditor. The complaint prayed that the conveyances be set aside to the extent necessary

[ 383 Pa. Page 96]

    to satisfy his claim and that defendants meanwhile be enjoined from conveying or encumbering the premises. Defendants in their answer asserted that plaintiff had agreed to do all the work and furnish all the materials for the maximum sum of $3,000, which sum had been offered to plaintiff but which he had refused to accept. The answer denied that the conveyances rendered Margaret insolvent or that they were made with intent to defraud plaintiff or any other creditor but that, on the contrary, they were executed in accordance with the terms of a premarital agreement between the defendants.

While these proceedings were pending defendants filed a petition setting forth that they had negotiated a sale of the property 206 Oakview Street but that the title thereto was clouded by reason of plaintiff's equity action, that they had tendered to plaintiff the sum of $47.70 due for the work on the Oakview Street property but the tender had been refused, that the value of the Maple Avenue property, as appraised by a real estate broker, was $1k,000, and amply sufficient, therefore, to cover the amount of any judgment which might be recovered by plaintiff. Accordingly, defendants prayed that the Oakview Street property should be released from the lien of the action. The court granted the petition and ordered that the Oakview Street property be "released from any and all liens that may arise by virtue of the instant suit in equity upon payment by the defendants to the plaintiff of the sum of $47.70, being the amount claimed by the plaintiff for plumbing work performed at said 206 Oakview Street, Edgewood, Pennsylvania."

At the outset it may be noted that the action to recover the amount claimed by plaintiff, to wit, $5,671.40, should have been brought at law, not in equity, so that the question of ...


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