Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1965, No. 2989, in case of David I. McCahill, individually and as executor of estate of Marie Kaye McCahill, David I. McCahill, Jr. and Marguerite McCahill Horning, as successors in interest to Harmony Short Line Motor Transportation Company v. Frank C. Roberts, Jr., Katharine R. Luther, William Paxton Roberts, Jr. et al.
Robert Engel, with him Julian Ruslander, Patrick J. Basial, and Berkman, Ruslander, Lieber & Engel, for appellants.
C. Holmes Wolfe, Jr., with him William J. McCormick, Robert F. Barnett, and Moorhead & Knox, for appellees.
Frank R. Sack, for Scheinman-Neaman Company, for leave to intervene.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Mr. Justice Cohen would vacate the order and remand the case for the purpose of taking testimony.
The plaintiffs-appellant alleging ownership of a certain building situated on land owned by the defendants,*fn1 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 When this claim was rejected, they declared the lease contract rescinded and asserted full and absolute ownership in the building.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.*fn2
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. Page ...