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GOLDMAN ET AL. v. MCSHAIN (10/28/68)

decided: October 28, 1968.

GOLDMAN ET AL., APPELLANT,
v.
MCSHAIN



Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1966, No. 2816, in case of William Goldman et al. v. John McShain et al.

COUNSEL

Bernard M. Borish, with him H. Robert Fiebach, and Wolf, Block, Schorr & Solis-Cohen, for appellants.

Harold E. Kohn, with him Bruce W. Kauffman, David Pittinsky, Vincent P. McDevitt, and Dilworth, Paxson, Kalish, Kohn & Levy, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell concurs in the result. Mr. Justice Eagen and Mr. Justice O'Brien dissent.

Author: Roberts

[ 432 Pa. Page 63]

Appellants, William Goldman and William Goldman Theatres, Inc., instituted this equity action in the court below seeking specific performance of a contract calling for the erection and operation of a motion picture theater on land owned by appellee, County Club

[ 432 Pa. Page 64]

Estates. Appellee, John McShain, Inc., was to undertake the construction. Appellee John McShain controls both Country Club Estates and the building corporation bearing his name. Appellees filed a motion for judgment on the pleadings alleging, inter alia, that appellants had failed to plead an enforceable contract. The court below agreed that no enforceable contract had been pleaded, thus concluding that appellants were entitled to neither equitable relief nor damages at law. However, instead of granting appellees' motion and dismissing the complaint, the chancellor certified the case to the law side for the limited purpose of allowing appellants, if they could, to prove a case for restitution: the return of moneys allegedly expended by appellants in contemplation of the theater project. From this decision the present appeal has been taken.

Before reaching the merits, however, we must first discuss appellees' motion to quash the appeal. There can be no doubt that this Court has held unappealable an order certifying a case from equity to law. Ridge Radio Corp. v. Glosser, 417 Pa. 450, 208 A.2d 839 (1965); McFarland v. Weiland Packing Co., 416 Pa. 277, 206 A.2d 18 (1965). However, this rule flows not from the mere fact that a case has been certified from one court to another, but from the fact that this certification still leaves open the possibility that the appealing party might eventually be made whole, i.e., that a court of law may award sufficient money damages to substitute for the equitable relief held unavailable. In short, the certification is but an interlocutory order.

In the present case, however, it can be clearly demonstrated that this particular certification was not interlocutory; under it, appellants may not be made whole. Unlike the normal certification of a contract case to the law side for damages in assumpsit on the

[ 432 Pa. Page 65]

    contract, here we are presented with a decision by the chancellor that there was no contract at all -- that there could be no relief ex contractu, equitable or legal. To the extent that appellants entered court seeking relief on their alleged contract, they were turned away with absolutely nothing. The chancellor made all the findings necessary to dismiss appellants' complaint, and had he done so his order would unquestionably have been appealable. That, almost as an afterthought, the chancellor told appellants that they could seek restitution for out of pocket expenses in no way alters the effect of his order; and that effect is to put appellants completely out of court vis-a-vis this lawsuit. Even had the chancellor granted appellees' motion for judgment on the pleadings and dismissed the complaint, appellants could still have pursued their restitution remedy, since it would not be dependent on the contract as initially pleaded. Thus, the certification was in a real sense but a legal gesture.

[ 432 Pa. Page 66]

McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306 (1966), reaffirmed the established rule that an order which puts a party "out of court" is not interlocutory. It does not matter that the litigant so affected can carry his banner into another court on another theory. In McCahill, plaintiff commenced an action in equity seeking title to a building, an injunction to prevent the sale of that building, and any other relief deemed to be appropriate. When the court below cancelled lis pendens, thus permitting defendants to sell the property immediately and in so doing deprive plaintiff of the type of relief sought, we held the court's action appealable. We there said: "The court's order is final in that it effectively puts the plaintiffs 'out of court' so far as their present claim is concerned . . . ." 421 Pa. at 236, 219 A.2d at 308. See also Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967); Posternack Page 66} v. American Cas. Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966). Believing that the present case is controlled by McCahill, rather than by the general rule on appealability of certification orders, we deny appellees' motion to quash.

A decision on the merits of this controversy requires a more complete recitation of the facts as pleaded than that needed to dispose of the motion to quash. Late in 1963 William Goldman, an operator of motion picture theaters, and John McShain, a builder and owner of the subject property, began discussing the possibility of erecting a motion picture theater on part of McShain's tract known as "Presidential Center" a ninety acre parcel located at the intersection of two heavily travelled Philadelphia arteries. In March of the following year, McShain drew this document which was signed by both parties:

"Up to $500,000, including 6% architect's fee, we share costs fifty-fifty. Over ...


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