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RAW ET AL. v. LEHNERT (02/02/76)

decided: February 2, 1976.

RAW ET AL., APPELLANTS,
v.
LEHNERT, ET AL.



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1974, No. 603, in case of Charles M. Raw and Judith A. Raw v. Frank J. Lehnert, Mary Grace Lehnert, Mark Lehnert, Robert E. McKee, Jr., and Riverview Memorial Park.

COUNSEL

William J. Krzton, for appellants.

Arthur L. Bloom, with him Jay Harris Feldstein, and Feldstein, Bloom & Grinberg, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Price, J. Jacobs, J., joins in this dissenting opinion.

Author: Cercone

[ 238 Pa. Super. Page 326]

On or about March 2, 1973, appellants Charles and Judith Raw filed a complaint in equity in the Court of Common Pleas of Allegheny County against appellees Frank J. Lehnert, Mary Grace Lehnert, Mark Lehnert, Robert E. McKee, Jr., and Marcap, Inc. citing the purchase by appellants of all the stock of Riverview Memorial Park, a cemetery corporation, from appellees under a long term agreement. Under the terms of the agreement, the Lehnerts reserved as security the entire stock of Riverview, to be held by McKee, as escrow agent.

In the equity complaint, appellants alleged, inter alia, that the appellees obstructed them in the operation of Riverview by their failure to turn over assets and records of the business, failure to pay back real estate taxes as called for in the sales agreement, and various other forms of harassment and intermeddling. Further, appellants alleged a conspiracy among the appellees Lehnert and Marcap, Inc. to sell to Marcap certain portions of Riverview. Appellants also set forth specific averments of fraud in the form of misrepresentations made by the Lehnerts concerning Riverview which were relied upon by the appellants when they entered into the sales agreement.

In their prayer for relief, appellants asked for preliminary and permanent injunctions restraining McKee from turning over the Riverview stock to appellees, restraints upon further interference by appellees with appellants' operation and control of Riverview, and the setting aside of any sales agreement between appellees Lehnert and Marcap, Inc. As an alternative to injunctive relief, appellants sought rescission of their agreement on the grounds of fraud and the return of all sums paid by them to the Lehnerts together with incidental expenses and losses as well as punitive damages in the amount of $75,000.00.

On March 6, 1973, a hearing on the request for preliminary injunction was held before Judge Silvestri of

[ 238 Pa. Super. Page 327]

    the Allegheny County Court of Common Pleas at which time an order of court was entered denying a preliminary injunction and other equitable relief.*fn1 This order was not appealed from. Subsequent to the denial of appellants' request for equitable relief, the appellees filed preliminary objections in the nature of a motion for a more specific pleading concerning the alleged conspiracy, losses, and damages claimed as a result of the appellees' alleged fraud. Instead of responding to the appellees' preliminary objections, the appellants on October 17, 1973, filed a complaint in assumpsit against appellees Lehnert, McKee and Riverview Memorial Park. The first eleven paragraphs of the assumpsit complaint are an incorporation of the averments of the equity complaint. The balance of the assumpsit complaint alleges, inter alia, that appellees Lehnert, without cause: (1) arbitrarily declared appellants in default; (2) on or about March 6, 1973, after the filing of the equity complaint, directed appellee McKee to turn over all of the security held by him under the escrow agreement; (3) that on or about March 14, 1973, the Lehnerts filed a criminal action of fraudulent conversion against appellants to force return of assets and muniments of title to Riverview to the appellees Lehnert; (4) that as a result of the breach of the sales agreements and the criminal action the Lehnerts in connivance with McKee forced appellants out of possession

[ 238 Pa. Super. Page 328]

    and control of Riverview.*fn2 As a result of these wrongs the appellants claimed losses and damages for the amounts already paid by them under the sales agreement, the reasonable value of services rendered by appellants in the operation of Riverview while they were in possession, loss of earnings of $24,000 per year for twenty years, irreparable injury to appellants' business reputation caused by abuse of process, and legal expenses for the successful defense of the action for fraudulent conversion.

Appellees then filed preliminary objections to the appellants' complaint in assumpsit alleging, in effect, that the pendency of the action in equity was a bar to the subsequent action in assumpsit. On September 5, 1974, the lower court entered an order sustaining appellees' preliminary objection and dismissing the second action. Appellants then brought the present appeal from the order dismissing ...


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