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HOUSTON-STARR COMPANY v. VIRGINIA MANSIONS APARTMENTS (02/26/82)

filed: February 26, 1982.

HOUSTON-STARR COMPANY, A CORPORATION, APPELLANT,
v.
VIRGINIA MANSIONS APARTMENTS, INC., A CORPORATION, AND ROBERT O. LAMPLE, TRUSTEE UNDER A TRUST AGREEMENT DATED SEPTEMBER 1, 1979 AND KNOWN AS THE SUMLAND PROPERTIES TRUST



No. 1061 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 80-20017.

COUNSEL

John A. Metz, Jr., Pittsburgh, for appellant.

Stanley E. Levine, Pittsburgh, for appellees.

Cavanaugh, Johnson and Shertz, JJ. Shertz, J., did not participate in the consideration or decision in this case.

Author: Cavanaugh

[ 295 Pa. Super. Page 481]

The appellant, Houston-Starr Company, filed a complaint in equity against the appellees, Virginia Mansions Apartments, Inc. and Robert O. Lampl. The appellant also caused a lis pendens to be indexed against the property of Robert Lample, one of the appellees herein.*fn1

[ 295 Pa. Super. Page 482]

The appeal must be quashed as it is from an interlocutory order. "'Finality' exists when the practical effect of an order is to put the defendant out of court, or otherwise terminate the litigation by prohibiting either party from proceeding with the action." Balter v. Balter, 284 Pa. Super. 350, 354-55, 425 A.2d 1138, 1140 (1981). See also Gurnick v. Government Employees Insurance Co., 278 Pa. Super. 437, 420 A.2d 620 (1980); Turner v. May Corporation, 285 Pa. Super. 241, 427 A.2d 203 (1981). The order in the instant case struck the lis pendens against Mr. Lampl's property but the equity action proceeds.*fn2 The cause of action in equity is governed by the Pennsylvania Rules of Civil Procedure, Rules 1517, 1518 and 1519 dealing with the adjudication, exceptions and final decree.

In the instant case the court below filed an opinion on the same date it entered the order striking the lis pendens. Although not so captioned, we may treat the opinion as an adjudication, which would trigger Pa.R.C.P. 1518 dealing with exceptions.*fn3 Appellant did not file exceptions to the adjudication and accordingly, "matters not covered by exceptions are deemed waived, unless prior to final decree,

[ 295 Pa. Super. Page 483]

    leave is granted to file exceptions raising these matters." Appellant not only ignored Pa.R.C.P. 1518, but also Pa.R.C.P. 1519 which provides that: "(a) if no exceptions are filed within the ten (10) day period, the decree nisi shall be entered by the prothonotary on praecipe as the final decree." In this case, all that the appellant did after the filing of the opinion and order of September 30, 1980, was to file an appeal to this court. The case of Taylor v. Buterbaugh, 421 Pa. 10, 11, 218 A.2d 731, 732 (1966) is applicable to the matter before us. The court in that case stated:

The matter in its present posture is not ripe for decision in this court. No adjudication was filed in accordance with the provisions of Pa.R.C.P. Rule 1517, 12 P.S. Appendix. Even were we to consider the opinion of the Chancellor to be an adjudication and his order to be a decree nisi, the record discloses neither the filing and disposition of exceptions thereto and the subsequent entry of a final decree, nor the entry of the order as a final decree by praecipe after the passage of the time allowed for the filing of exceptions. (See Pa.R.C.P. Rules 1518 and 1519). The appeal is, therefore, premature and must be quashed.

In Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 414, 240 A.2d 491, 492 (1968), the Supreme Court considered the question of procedure relating to an appeal in an equity ...


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