No. 57 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action, Clearfield County, No. 77-834-CD
Anthony S. Guido, Dubois, for appellant.
Carl A. Belin, Jr., Clearfield, for appellees.
Cavanaugh, Montemuro and Van der Voort, JJ.
[ 304 Pa. Super. Page 232]
Appellees, Asbury W. Lee, IV, ("Lee"), H. R. Obleman ("Obleman") and Roger L. Hughes ("Hughes") filed suit in equity against the Clearfield Area Housing Corporation and Clearfield County Housing Authority ("Housing Authorities") seeking to enjoin construction of a federally financed low income housing project. In said action in equity, the appellees contended that construction of the housing project constituted a nuisance and would diminish the value of their respective residences. Although the three residence properties were owned by the entireties, the wives of the appellees, Carolyn B. Lee, Gloria W. Obleman and Pauline L. Hughes, were not named as parties in the equity action. At the close of the appellees' testimony, the lower court on motion of the "Housing Authorities" entered a non-suit as to the appellee "Hughes" who did not appear for trial and who never pursued his cause of action. The case proceeded as to the two remaining plaintiff-appellees, "Lee" and "Obleman," and at the conclusion of the trial, the court entered an order enjoining the development of the project. The "Housing Authorities" appealed that order to the Commonwealth Court. In reversing the order of the lower court, the Commonwealth Court*fn1 entered the following order:
The Order of the court below is reversed and the complaint and amended complaint are dismissed. Costs on appellees, H. R. Obleman and Asbury W. Lee, IV.
In footnote 3 of its opinion, the Commonwealth Court noted that the court below had granted the "Housing Authority's" motion for a compulsory non-suit against appellee "Hughes" at close of the appellees' case and that he did not participate further in the litigation.
After entry of the decision by the Commonwealth Court, the "Housing Authority" filed with the Prothonotary's Office a bill of costs in the amount of $9004.50 to which no exceptions were entered by appellees, "Lee" and "Obleman". Those costs were never reduced to judgment. Thereafter,
[ 304 Pa. Super. Page 233]
the "Housing Authority" assigned their rights to the costs to appellant, Hallstrom Development Company, who paid them.
The appellant thereafter instituted this action in assumpsit against all three appellees, "Lee," "Obleman," and "Hughes" as well as their three wives. The appellees filed preliminary objections in the nature of a demurrer to the complaint on the following grounds:
1. Costs taxed against a party in an equity action by an appellate court cannot be collected against the parties' wives, who were not partner to the suit, in a subsequent action in assumpsit.
2. The appellate court having specifically excluded a nonsuited party, the appellee "Hughes," from assessment of costs, those costs cannot thereafter be collected from the nonsuited party in an assumpsit action.
3. Costs cannot be assigned as they are creatures of statute and no statutory authority exists for assignment of costs before they are reduced to judgment and consequently, appellant had no standing to file the assumpsit action.
The lower court entered an order sustaining the preliminary objections and dismissing appellant's complaint in ...