No. 387 Pittsburgh 1981, No. 417 Pittsburgh, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 79-31825.
Louis Vaira, Pittsburgh, for appellant (at No. 387) and for appellee (at No. 417).
Donald J. Barley, Pittsburgh, for appellant (at No. 417) and for appellee (at No. 387).
Paul F. Laughlin, Pittsburgh, for Landlords, participating parties.
Cavanaugh, Brosky and Montgomery, JJ.
[ 320 Pa. Super. Page 558]
This is an appeal from an order of the trial court in response to petitions to stay execution on a judgment rendered in a mechanics' lien proceeding. The history of these proceedings is extensive and need not be set forth in detail here. Briefly, for our purposes, Ziegler Lumber and Supply Company holds a judgment in a mechanics' lien action against Golden Triangle Development Company, Inc. which has a leasehold interest in the property in question. The property is owned by Joseph and Katherine Talarico. The Sheriff was directed to execute upon the judgment including the leasehold estate, together with all the fixtures, machinery and other similar property located in the building. Golden Triangle petitioned the court to stay the execution, set aside the writ and strike the judgment.
The court set aside execution as to items of tangible personal property, but permitted execution to proceed as to the leasehold interest. As part of his disposition, Judge McGowan permitted Barbara Martinelli, who claims a senior security interest in certain of the property subject to execution, to intervene although he also denied her request for relief. The court also considered contentions by the landlord, Joseph Talarico and Katherine Talarico, but dismissed
[ 320 Pa. Super. Page 559]
their petition on the basis that the landlord was not a party in interest on the record. Nevertheless, leave was granted to the landlords to formally intervene. The order of court was entered on March 11, 1981. Thereafter, the Talaricos petitioned to intervene and on March 31, 1981, the petition was granted by order of Judge Papadakos. There is no record that Martinelli moved to intervene. Cross appeals from the order of Judge McGowan have been filed by Zeigler Lumber and Supply Company and Golden Triangle Development Company, Inc. Intervenor, Talarico, has filed a motion to quash the appeal which was deferred by order of this court until the time of argument on the appeal.
Both Zeigler and Talarico rely upon Cherry v. Empire Mutual Insurance Co., 417 Pa. 7, 208 A.2d 470 (1965) in support of their position on the motion to quash.
It is true that in Cherry the court in discussing the finality necessary to support an appeal said:
[i]f the court had intended to make a final disposition of the matter it either would have allowed immediate prosecution of the attachment execution or set aside the writ of execution pursuant to 3121(d). ...