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UNITED STATES NATIONAL BANK JOHNSTOWN v. CHARLES P. JOHNSON (02/13/85)

decided: February 13, 1985.

UNITED STATES NATIONAL BANK IN JOHNSTOWN, APPELLANT,
v.
CHARLES P. JOHNSON, JR., MARTHA JANE JOHNSON, PENNSYLVANIA ENERGY COMPANY, LINDA STRICH, CPJ, INC., HAWS REFRACTORIES, INC., BANTAM FOUR CINEMAS, INC., SHERIDAN TRUCKING COMPANY, SHERIDAN TRUCKING COMPANY, INC., CHARJIM CORPORATION, PENNSYLVANIA ENERGY CORPORATION, G. GRAY GARLAND, AND SHERIDAN COAL COMPANY, INC., APPELLEES



No. 41 W.D. Appeal Docket 1984, Appeal from the Order of the Superior Court at No. 1222 Pittsburgh, 1982, dated November 25, 1983, quashing an appeal from the Court of Common Pleas, Cambria County, at No. 1982-72, Pa. Superior Ct. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Larsen and Zappala, JJ., concurred in the result.

Author: Papadakos

[ 506 Pa. Page 625]

Opinion OF THE COURT

This is the appeal of the United States National Bank in Johnstown (Appellant) from the Superior Court's Order, 321 Pa. Super. 352, 468 A.2d 515, quashing Appellant's appeal of an order of the Cambria County Court of Common Pleas entered on May 5, 1982, by the Honorable Eugene A. Creany, sustaining G. Gray Garland's (Appellee) preliminary objections in the nature of a demurrer and dismissing him as a defendant.

On January 11, 1982, Appellant filed its Complaint in Equity against various corporations, partnerships, and individuals,

[ 506 Pa. Page 626]

    alleging violations of the Uniform Fraudulent Conveyance Act.*fn1 Preliminary Objections in the nature of a demurrer to the Complaint were filed on February 2, 1982, by the Pennsylvania Energy Company, Pennsylvania Energy Corporation, and Appellee. Appellee argued that the complaint failed to allege any material facts sufficient to support a cause of action against him, and requested the trial court to dismiss him as a defendant.

The Chancellor sustained Appellee's Preliminary Objections by order of May 5, 1982, and dismissed Appellee as a party defendant to this action. For some unexplained reason, an unwarranted procedure was followed and exceptions to that Order were filed on May 12, 1982. Curiously, a court en banc permitted these exceptions to be argued and on August 2, 1982, by an unanimous Opinion and Order, the Chancellor's order dismissing Appellee as a party defendant was affirmed. Nothing happened further until Appellee reduced the court en banc's order to judgment in his favor on October 5, 1982 by filing a Praecipe with the Prothonotary of Cambria County.

On October 28, 1982, Appellant filed a notice of appeal from the judgment to Superior Court. This appeal was quashed as untimely. We granted allocatur because of the confusion regarding the appealability of equity orders generated by Houston-Starr Co. v. Virginia Mansions, 295 Pa. Superior Ct. 480, 441 A.2d 1334 (1982).

In Houston-Starr Co., Superior Court quashed the appeal taken directly from a Chancellor's order striking a lis pendens. Superior Court characterized the Chancellor's action as an "adjudication" triggering the Pa.R.C.P. 1518 exceptions requirements,*fn2 and held an appeal would not lie,

[ 506 Pa. Page 627]

    unless exceptions were filed and a final decree was entered on the order pursuant to Pa.R.C.P. 1519.*fn3 These rules were clearly intended to become operative after trial and by no stretch of the imagination were they to be applied to pre-trial orders. Appellant argues that Houston-Starr similarly requires exceptions to the sustaining of preliminary objections before they can be appealed. We disagree.

Superior Court correctly quashed the appeal in Houston-Starr, albeit for an incorrect reason. The order striking lis pendens is interlocutory, and therefore, the appeal should have been quashed. R.M. Shoemaker Co. v. Blumenfeld, 443 Pa. 566, 278 A.2d 488 (1971).

A lis pendens is the jurisdiction, power, or control which courts acquire over property involved in a suit, pending the continuance of the action, and until its final judgment thereon. Bungar v. St. Michael's Greek Catholic Church, 272 Pa. 402, 116 A. 389 (1922). The existence of a lis pendens merely notifies third parties that any interest that may be acquired in the res pending the litigation will be subject to the result of the action and is not therefore an actual lien on the property. Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955). An order lifting a lis pendens during the course of an equity action fixes neither rights, duties, nor liabilities between the parties, puts no ...


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