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NORRISTOWN AUTOMOBILE CO. v. ARTHUR S. HAND (08/11/89)

filed: August 11, 1989.

NORRISTOWN AUTOMOBILE CO., INC. A/K/A NORRISTOWN FORD, APPELLANT,
v.
ARTHUR S. HAND, APPELLEE



Appeal from the Order entered on July 12, 1988, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 849 March Term, 1988.

COUNSEL

Richard E. Miller, Philadelphia, for appellant.

Richard W. Rogers, Norristown, for appellee.

Cavanaugh, Beck, and Cercone, JJ.

Author: Beck

[ 386 Pa. Super. Page 271]

In a lis pendens action 1) will the requirement of the pendency of a prior action be satisfied where the two complaints are filed on the same day and 2) will the requirement of "identity" be satisfied, where the same parties bring separate actions in different counties, based on the same events, but where the actions assert different theories of recovery.

Appellant Norristown Automobile Company (Norristown) operates a car sales business in Montgomery County. Appellee Arthur Hand was employed by Norristown as its used car manager. On December 5, 1987, Norristown fired Hand believing that he was involved in a fraudulent sales scheme that misled and caused financial loss to both Norristown and its customers. On March 9, 1988 at 1:01 P.M., Hand filed a complaint in the Court of Common Pleas of Montgomery County against Norristown claiming that Norristown breached its employment contract with Hand by firing him. On the same day at 4:13 P.M., Norristown filed a complaint in the Court of Common Pleas of Philadelphia County against Hand in tort on the basis of Hand's involvement in the alleged fraud. Hand filed preliminary objections in the Philadelphia action seeking dismissal of Norristown's

[ 386 Pa. Super. Page 272]

    claim on the basis of improper venue, lack of personal jurisdiction and lis pendens. Finding in favor of Hand, the Philadelphia court dismissed Norristown's action. Although the court found no merit to the jurisdiction and venue claims, it dismissed Norristown's claim on the basis of lis pendens. The trial court opined that a decision in the Montgomery County action could resolve all the issues raised in the Philadelphia action. Norristown timely appeals the order. We reverse and remand for further proceedings.

Norristown claims that the Philadelphia trial court erred in dismissing its cause of action on the basis of lis pendens, i.e. the pendency of a prior action, because (1) under the law, the Montgomery County action could not be considered prior in time to the Philadelphia action and (2) the two actions had insufficient identity to meet the strict requirements for a dismissal under the doctrine of lis pendens. We address the priority issue first.

A party asserting the defense of lis pendens must aver that a prior action is pending. Feather v. Hustead, 254 Pa. 357, 98 A. 971 (1916); Pa.R.C.P. 1017(b)(5). Thus, in determining the applicability of the defense of lis pendens the first question that must be answered is the order in which each action was commenced. See Simmons v. Jesse C. Stewart Co., 346 Pa. 54, 29 A.2d 55 (1943). Under the Rules of Civil Procedure, an "action" is commenced by filing either "(1) a praecipe for a writ of summons, (2) a complaint, or (3) an agreement for an amicable action." Pa.R.C.P. 1007. In the instant case, both parties filed complaints; appellee at 1:01 P.M. on March 9, 1988 and appellant at 4:13 P.M. on March 9, 1988. Thus, it appears clear that Hand commenced his action three hours and twelve minutes prior to Norristown's commencing its action.

Appellant argues that the doctrine of lis pendens does not apply where two actions are filed during the same day because a day must be treated as an indivisible measure of time. Thus, Norristown argues that neither action at ...


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