J-S80037-16
2017 PA Super 37
IN RE: FOREMOST INDUSTRIES, : IN THE SUPERIOR COURT OF
INC. : PENNSYLVANIA
RALPH C. MICHAEL :
:
:
v. :
:
:
GLD FOREMOST HOLDINGS, LLC : No. 686 MDA 2016
AND DANIEL GORDON :
:
Appellants
Appeal from the Order Entered April 1, 2016
In the Court of Common Pleas of Franklin County
Civil Division at No(s): 2016-00109
BEFORE: LAZARUS, J., STABILE, J., RANSOM, J.
OPINION BY RANSOM, J.: FILED FEBRUARY 16, 2017
Appellants, GLD Foremost Holdings, LLC and Daniel Gordon
(collectively “GLD”), appeal from the April 1, 2016 Order denying GLD’s
Emergency Motion to Strike Lis Pendens on real estate owned by Petitioner,
Foremost Industries, Inc. (hereinafter “Foremost Industries”). For the
following reasons, we reverse and remand with instructions.
Appellee, Ralph C. Michael (hereinafter “Michael”), is a former owner
of Foremost Industries. In May 2015, GLD and Michael entered into a Stock
Purchase Agreement (“SPA”) wherein GLD agreed to purchase Foremost
Industries from Michael. Trial Ct. 1925(a) Op., 6/13/2016, at 2.
On November 30, 2015, Michael filed a complaint in federal court
against GLD claiming breach of contract, fraud, and unjust enrichment. See
Michael v. GLD Foremost Holdings, LLC et al., No. 15-2230, Pl. Compl.,
J-S80037-16
EDF No. 1, at 11-16 (M.D. Pa. Nov. 20, 2015). In his complaint, he avers
that GLD failed to remit two million dollars of the purchase price stated in
the SPA. See id. at 9. Michael complains that GLD received all of Michael’s
rights, titles, and interests in the Company upon execution of the agreement
without delivering the full purchase price at closing. Id. at 10. Thus,
Michael asks for expectation damages in the form of a monetary judgment.
On the same day, GLD filed its own complaint in federal court against
Michael, asserting multiple claims arising out of the SPA. See GLD
Foremost Holdings, LLC v. Ralph C. Michael, Don E. Myers, and Laurie
A. Myers, No. 15-2234, Pl. Compl., EDF No. 1, at 12 (M.D. Pa. Nov. 20,
2015). Inter alia, GLD claims a possessory interest in property identified by
Uniform Parcel Number 01-0A16.-126.-000000. Id. at 25 ¶ 102. According
to GLD, Michael fraudulently transferred this property without consideration
to his daughter, Laurie Myers, in April 2015, contrary to an SPA provision
that expressly precluded Michael from selling any of Foremost Industries’
assets after January 1, 2015. See id. at 25-26.1
In January 2016, Michael filed two praecipes for lis pendens on three
different tracts of land owned by Foremost Industries, tax parcel nos. 01-
0A16-027, 18-0K30-029, and 17-0J09-008 (collectively, “Greencastle”) in
the Court of Common Pleas of Franklin County, certifying that the federal
1
In December 2015, GLD filed a notice of lis pendens with respect this
property. See Exhibit B to GLD’s Emergency Petition to Strike Lis Pendens,
3/2/2016 (Notice of Lis Pendens filed in No. 15-2234, EDF No. 12 (Dec. 21,
2015)).
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actions concerned real property located in Franklin County.2 At that time,
GLD was negotiating a sale of Foremost Industries’ Corporate Offices,
specifically tract no. 01-0A16-027, located at 2375 Buchanan Trail West, to
Greencastle-Antrim School District.3 Thus, GLD filed an emergency petition
to strike the lis pendens. See Emergency Petition to Strike Lis Pendens,
3/2/2016. Michael filed an Answer to GLD’s Petition to strike, arguing that
title was involved in the pending federal litigation and denying that GLD is
the owner of Foremost Industries. See Michael’s Answer, 3/28/2016, at 2.
Despite Michael’s representations in his Answer, his federal complaint does
not seek a change in title, but rather mere money damages. See Michael
v. GLD Foremost Holdings, LLC et al., No. 15-2230, Pl. Compl., EDF No.
2
Michael’s praecipe stated:
Pursuant to 42 Pa.C.S. § 4304, authorizing the filing of notice of
federal actions concerning real property, and 42 Pa.C.S. 4302,
kindly index a Lis Pendens against property owned by Foremost
Industries, Inc. located in Franklin County known as Tax Parcel
No. 01-0A16-027. […] I certify that actions concerning real
property located in Franklin County are currently pending before
the United States District Court for the Middle District of
Pennsylvania at Docket Nos. 1:15-CV-02230-YK and 1:15-CV-
02234-YK.
Praecipe, Docket No. 2016-109, 1/11/2016. Michael filed a second Praecipe
requesting lis pendens be indexed on Tax Parcel Nos. 18-0K30-029 and 17-
0J09-008, also owned by Foremost Industries. See Praecipe, Docket No.
2016-110, 1/11/2016.
3
See Exhibit D to GLD’s Emergency Petition to Strike Lis Pendens: Letter
from Ronald Finck, Atty. for Ralph C. Michael, to Sean P. McConnell, Sean J.
Bellew and Catherine B. Heizenrater, Attys. for GLD Foremost Holdings, LLC
and Daniel Gordon (Feb. 19, 2016).
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1, at 12, 15, 16 (M.D. Pa. Nov. 20, 2015). Following a hearing, the trial
court denied GLD’s emergency motion to strike the lis pendens and issued
an opinion. See Trial Ct. Op., 4/1/2016. GLD timely filed a court-ordered
1925(b) statement in May 2016. Thereafter, the trial court issued an
additional, responsive opinion. See Trial Ct. 1925(a) Op., 6/13/2016.
Upon initial review, this Court issued an order to show cause why the
appeal should not be quashed as taken from an unappealable order. See
Order to Show Cause, 5/18/2016. Upon receipt of GLD’s reply, the show-
cause order was discharged, and the issue was referred to the merits panel.
See Order, 7/8/2016.
GLD asserts that the order denying their petition is a final, appealable
order because it resolved the only claim at issue in their petition. See
Appellants’ Response to Rule to Show Cause Order, 5/26/2016, at 4. The
order effectively enables the lis pendens to exist as a cloud on Foremost
Industries’ title to the Greencastle property, which casts a shadow over any
purchase and sale negotiations for the Office Building property and calls into
doubt the ability of GLD to convey marketable title. See GLD’s Br. at 6. The
order denying GLD’s emergency petition to strike effectively put GLD “out of
court” with respect to their ability to remove the cloud on title to
Greencastle. See McCahill v. Roberts, 219 A.2d 306, 308 (Pa. 1966)
(overruling a motion to quash where the lower court’s lis pendens decision
effectively eliminated Appellant’s claim of property ownership); Pa.R.A.P.
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341(b)(1). Accordingly, we have jurisdiction to review the order denying
their petition to strike.
On appeal, GLD raises the following issues:
1. Did the trial court err in concluding that 42 Pa.C.S. § 4302
permits a lis pendens to be filed in any case where real estate
is ‘involved,’ even if the title to the real estate is not at issue
in the underlying case?
2. Did the trial court abuse its discretion when it determined that
it was irrelevant to the lis pendens analysis whether a party is
seeking title to the property as a remedy in the underlying
dispute, even though Pennsylvania law indicates otherwise?
3. Did the trial court err when it ignored the harsh and arbitrary
effect of its decision on Appellants, which significantly
outweighed any negative impact on Appellee, who is not now,
and never was the owner of the subject property?
GLD’s Br. at 5-6.
“Our standard of review of equity cases is a narrow one.
‘[A]ppellate review of equity matters is limited to a
determination of whether the chancellor committed an error
of law or abused his discretion. The scope of review of a
final decree in equity is limited and will not be disturbed
unless it is unsupported by the evidence or demonstrably
capricious.’”
Rosen v. Rittenhouse Towers, 482 A.2d 1113, 1116 (Pa. Super. 1984)
(quoting Sack v. Feinman, 413 A.2d 1059, 1066 (Pa. 1980) (citations
omitted), aff’d 432 A.2d 971, 973 (Pa. 1981)). “Pursuant to these
standards, we must examine whether the lower court abused its discretion
or committed an error of law” in refusing to strike the lis pendens. Rosen,
482 A.2d at 1116.
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This appeal arises out of the lower court’s denial of GLD’s emergency
petition to strike lis pendens on properties owned by Foremost Industries.
See Notes of Testimony (N.T.), 3/30/2016, at 5, 8. “Lis pendens is
construed to be the jurisdiction, power, or control which courts acquire over
property involved in a suit, pending the continuance of the action, and until
final judgment.” Dorsch v. Jenkins, 365 A.2d 861, 863 (Pa. Super. 1976)
(citation omitted). Lis pendens may be imposed when the property “is
subject to litigation and that any interest acquired by the third party will be
subject to the result of the litigation.” Vintage Homes v. Levin, 554 A.2d
989, 994 (Pa. Super. 1989) (citing Psaki v. Ferrari, 546 A.2d 1127, 1128
(Pa. Super. 1988)).
“[T]he doctrine of lis pendens is based in common law and equity
jurisprudence, rather than in statute, and is wholly subject to equitable
principles.” Dorsch , 365 A.2d 861, 863-64 (Pa. Super. 1976) (citing Dice
v. Bender, 117 A.2d 725 (Pa. 1955)). “[T]he doctrine does not establish
an actual lien on the affected property.” McCahill, 219 A.2d at 309. “Its
purpose is merely to give notice to third persons that the real estate is
subject to litigation and ‘that any interest which they may acquire in the real
estate will be subject to the result of the action.’” Psaki, 546 A.2d at 1128
(quoting Dice, 117 A.2d at 727); see also McCahill, 219 A.2d at 309.
If title to the property is not subject to the result of the litigation, then
there is no reason to provide notice to a third party about the litigation. See
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Vintage Homes, 554 A.2d at 994 (citing Psaki, 546 A.2d at 1128). To
impose lis pendens in such a case would prove to be an arbitrary application
of the doctrine and, “equity can and should refuse to give it effect, and,
under its power to remove a cloud on title can and should cancel a notice of
lis pendens which might otherwise exist.” Dice, 117 A.2d at 727.
Thus, a two-part analysis emerges from the common law that the
courts should apply to determine whether exerting the court’s control over
real property is appropriate. The first step is to ascertain whether title is at
issue in the pending litigation. See Psaki, 546 A.2d at 1128; Dorsch, 365
A.2d at 863-64. The second step is an equitable inquiry:
[T]he lower court must balance the equities to determine
whether the application of the doctrine is harsh or arbitrary and
whether the cancellation of the lis pendens would result in
prejudice to the non-petitioning party.
Rosen, 482 A.2d at 1116; see also McCahill, 219 A.2d at 309 (noting that
the lower court should ordinarily ascertain “the exact nature and extent of
any possible prejudice that could result from the cancellation of lis pendens”
so that “the balancing of the equities can be more accurately resolved”).
As GLD’s first and second issues are related, we shall address them
together. Essentially, GLD asserts the trial court erred by ignoring the
threshold requirement that title to real estate be at issue. GLD’s Br. at 11,
13-17. Further, GLD asserts, the court abused its discretion when it deemed
irrelevant the relief sought by Michael in his federal claims. Id. at 12, 17-
19. According to GLD, the threshold requirement to maintain a lis pendens
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is not met here because Michael does not claim he is the rightful owner of
Greencastle, nor does he seek the return of real estate assets transferred
pursuant to the SPA. Id. at 12, 15, 17. Thus, GLD concludes, Michael may
not maintain a lis pendens on Greencastle. We agree.4
Here, it was necessary for the lower court to determine if title is at
issue in Michael’s federal claims before determining whether Michael had an
equitable right to index a lis pendens on the property. In Psaki, for
example, our analysis was clear:
Lis pendens has no application except in cases involving the
adjudication of rights in specific property. Thus, a party is not
entitled to have his case indexed as lis pendens unless title to
real estate is involved in litigation. Lis pendens may not be
predicated upon an action seeking to recover a personal
demand. When a personal demand is reduced to judgment, of
course, it becomes a lien, without more, on real estate which is
owned by the judgment debtor. In such event, the filing of the
lis pendens is unnecessary.
Psaki, 546 A.2d at 1128 (citations omitted).
4
In response, Michael asserts that the lis pendens were properly filed in
accordance with the plain language of Section 4304(b), which does not
expressly limit the indexing of federal actions to those affecting title to real
property. See Michael’s Br. at 11 (noting use of the term, “concerning real
property,” not “title,” as in Section 4302). According to Michael, Section
4304(b) altered the common law doctrine of lis pendens, at least as it
applies to federal actions. Id. at 9. Thus, Michael concludes, he was
entitled to give notice to potential buyers of his dispute with GLD.
Michael cites no precedent in support of his assertion, and we reject it.
There is no statutory right to lis pendens. “In Dice, [the Pennsylvania
Supreme Court] laid to rest the argument that lis pendens is a statutory
right and that the court lacks power to rescind its operation.” McCahill, 219
A.2d at 309. Determining whether a lis pendens is proper requires
application of the common law doctrine; it cannot be satisfied by satisfying
the merely procedural requirements laid out in 42 Pa.C.S. § 4304(b).
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In this case, the lower court erred by rejecting the significance of the
threshold inquiry. See Trial Ct. Op., 4/1/2016, at 3 (concluding that title to
Greencastle was “not a relevant inquiry”). According to Michael’s complaint,
“[a]s a result of Michael’s execution of the [SPA] and accompanying
documents, GLD received all of Michael’s rights, titles, and interests in
[Foremost Industries].” Michael v. GLD Foremost Holdings, LLC et al.,
No. 15-2230, Pl. Compl., EDF No. 1, at 9 (M.D. Pa. Nov. 20, 2015).
Importantly, Michael does not dispute that GLD now owns Foremost
Industries’ rights, titles and interests. Rather, Michael contends that GLD
failed to pay a substantial portion of the contract price incident to the SPA.
See id. at 12. The outcome of the underlying contractual dispute will not
affect who has title to Greencastle. Rather, Michael demands money
damages. See id. at 12, 15, 16.
Michael’s lis pendens is premised on the erroneous averment in the
answer to GLD’s petition to strike, in which he claims to be the equitable and
legal owner of Foremost Industries until the balance of the purchase price is
paid by GLD. See Michael’s Answer, 3/28/2016, at 2. “However, it is well-
established law here that when the Agreement of Sale is signed, the
purchaser becomes the equitable or beneficial owner through the doctrine of
equitable conversion. The vendor retains merely a security interest for the
payment of the unpaid purchase money.” DiDonato v. Reliance Stand.
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Life Ins. Co., 249 A.2d 327, 329 (Pa. 1969) (citing Payne v. Clark, 187
A.2d 769 (Pa. 1963)).
To be clear, we reject Michael’s contention that he has equitable or
legal ownership of Foremost Industries. Michael transferred any interest in
Foremost Industries to GLD on the Closing Date. See SPA, art. 4.10, at p.
12-13 (specifying title and condition of property to be transferred).
The policy-based implications of our ruling in Psaki explicate that lis
pendens has no application in “an action seeking to recover a personal
demand.” Psaki, 546 A.2d at 1128. To permit a party to maintain a
praecipe for lis pendens based on a pending suit for money damages only
would be to permit a party to place a cloud on the title to real estate
whenever a breach of contract suit arises. As noted in Psaki, “[t]his is not
the law.” Id. Thus, Michael may not maintain a lis pendens on Greencastle.
In light of the foregoing, it is unnecessary to discuss in detail GLD’s
third issue, in which it asserts that the court erred in weighing the equities
present in this case. See GLD’s Br. at 19-22. Because Michael has failed to
establish the threshold requirement for lis pendens, a lis pendens on
Foremost Industries’ properties would prove “harsh [and] arbitrary” in this
case. Rosen, 482 A.2d at 1116. Accordingly, “equity can and should refuse
to give it effect.” Id.
We hold that the trial court erred when it ignored the threshold
requirement necessary to maintain a lis pendens. Further, the court abused
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its discretion by weighing the equities without determining that Michael
asserts no right to title in Greencastle and seeks only money damages as
compensation for his federal claims. Accordingly, we reverse the order of
court and remand with instructions that the trial court shall cancel the
notices of lis pendens on the Greencastle subject properties. See Dice, 117
A.2d at 727; Psaki, 546 A.2d at 1128.
Order reversed; case remanded with instructions; jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2017
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