Raw v. Lehnert

Dissenting Opinion by

Price, J.:

The majority holds that the lower court erred by dismissing the appellants’ assumpsit complaint on the basis of the pendency of the prior equity action. I must disagree.

Because the majority did not discuss what I believe to be several relevant facts, I will briefly review the record. The appellants filed a complaint in equity on or about March 2, 1973, against defendants Frank J. Lehn-ert, Mary Grace Lehnert, Mark Lehnert (the Lehnerts), Robert E. McKee, Jr., and Marcap, Inc., concerning the alleged violation of a long-term sales agreement by which the appellants were to purchase the stock of Riverview Memorial Park, a cemetery corporation, from the Lehn-erts. Marcap, Inc., a separate corporation, was not clearly identified in the complaint.

In the equity complaint, the appellants requested, inter alia, that preliminary and permanent injunctions issue (1) restraining McKee from turning over the Riverview Corporation stock to any other person without a court order, (2) removing McKee as escrow agent, (3) prohibiting the Lehnerts from further interference with appellants’ operation and control of Riverview, (4) *331commanding the Lehnerts to provide the appellants with all records and assets of Riverview pursuant to the sales agreement, and (5) setting aside any agreement of sale between Riverview and Marcap, Inc. As an alternative to injunctive relief, the appellants demanded that the sales agreement be rescinded on the basis of fraud, and that the Lehnerts return all sums paid to them by the appellants, together with incidental expenses, losses, and exemplary damages in the sum of $75,000. Very significantly, and apparently overlooked by the majority, the appellants also sought “[s]uch other remedy as the court may direct.”

On March 30, 1973, after a hearing on the request for a preliminary injunction, Judge Silvestri of the Allegheny County Court of Common Pleas entered a court order denying “a preliminary injunction and other equitable relief.” Subsequent to Judge Silvestri’s order, the appellees filed preliminary objections in the nature of a motion for a more specific pleading. Instead of answering these objections, the appellants, on October 17,1973, filed a complaint in assumpsit1 against appellees Lehnert, McKee, and Riverview Memorial Park for damages arising from the sales agreement in the sum of $75,000. Specifically, the appellants sought losses and damages for the amounts already paid by them under the sales agreement, the reasonable value of the services rendered by the appellants in behalf of Riverview while they were in possession, loss of earnings of $24,000 per year for twenty years, compensation for irreparable damage to appellants’ business reputation, and legal expenses for the successful defense of a criminal action for fraudulent conversion. The last two of appellants’ demands arose from a criminal prosecution for fraudu*332lent conversion filed by the Lehnerts against the appellants on March 14, 1973, twelve days after the equity action was filed.

Appellees then filed preliminary objections to the complaint in assumpsit, averring that the pendency of the prior equity action was a bar to the subsequent as-sumpsit action. On September 5, 1974, the lower court sustained appellees’ preliminary objection and dismissed the second action. This appeal followed.

The defense of lis pendens, or the pendency of a prior action, may properly be raised by preliminary objection. Pa.R.C.P. 1017 (b)(5). Such objection, however, is not effective unless the parties, the causes of action, and the relief sought are substantially the same in both actions. Hessenbruch v. Markle, 194 Pa. 581, 45 A. 669 (1900). The majority cities Hessenbruch as authority that “lis pendens is a valid defense only when the parties, the causes of action, and the relief sought are the same in both actions.” While it is true that the Pennsylvania Supreme Court, in Hessenbruch, did state that “ ‘ [a] plea of former suit pending must allege that the case is the same, the parties the same, and the rights asserted and the relief prayed for the same. . . ” 194 Pa. at 593, 45 A. at 671 (emphasis added), quoting Harrisburg v. Harrisburg City Passenger Ry., 1 Pa. Dist. Rep. 192 (1892), the court tempered this rule by further remarking that “this is but a concise summary of the weight of authority on the subject.” 194 Pa. at 593, 45 A. at 671. The court then proceeded to rule “with perhaps some liberality of construction,” 194 Pa. at 594, 45 A. at 671, that “although not the same plaintiffs and defendants, the same persons are embraced in both bills,” 194 Pa. at 594, 45 A. at 671, and therefore that the requirements of lis pendens, at least in part, were satisfied. It is clear that Hessenbruch stands for the proposition that the defense of lis pendens is not to be thwarted by technical differences between the two cases in question. The plea of lis *333pendens is therefore properly raised when the parties, the causes of action, and the relief sought are either substantially, or, as the majority indicates, precisely the same in both actions.

In overruling the lower court, the majority determined that the relief sought by the appellants in the equity action was not the same as the relief sought in the assumpsit action. Specifically, the majority contends that the plea of lis pendens could not be sustained because the following demands for relief were included in the assumpsit complaint and not in the equity complaint: (1) loss of earnings for twenty years at $24,000 per year, or the benefit of the bargain; (2) legal expenses for the defense of the criminal prosecution for fraudulent conversion brought by the appellees after the filing of the equity action; (3) compensation for injury to the appellants’ business reputation. I agree that the demands for relief in the two actions do not match in technical form; however, a lis pendens plea does not become ineffective merely because the forms of the two actions do not manifest a verbal coupling. The primary question is whether the entire relief sought in the second action is attainable in the first action. I believe this question to be affirmatively answered in the present case.

As previously noted, the majority’s opinion does not mention that the appellants’ equity complaint included a prayer for general relief. Although couched ambiguously, a prayer for general relief in an equity action is not a phrase without meaning. Unlike much of the language now mechanically etched upon legal parchment, this request has existing significance. For example, it is well-established that once having properly obtained jurisdiction,2 equity may proceed under the prayer for general *334relief to give complete relief, whether equitable or legal. E.g., Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969); Simpson v. Simpson, 404 Pa. 247, 172 A.2d 168 (1961); see also McGovern v. Spear, 463 Pa. 269, 344 A.2d 826 (1975). Thus, it has been held that equity has the power to render relief beyond that which is specifically requested. Sigal v. Manufacturers Light and Heat Company, 450 Pa. 228, 299 A.2d 646 (1973) ; Dombrowski v. Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968). This principle was concisely stated by the Pennsylvania Supreme Court in Dombrowshi: “As early as 1868 this court recognized that under a general prayer for relief an equity court may grant such relief as is ‘agreeable’ to the case pleaded and proven even though the relief granted differs from the specific relief prayed for.” 431 Pa. at 219, 245 A.2d at 249 (citation omitted). Also, equity may properly award full recovery in the form of money damages, although such relief is legal, rather than equitable, in nature. Solomon v. Cedar Acres East, Inc., 455 Pa. 496, 317 A.2d 283 (1974) ; Sigal v. Manufacturers Light and Heat Company, 450 Pa. 228, 299 A.2d 646 (1973) ; Ackerman v. North Huntingdon Township, 437 Pa. 49, 261 A.2d 570 (1970).

From this review of past law, it is clear that to insure complete relief, the equity court may award the appellants in this case any relief, including money damages, which it deems appropriate.3 Thus, I believe that the entire relief requested by the appellants in the assumpsit action is attainable from their first action in equity.4 To hold *335otherwise would not only weaken the discretionary powers of the equity court, but would also violate the principle of judicial economy, which is the purpose of a lis pendens plea.

Even though similar relief can be obtained, the other requirements of a valid lis pendens decree must still be satisfied. In this case, although both actions arise from the agreement to sell Riverview Cemetery, technically the captioned parties are different in the two proceedings. The named defendants in the two actions vary only because Marcap, Inc., is named as a defendant in the equity action and not in the assumpsit action, while Riverview Memorial Park is named as a defendant in the assumpsit action and not in the equity action. I do not believe that the doctrine of lis pendens can be avoided merely by adding a nominal defendant to a subsequent action. See Hessenbruch v. Markle, 194 Pa. 581, 45 A. 669 (1900). And, the record indicates that in the instant litigation the real parties to both actions are the same. The only reference contained in the assumpsit complaint to Riverview Memorial Park as a defendant is in the last paragraph, which reads:

“17. At all times pertinent hereto, the relevant actions of defendants Lehnert as sole owners of all the stock of defendant Riverview were the acts and actions of defendant Riverview made and done within the course and scope and upon the business of their mutual relationship.”

*336I believe that from this the lower court correctly determined that: “By plaintiffs’ own pleadings (Paragraph 17) the Lehnerts, the individual defendants, control and own all of the stock of Riverview, and the liability of Riverview as a defendant can only stem from the liability of the Lehnerts as officers of the corporation. In effect a suit against Riverview is a suit against the Lehnerts and is so considered by the Court.”5

I would affirm the order of the lower court dismissing the action in assumpsit.

Jacobs, J., joins in this dissenting opinion.

. Prior to the filing of the complaint in assumpsit, the ap-pellees Lehnert regained possession and control of Riverview pursuant to a second order entered by Judge SilvestRI ordering the appellants to-give all assets and records to appellees Lehnert.

. There was proper equity jurisdiction in this case because at the time the complaint was filed, the alleged interference with the appellants’ possession and control of Riverview was continuing. See McGovern v. Spear, 463 Pa. 269, 344 A.2d 826 (1975).

. It appears that equity may afford complete relief under a prayer for general relief notwithstanding Pa.R.C.P. 1021, made applicable to equity actions by Pa.R.C.P. 1501, which provides in pertinent part that “[a]ny pleading demanding relief shall specify the relief to which the party deems himself entitled....”

. In reaching its conclusion that the relief sought in the two cases was the same, the lower court improperly regarded Judge SilvestRi’s order of March 30 as a final decree as to all equitable *335relief. As noted by the majority, a trial judge may not treat the hearing on an application for a preliminary injunction as a final order unless so stipulated by the parties. Drum v. Dinkelacker, 262 Pa. 392, 105 A. 509 (1918). However, it is well-established that an appellate court may affirm the action of the court below on a different rationale than that advanced by the lower court in support of its order, decree, or judgment. E.g., Gilbert v. Korvette’s, Inc., 457 Pa. 602, 327 A.2d 94 (1974); Prynn Estate, 455 Pa. 192, 315 A.2d 265 (1974).

. Although ruling that the real parties to each action were the same, the lower court, and I believe correctly, permitted the appellants to amend their equity complaint to include Riverview Memorial Park as a defendant in that action. Pursuant to this order, the appellants filed an amendment to their complaint on or about September 20, 1974. Accordingly, all of the defendants named in the assumpsit action have been named as defendants in the prior equity action.