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.,
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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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