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HomeMy WebLinkAbout2006-2466 Civil NEVIN L. MYERS and : IN THE COURT OF COMMON PLEAS OF PAMELA S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : HAROLD E. DEARDORFF, JR., : DEFENDANT : 06-2466 CIVIL TERM IN RE: PETITION OF DEFENDANT TO STRIKE LIS PENDENS OPINION AND ORDER OF COURT Bayley, J., September 18, 2007:-- Plaintiffs, Nevin L. Myers and Pamela S. Myers, live in a home they own at 1290 Brandt Road, Monroe Township, Cumberland County. It is next to 1294 Brandt Road that is owned by defendant, Harold E. Deardorff, Jr. Deardorff constructed two separate single family dwelling units in a duplex configuration on his property. Plaintiffs filed a complaint against defendant in which they allege that the duplex is in violation of the Monroe Township Zoning Ordinance. They seek an injunction to prevent defendant from maintaining the duplex and three driveways at 1294 Brandt Road. Plaintiffs indexed this action as a lis pendens. Defendant filed a petition to strike the lis pendens. Defendant maintains that the lis pendens should be stricken because this suit does not involve any issue as to his title to 1294 Brandt Road. He argues in his brief that “Plaintiffs have unilaterally rendered Defendant’s title unmarketable notwithstanding that there is no contractual or other relationship between the parties and Plaintiffs are making no claim to any interest in Defendant’s property.” 06-2466 CIVIL TERM Psaki v. Ferrari, In 377 Pa. Super. 1 (1988), the Superior Court of Pennsylvania stated: Strictly speaking, the effect to a lis pendens is not to establish an . Its purpose is merely to give actual lien upon the property affected 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. Dice v. Bender, 383 Pa. 94, 97, 117 A.2d 725, 726-727 (1955). Lis pendens has no application except in cases involving the adjudication of rights in specific property. Shannon v. Thus, a party is Barrett, 65 Pa.D & C.2d 446, 448-449 (Del.Co.1974). not entitled to have his case indexed as lis pendens unless title to real estate is involved in litigation. (Emphasis added.) Psaki The issue in was whether a judgment for money damages supported a lis pendens filed against real estate which was owned by a stranger to the judgment and which was not the subject of any pending litigation. The Superior Court concluded that a lis pendens could not be predicated upon an action seeking to recover a personal demand; that when a personal demand is reduced to judgment it becomes a lien, without more, on real estate which is owned by the judgment creditor; and that the filing Dice v. Bender, of the lis pendens was unnecessary. In 383 Pa. 94 (1955), the Supreme Court of Pennsylvania stated: Strictly speaking, the effect of a lis pendens is not to establish actual liens upon the properties affected nor has it any application as between the all that it does is to give notice to parties to the action themselves; third persons that any interest they may acquire in the properties pending the litigation will be subject to the result of the action . . . . In short, being a creature not of statute but of common law and equity jurisprudence, the doctrine of lis pendens is wholly subject to equitable principles. Thus, if a plaintiff were to delay unreasonably in the prosecution of his claim, or if the operation of the doctrine should prove to -2- 06-2466 CIVIL TERM equity can and should be harsh or arbitrary in particular instances, refuse to give it effect, and, under its power to remove a cloud on titlecan and should cancel a notice of lis pendens which might , otherwise exist. (Emphasis added.) Janus Management Services, Inc. v. Schlessinger, In 810 A.2d 637 (Pa. Super. 2002), the Superior Court stated: is notice to the world that a cloud over the title to a Lis pendens property exists. Once the is stricken by a court, that is lis pendens equally notice to the world that there is no longer a valid claim on the title, no matter the merits of the underlying action. See generally Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955). (Footnote omitted.) (Emphasis added.) Neither counsel nor this court have found any appellate authority that a lis pendens can be indexed merely to give notice to third persons that real estate is subject to litigation unless the title to the real estate is a subject of the litigation. In the sub judice, case title to 1294 Brandt Road is not at issue. Therefore, the following 1 order is entered. ORDER OF COURT AND NOW, this day of September, 2007, the indexing of this action IS STRICKEN. as a lis pendens, By the Court, __________ 1 We note that if defendant now markets and/or sells his property it is our opinion that he would be under a duty to disclose this litigation to any prospective buyer. The point in striking the lis pendens is to remove the cloud on the title. -3- 06-2466 CIVIL TERM Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Plaintiffs Dennis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For Defendant :sal -4- NEVIN L. MYERS and : IN THE COURT OF COMMON PLEAS OF PAMELA S. MYERS, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : HAROLD E. DEARDORFF, JR., : DEFENDANT : 06-2466 CIVIL TERM IN RE: PETITION OF DEFENDANT TO STRIKE LIS PENDENS ORDER OF COURT AND NOW, this day of September, 2007, the indexing of this action IS STRICKEN. as a lis pendens, By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire For Plaintiffs Dennis J. Shatto, Esquire 119 Locust Street P.O. Box 11847 Harrisburg, PA 17108-1847 For Defendant :sal