Rosin, R. v. PA Associates

J-A05003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT A. ROSIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PA ASSOCIATES AND GARY :
SCHMIDT :
: No. 797 EDA 2022
Appellants
Appeal from the Order Entered February 17, 2022
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2021-01629
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED FEBRUARY 3, 2023
PA Associates and Gary Schmidt (“Appellants”) appeal from the order,
entered in the Court of Common Pleas of Bucks County, denying their motion
to strike a lis pendens. We quash the appeal.
This matter arises out of a partnership dispute between Schmidt and
Robert A. Rosin,1 the details of which are not relevant to our disposition. On
January 27, 2021, an arbitrator entered an order determining the purchase
price for Rosin’s interest in the assets of the partnership, setting forth a
payment schedule, and directing Schmidt to issue a note to secure repayment
of the purchase price. Rosin was unable to secure payment from Schmidt
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1 Rosin and Harry Schmidt originally formed the partnership, PA Associates,
for the purpose of owning and managing a warehouse located at 100 Park
Avenue, Warminster, Bucks County (“Park Avenue Property”). Rosin owned
20% of the partnership and Schmidt owned 80%. At some point, Harry
Schmidt transferred his 80% ownership share to his son, Gary.
J-A05003-23
and, ultimately, filed a petition to enforce the arbitrator’s award in the court
of common pleas. On May 10, 2021, Rosin filed a praecipe for lis pendens
with regard to the Park Avenue Property, which was the primary asset of the
partnership. On June 14, 2021, Appellants filed a motion to strike the lis
pendens. Rosin filed an answer and the parties submitted memoranda of law.
The court denied the motion on February 17, 2022. Appellants filed a notice
of appeal; both Appellants and the trial court have complied with Pa.R.A.P.
1925.
Prior to reaching the merits of Appellants’ claims, we must determine if
this appeal is properly before us. We conclude that it is not and, accordingly,
quash.
Recently, in Iron City Constr., Inc. v. Westmoreland Wooded
Acres, Inc., -- A.3d --, 2023 PA Super 5 (Pa. Super. 2023), this Court held
that where, “the propriety of the lis pendens is but one of several claims at
issue in the trial court[, t]he court’s order denying [the] motion to strike,
therefore, did not dispose of all claims of all parties . . . and is, thus, not a
final, appealable order over which we may exercise our jurisdiction.” Id. at
*2.
Similarly, here, the motion to strike the lis pendens was but one facet
of the litigation pending before the trial court.2 Accordingly, it did not dispose
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2 Matters pending before the trial court at the time it denied Appellants’ motion
to strike the lis pendens included Rosin’s petition to enforce the arbitrator’s
(Footnote Continued Next Page)
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of “all claims and of all parties” as is required of a final order. Pa.R.A.P.
341(b)(1). Appellants assert that the order in question is a final order
pursuant to the dictates of Barak v. Karolozki, 196 A.3d 208 (Pa. Super.
2018) and In re: Foremost Industries, Inc. v. GLD, 156 A.3d 318 (Pa.
Super. 2017). These cases, however, are inapposite. Barak involves an
appeal from an order striking a lis pendens. While Foremost Industries
does involve an appeal from the denial of a motion to strike a lis pendens, the
motion to strike was the sole issue before the court of common pleas.3 Thus,
the order denying the motion to strike put all parties out of court and was
appealable as a final order.
We likewise lack jurisdiction under Pa.R.A.P. 313, the collateral order
doctrine. As this Court stated in Iron City, supra, to be reviewable as a
collateral order,
the order must, inter alia, involve a “right . . . too important to be
denied review[.]” Pa.R.A.P. 313(b). “In analyzing the importance
prong, we weigh the interests implicated in the case against the
costs of piecemeal litigation.” Ben v. Schwartz, [] 729 A.2d 547,
552 ([Pa.] 1999). It is not sufficient that the issue is important to
the parties involved. Id. “Rather[,] it must involve rights deeply
rooted in public policy going beyond the particular litigation at
hand.” Id. (citation omitted).
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award, as well as multiple petitions by Appellants to vacate and/or modify the
arbitration award.
3 In Foremost Industries, the underlying litigation, involving real property
located in Franklin County, was filed in federal court. Accordingly, the only
matter before the Court of Common Pleas of Franklin County was the propriety
of the lis pendens.
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[T]he refusal to strike a lis pendens does not involve a right too
important to be denied review. The refusal to strike a lis pendens
does nothing more than perpetuate notice to third parties that the
property is subject to litigation. [T]he lis pendens does not
command or prevent any action from any party. Barak, 196 A.3d
at 221-22. Nor does the lis pendens, in and of itself, prevent the
owner from selling or disposing of the property. A lis pendens is
nothing more than notice to potential buyers that the result of a
pending lawsuit may potentially affect their interest in a property.
See id. at 221. At this stage of the litigation, however, the claim
that the lis pendens will affect an interest in the property is merely
speculative.
Iron City, 2023 PA Super 5, at *2-*3.
Because the order denying Appellants’ motion to strike the lis pendens
is neither a final order nor a collateral order, we lack jurisdiction to entertain
this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2023
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