J-A02017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EVANOVICH, INC. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : WYATT, INC., AND DEVON S. WYATT : No. 846 WDA 2021
Appeal from the Order Entered June 29, 2021 In the Court of Common Pleas of Allegheny County Civil Division at GD-21-005639
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: January 28, 2022
Evanovich, Inc. (Appellant) appeals from the order granting the motion
to strike lis pendens1 filed by the titleholder to certain real property, Wyatt,
Inc. and Devon S. Wyatt (collectively, Wyatt). We affirm.
In May 2020, Appellant entered into an agreement with Wyatt to
perform landscaping work at a residence owned by Wyatt, located at 330
Shields Lane, Sewickley, PA (the property). Wyatt paid Appellant $48,000.00
as a deposit for the landscaping. Appellant completed the work in October
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 “A lis pendens, once properly indexed, provides notice to potential buyers that a piece of property is in litigation. Anyone who buys such property takes title subject to the lawsuit’s outcome.” Barak v. Karolizki, 196 A.3d 208, 211 n.2 (Pa. Super. 2018). J-A02017-22
2020 and sent an invoice to Wyatt for $56,937.00. Appellant claims Wyatt
failed to remit full payment.
On May 20, 2021, Appellant filed a complaint against Wyatt seeking
monetary damages in the amount of $15,957.00.2 The complaint pled three
counts: breach of contract, quantum meruit, and unjust enrichment.
Appellant also claimed the landscaping work considerably increased the value
of the property, which Wyatt subsequently listed for sale. Simultaneously with
the filing of the complaint, Appellant filed a praecipe for lis pendens.
On June 11, 2021, Wyatt filed a motion to strike lis pendens (motion to
strike), arguing the doctrine was inapplicable because “[t]his matter involves
a breach of contract dispute for money damages, and does not concern any
issues of title or claims of ownership of [the p]roperty by [Wyatt].” Motion to
Strike, 6/11/21, at ¶ 14. Wyatt cited this Court’s decision in Psaki v. Ferrari,
546 A.2d 1127 (Pa. Super. 1988), where we stated: “[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.” Id. at 1128 (emphasis added); Motion to Strike,
6/11/21, at ¶ 15.
On June 14, 2021, Appellant filed a brief in opposition to the motion to
strike, arguing that lis pendens was proper because Appellant’s claim “touches
2 Appellant also sought “equitable relief,” “return of services, materials or labor,” and attorney’s fees. See generally Complaint, 5/20/21.
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and concerns the [] property, specifically, the landscape.” Brief in Opposition,
6/14/21, at unnumbered p. 3 (emphasis and brackets omitted).
By order entered June 29, 2021, the trial court granted Wyatt’s motion
to strike and struck the lis pendens indexed against the property. Appellant
timely filed a notice of appeal,3 followed by a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive opinion rejecting Appellant’s
challenge to the order, reasoning, in relevant part:
[Appellant’s] $15,957 claim against [] Wyatt [] lacks any fraudulent conveyance, quiet title, specific performance or similar claim that places title to real estate at issue. Although [Appellant’s] claim involves landscaping performed on [the property], it is very apparent that [] Wyatt’s title to that land is undisputed. [Appellant] is prohibited from using a lis pendens as an alternative when “negotiations ... concerning the bill...” have prevented the timely filing of a mechanic’s lien. Brief in Opposition to Motion to Strike, [6/14/21, at unnumbered p. 3], footnote no. 1 [(wherein Appellant stated that it “was unable to file a mechanics [sic] lien on the [] property due to negotiations taking place between [Appellant] and [Wyatt] concerning the bill owed to [Appellant] by [Wyatt].”)]; 49 P.S. § 1502[(a)(1)] (mechanic’s lien claim must be filed within six months after the completion of the work). Thus, my decision to strike the lis pendens was correct.
Trial Court Opinion, 8/23/21, at 3 (emphasis added; footnote omitted); see
also id. at 2-3 (discussing, similar to Psaki, supra, precedential case law
which explains that title to real estate must be at issue for a lis pendens to be
proper).
3 It is undisputed that “an order striking lis pendens is immediately appealable.” Barak, 196 A.3d at 218.
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On appeal, Appellant presents the following issues for our review:
I. WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW, ABUSED ITS DISCRETION OR VIOLATED CONSTITUTIONAL RIGHTS IN STRIKING THE COMMON LAW LIS PENDENS ACTION?
II. MUST ACTUAL PHYSICAL TITLE BE AT ISSUE IN A COMMON LAW LIS PENDENS ACTION?
III. WHETHER ANY CLAIM THAT TOUCHES AND CONCERNS THE LAND IS SUFFICIENT TO WARRANT THE APPLICATION OF COMMON LAW LIS PENDENS?
Appellant’s Brief at 4.
We address Appellant’s issues together, as they are related and involve
pure questions of law. Accordingly, “our scope of review is plenary, and our
standard of review is non-deferential.” Quigley v. Unemployment Comp.
Bd. of Review, 263 A.3d 574, 589 (Pa. 2021).
We have explained:
“[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 [v. Jenkins], 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 [v. Roberts,] 219 A.2d [306,] 309 [(Pa. 1966)]. “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.
Michael v. GLD Foremost Holdings, LLC, 156 A.3d 318, 322 (Pa. Super.
2017) (some citations modified).
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Appellant argues the trial court erred in striking the lis pendens because,
contrary to the court’s determination, “actual physical title of real property
does not have to be at issue for application of the doctrine of lis pendens.”
Appellant’s Brief at 11 (capitalization omitted). Appellant concedes that this
Court has held “a party is not entitled to have his case indexed as lis pendens
unless title to real estate is involved in litigation.” Id. at 12 n.5 (quoting
Psaki, 546 A.2d at 1128) (underline in original). However, Appellant
complains the “Psaki Court cited to no relevant authority in support of this
proposition.” Appellant’s Brief at 12 n.5. Appellant cites our Supreme Court’s
decision in Dice, supra, alleging that “all that [is] required to assert a
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J-A02017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EVANOVICH, INC. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : WYATT, INC., AND DEVON S. WYATT : No. 846 WDA 2021
Appeal from the Order Entered June 29, 2021 In the Court of Common Pleas of Allegheny County Civil Division at GD-21-005639
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: January 28, 2022
Evanovich, Inc. (Appellant) appeals from the order granting the motion
to strike lis pendens1 filed by the titleholder to certain real property, Wyatt,
Inc. and Devon S. Wyatt (collectively, Wyatt). We affirm.
In May 2020, Appellant entered into an agreement with Wyatt to
perform landscaping work at a residence owned by Wyatt, located at 330
Shields Lane, Sewickley, PA (the property). Wyatt paid Appellant $48,000.00
as a deposit for the landscaping. Appellant completed the work in October
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 “A lis pendens, once properly indexed, provides notice to potential buyers that a piece of property is in litigation. Anyone who buys such property takes title subject to the lawsuit’s outcome.” Barak v. Karolizki, 196 A.3d 208, 211 n.2 (Pa. Super. 2018). J-A02017-22
2020 and sent an invoice to Wyatt for $56,937.00. Appellant claims Wyatt
failed to remit full payment.
On May 20, 2021, Appellant filed a complaint against Wyatt seeking
monetary damages in the amount of $15,957.00.2 The complaint pled three
counts: breach of contract, quantum meruit, and unjust enrichment.
Appellant also claimed the landscaping work considerably increased the value
of the property, which Wyatt subsequently listed for sale. Simultaneously with
the filing of the complaint, Appellant filed a praecipe for lis pendens.
On June 11, 2021, Wyatt filed a motion to strike lis pendens (motion to
strike), arguing the doctrine was inapplicable because “[t]his matter involves
a breach of contract dispute for money damages, and does not concern any
issues of title or claims of ownership of [the p]roperty by [Wyatt].” Motion to
Strike, 6/11/21, at ¶ 14. Wyatt cited this Court’s decision in Psaki v. Ferrari,
546 A.2d 1127 (Pa. Super. 1988), where we stated: “[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.” Id. at 1128 (emphasis added); Motion to Strike,
6/11/21, at ¶ 15.
On June 14, 2021, Appellant filed a brief in opposition to the motion to
strike, arguing that lis pendens was proper because Appellant’s claim “touches
2 Appellant also sought “equitable relief,” “return of services, materials or labor,” and attorney’s fees. See generally Complaint, 5/20/21.
-2- J-A02017-22
and concerns the [] property, specifically, the landscape.” Brief in Opposition,
6/14/21, at unnumbered p. 3 (emphasis and brackets omitted).
By order entered June 29, 2021, the trial court granted Wyatt’s motion
to strike and struck the lis pendens indexed against the property. Appellant
timely filed a notice of appeal,3 followed by a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive opinion rejecting Appellant’s
challenge to the order, reasoning, in relevant part:
[Appellant’s] $15,957 claim against [] Wyatt [] lacks any fraudulent conveyance, quiet title, specific performance or similar claim that places title to real estate at issue. Although [Appellant’s] claim involves landscaping performed on [the property], it is very apparent that [] Wyatt’s title to that land is undisputed. [Appellant] is prohibited from using a lis pendens as an alternative when “negotiations ... concerning the bill...” have prevented the timely filing of a mechanic’s lien. Brief in Opposition to Motion to Strike, [6/14/21, at unnumbered p. 3], footnote no. 1 [(wherein Appellant stated that it “was unable to file a mechanics [sic] lien on the [] property due to negotiations taking place between [Appellant] and [Wyatt] concerning the bill owed to [Appellant] by [Wyatt].”)]; 49 P.S. § 1502[(a)(1)] (mechanic’s lien claim must be filed within six months after the completion of the work). Thus, my decision to strike the lis pendens was correct.
Trial Court Opinion, 8/23/21, at 3 (emphasis added; footnote omitted); see
also id. at 2-3 (discussing, similar to Psaki, supra, precedential case law
which explains that title to real estate must be at issue for a lis pendens to be
proper).
3 It is undisputed that “an order striking lis pendens is immediately appealable.” Barak, 196 A.3d at 218.
-3- J-A02017-22
On appeal, Appellant presents the following issues for our review:
I. WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW, ABUSED ITS DISCRETION OR VIOLATED CONSTITUTIONAL RIGHTS IN STRIKING THE COMMON LAW LIS PENDENS ACTION?
II. MUST ACTUAL PHYSICAL TITLE BE AT ISSUE IN A COMMON LAW LIS PENDENS ACTION?
III. WHETHER ANY CLAIM THAT TOUCHES AND CONCERNS THE LAND IS SUFFICIENT TO WARRANT THE APPLICATION OF COMMON LAW LIS PENDENS?
Appellant’s Brief at 4.
We address Appellant’s issues together, as they are related and involve
pure questions of law. Accordingly, “our scope of review is plenary, and our
standard of review is non-deferential.” Quigley v. Unemployment Comp.
Bd. of Review, 263 A.3d 574, 589 (Pa. 2021).
We have explained:
“[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 [v. Jenkins], 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 [v. Roberts,] 219 A.2d [306,] 309 [(Pa. 1966)]. “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.
Michael v. GLD Foremost Holdings, LLC, 156 A.3d 318, 322 (Pa. Super.
2017) (some citations modified).
-4- J-A02017-22
Appellant argues the trial court erred in striking the lis pendens because,
contrary to the court’s determination, “actual physical title of real property
does not have to be at issue for application of the doctrine of lis pendens.”
Appellant’s Brief at 11 (capitalization omitted). Appellant concedes that this
Court has held “a party is not entitled to have his case indexed as lis pendens
unless title to real estate is involved in litigation.” Id. at 12 n.5 (quoting
Psaki, 546 A.2d at 1128) (underline in original). However, Appellant
complains the “Psaki Court cited to no relevant authority in support of this
proposition.” Appellant’s Brief at 12 n.5. Appellant cites our Supreme Court’s
decision in Dice, supra, alleging that “all that [is] required to assert a
common law lis pendens action is a declaration that a claim touches and
concerns the land.” Id. at 12 (underline in original) (citing generally Dice,
117 A.2d 725). Appellant contends its claim against Wyatt “touches and
concerns” the property, where Appellant improved the property with
landscaping materials and labor. Appellant’s Brief at 13. Finally, Appellant
argues the trial court acted improperly by failing to make “any inquiry into
whether or not the application of the doctrine of lis pendens was harsh or
arbitrary nor whether the cancellation of the lis pendens would result in
prejudice to [] Appellant, which Appellant asserts prejudice due to the lower
court’s cancellation.” Id. at 11 n.3.
We disagree with Appellant and conclude the trial court correctly applied
precedent in striking the lis pendens indexed against the property. Precedent
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unequivocally holds that title to the real estate at issue in litigation must be
implicated for a lis pendens to be proper. See, e.g., Psaki, 546 A.2d at 1128;
Michael, 156 A.3d at 322 (“If title to the property is not subject to the result
of the litigation, then . . . [t]o 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.’” (quoting Dice,
117 A.2d at 727)). Indeed, in Michael, this Court reversed the trial court’s
refusal to strike a lis pendens indexed against real property, where the trial
court “erred by ignoring the threshold requirement that title to real estate
be at issue.” Michael, 156 A.3d at 323 (emphasis added) (citing Psaki,
supra, and stating: “The outcome of the underlying contractual dispute will
not affect who has title to [the real estate]. Rather, [plaintiff] demands money
damages.”).
Here, the record confirms the trial court’s statement that, “[a]lthough
[Appellant’s] claim involves landscaping performed on [the property], it is
very apparent that [] Wyatt’s title to that land is undisputed.” Trial Court
Opinion, 8/23/21, at 3; cf. Barak, 196 A.3d at 222 (lis pendens was
appropriate where “[t]itle is clearly [at] issue” in plaintiff’s quiet title action).
Thus, the trial court properly struck the lis pendens indexed against the
property, and did not err in failing to weigh the equities, as Appellant failed to
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“establish the threshold requirement for lis pendens.”4 Michael, 156 A.3d at
324 (only where title to the real property at issue in litigation is implicated will
a trial court proceed to weigh the equities); see also Barak, 196 A.3d at 218
(articulating the two-part test for reviewing a lis pendens and stating, “step
one is to ascertain whether title is at issue in the pending litigation.” (citation
and quotation marks omitted)).
Finally, Appellant’s reliance on Dice, supra, is misplaced, as the dispute
in Dice implicated the issue of title, unlike the instant case. See Dice, 117
A.2d at 726; see also Trial Court Opinion, 8/23/21, at 2 (distinguishing Dice
and correctly observing: “[Appellant’s] argument, that a lis pendens may be
filed for any claim that touches or concerns the land, is absent from the [Dice]
decision.”).
As the trial court did not err in its legal determination, we affirm the
order striking the lis pendens indexed against the property.
Order affirmed.
4 Further, contrary to Appellant’s argument, this conclusion is not altered by the complaint’s demand for equitable relief and the return of materials and labor, in addition to monetary damages, since title to the property is not at issue. Cf. Appellant’s Reply Brief at 3.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/28/2022
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