Barak, G. v. Karolizki, E.
196 A.3d 208
| Pa. Super. Ct. | 2018Background
- Plaintiff Golan Barak filed a praecipe to index a lis pendens in Allegheny County tied to a quiet-title suit seeking to void a recorded deed and restore his title to a Wilkinsburg property.
- Defendants Eyal Karolizki and Gal Zeev Schwartz moved to strike the lis pendens because they had a prospective buyer who would not buy subject to the lis pendens.
- At the hearing defendants produced no sworn evidence; defense counsel proposed removing the lis pendens and placing sale proceeds in escrow pending litigation; the trial judge accepted that approach.
- The trial court signed an order striking the lis pendens from the judgment index and directing any sale proceeds be escrowed; Barak appealed.
- The Superior Court held the order striking lis pendens was immediately appealable, concluded the trial court applied the wrong legal standard (preliminary-injunction test), vacated the lis pendens-striking order and the escrow directive, and remanded for the trial court to perform the required equitable (step-two) balancing under lis pendens doctrine.
Issues
| Issue | Plaintiff's Argument (Barak) | Defendant's Argument (Karolizki/Schwartz) | Held |
|---|---|---|---|
| 1) Is an order striking a lis pendens immediately appealable? | McCahill controls; striking lis pendens is final because it effectively puts plaintiff out of court. | Rely on U.S. National Bank dicta that lifting lis pendens is interlocutory. | Order is immediately appealable: McCahill governs; alternatively, it satisfies collateral-order criteria under Pa.R.A.P. 313. |
| 2) Is a lis pendens equivalent to a preliminary injunction (i.e., must preliminary-injunction standards apply)? | Lis pendens is a notice affecting title in rem, not an injunction in personam; preliminary-injunction standards do not apply. | A lis pendens functions like an injunction because it deters transfers and thus should be tested like a preliminary injunction. | Lis pendens and preliminary injunctions are distinct; trial court erred by applying preliminary-injunction law. |
| 3) Did the complaint justify indexing the lis pendens (step one) and must the trial court balance equities (step two)? | Complaint is a pure quiet-title claim; title is plainly at issue so step one is satisfied; the trial court must perform the step-two equitable balancing (harsh/arbitrary and prejudice). | Argued removal justified because defendants had buyer and other equities. | Step one satisfied as a matter of law; remand for the trial court to perform step-two equitable balancing in the first instance. |
| 4) Was the trial court’s escrow order (directing sale proceeds to be held) permissible? | Escrow improperly converts quiet-title relief into a money remedy; escrow was legally inappropriate where plaintiff seeks title, not damages. | Escrow preserves funds pending outcome and protects parties/third parties. | Escrow order vacated: judge exceeded appropriate remedies for a quiet-title lis pendens matter. |
Key Cases Cited
- McCahill v. Roberts, 219 A.2d 306 (Pa. 1966) (holding order striking lis pendens can be final and immediately appealable)
- U.S. Nat’l Bank in Johnstown v. Johnson, 487 A.2d 809 (Pa. 1985) (statement that lifting lis pendens is interlocutory treated as dicta by the panel)
- Rosen v. Rittenhouse Towers, 482 A.2d 1113 (Pa. Super. 1984) (articulating the two-part lis pendens test: title at issue, then equitable balancing)
- Dice v. Bender, 117 A.2d 725 (Pa. 1955) (describing lis pendens as notice affecting interests acquired during litigation)
- In re: Foremost Indus., Inc. v. GLD, 156 A.3d 318 (Pa. Super. 2017) (explaining step-one: lis pendens appropriate only where title is genuinely at issue)
- Ben v. Schwartz, 729 A.2d 547 (Pa. 1999) (setting out the elements and analysis for collateral-order review under Pa.R.A.P. 313)
- Sack v. Feinman, 413 A.2d 159 (Pa. 1980) (describing appellate review standard for equitable decrees)