Opinion

Commerce Bank/Harrisburg, N.A. v. Kessler

  • 2012 Pa. Super. 100
  • 46 A.3d 724
  • 2012 Pa. Super. LEXIS 540
  • 2012 WL 1610139
Court
Supreme Court of Pennsylvania
Filed
May 9, 2012
Status
Published
Author
Strassburger
On the bench
Donohue, Olson, Strassburger
Cited by
24 cases
Authority
More cited than 19.6%

“ ‘The bifurcated appeal foisted upon the courts can only be termed a judicial Hydra. Would that a Hercules could appear ... to slay this monster.’ Hession Condemnation Case, [430 Pa. 273], 242 A.2d 432, 437 (1968) (O’Brien, J., dissenting).”

How later courts described this case

  • “ ‘The bifurcated appeal foisted upon the courts can only be termed a judicial Hydra. Would that a Hercules could appear ... to slay this monster.’ Hession Condemnation Case, [430 Pa. 273], 242 A.2d 432, 437 (1968) (O’Brien, J., dissenting).”

Written by the judges who cited it.

The opinion

DISSENTING OPINION BY

STRASSBURGER, J.

I respectfully disagree that a motion to determine lien priority should be considered in the nature of a declaratory judgment action and thus immediately appeal-able; accordingly, I dissent and offer the following analysis.

This case was initiated as a mortgage foreclosure action and both parties agreed to stop the sheriffs sale prior to its occurrence and ask the trial court to determine lien priority. The trial court held that Ricker’s mechanics’ lien had priority over Metro Bank’s mortgage. Bank has appealed.

The Majority holds that the joint request for a determination of lien priority is “in the nature of a declaratory judgment action, and since declaratory judgments are final orders, the court’s determination of lien priority is a final, appealable order.

You can call a cat a dog, but it is still a cat. This is not a declaratory judgment action; it is a mortgage foreclosure action.

Our Pennsylvania Rules of Civil Procedure govern the process when lien priority is disputed. Specifically, lien priority is established by filing exceptions to the sheriffs schedule of distribution after a sheriffs sale has occurred.

The method and procedure by which competing lien creditors may litigate their claims to sale proceeds is established by [Pa.R.C.P.] 3136. Rule 3136(g) implicitly recognizes the right of appeal by any person aggrieved by the court’s final disposition of exceptions to the sheriffs schedule of distribution. It authorizes the entry of an order that the sheriff invest the proceeds of sale pending final disposition of the exceptions or an appeal therefrom. It is clear that an appeal will lie from a final order sustaining or dismissing exceptions to a sheriffs schedule of distribution.

Metro. Fed. Sav. & Loan Ass’n of E. Pennsylvania v. Bailey, 244 Pa.Super. 452 , 368 A.2d 808, 811-12 (1976) (internal quotations and citations omitted). Even though the parties and trial court agreed to this course of action, and it may be of some aid toward settlement as an advisory opinion, the order entered by the trial court is still an interlocutory order because it does not dispose of all claims and all parties. The parties have every right to ask the trial court to resolve a subsidiary issue in a case. That does not mean they have the right to appeal such a ruling.

There are myriads of subsidiary orders upon which parties desire rulings from a trial court. For example, in an ejectment action, has a party established ownership by adverse possession of a portion of the property? In an eminent domain case, where is the boundary line of the con-demnee’s property? In many civil actions, does the plaintiff have standing? Has the statute of limitations run? Is crucial testimony barred by the parol evidence rule? The list is endless.

*737 Discouraging interlocutory appeals has long been a goal of this Commonwealth. Stevenson v. General Motors Corp., 513 Pa. 411 , 521 A.2d 413 (1987); Schaffer v. Litton Systems, Inc., 372 Pa.Super. 123 , 539 A.2d 360 (1988); In re Marino’s Estate, 440 Pa. 492 , 269 A.2d 645, 646 (1970). In the interest of judicial economy, “[i]t is more important to prevent the chaos inherent in bifurcated, trifurcated, and mul-tifureated appeals than it is to correct each mistake of a trial court the moment it occurs.” Calabrese v. Collier Twp. Mun. Auth., 432 Pa. 360 , 248 A.2d 236, 238 (1968) (O’Brien, J., Dissenting).

If the Majority were correct, the eloquent words of Justice (later Chief Justice) O’Brien would ring true today: “The bifurcated appeal foisted upon the courts can only be termed a judicial Hydra. Would that a Hercules could appear ... to slay this monster.” Hession Condemnation Case, 430 Pa. 273 , 242 A.2d 432, 437 (1968) (O’Brien, J., Dissenting).

Accordingly, I would quash the appeal as interlocutory.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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