IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT S. CHEATLE, JR. and :

NANCY A. CHEATLE, h/w :

:

 v. :

:

DAVID A. KATZ and DAWN KATZ :

and :

PARADISE CONTRACTORS, INC. : CIVIL ACTION NO. 02-CV-4405

and :

PARADISE PINES HOMEOWNERS :

ASSOCIATION :

and :

PARADISE MANAGEMENT GROUP, :

INC. :

and :

PARADISE DEVELOPMENT GROUP, :

INC. :

ORDER

AND NOW, this day of , 2002, IT IS

ORDERED that Defendants“ Motion to Strike Lis Pendens is GRANTED,

and the lis pendens entered is STRICKEN. IT IS FURTHER ORDERED

that plaintiffs shall forthwith take all action necessary to

remove the lis pendens which they caused to be filed in Montgomery County at No. 02-12304.

BY THE COURT:

___________________________________

U.S.D.J.

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT S. CHEATLE, JR. and :

NANCY A. CHEATLE, h/w :

:

 v. :

:

DAVID A. KATZ and DAWN KATZ :

and :

PARADISE CONTRACTORS, INC. : CIVIL ACTION NO. 02-CV-4405

and :

PARADISE PINES HOMEOWNERS :

ASSOCIATION :

and :

PARADISE MANAGEMENT GROUP, :

INC. :

and :

PARADISE DEVELOPMENT GROUP, :

INC. :

DEFENDANTS“ MOTION TO STRIKE LIS PENDENS

Defendants, by their attorneys, Vangrossi and

Recchuiti, move the Court to strike the lis pendens indexed

against their real property in the Court of Common Pleas of

Montgomery County, Pennsylvania, and in support aver:

1. This is an action asserting various claims arising

out of the sale and construction of plaintiffs“ home.

2. On the basis of this action, and after its filing,

plaintiffs filed in the Court of Common Pleas of Montgomery

County, Pennsylvania, at No. 02-12304, a Praecipe for Lis Pendens

against the land of defendants, David A. Katz and Dawn A. Katz. 

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 2 of 12
2

A copy of the Praecipe, made prior to filing, is attached as

Exhibit ”A‘ to plaintiffs“ Complaint, and Count III of plaintiffs“ Complaint refers to its indexing.

3. Plaintiffs have also caused this action to be

indexed against their own land in the Court of Common Pleas of

Montgomery County, Pennsylvania. A copy of that Praecipe, made

prior to filing, is attached as Exhibit ”9‘ to plaintiffs“

Complaint.

4. This action may not be indexed as a lis pendens

against the land of defendants, because the title to that land is

not at issue in this case.

5. No other basis exists to index this action as a lis

pendens against defendants“ land.

6. The Memorandum of Law in Support of this Motion,

attached hereto, is incorporated by reference as if fully set

forth herein.

WHEREFORE, defendants pray that this Court enter an

Order striking the indexing of this action as a lis pendens, and

directing plaintiffs forthwith to take action to remove the lis

pendens they caused to be indexed in the Court of Common Pleas of

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 3 of 12
Montgomery County, Pennsylvania against the land of defendants

David and Dawn Katz.

VANGROSSI AND RECCHUITI

By_________________________________

Francis Recchuiti, Esquire

Attorney I. D. No. 09284

319 Swede Street

Norristown PA 19401-4801

(610) 279-4306

(Attorneys for Defendants)

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 4 of 12
1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT S. CHEATLE, JR. and :

NANCY A. CHEATLE, h/w :

:

 v. :

:

DAVID A. KATZ and DAWN KATZ :

and :

PARADISE CONTRACTORS, INC. : CIVIL ACTION NO. 02-CV-4405

and :

PARADISE PINES HOMEOWNERS :

ASSOCIATION :

and :

PARADISE MANAGEMENT GROUP, :

INC. :

and :

PARADISE DEVELOPMENT GROUP, :

INC. :

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANTS“ MOTION TO STRIKE LIS PENDENS

This is an action arising from the sale and construction of the home of plaintiffs Robert and Nancy Cheatle. Plaintiffs assert a federal claim under the Racketeer Influenced

Corrupt Organizations Act, and several claims under Pennsylvania

law. A Motion to Dismiss that action is pending. Plaintiffs

caused this action to be indexed as a lis pendens against their

own land, and the land of defendants, David and Dawn Katz, in the

Court of Common Pleas of Montgomery County. Because this action

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 5 of 12
2

does not involve title to any land owned by defendants Katz, the

lis pendens must be stricken. In the alternative, the Court

should exercise its discretionary power to strike the lis

pendens.

Lis pendens is the jurisdiction, power or control a

court acquires over property that is involved in the lawsuit. It

does not create a lien, but gives notice to third parties that

the property is subject to the litigation. Vintage Homes, Inc.

v. Levin, 382 Pa. Super. 146, 554 A.2d 989, 994 allocatur denied,

524 Pa. 622, 571 A.2d 384 (1989). Lis pendens is available only

in cases involving the adjudication of rights in specific property. Unless the title to the real estate subject to the indexing is involved in the litigation, the lis pendens must be

stricken. Psaki v. Ferrari, 377 Pa. Super. 1, 546 A.2d 1127,

1128 (1988) allocatur denied, 522 Pa. 578, 559 A.2d 39 (1989). 

With these principles in mind, we quote all the allegations of

plaintiffs“ Complaint that in any way refer to anybody“s land.

Paragraph 2 of the Complaint states:

”Defendants, David A. Katz and Dawn Katz,

husband and wife, (sometimes collectively

hereinafter referred to as §Katz“), are Pennsylvania citizens residing at 832 Paradise

Drive, Ambler Pa 19002 (the §Katz Residence“). The Katz Residence is located on

one of four lots of land previously constituting a single parcel, referred to at times

as §Paradise Pines“ or §Paradise Drive“; Katz

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 6 of 12
3

caused the original parcel to be subdivided

ultimately into four (4) residential lots. 

The Cheatles“ Land (Lot 3) is contiguous with

Lot 4, the Katz lot to the east; while Lot 2

of the subdivided parcel is adjacent to the

Cheatles“ Land to the west (the §Mullen“s

Lot“). A true and correct copy of a §Grading

Plan - Lot 3 prepared for David & Dawn Katz“

dated February 11, 2000, drawn from the files

of Horsham Township, is attached hereto, made

a part hereof, marked Exhibit 3; the Grading

Plan is also a corollary exhibit document

appended to the Construction Contract. Katz

also maintain their residence as a registered

business address for the corporate defendants. David A. Katz was and is a signator

party to the Agreement and to the Construction Contract; he was the title holder of

record to the Land at the time of the sale

and conveyance to the Cheatles, and is the

§Seller“ under the Agreement.‘

This paragraph identifies real estate, but avers no interest of

the plaintiffs in any land belonging to the defendants.

Paragraph 12.G. states:

”Katz personally assured the Cheatles, represented and warranted prior to and as a material inducement to the Cheatles“ execution of

the Agreements, and consistent therewith, was

and is contractually bound to the commitment

that the common elements, areas, and spaces

of Paradise Pines or Drive, would be maintained and preserved by the Paradise Pines

Homeowners Association; and the foregoing

assurances, representations and warranties

did induce the Cheatles to execute the Agreements; to remit specified assessments at the

Closing under the Construction Contract; and,

to pay and continue to pay monthly dues to

the Katz and/or to the HOA.

1. notwithstanding, Katz failed to record

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 7 of 12
4

any HOA related documentation as required

under and pursuant to Horsham Township Council“s Resolution No. 96-68, paragraph 7, and

that certain Agreement to Accept Conditions

dated November 13, 1996, by and between David

A. Katz and Horsham Township, paragraph 1(g);

and, pursuant to the Pennsylvania Uniform

Planned Community Act, more specifically

described in Count VIII below which renders

the HOA a legal nullity; and in failing to do

so, caused a defect and/or potential defect

in the Cheatles“ title to Lot 3 not to be

insured by their title insurer at Closing,

and have continued to collect HOA dues and

assessments to the economic detriment of the

Cheatles but to the economic advantage of the

Katz and/or Paradise HOA.‘

This paragraph relates only to an alleged defect or potential

defect in the Cheatles“ title to their own land, not the land of

defendants Katz.

Paragraph 15.G. alleges:

”That certain recreational facilities (basketball court) would be provided to the

Cheatles for their use and their children“s

use tantamount to an easement running with

the Land and with Katz“ Lot 4, during and at

all times while the Cheatles resided in their

Home‘

As will be explained below, this allegation does not create an

easement, but merely a revocable license that does not affect

title to real property.

Paragraph 15.H. alleges:

”The proper organization, existence and

recordation under Horsham Township Council“s

Resolution No. 96-68 and the Uniform Planned

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 8 of 12
5

Community Act (68 Pa.C.S.A. ¶5101. et seq.)

of Paradise Pines Homeowners Association

(§HOA“) despite collecting HOA assessments

from the Cheatles at the Closing and continuing to collect monthly HOA dues.‘

This paragraph addresses the validity of a homeowners association, and does not suggest a right by the plaintiffs in defendants“ land.

Paragraph 23 alleges:

”Katz“s obligation to convey the Land so as

to accommodate the Home for the Cheatles

pursuant to the Plans was and is unconditional. See Exhibit 1, 4 and Exhibit 2, 6,

cited above at Paragraph 11B(19) above.‘

This is a reference to plaintiffs“ land.

Nothing in this case in any way suggests that title to

the land of David and Dawn Katz, against which this action was

indexed as a lis pendens, is in any way in question. The indexing of this action as a lis pendens was, therefore, improper.

Lis pendens is not available to satisfy a possible

judgment. It may be filed only when title to the real estate is

at issue. Crown Cork & Seal Co. v. Ascah, 1994 WL 147738

(E.D.Pa. 1994). It may not be invoked in a civil RICO action,

because forfeiture of real estate is not available. Short v.

Weinrebe, 1988 WL 12511 (E.D. Pa. 1988). In Pen-Del Mortgage

Associates v. Federal Deposit Insurance Corporation, 1994 WL

318445 (E.D.Pa. 1994) (Hutton, J.), this Court held that an

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 9 of 12
6

action challenging the sale of real estate to a third party on

the basis of fraud and interference with contractual relations

did not support a lis pendens because of the absence of an

executed agreement of sale that would support a claim of title in

plaintiff.

The only paragraph of plaintiffs“ Complaint that

asserts any interest in land belonging to defendants Katz, is

15.G., which claims that the promise that the Cheatles“ children

could use the Katz family basketball court is ”tantamount to an

easement running with the land‘. It is not. At best, it is a

license, revocable at the will of the party granting it. There

is no reference to a writing conveying any interest or right to

use the basketball court on the Katz property. Easements are

interests that run with the land and which must comply with the

Statute of Frauds. They cannot be created absent a writing (or

prescriptive rights not sustained by the allegations of this

Complaint). Burns v. Baumgardner, 303 Pa. Super. 85, 449 A.2d

590, 594 (1982). Any right to use property not founded on a

writing is merely a revocable parol license. Stein v. Bell

Telephone Co. of Pennsylvania, 301 Pa. 107, 151 A. 690 (1930).

A license is simply the authority to do a particular

act or series of acts on the land of another without possessing

any estate in it. It is confined to the original parties, its

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 10 of 12
terms must be strictly followed, and it is revocable at the will

of the licensor. Baldwin v. Taylor, 166 Pa. 507, 31 A. 250

(1895). To give it any greater effect would abrogate the Statute

of Frauds. Baldwin, supra.

There is nothing in this action which would affect

title to the real estate of David and Dawn Katz against which

this case has been indexed as a lis pendens. Even if there were,

the interest is so slight, the Court should exercise its discretion to strike the lis pendens. Rosen v. Rittenhouse Towers, 334

Pa. Super. 124, 482 A.2d 1113 (1984); Pen-Del Mortgage Associates

v. Federal Deposit Insurance Corporation, 1994 WL 318445 (E.D.Pa.

1994) (Hutton, J.).

VANGROSSI AND RECCHUITI

By_________________________________

Francis Recchuiti, Esquire

Attorney I. D. No. 09284

319 Swede Street

Norristown PA 19401-4801

(610) 279-4306

(Attorneys for Defendants)

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 11 of 12
CERTIFICATE OF SERVICE

I, FRANCIS RECCHUITI, Esquire, hereby certify that on

the date set forth below a true and correct copy of the foregoing

document was served upon the following counsel in the manner

indicated below.

Service by first class mail, as follows:

John C. Fenningham, Esquire

Maura F. Ratigan, Esquire

Corr, Stevens & Fenningham

Suite 315, 5 Neshaminy Interplex

Trevose PA 19053

(Attorneys for Plaintiff)

___________________________________

Francis Recchuiti, Esquire

Attorney for Defendants

Date: August 22, 2002

Case 2:02-cv-04405-HH Document 5 Filed 08/23/2002 Page 12 of 12