Jones, B. v. Skaro, J. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
BRIAN W. JONES, ASSIGNEE OF ARP IN THE SUPERIOR COURT
ASSOCIATES LLC, OF
PENNSYLVANIA
Appellant
v.
JOHN SKARO AND KAREN A. SKARO,
DOROTHY DONAUER AND PNC BANK,
N.A.,
Appellees No. 1717 WDA 2017
Appeal from the Order Entered November 8, 2017
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-09-007166
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 13, 2018
Appellant, Brian W. Jones, assignee of ARP Associates LLC (“ARP”),
appeals pro se from the November 8, 2017 order, which granted PNC Bank,
N.A.’s (“PNC”) motion for dissolution of garnishment pursuant to Pa.R.C.P.
3143, and dissolved the judgment in favor of Appellant and against PNC, as
to any and all property owned by Appellees, John Skaro and Karen A. Skaro
(collectively “the Skaros”). After careful review, we affirm.
We glean the following relevant facts and procedural history from the
record. On April 14, 2009, ARP obtained a confessed judgment against the
Skaros, in the amount of $50,362.76, in the Court of Common Pleas of
Allegheny County. On October 22, 2013, ARP assigned its judgment lien to
Appellant. On October 24, 2013, Appellant filed a praecipe for writ of
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execution on the confessed judgment, in the amount of $64,047.63, plus
attorneys’ fees, and named PNC as the garnishee.
Appellant subsequently served PNC with interrogatories. In its answers
to interrogatories, PNC admitted to being in possession of two bank accounts
and a safe deposit box, each held jointly in the names of Karen Skaro and
Dorothy Donauer.1 PNC further provided that, after taking into account Karen
Skaro’s allowed $300.00 cash exemption,2 PNC’s $100.00 service charge, and
the $10,000.00 which PNC is required to protect under Pa.R.C.P. 3111.1,3 the
balance subject to attachment was $62,208.35. Accordingly, Appellant filed
a praecipe for entry of judgment by admission, seeking judgment against PNC,
as the garnishee, in the amount of $62,208.35.
After judgment was entered against PNC on December 9, 2013, but prior
to PNC’s remittance of payment to Appellant, the Skaros filed for protection
under Chapter 13 of the Bankruptcy Code in the United States Bankruptcy
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1Dorothy Donauer has been identified as the mother of Karen Skaro and was
named as a non-judgment defendant in the underlying action.
2“In addition to any other property specifically exempted by this subchapter,
property of the judgment debtor (including bank notes, money, securities, real
property, judgments or other indebtedness due the judgment debtor) to the
value of $300 shall be exempt from attachment or execution on a judgment.”
42 Pa.C.S. § 8123(a).
3 PNC’s answer to interrogatories revealed recurring deposits of protected
federal Social Security benefits in one of the accounts held in the name of
Karen Skaro and Ms. Donauer. PNC is required to protect up to $10,000.00
of an account if the account shows any recurring electronic deposits of Social
Security. See Pa.R.C.P. 3111.1(1); 31 CFR §§ 212.1 et seq.
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Court for the Western District of Pennsylvania at Case No. 13-25225-TPA.
During the Skaros’ bankruptcy, Appellant received payments on his secured
claim, totaling $53,302.90, and he then sought relief from the automatic stay
to collect the remainder of his judgment.4 After a hearing on Appellant’s
motion for relief, the bankruptcy court entered an order which declared, “[f]or
the reasons stated on the record … and based on various representations and
submissions to the [c]ourt by the [Skaros] and [Skaros’ c]ounsel, Karen Skaro
has no interest in the PNC Account and was merely named on the account for
convenience purposes.” Bankruptcy Court Order, 5/12/16, at 1-2 (emphasis
added). Additionally, the order granted Appellant relief from the automatic
stay for the limited purpose of pursuing the garnishment against PNC for the
unpaid portion of his judgment. See id.On July 11, 2016, the trial court granted a petition to intervene in the
garnishment action filed by Ms. Donauer. Ms. Donauer filed objections to the
garnishment, as well as a motion for injunctive relief, in which she asserted
that the funds in the PNC account belonged solely to her and consisted of
Social Security payments and death benefit payments for her late husband.
The trial court granted Ms. Donauer’s request for relief and ordered PNC not
to release any funds in the accounts subject to Appellant’s garnishment until
further order. The court then scheduled a hearing regarding the exemption
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4 Appellant claimed that after taking into account all of the payments he
received through the bankruptcy estate, a balance of $21,623.65, plus costs
and interest, was still owed to him on the PNC judgment.
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of funds for July 28, 2016. Following the exemption hearing, the trial court
entered an order holding: (1) that the PNC account ending in 5628 is exempt
from attachment; and (2) as to the PNC account ending in 3251, that any
funds in excess of $25,000.00 shall be released from attachment, and an
additional hearing shall be scheduled on Ms. Donauer’s request for exemption.
See Trial Court Order, 7/28/16, at 1 (“July 28, 2016 Order”).
On October 24, 2016, PNC filed a petition to open the judgment on
admissions previously obtained against it by Appellant. A hearing was held
on February 8, 2017, at which time the court issued an order that: (1)
sustained Ms. Donauer’s objection to garnishment “since the Bankruptcy Court
has already concluded that the account at issue was a convenience account
only, and was for the sole benefit of Ms. Donauer”;5 (2) granted PNC’s petition
to open the judgment entered against it based on its original answers to
interrogatories; and (3) granted PNC an opportunity to amend its answers to
interrogatories to reflect the ruling of the Bankruptcy Court. Id.On February 10, 2017, Appellant filed a notice of appeal. The appeal
was quashed by a per curiam order of this Court, as it stemmed from a
decision to open a judgment, which is interlocutory and not appealable as of
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5 The court further explained: “This is the same question involving the same
parties as here, and the doctrine of res judicata bars re-litigation of that factual
issue.” Trial Court Order, 2/8/17, at 1-2 (“February 8, 2017 Order”).
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right.6 Per Curiam Order, 5/17/17, at 1. PNC then filed amended answers to
the interrogatories, as permitted by the February 8, 2017 Order, to reflect
that it was unable to determine Karen Skaro’s interest in the PNC accounts in
light of Ms. Donauer’s petition to intervene. Subsequently, Appellant filed a
praecipe to place the case at issue, followed by a motion for judgment on the
pleadings. Both of these pleadings were stricken by order of court dated July
25, 2017, “without prejudice to [Appellant’s] right to file a praecipe to enter
final [j]udgment in favor of PNC [] and [Ms.] Donauer and against [Appellant]
based on [the February 8, 2017 Order].” Trial Court Order, 7/25/17, at 2.
On August 3, 2017, Appellant filed a praecipe to reduce the February 8,
2017 Order to a judgment. 7 Accordingly, the Allegheny Department of Court
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6See Joseph Palermo Development Corp. v. Bowers, 564 A.2d 996 (Pa.
Super. 1989) (holding that no appeal as of right may be taken from order
opening confessed judgment and noting that “only an order refusing to open,
vacate or strike off a judgment is immediately appealable”) (citing Pa.R.A.P.
311(a)(1)) (emphasis in original).
7 In accordance with Pennsylvania Rule of Civil Procedure 227.4,
[t]he prothonotary shall, upon praecipe of party:
(1) enter judgment upon a nonsuit by the court, verdict of a
jury or the decision of a judge following a trial without jury,
if
(a) no timely post-trial motion is filed; or
(b) One or more timely post-trial motions are filed
and the court does not enter an order disposing
of all motions within one hundred twenty days
after the filing of the first motion. A judgment
entered pursuant to this subparagraph shall be
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Records entered on the docket that same day, a judgment in favor of Ms.
Donauer and PNC and against Appellant. The trial court explained that, at this
time, the judgment became final and appealable, yet no appeal was filed
within the thirty-day requisite period. See Trial Court Opinion (“TCO”),
1/3/18, at 3-4; see also Pa.R.A.P. 903(a) (stating that a notice of appeal shall
be filed within thirty days after the entry of the order from which the appeal
is taken).8
On October 11, 2017, PNC filed a motion for dissolution of garnishment
pursuant to Pa.R.C.P. 3143. The parties appeared at a hearing on November
8, 2017, at which time the trial court noted Appellant’s failure to file a timely
appeal after the February 8, 2017 Order was reduced to a final judgment.9
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final as to all parties and all issues and shall not
be subject to reconsideration….
Pa.R.C.P. 227.4(1).
8 We agree with the trial court that the February 8, 2017 Order became final
and appealable as of August 3, 2017, the date on which it was reduced to
judgment and entered on the docket. See Conte v. Hahnemann University
Hosp., 707 A.2d 230, 231 (Pa. Super. 1998) (noting when a party opts to
praecipe for the entry of judgment after the requisite 120 day period runs, the
judgment becomes final and immediately appealable when it is entered on the
docket). Accordingly, Appellant was required to appeal the February 8, 2017
Order within 30 days of August 3, 2017.
9 The court addressed Appellant:
Judgment was entered properly …[.] You gave – you finally gave
yourself the opportunity to appeal when you entered judgment….
[T]o me[,] it was obvious that it was all over … when [the court]
entered [its February 8, 2017] Order. But procedurally[,]
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The court concluded that “since there’s been a final order that has not been
appealed, there’s no need for [PNC] to hold the proceeds, so the garnishment
is dissolved. There’s no reason why the oral motion of [Ms. Donauer’s counsel]
should not be granted and the money returned to Ms. Donauer.” Id. at 29.
Accordingly, the court entered the following order:
[T]he judgment, writ of execution, and attachment in favor of
[Appellant] and against [PNC] … shall be dissolved as to any and
all property owned by John Skaro and Karen A. Skaro upon PNC
[] paying $25,000 of the funds held at PNC [] in the account owned
by Karen Skaro and Dorothy Donauer ending in No. 3251 into the
Department of Court Records, Civil Division, of Allegheny County,
Pennsylvania (“DCR”) …[.] [The court] further instructs the DCR
to mark the judgment against PNC [] as satisfied and the
attachment as dissolved on the docket … upon receipt of those
funds. It is further ordered that the DCR release that sum to …
[Ms.] Donauer, per its usual procedures.
Trial Court Order, 11/8/17, at 1 (“November 8, 2017 Order”).
On November 13, 2017, Appellant filed a timely notice of appeal,
followed by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Herein, Appellant presents the following
questions for our review:
A. Was the [trial court] correct when it stated on the record during
the November 8, 2017 hearing that reducing the February 8,
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technically, it wasn’t yet appealable. It became appealable when
you entered judgment on it in August. Your appeal should have
been filed within thirty days of that. As I recall, you tried to place
the case at issue or something. You did some strange things after
entering – procedurally strange things … but you didn’t file the
appeal….
N.T. Hearing, 11/8/17, at 19-20.
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2017 [o]rder of [c]ourt to a judgment under Pa.R.A.P. 301(d),
made it a final order and immediately appealable as of right?
B. Did [Appellant] show that the [trial court] should not have
allowed procedurally, and did not have the power to allow [Ms.]
Donauer to untimely intervene and object to the garnishment
action because the garnishment action was no longer pending,
the petition was not verified, no pleading seeking relief from
the judgment was attached, [and] no explanation for the undue
delay was given?
C. Did [Appellant] show that the [trial court] did not have
jurisdiction to hear [Ms.] Donauer’s claim for exemption or
immunity of property from execution because the original writ
of execution was directed to[] and served by[] the Sheriff of
Westmoreland County[,] pursuant to Pa.R.C.P. [] 3122, and
venue was only proper in Westmoreland County?
D. Did [Appellant] show that [Ms.] Donauer’s petition to intervene
and objection to the garnishment, along with the prior orders
of [c]ourt which granted leave to intervene and scheduled
[s]heriff’s exemption hearings, should have been stricken, and
his preliminary objections to [Ms.] Donauer’s objection to the
garnishment action should have been sustained?
E. Did [Appellant] show sufficient grounds for the denial of PNC’s
petition to open the judgment based on its untimeliness, res
judicata effect of the judgment entered on December 9, 2013,
lack of any reasonable excuse for the delay, or demonstration
of “extraordinary circumstances” required by law?
F. Did [Appellant] show that findings in a bankruptcy court ruling
were binding on state court insofar as to allow [him] to proceed
with execution on his judgment against PNC and in no way
permitted [Ms.] Donauer to relitigate the garnishment action?
G. Did [Appellant] show that [Ms.] Donauer was not entitled to
the automatic stay protections or filing extensions under 11
U.S.C. § 108(c)?
H. Was the [trial court] within its discretion and did it have subject
matter jurisdiction when, on November 17 [sic], 2017, it
granted the relief requested in PNC’s Motion for Dissolution of
Garnishment Pursuant to Pa.R.C.P. [] 3143?
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I. Was the [trial court] bound by the clearly erroneous [o]rders
of [c]ourt granting the petition to intervene and allowance of
untimely objections and claims for exemption according to the
law of the case doctrine?
Appellant’s Brief at 10-13.
Before we address the merits of Appellant’s claims, we must first
determine whether this appeal is properly before us, because “the question of
appealability implicates the jurisdiction of our court.” Jacksonian v. Temple
University Health System Foundation, 862 A.2d 1275, 1279 (Pa. Super.
2004) (quoting In re Estate of Israel, 645 A.2d 1333, 1336 (Pa. Super.
1994)). “An appeal may be taken from: (1) a final order or an order certified
as a final order (Pa.R.A.P. 341); (2) an interlocutory order as of right
(Pa.R.A.P. 311); (3) an interlocutory order by permission (Pa.R.A.P. 312,
1311, 42 Pa.C.S.[] § 702(b)); or (4) a collateral order (Pa.R.A.P. 313).”
Bloome v. Alan, 154 A.3d 1271, 1273 (Pa. Super. 2017).
Pennsylvania Rule of Appellate Procedure 311 provides for interlocutory
appeals as of right and states:
(a) General rule.—An appeal may be taken as of right and
without reference to Pa.R.A.P. 341(c) from:
…
(2) Attachments, etc. – An order confirming,
modifying, dissolving, or refusing to confirm,
modify or dissolve an attachment,
custodianship, receivership, or similar matter
affecting the possession or control of property,
except for orders pursuant to 23 Pa.C.S. §§
3323(f), 3505(a).
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Pa.R.A.P. 311(a)(2). In interpreting Rule 311(a), this Court has explained:
“Orders involving attachments, receiverships, custodianships or other similar
matters affecting the possession or control of property, are among the classes
of interlocutory orders which are appealable as of right.” Jerry Davis, Inc.
v. Nufab Corp., 677 A.2d 1256, 1259 (Pa. Super. 1996) (citing Pa.R.A.P.
311(a)(2)).
Instantly, the trial court’s November 8, 2017 Order, which is the subject
of this appeal, expressly granted the dissolution of “the judgment, writ of
execution, and attachment in favor of [Appellant] and against the Garnishee,
[PNC] … as to any and all property owned by John Skaro and Karen A.
Skaro….” Thus, the November 8, 2017 Order clearly constitutes an order
involving an attachment. As such, although the November 8, 2017 Order is
interlocutory, it is immediately appealable as of right under Rule 311(a)(2).
See Hagel v. United Lawn Mower Sales & Services, Inc., 653 A.2d 17(Pa. Super. 1995) (allowing an appeal as of right from an order which
dissolved an attachment on a bank account).
Next, Appellant asserts that this appeal arises from the November 8,
2017 Order, as well as the July 11, 2016, October 21, 2016, and February 8,
2017 orders.10 Appellant’s Brief at 6-9. However, Appellant has not appealed
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10 We note that the July 11, 2016 order, which granted Ms. Donauer’s petition
to intervene, and the October 21, 2016 order, which denied Appellant’s motion
to strike the petition to intervene and his objections to the garnishment,
became final and appealable on August 3, 2017, when final judgment was
entered on the docket.
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from these additional orders; instead, his notice of appeal states that he is
appealing solely from the November 8, 2017 Order. This Court does not have
jurisdiction to review the propriety of an order from which Appellant has not
appealed. See In re K.P., 872 A.2d 1227, 1230 (Pa. Super. 2005)
(concluding we did not have jurisdiction to entertain the appellant’s arguments
regarding the goal change hearing where the appellant did not file a notice of
appeal from the goal change order but, instead, appealed from the order
terminating her parental rights). Accordingly, we lack jurisdiction to review
Appellant’s claims regarding the opening of PNC’s judgment and/or Ms.
Donauer’s intervening in the garnishment action.
As to the merits of Appellant’s remaining claims regarding the November
8, 2017 order, we preliminarily observe:
[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or
dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Id.; Commonwealth v. Lyons, 833 A.2d 245 (Pa.
Super. 2003). Although this Court is willing to liberally construe
materials filed by a pro se litigant, pro se status confers no special
benefit upon the appellant. Id. at 252. To the contrary, any
person choosing to represent himself in a legal proceeding must,
to a reasonable extent, assume that his lack of expertise and legal
training will be his undoing. Commonwealth v. Rivera, … 685
A.2d 1011 ([Pa. Super.] 1996).
In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super. 2010) (quoting
Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005)).
Moreover, Rule 2119 provides that, “[t]he argument shall be divided into as
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many parts as there are questions to be argued; and shall have at the head
of each part—in distinctive type or in type distinctively displayed—the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a).
Instantly, we observe that Appellant’s brief does not conform to Rule
2119 insofar as he failed to properly divide his argument into sections that
correspond with the issues listed in his statement of questions involved.11
Appellant’s arguments also appear to overlap the numerous subsections, and
the relevant arguments pertaining to the remaining issues before us on appeal
are buried within his nearly 50-paged Argument section, impeding our ability
to conduct meaningful appellate review. Despite the numerous defects
contained within Appellant’s brief, however, we attempt to identify the gist of
the issues arising from the November 8, 2017 Order. Thus, we now turn to
address the merits of Appellant’s remaining claims.
Appellant asserts that the trial court erred in dissolving the judgment,
writ of execution, and attachment against PNC, and by directing the court to
mark the judgment as satisfied after receipt of the funds from PNC, which
were then to be disbursed to Ms. Donauer. Appellant bases his argument on
the faulty conclusion that the provisions for dissolution set forth in Pa.R.C.P.
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11 Specifically, Appellant lists nine issues in his “Statement of Questions
Involved,” labeled A through I. The “Argument” section of his brief, however,
only contains six subsections labeled A through F, and the headings of the
lettered subsections do not correspond with their appropriate counterparts.
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3143 are not applicable in the present matter. After careful review, we deem
Appellant’s claim to be wholly without merit.
Pursuant to Rule 3143, in relevant part:
(b)(1) An attachment is dissolved when any person or party
(a) files with the prothonotary a bond, with security
approved by the prothonotary, in the amount of plaintiff’s
judgment, including probable interest and costs, or in such
lesser amount as the court may direct, naming the
Commonwealth of Pennsylvania as oblige, conditioned to
pay the plaintiff the amount finally determined to be due by
the garnishee or the value of the property whichever is less,
or
(b) deposits with the prothonotary, or with the sheriff for
the prothonotary, to be held by the prothonotary or the
sheriff upon the same condition as the bond, security in the
form of legal tender of the United States in an amount equal
to the plaintiff’s judgment, including probably interest and
costs, or in such lesser amount as the court may direct.
Pa.R.C.P. 3143(b)(1).
It is clear that PNC complied with the requirements set forth in Rule
3143 to dissolve the attachment. As per the July 28, 2016 Order, the trial
court set a limit of $25,000.00 to potentially be paid by PNC. PNC paid this
sum to the Department of Court Records, as directed by the November 8,
2017 Order, which satisfied its obligations under Pa.R.C.P. 3143(b)(1).
Moreover, we agree with the trial court that it had no reason to prevent PNC
from dissolving the attachment, as Appellant no longer had a judgment
against PNC, nor did he file a timely notice of appeal regarding the opening of
the judgment. Thus, we discern no abuse of discretion or error of law by the
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trial court in its action of dissolving the attachment and satisfying the
judgment against PNC.
As the trial court opined, its November 8, 2017 Order and decision to
dissolve the attachment “flow[ed] from [its] conclusion that [Ms.] Donauer is
the true owner of the account,” and “dissolving the garnishment [was] the
natural consequence of that decision.” TCO at 3-4. The court further
explained:
The basis for our decision that [Ms.] Donauer was the true owner
of the funds in the account was based on a decision to the same
effect made in federal Bankruptcy Court. We correctly applied the
principles of res judicata and concluded that [Appellant], who had
been involved as a creditor during the Skaro bankruptcy, had a
full and fair opportunity to argue that the funds belonged to [Ms.]
Skaro, and simply lost his case there. He may not re-litigate the
same issue here in state court in an effort to get a different result.
Id. at 3. To the extent that Appellant continues to attempt to re-hash on
appeal the issue regarding the ownership of the funds in the PNC account, we
agree with the trial court that the doctrine of res judicata applies here.
The doctrine of res judicata “reflects the refusal of the law to tolerate a
multiplicity of litigation.” Day v. Volkswagenwerk Aktiengesellschaft,
464 A.2d 1313, 1316 (Pa. Super. 1983). “It holds that an existing final
judgment rendered upon the merits, without fraud or collusion, by a court of
competent jurisdiction, is conclusive of causes of action and of facts or issues
thereby litigated, as to the parties and their privies, in all other actions in the
same or any other judicial tribunal of concurrent jurisdiction.” Id. (internal
citation and quotation marks omitted). To support a claim of res judicata, the
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party asserting this defense must show the concurrence of four conditions:
(1) identity of the thing sued upon; (2) identity of the cause of action; (3)
identity of persons and parties to the action; and (4) identity of the quality or
capacity of the parties suing or sued. Thompson v. Karastan Rug Mills,
323 A.2d 341, 344 (Pa. Super. 1974). Moreover, “[i]t is … well-settled that
state courts are required to give full faith and credit to proceedings of federal
courts.” Atiyeh v. Bear, 690 A.2d 1245, 1249 (Pa. Super. 1997) (citing
Mintz v. Carlton House Partners, Ltd., 595 A.2d 1240, 1246 (Pa. Super.
1991) (stating the doctrine of res judicata precluded the plaintiff from re-
litigating claims in state court after bankruptcy court heard argument and
found claims invalid)).
Herein, the bankruptcy court made a final determination in response to
Appellant’s motion for relief from the automatic stay for the purpose of
pursuing his claim against PNC, as garnishee, that “Karen Skaro has no
interest in the PNC Account and was merely named on the account for
convenience purposes.” Bankruptcy Court Order, 5/12/16, at 1. Appellant’s
insistence that he is entitled to an attachment to the funds held in the PNC
account in the present matter clearly involves the same issues, cause of
action, and parties that were previously litigated and decided by the
bankruptcy court. Thus, the doctrine of res judicata precludes further
litigation of these claims in state court. We conclude that the trial court
properly based its decision on the bankruptcy court’s determination that Ms.
Donauer was the true owner of the accounts subjected to garnishment.
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Accordingly, for the reasons stated herein, we affirm the November 8,
2017 Order, which granted PNC’s motion for dissolution of garnishment.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2018
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