Pinsler, A. v. Pinsler, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANN M. PINSLER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STEVEN PINSLER : No. 983 MDA 2017
Appeal from the Order Entered May 17, 2017
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2016-01652
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED MAY 15, 2018
Ann M. Pinsler (“Appellant”) appeals from the order entered in the
Lebanon County Court of Common Pleas, which quashed her writ of execution
and garnishment. We reverse and remand.
In 2015, Patricia M. Pinsler (“Decedent”) died testate. Appellee, Steven
Pinsler, is a named beneficiary under Decedent’s will. After learning of
Appellee’s beneficiary status under the will, Appellant filed a praecipe to file a
foreign child support judgment against Appellee with the Lebanon County
Prothonotary. Subsequently, on February 17, 2017, Appellant filed and served
a praecipe to issue a writ of execution against Appellee’s proceeds under the
will. The writ named the Estate of Decedent (the “Estate”), Jeffrey S. Pinsler
(the “Executor”), the Executor of the Estate of Decedent, and Charles A.
Ritchie, Jr., Esquire, the counsel of record for the Estate of Decedent, as
garnishees.
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* Retired Senior Judge assigned to the Superior Court.
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On April 13, 2017, Attorney Ritchie, acting on behalf of the Estate of
Decedent, filed a motion to quash the writ of execution and garnishment.
Through the motion, the Estate claimed that the trial court should quash the
writ because Appellant did not properly serve a copy of the writ on the
Executor, complying with the writ would force the Executor to breach his
fiduciary duties, and because the Estate believed that the writ was untimely
filed. However, the Estate’s motion did not any include averments of fact to
support these claims.
The trial court issued a rule to show cause why the Estate’s motion
should not be granted. Appellant did not file a timely response to the trial
court’s rule. Therefore, on May 17, 2017, the trial court granted the Estate’s
petition to make the rule absolute, and quashed Appellant’s writ. Appellant
subsequently filed an answer to the motion to quash, as well as a motion for
reconsideration of the trial court’s order quashing Appellant’s writ, which the
court never addressed. This timely appeal follows.1
On appeal, Appellant raises a number of issues, but we will address just
one:
Was it an abuse of discretion for the Trial court to quash the
writ upon averments of conclusions of law when Rule 206.7
does not allow the granting of relief upon conclusions of law
but only upon well pleaded facts?
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1 As the motion for reconsideration did not toll Appellant’s appeal period, see,
e.g., Valley Forge Center Assoc. v. Rib-It/K.P., Inc., 693 A.2d 242, 245
(Pa. Super. 1997), Appellant was required to file her notice of appeal prior to
the disposition of her motion for reconsideration, see Pa.R.A.P. 903(a).
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Appellant’s Brief, at 4.
Appellant first contends that the trial court abused its discretion by
granting the Estate’s motion to quash in contravention of the mandates of
Pa.R.C.P. 206.7. “The interpretation and application of a Pennsylvania Rule of
Civil Procedure presents a question of law. Accordingly, to the extent that we
are required to interpret a rule of civil procedure, our standard of review is de
novo, and our scope of review if plenary.” Gary v. Buonopane, 53 A.3d 829,
834 (Pa. Super. 2012) (internal citations, brackets, and quotation marks
omitted).
Appellant asserts that Rule 206.7 does not empower a trial court to
grant a motion consisting of unsupported conclusions of law based upon a
failure to file a timely response to the rule to show cause. Conversely, the
Estate claims that Appellant’s failure to respond to the rule provided the
proper legal basis for the trial court’s order quashing Appellant’s writ pursuant
to the application of Lebanon County Rules of Civil Procedure 52-205.8.
The resolution of this matter depends upon the interplay of both
Pennsylvania Rules of Civil Procedure and Lebanon County’s Rules of Civil
Procedure.
Rules 206.4 – 208.4 of the Rules of Civil Procedure govern civil motion
practice in Pennsylvania. With a few exclusions noted, courts consider any
“application to the court for an order made in any civil action or proceeding”
a civil motion. Pa.R.C.P. 208.1(a). However, before being considered by a
court, a motion must meet certain form and content requirements. See
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Pa.R.C.P. 208.2. Specifically, a motion is required to include a caption,
numbered paragraphs, a certificate of service, a statement of the relief
requested, allegations of material facts supporting the grounds for relief
sought, and be signed and endorsed. See Pa.R.C.P. 208.2(a)(1)-(5). Once a
motion meeting these requirements is filed, the trial court, as a default, will
consider the motion without written responses or briefs. See Pa.R.C.P.
208.3(a). However, the Courts of Common Pleas are permitted to adopt a
local rule that modifies the default. See Pa.R.C.P. 208.3(b).
The Court of Common Pleas of Lebanon County modified that default by
providing that all motions, which have not been certified uncontested, must
be accompanied by a rule to show cause substantially in compliance with
Pennsylvania Rule of Civil Procedure 208.4. See Leb.Co.R.C.P. 52-
208.3(a)(D). Rule 208.4 provides a form for a proposed rule to show cause,
and also provides that in the event a trial court issues a rule to show cause,
the parties must proceed pursuant to Pennsylvania Rule of Civil Procedure
206.7. See Pa.R.C.P. 208.4(b)(1), (2). This rule provides “[i]f an answer [to
the rule to show cause] is not filed, all averments of fact in the petition may
be deemed admitted for the purposes of this subdivision and the court shall
enter an appropriate order.” Pa.R.C.P. 206.7(a).
In an attempt to expand upon the procedures a moving party must
follow in order to obtain relief in the situation described under Rule 206.7(a),
the Lebanon County Court of Common Pleas adopted local rule 52-205.8. This
rule provides that
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[w]hen the [c]ourt has issued Rule to Show Cause and no party
files a response within the time allotted by the [c]ourt, the petition
or motion that accompanied the Rule to Show Cause shall be
deemed uncontested. The moving party may obtain an Order
granting final relief by filing a Motion for Rule Absolute. All Motions
for Rule Absolute shall append copies of all Certificates of Service
averring that all opposing parties had been served with copies of
the original petition and any Rule to Show Cause issued by the
Court. A Motion for Rule Absolute must be accompanied by a
proposed Order setting forth the relief that was uncontested.
Leb.Co.R.C.P. 52-205.8.
Here, Appellant clearly failed to file a timely response to the trial court’s
rule to show cause. The Estate filed a motion for rule absolute in accordance
with local rule 52-205.8. After concluding that the Estate’s motion was
deemed uncontested by Appellant’s failure to respond to the rule, the trial
court granted the Estate’s motion for a rule absolute and quashed Appellant’s
writ of execution. However, in granting this motion, the trial court failed to
recognize that even uncontested, the contents of the Estate’s motion were
insufficient to justify granting the Estate’s motion to quash.
As highlighted by Appellant, Pennsylvania Rule of Civil Procedure 206.7
provides that if a party fails to file a timely response to a rule to show cause,
all underlying averments of fact in the motion shall be deemed admitted. See
Pa.R.C.P. 206.7(a). The allegations contained in the Estate’s motion are
merely conclusions of law, which are not supported by any allegations of fact.
Further, a review of the record in the matter confirms that the Estate would
have been unable to support their conclusions with factual allegations. Without
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any underlying allegations of fact, the trial court should not have considered
the Estate’s motion in the first instance, let alone proceeded with the rule to
show cause and the motion to make the rule absolute. See Pa.R.C.P.
208.2(a)(3). We therefore reverse2 and remand for further proceedings.3
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/18
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2As we have determined that the trial court erred in granting the motion to
quash, we need not reach the merits of Appellant’s final five issues on appeal.
3 In its Rule 1925(a) opinion, the trial court concludes it was improper for the
Estate to file the motion to quash the writ of execution, and appears to infer
that it should have granted Appellant’s motion for reconsideration. See Trial
Court’s 1925(a) Opinion, 8/16/17, at 4-5. However, due to the fragmented
state of the trial court opinion we were unable to conclude that the trial court
believed it erred by failing to grant the motion for reconsideration.
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