Perlmutter, D. v. Sutton Invest. ( 2022 )

J-A17034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAWN PERLMUTTER AND THOMAS : IN THE SUPERIOR COURT OF
BOLICK : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 2440 EDA 2021
SUTTON INVESTMENTS, LLC AND :
TRINA AND JEFFREY VARONE, H/W :
AND UNITED STATES OF AMERICA :
WILLIAM BARR ATTORNEY GENERAL :
U.S. DEPARTMENT OF JUSTICE :
Appeal from the Order Entered October 28, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2020-01609
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED AUGUST 23, 2022
Appellants, Dawn Perlmutter and Thomas Bolick, appeal, pro se, from
the order (i) granting the motion of Appellees, Trina Varone, Jefferey Varone,
and Sutton Investments, LLC, to dismiss Appellants’ petition to open/strike a
transferred Maryland judgment; (ii) granting Appellees’ motion to dismiss
Appellants’ complaint; and (iii) barring Appellants from pursuing any further
pro se litigation against Appellees raising similar claims without leave of court
pursuant to Pennsylvania Rule of Civil Procedure 233.1. We affirm on the
basis of the trial court opinion.
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* Retired Senior Judge assigned to the Superior Court.
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We briefly recount the procedural and factual background in this case
that is set forth in great depth in the trial court opinion. See Trial Court
Opinion, 2/24/22, at 2-16. Ms. Perlmutter and Mrs. Varone are sisters; in
2010, their mother, Joan Sutton, died. Mrs. Varone was named as one of the
personal representatives of her mother’s estate, which was administered in
Maryland. Ms. Perlmutter and Mr. Bolick1 filed a petition to remove Mrs.
Varone as personal representative. On January 29, 2014, the orphans’ court
of Montgomery County, Maryland granted Mrs. Varone’s motion to strike the
petition for removal; the order provided that any further filings that are
deemed bad faith proceedings would be subject to costs and sanctions.
In 2016, Appellants filed an action in the Circuit Court of Montgomery
County, Maryland, asserting that the Varones and the other personal
representative of Ms. Sutton’s estate defrauded Ms. Perlmutter out of her
inheritance from her mother’s estate. On September 22, 2016, the Maryland
Circuit Court granted the defendants’ motion to dismiss, awarded $12,611.50
in attorneys’ fees, prohibited Appellants from any more filings without leave
of the court, and provided that any further filing without leave would result in
a finding of contempt of court. Appellants appealed, and the Maryland Court
of Special Appeals affirmed the lower court’s order and also directed that the
costs of the appeal be borne by Appellants. The defendants then filed a motion
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1 As the trial court explained, “Mr. Bolick is a family friend and business
associate of Ms. Perlmutter to whom she has assigned a percentage of her
‘inheritance rights.’” Trial Court Opinion, 2/24/22, at 2 n.2.
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for conformance with the mandate of the appellate court regarding the award
of costs of the appeal, and on September 12, 2018, the Maryland Circuit Court
entered judgment against Appellants, jointly and severally, in the amount of
$1,980.00, plus post-judgment interest.
On March 9, 2020, the Varones filed a praecipe in the trial court to
transfer the September 12, 2018 Maryland Circuit Court judgment in the
amount of $1,980.00.2 On April 1, 2020, Appellants filed a “Verified Counter-
Claim Complaint” naming Appellees as defendants and asserting a claim for
declaratory relief and claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1985.
The allegations in the complaint generally related to Appellants’ contention
that the Varones defrauded Ms. Perlmutter out of her share of Ms. Sutton’s
estate. Appellants later filed an amended complaint based on similar
allegations and adding the United States as a defendant.
On November 24, 2020, Appellants filed a “Motion/Petition to
Open/Strike and Second Amended Verified Counter-Claim Complaint.” In this
filing, Appellants requested that the trial court strike or open all judgments
obtained by the Varones in the Maryland Circuit Court as those judgments
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2 According to the trial court, the Varones also concurrently transferred the
$12,611.50 attorneys’ fee judgment from the Maryland Circuit Court, as well
as an $8,927.40 judgment entered against Appellants in a District of Columbia
action. Trial Court Opinion, 2/24/22, at 4. These other two judgments were
docketed separately and, although Appellants requested consolidation of these
other transferred judgments in their pleadings, they never filed a motion to
consolidate. Id. at 4, 5 n.4, 6 n.5. Therefore, this appeal solely relates to
the $1,980.00 transferred judgment.
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were obtained through fraud and by denial of due process for Appellants.
Appellees filed a motion to dismiss the “Motion/Petition to Open/Strike and
Second Amended Verified Counter-Claim Complaint” pursuant to Rule 233.1.
After holding two hearings, the trial court entered an order on October
28, 2021 granting Appellees’ motion to dismiss, denying Appellants’ request
to open or strike the transferred judgment, and dismissing their
‘counterclaims’ against Appellees. In addition, the trial court’s order provided
that, pursuant to the court’s authority under Rule 233.1, Appellants are barred
from bringing additional pro se litigation against Appellees on the same issues
raised in the current matter without obtaining leave of the court. Appellants
filed a motion for reconsideration of the order, but prior to the trial court ruling
on the motion, they filed this timely appeal.3
Appellants raise the following issues before this Court:
A. Whether the [trial] court erred by denying [Appellants’]
Petition/Motion to Strike [Appellees’] recorded judgment where
the record contains judicial admissions showing the judgment to
be void ab initio?
B. Whether the [trial] court erred and abused [its] discretion by
not opening the judgment?
C. Whether the trial court erred and abused [its] discretion in
granting [Appellees’] Motion to Dismiss brought pursuant to Rule
233.1 without notice thereby denying [Appellants’] due process of
law?
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3Appellants filed a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal on December 9, 2021. The trial court filed its Pa.R.A.P. 1925(a)
opinion on February 24, 2022.
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Appellants’ Brief at 11 (unnecessary capitalization omitted).
Our standard of review from the denial of a petition to open or strike a
foreign judgment is limited to whether the trial court manifestly abused its
discretion or committed an error of law. Olympus Corp. v. Canady, 962
A.2d 671, 673 (Pa. Super. 2008).
Generally speaking, a default judgment may be opened if the
moving party has (1) promptly filed a petition to open the default
judgment, (2) provided a reasonable excuse or explanation for
failing to file a responsive pleading, and (3) pleaded a meritorious
defense to the allegations contained in the complaint.
Capstone Capital Group, LLC v. Alexander Perry, Inc., 263 A.3d 1178,
1181 (Pa. Super. 2021) (citation omitted). A petition to strike a judgment
operates as a demurrer to the record and may only be granted based upon a
fatal defect or irregularity appearing on the face of the record. Digital
Communications Warehouse, Inc. v. Allen Investments, LLC, 223 A.3d
278, 284 (Pa. Super. 2019). Such a petition does not entitle a court to review
the merits of the allegations; rather the petition to strike is directed towards
defects that affect the validity of the judgment and entitle the petitioner to
relief as a matter of law. Id. at 285.
Under the full faith and credit clause of the United States Constitution,
“[a] final judgment in one State, if rendered by a court with adjudicatory
authority over the subject matter and persons governed by the judgment,
qualifies for recognition throughout the land.” Capstone, 263 A.3d at 1182
(citation omitted); see U.S. Const. art. IV, § 1. The full faith and credit clause
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has been codified in this Commonwealth through the adoption of the Uniform
Enforcement of Foreign Judgments Act (“UEFJA”). See 42 Pa.C.S. § 4306.
Pursuant to the full faith and credit clause and UEFJA, a Pennsylvania
court as to which the foreign judgment is transferred may not revisit the
merits of the underlying litigation resolved in the foreign state and instead the
foreign judgment may only be challenged on the basis that “the sister state
must have had proper jurisdiction over the defendant and afforded him or her
due process of law.” Capstone, 263 A.3d at 1183 (citation omitted). The
party challenging the validity of the foreign judgment bears the burden of
demonstrating the procedural or jurisdictional irregularity in the foreign
proceeding. Id.
Under Rule 233.1, a defendant in a pro se action may file a motion to
dismiss on the basis that the plaintiff is alleging the same or related claims
brought by the plaintiff in an earlier action against the defendant and those
claims were settled or resolved by the court in the earlier action. Pa.R.Civ.P.
233.1(a). When a trial court grants a motion to dismiss pursuant to the rule,
“the court may bar the pro se plaintiff from pursuing additional pro se litigation
against the same or related defendants raising the same or related claims
without leave of court.” Pa.R.Civ.P. 233.1(c). However, the pro se plaintiff is
not then barred from asserting counterclaims “in litigation that the pro se
plaintiff did not institute.” Pa.R.Civ.P. 233.1(d), Note. We review the trial
court’s grant of a motion to dismiss under Rule 233.1 under an abuse of
discretion standard, although to the extent our review involves the
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interpretation of the Rules of Civil Procedure, our standard of review is de
novo. Gray v. PennyMac Corp., 202 A.3d 712, 715 (Pa. Super. 2019).
Appellants argue that the trial court erred by not striking or opening the
transferred September 12, 2018 judgment because all proceedings in the
Maryland Circuit Court subsequent to the September 22, 2016 dismissal of
their action were void. Appellants assert that the judgment was void because,
after they “murdered” Ms. Sutton, the Varones conducted “an ongoing
fraudulent scheme” in conspiracy with the trial judge and other government
actors to deprive Perlmutter of her rightful inheritance from her mother.
Appellants’ Brief at 25. Appellants further claim that they were denied due
process of law and that personal jurisdiction was improper in Maryland as a
result of this fraudulent scheme. With respect to the dismissal of their
complaint against Appellees under Rule 233.1, Appellants contend that they
were not provided adequate notice, dismissal was improper under the rule as
counterclaims are specifically exempted from the rule’s application, and that
dismissal violated their right to access of the courts under the Pennsylvania
Constitution.
After a thorough review of the record, the parties’ briefs, the applicable
law, and the well-reasoned opinion of the Honorable Denise M. Bowman, we
conclude that Appellants’ issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of Appellants’ appellate
issues. See Trial Court Opinion, 2/24/22, at 18-37 (explaining that petition
to strike was properly denied as Appellants fully litigated jurisdictional and due
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process claims in the Maryland Circuit Court proceeding and they did not meet
burden of showing any irregularity in the prior case; claim of “judicial
admissions” of fraud was waived because no actual admissions identified;
petition to open was properly denied as courts may not reach any potentially
meritorious defenses under full faith and credit clause and, in any event,
petition was untimely because it was filed eight months after transfer of
judgment; dismissal of Appellants’ claims was appropriate under Rule 233.1
as their allegations mirrored those raised in the Maryland proceedings;
Appellants are not rescued by Rule 233.1’s exception for counterclaims
because Appellees only transferred a judgment to Pennsylvania and did not
assert any substantive claims against Appellants as to which a counterclaim
would be appropriate; notwithstanding Appellants’ vague claims that their
constitutional rights were violated by dismissal, Rule 233.1 has been held to
be constitutional by Pennsylvania courts).
Accordingly, we conclude that the trial court did not abuse its discretion
or commit legal error in dismissing Appellants’ petition to open/strike the
transferred foreign judgment, dismissing Appellants’ complaint, and barring
Appellants from asserting similar pro se claims without leave of court pursuant
to Rule 233.1. We therefore affirm on the basis of the trial court opinion. The
parties are instructed to attach the opinion of the trial court in any filings
referencing this Court’s decision.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2022
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