Blue Haven Pools v. Skippack Bldg Corp. ( 2023 )

J-A17027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
BLUE HAVEN POOLS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SKIPPACK BUILDING CORPORATION : No. 2043 EDA 2022
AND BS TRUST, EB TRUST, JE TRUST :
AND SJ TRUST, GARNISHEES :
Appeal from the Order Entered July 6, 2022
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2005-26165
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED OCTOBER 26, 2023
Blue Haven Pools (“Blue Haven”) appeals from the order awarding
counsel fees to BS Trust, EB Trust, JE Trust, and SJ Trust (collectively
“Garnishees”). Following our review, we are constrained to reverse.
This Court has previously set forth the lengthy factual and procedural
history of this matter in Blue Haven Pools v. Skippack Bldg. Corp., 260
A.3d 139 (Pa. Super. 2021) (unpublished memorandum). Because the
somewhat convoluted procedural posture of this case extended over many
years, we summarize only the relevant factual and procedural history, for
purposes of the present appeal, as follows: In November 2005, Blue Haven
filed a civil action against Skippack Building Corporation (“Skippack”) for
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* Retired Senior Judge assigned to the Superior Court.
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breach of contract, citing Skippack’s failure to make payments due on a
construction contract (“the original litigation”). See id. at *1. In November
2010, following a non-jury trial, the trial court entered judgment in favor of
Blue Haven and against Skippack. Since then, Blue Haven has unsuccessfully
attempted to enforce the 2010 judgment against Skippack via garnishment
proceedings against Skippack and its shareholders, Garnishees (“the
garnishment litigation”). See id.
In 2012, Blue Haven filed a motion for judgment against Garnishees,
seeking to recover the 2010 judgment. Blue Haven asserted that Skippack
fraudulently transferred money to Garnishees during the breach of contract
action. See id. Ultimately, following a non-jury trial, the trial court found in
favor of Skippack and Garnishees in November 2014. See id. at *2. Blue
Haven filed a post-trial motion for judgment notwithstanding the verdict,
which the trial court denied on March 23, 2015. See id.
Blue Haven filed a notice of appeal on April 21, 2015 in the garnishment
action notwithstanding the fact that the trial court had not yet entered
judgment in the garnishment action. This Court later deemed the appeal
premature, but allowed it to proceed; however, the Court directed Blue Haven
to praecipe the trial court prothonotary to enter judgment. See id. Blue
Haven complied, and the March 23, 2015 order denying post-trial motions in
the garnishment action was reduced to judgment on January 23, 2017. See
id. Following the perfection of jurisdiction, this Court, on April 3, 2017,
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affirmed the judgment in the garnishment action. See id. (citing Blue Haven
Pools v. Skippack Building Corp., 169 A.3d 1132 (Pa. Super. 2017)
(unpublished memorandum)).
On April 20, 2017, following the affirmance by this Court, but more
than thirty days after both the March 23, 2015 order denying Blue
Haven’s post-trial motion in the garnishment action, as well as the
January 23, 2017 entry of judgment in the garnishment action,
Garnishees filed a motion for attorneys’ fees with the trial court pursuant to
42 Pa.C.S.A. § 2503(a)(3). See id. at *3. In January 2018, the trial court
held a phone conference on the motion for attorneys’ fees, wherein, for
unknown reasons, Blue Haven argued it had been entitled to a jury trial in the
garnishment action. On January 9, 2018, the trial court directed Blue Haven
to file a motion in support of its request for a jury trial in the garnishment
action, and on January 17, 2018, Blue Haven filed the motion. The trial court
subsequently denied the motion in June 2019. See id. Blue Haven appealed
the order denying its motion for a jury trial, and this Court affirmed in July
2021. See id. at *6.
Following this Court’s July 2021 affirmance of the order denying Blue
Haven’s motion for a jury trial in the garnishment action, the trial court
scheduled an evidentiary hearing on Garnishees’ motion for attorneys’ fees.
See Trial Court Opinion, 1/18/23, at 2. In August 2021, Blue Haven filed a
motion to dismiss the Garnishees’ motion for attorneys’ fees. In September
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2021, the trial court denied Blue Haven’s motion to dismiss and conducted an
evidentiary hearing on Garnishees motion for attorneys’ fees. See id. at 3.
On July 6, 2022, the trial court issued an order granting Garnishees’ motion
for attorneys’ fees. See id. at 4. On August 4, 2022, Blue Haven filed a
timely notice of appeal, and both Blue Haven and the trial court complied with
Pa.R.A.P. 1925. See id. at 4.
Blue Haven raises the following issues for our review:
1. Whether the trial court erred in awarding . . . Garnishees[]
counsel fees when, according to 42 Pa.C.S.A. § 5505, the
court lacked jurisdiction to consider . . . Garnishees’ motion
to award counsel fees since their motion was filed more than
thirty (30) days after the court’s final order in the
garnishment proceeding?
2. Whether the trial court erred in awarding . . . Garnishees[]
counsel fees when . . . Garnishees failed to file a post-trial
motion for fees and costs pursuant to [Pa.R.Civ.P.] 227.1?
3. Whether the trial court erred in awarding . . . Garnishees[]
counsel fees when they were not innocent stakeholders
entitled to fees and costs?
4. Whether the trial court erred in awarding . . . Garnishees[]
counsel fees when they did not pay any attorney’s fees or
costs and introduced no evidence that they paid any
attorney’s fees or costs?
Blue Haven’s Brief at 4 (unnecessary capitalization omitted) (issues re-
ordered for ease of disposition)
Our standard of review for appeals from orders awarding attorneys’ fees
is as follows:
[T]rial courts have great latitude and discretion in awarding
attorney fees when authorized by contract or statute. Generally,
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the denial of a request for attorneys’ fees is a matter within the
sound discretion of the trial court, which will be reversed on appeal
only for a clear abuse of that discretion. Whether a trial court had
jurisdiction to act on a fee petition, however, is a question of law
as to which our standard of review is de novo and our scope of
review is plenary.
Szwerc v. Lehigh Valley Health Network, Inc., 235 A.3d 331, 335 (Pa.
Super. 2020) (internal citations, quotations, and brackets omitted).
In its first issue, Blue Haven argues the trial court erred in awarding
counsel fees to Garnishees because the court lacked jurisdiction to consider
the motion for counsel fees, since it was untimely. Section 2503(3) of the
Judicial Code provides:
The following participants shall be entitled to a reasonable
counsel fee as part of the taxable costs of the matter:
****
(3) A garnishee who is found to have in his possession or
control no indebtedness due to or other property of the debtor
except such, if any, as has been admitted by answer filed.
42 Pa.C.S.A. § 2503. Section 5505 states that, “[e]xcept as otherwise
provided or prescribed by law, a court . . . may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed.” 42
Pa.C.S.A. § 5505. “Pursuant to [s]ection 5505, a trial court’s jurisdiction
generally extends for thirty days after the entry of a final order. . . . After
the 30-day time period, the trial court is divested of jurisdiction.” Szwerc,
235 A.3d at 336 (internal citation, quotations, and brackets omitted). “Where
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the litigant files a motion for counsel fees under Section 2503 after
entry of a final order, [s]ection 5505 requires the litigant to do so
within 30 days of the entry of a final order; the trial court lacks
jurisdiction to consider a fee motion filed beyond the 30-day period.”
Id. (emphasis added). A petition for counsel fees under section 2503 is not
a separate suit for fees, but rather, a matter that is connected but ancillary to
the underlying action; therefore, if the petition for counsel fees is timely filed,
the trial court is empowered to act on it, even after an appeal is taken. See
id.1 Lastly, “judicial policy requires finality in proceedings and cannot permit
a litigant to prolong the case indefinitely by filing a motion for attorneys’ fees
at any time.” Id. at 339.
Blue Haven argues that “[w]here a litigant files a motion for counsel
feels under [section] 2503, after the entry of a final order, [section] 5505
requires the litigant to do so within 30 days of the entry of the final order.
The trial court lacks jurisdiction to consider a fee motion filed beyond the
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1 “Moreover, . . . [d]elay in filing a motion for counsel fees while an underlying
appeal is pending denies the trial court the opportunity to consider the fee
request at a time when the court is familiar with the case and issues. . . . [A
determination otherwise] would permit the filing of a motion for counsel fees
years after the events and conduct for which fees are sought.” Szwerc, 235
A.3d at 337 (quoting Ness v. York Tp. Bd. of Com'rs, 123 A.3d 1166, 1170-
71 (Pa. Commw. 2015)); see also Petow v. Warehime, 996 A.2d 1083,
1089 n.1 (Pa. Super. 2010) (stating that, while Commonwealth Court
decisions do not bind this Court, they may “provide persuasive authority”).
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30-day period.” Blue Haven’s Brief at 30. Blue Haven maintains the final
order in this matter occurred on November 13, 2014, when the trial court first
entered its verdict in favor of Garnishees; and because Garnishees did not file
their motion for fees until April 20, 2017 (approximately two-and-a-half years
later), the trial court had no jurisdiction to act on the motion. See id. at 34.
The trial court considered Blue Haven’s argument and determined no
relief was due. The trial court acknowledges that its order became final on
January 23, 2017, when that court entered judgment following this Court’s
directive, and it also acknowledges that an appeal does not extend the “30-
day period after the trial court’s final order in which a party must file a motion
for counsel fees.” Trial Court Opinion, 1/18/23, at 9. It explains further,
however, that, by continuing litigation “after its first appeal,” Blue Haven could
not plausibly argue that there was a final determination that rendered
Garnishees’ motion untimely. See id. The trial court apparently concludes
that it had jurisdiction into August 2021, following this Court’s resolution of
Blue Haven’s second appeal and the latter’s subsequent motion before the
trial court to dismiss Garnishees’ motion for counsel fees. See id. at 2-3, 6,
8-9 (discussing, inter alia, Miller Electric Company v. DeWeese, 907 A.2d
1051 (Pa. 2006)).
Following our review, we are constrained to reverse. Szwerc requires
motions for counsel fees to be presented within thirty days of a final order.
See Szwerc, 235 A.3d at 336 (discussing the interplay between 42 Pa.C.S.A.
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§§ 2503 and 5505). We observe that the trial court entered an order on March
23, 2015 denying Blue Haven’s post-trial motion following the November 2014
verdict, which was the subject of Blue Haven’s first appeal. See Blue Haven,
260 A.3d 139 (unpublished memorandum at *2). While this Court previously
concluded the March 23, 2015 order was the trial court’s “final
pronouncement” and was properly appealable, we nevertheless required Blue
Haven to perfect this Court’s jurisdiction by filing a praecipe for a final
judgment, which the trial court entered on January 23, 2017. See Blue
Haven, 169 A.3d 1132 (unpublished memorandum at *1 n.1); see also
Judgment Court Order, 1/23/17. This is to say that whether the final order in
this case is March 23, 2015 (denial of post-trial motions in the garnishment
action), or, at the latest, January 23, 2017 (entry of judgment in the
garnishment action), Szwerc provides that Skippack had thirty days from the
date of the final order to file a motion for counsel fees, and an appeal does
not extend the time period for the motion to be filed:
The filing of an appeal . . . does not divest the trial court of
jurisdiction over . . . a motion for counsel fees. Because the trial
court retain[s] jurisdiction over the separate issue of counsel fees,
[the] filing of [an appeal] d[oes] not prevent [the] timely filing [of
a] request for counsel fees on or before [expiration of 30 days
from entry of the final order].
****
. . . Miller Electric Co. does not hold that an appeal
extends the 30–day period after the trial court’s final order
in which a party must file a motion for counsel fees.
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Szwerc, 235 A.3d at 337 (quoting Ness, 123 A.3d at 1170-71) (some
brackets in original; emphasis added).2 Accordingly, Garnishees had thirty
days from January 23, 2017 (the date judgment was entered, the later of the
two possible dates, to file a motion for counsel fees. However, they did not
file the motion until after the expiration of the thirty-day period, i.e., on April
20, 2017 (following this Court’s April 3, 2017 affirmance of the trial court’s
order entering judgment against Blue Haven). See Motion to Award Counsel
Fees, 4/20/17. Thus, the trial court lacked jurisdiction to decide the motion.
Therefore, we are constrained to reverse.3
Order reversed.
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2 In Miller, a motion for counsel fees was filed months ahead of the entry of
judgment, though the motion was not decided until after the final judgment
was entered. See 907 A.2d at 1053-54, 1057. The issue there was whether
an appeal from the trial court’s order denying the motion for attorneys’ fees
was timely, even though the order followed entry of the final judgment. The
appeal in Miller would only have been timely if calculated from the date of
the order denying the motion, but untimely if calculated from the date of the
final judgment. See id. at 1057. Our Supreme Court held that the order
denying the motion for attorneys’ fees was the order from which the appeal
lay, and thus the proper date from which the time for filing an appeal should
be calculated. See id.
3 Because this issue is dispositive, we do not reach the merits of Blue Haven’s
remaining issues.
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Date: 10/26/2023
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