Linde, B. v. Linde, S.

J-A11019-19
2019 PA Super 331BARBARA LINDE, IN HER OWN : IN THE SUPERIOR COURT OF
RIGHT AND BARBARA LINDE ON : PENNSYLVANIA
BEHALF OF LINDE CORPORATION :
:
:
v. :
:
:
SCOTT LINDE, ROBERT L. HESSLING, : No. 1392 MDA 2018
ROBERT M. MCGRAW, PAUL FEDOR, :
CHRISTOPHER LANGEL, ALFRED :
OSTROSKI, MICHAEL BOCHNOVICH, :
LINDE CORPORATION AND SCOTT :
LINDE FAMILY'S CORPORATION :
TRUST :
:
Appellants :
Appeal from the Order Entered July 20, 2018
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2013 CV 11028
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
OPINION BY OLSON, J.: FILED NOVEMBER 01, 2019
Appellants, Scott Linde, Robert L. Hessling, Robert M. McGraw, Paul
Fedor, Christopher Langel, Alfred Ostroski, Michael Bochnovich, Linde
Corporation, and Scott Linde Family’s Corporation Trust, appeal from the trial
court’s order entered on July 20, 2018.1 We vacate and remand.
____________________________________________
1On March 27, 2014, the trial court sustained defendant Linde Corporation’s
preliminary objections to the complaint and struck the claims against the
corporation. Trial Court Order, 3/27/14, at 1. This determination has not
been challenged on appeal.
J-A11019-19
On September 18, 2013, Barbara Linde (hereinafter “Barbara”),
individually and on behalf of Linde Corporation (hereinafter “LindeCo”), filed a
complaint against Appellants. The case proceeded to a bench trial, after which
the trial court found in Barbara’s favor on many of her claims and ruled that
Barbara was entitled to an equitable remedy in which Appellants were to
purchase her minority interest in LindeCo at fair value. Trial Court Order,
11/13/15, at 1-2. The trial court then convened a second proceeding aimed
at determining the fair value of Barbara’s shares. On December 28, 2017, the
trial court entered its decision in the matter, ruling that Barbara’s shares had
a fair value of $4,433,000.00 and that Barbara was entitled to $959,000.00
in interest, for a total award of $5,392,000.00. Trial Court Order, 12/28/17,
at 1.
On January 8, 2018, Appellants filed a timely post-trial motion. See
Appellants’ Motion for Post Trial Relief, 1/8/18, at 1-11. Eleven days later,
and while Appellants’ post-trial motion remained pending before the trial
court, Barbara prematurely filed a praecipe to enter judgment with the
Luzerne County clerk of courts. Barbara’s Praecipe to Enter Judgment,
1/19/18, at 1; see also Pa.R.C.P. 227.4(1)(b). On January 19, 2018, the
clerk of courts erroneously entered judgment against Appellants; that day,
Barbara filed a praecipe for writ of execution against Appellants and various
third-party entities as garnishees. See Entry of Judgment, 1/19/18, at 1;
Praecipe for Writ of Execution, 1/19/18, at 1.
-2-
J-A11019-19
The January 19, 2018 entry of judgment was beyond the clerk of court’s
authority and, thus, void. In relevant part, Pennsylvania Rule of Civil
Procedure 227.4(1) declares:
. . . the prothonotary shall, upon praecipe of a party:
(1) enter judgment upon . . . 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. . . .
Pa.R.C.P. 227.4(1).
Here, Appellants’ timely post-trial motion was still outstanding and the
120-day time-period specified in Rule 227.4(1)(b) had not expired when the
clerk of courts purported to enter judgment on January 19, 2018. Therefore,
the clerk of courts had no authority to enter judgment on January 19, 2018
and the judgment entered that day was void, a nullity, and lacking in legal
effect. Gotwalt v. Dellinger, 577 A.2d 623, 624-625 (Pa. Super. 1990)
(“[d]ue to the prothonotary's purely ministerial status, the authority for [its]
actions derive from either statute or rule of court. . . . [W]here it is established
that the prothonotary has entered judgment against a party beyond [its]
authority, such action is considered void and the judgment entered by [it] is
a nullity and lacks legal effect”); see also Comm. ex rel. Penland v. Ashe,
19 A.2d 464, 466 (Pa. 1941) (a void judgment is “no judgment at all”);
-3-
J-A11019-19
Romberger v. Romberger, 139 A. 159, 160 (Pa. 1927) (“it is the duty of
the court of its own motion to strike off [a void judgment] whenever its
attention is called to it”).2
Notwithstanding the void judgment, Barbara immediately began to
engage in discovery in aid of execution. But see Pa.R.C.P. 3117(a) (providing
that a plaintiff may engage in discovery in aid of execution at “any time after
judgment”) (emphasis added). Specifically, in January and February 2018,
Barbara served upon Appellants “Interrogatories in Aid of Execution” and
“Post-Judgment Requests for Production of Documents.” Appellants did not
respond to the interrogatories or document requests and, on March 15, 2018,
Barbara filed a “Motion to Compel Responses to Discovery Requests, Impose
Sanctions, and for Supplementary Relief in Aid of Execution” (hereinafter
“Barbara’s Motion to Compel”). As the name of this motion suggests, Barbara
requested that the trial court enter an order: “(1) compelling [Appellants] to
____________________________________________
2 We note that, on April 30, 2018, the trial court entered an order striking the
January 19, 2018 judgment and dissolving all writs of execution issued in the
matter. Trial Court Order, 4/30/18, at 1. Within the trial court’s Rule 1925(a)
opinion, the trial court opines that its April 30, 2018 order was invalid because
Appellants “withdrew the[ir] underlying motion [to strike the January 19,
2018] judgment minutes before” the trial court entered its April 30, 2018
order. Trial Court Opinion, 11/1/18, at 11-12. This is incorrect. As explained
above, the January 19, 2018 judgment was void ab initio regardless of any
action taken by the trial court. Therefore, the trial court possessed the ability
to strike the void judgment on “its own motion.” Romberger, 139 A. at 160.
Hence, the fact that Appellants withdrew their underlying motion to strike the
judgment minutes before the trial court entered its order striking the
judgment has no effect upon the validity of the trial court’s April 30, 2018
order.
-4-
J-A11019-19
respond to [Barbara’s] Interrogatories in Aid of Execution and Requests for
Production, (2) imposing sanctions against [Appellants], and (3) granting
supplementary relief in aid of execution.” Barbara’s Motion to Compel,
3/15/18, at 1 (some capitalization omitted).
On May 18, 2018, the trial court entered an order granting in part and
denying in part Barbara’s Motion to Compel. The order declares:
1. [Appellants] shall provide [Barbara’s] counsel with full and
complete responses to [Barbara’s] Interrogatories and
Requests for Production of [D]ocuments within [30] days of
the date of this order.
2. All other requests for relief are denied.
Trial Court Order, 5/18/18, at 1 (some capitalization omitted).
On April 3, 2018, the trial court denied Appellants’ post-trial motion.
Trial Court Order, 4/3/18, at 1. Appellants filed a notice of appeal on April 30,
2018 and a valid judgment was subsequently entered on May 21, 2018.
Following the May 21, 2018 entry of judgment, Appellants filed with the
trial court a “Motion for Clarification.” Appellants’ Motion for Clarification,
6/8/18, at 1-7. Within this motion, Appellants requested clarification on two
issues. First, Appellants noted that Barbara requested all of her discovery in
aid of execution prior to the entry of a valid judgment. Id. at 2-3. Appellants
claimed that, since there was no valid judgment during the time Barbara
sought her discovery in aid of execution, Appellants were not required to
respond to Barbara’s discovery requests. Id. at 3. However, Appellants called
attention to the May 18, 2018 trial court order, which was also entered prior
-5-
J-A11019-19
to a valid judgment, and which demanded that Appellants respond to the
discovery requests. Appellants requested clarification of the May 18, 2018
order because “the record does not reflect that a valid and legally recognizable
judgment was entered prior to the May 18 order [and it] is unclear from the
May 18 order whether [Appellants] must produce the answers to the discovery
in aid of execution.” Id. at 4 (some capitalization omitted).
Second, Appellants requested clarification because, on May 29, 2018,
the trial court approved a supersedeas bond in the maximum amount of
$6,470,400.00 (or, 120% of the monetary judgment against Appellants),
“conditioned for the satisfaction of the judgment in full with interest and costs
for the delay, if [the judgment] is affirmed or if for any reason the appeal is
dismissed, or for the satisfaction of any modification of the order.” Id. at 4-5
(some capitalization omitted), quoting, Supersedeas Bond, 5/29/18, at 2.
Under the terms of the supersedeas bond, the trial court “order[ed] a stay of
execution of, or any proceedings to enforce, the judgment” rendered against
Appellants. Supersedeas Bond, 5/29/18, at 2. Given these circumstances,
Appellants requested clarification as to “whether it was the intent of the [trial]
court [to state in the May 18, 2018 order] . . . that [Appellants] must produce
the answers to the discovery in aid of execution.” Appellants’ Motion for
Clarification, 6/8/18, at 5 (some capitalization omitted).
Barbara filed an “Emergency Motion for Sanctions” against Appellants
on June 19, 2018. See Barbara’s Emergency Motion for Sanctions, 6/19/18,
at 1-3. Within this motion, Barbara claimed that Appellants “intentionally
-6-
J-A11019-19
failed to comply with” the trial court’s May 18, 2018 order, which directed that
Appellants “provide [Barbara’s] counsel with full and complete responses to
[Barbara’s] Interrogatories and Requests for Production of [D]ocuments
within [30] days.” Id. at 2. Barbara requested that the trial court sanction
Appellants $1,000.00 per day “for each day any [Appellant] fails to produce
responses to [her] discovery requests” and grant her “such other relief as the
[trial] court deems just and appropriate.” Id. at 3 (some capitalization
omitted).
On July 20, 2018, the trial court entered an order declaring, in relevant
part:
1. [Appellants’] Motion for Clarification is hereby denied.
2. [Appellants] shall provide [Barbara’s] counsel with full and
complete responses to [Barbara’s] Interrogatories and
Requests for Production of [D]ocuments within [30] days of
the date of this order.
3. Failure to comply with [the trial court’s] order will result in
the imposition of sanctions upon [Appellants].
Trial Court Order, 7/20/18, at 1 (emphasis and some capitalization omitted).
On Monday, August 20, 2018, Appellants filed a notice of appeal from
the trial court’s July 20, 2018 order. Appellants raise one issue to this Court:
Did the [trial] court commit an error of law in its July 20,
2018 order, . . . denying the Motion for Clarification and
granting the Emergency Motion and ordering [Appellants] to
provide Barbara’s counsel with full and complete responses
to the Interrogatories and Requests for Production of
Documents (hereinafter the[] “Execution Discovery”) within
[30] days because the pursuit of the Execution Discovery
prior to the time the supersedeas bond was filed of record
-7-
J-A11019-19
was void and [had] no effect as established by Pa.R.C.P.
227.4(1)(b) because [] Barbara was effectively secured or
bonded in an amount well in excess of the judgment and as
such, no practical or legal reason exists to require
[Appellants] to respond to the Execution Discovery and the
Execution Discovery served absolutely no legitimate purpose,
and was sought strictly to annoy, or to harass [Appellants]
and was undertaken in bad faith, creating unreasonable
annoyance, embarrassment, oppression, burden or expense?
Appellants’ Brief at 15 (some capitalization omitted).
Prior to reaching the merits of this appeal, this Court must “first
ascertain whether the [order appealed from] is properly appealable.”
Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). Indeed,
since “the question of appealability implicates the jurisdiction of this Court[,
the issue] may be raised by [this] Court sua sponte.” Commonwealth v.
Baio, 898 A.2d 1095, 1098 (Pa. Super. 2006).
Generally, this Court’s jurisdiction “extends only to review of final
orders.” Rae v. Pa. Funeral Dir’s Ass’n, 977 A.2d 1121, 1124-1125 (Pa.
2009); 42 Pa.C.S.A. § 742; Pa.R.A.P. 341(a). A final order is defined as any
order that: “(1) disposes of all claims and of all parties; [] (2) is explicitly
defined as a final order by statute; or (3) is entered as a final order pursuant
to [Pennsylvania Rule of Appellate Procedure 341(c)].” Pa.R.A.P. 341(b).
Our Supreme Court has held that “a determinative order relating to
execution is in character a judgment, which, when of final nature, is
appealable.” Cherry v. Empire Mut. Ins. Co., 208 A.2d 470, 471 (Pa. 1965)
(quotations and citations omitted). The trial court’s July 20, 2018 order
directs that Appellants comply with Barbara’s discovery requests in aid of
-8-
J-A11019-19
execution. This order, directing compliance with discovery requests, is not of
a “final nature” and, thus, does not constitute a final order. Kine v. Forman,
194 A.2d 175, 176-177 (Pa. 1963) (holding: an order directing the judgment
debtor to answer certain questions, posed during discovery in aid of execution
on a judgment, was interlocutory and unappealable);3 see also Jones v.
Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004) (“in general, discovery orders
are not final, and are therefore unappealable”). The order is, therefore, not
appealable under Rule 341(b)(1). Further, the trial court’s July 20, 2018 order
is not “defined as a final order by statute” and was not “entered as a final
order pursuant to [Pa.R.A.P. 341(c)].” Pa.R.A.P. 341(b)(2) and (3).
Therefore, since the trial court’s July 20, 2018 order does not fall under
any of the three definitions of a “final order,” the order is not appealable under
Rule 341. The order is thus non-final and interlocutory.
Interlocutory orders are appealable in certain circumstances. As our
Supreme Court explained:
in addition to an appeal from final orders of the Court[s] of
Common Pleas, our rules provide the Superior Court with
jurisdiction in the following situations: interlocutory appeals
that may be taken as of right, Pa.R.A.P. 311; interlocutory
appeals that may be taken by permission, Pa.R.A.P. [312];
appeals that may be taken from a collateral order, Pa.R.A.P.
____________________________________________
3 Our Supreme Court decided Kine in 1963, which was prior to its adoption of
the collateral order doctrine. See Shearer v. Hafer, 177 A.3d 850, 856 (Pa.
2018) (noting that the Pennsylvania Supreme Court first “embraced the
collateral order doctrine as a matter of Pennsylvania law” in 1975, in the case
of Bell v. Beneficial Consumer Discount Co., 348 A.2d 734 (Pa. 1975)).
-9-
J-A11019-19
313; and appeals that may be taken from certain distribution
orders by the Orphans’ Court Division, Pa.R.A.P. 342.
Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal
quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d 345,
349 n.6 (Pa. 2002).
Here, the trial court’s July 20, 2018 order is not an orphans’ court
distribution order (under Rule 342), it is not appealable as of right (under Rule
311), and Appellants did not ask for or receive permission to appeal the order
(under Rule 312). Thus, the question before this Court is whether the order
is appealable under the collateral order doctrine. See Pa.R.A.P. 313.
Pennsylvania Rule of Appellate Procedure 313 defines a collateral order
as one that: “1) is separable from and collateral to the main cause of action;
2) involves a right too important to be denied review; and 3) presents a
question that, if review is postponed until final judgment in the case, the claim
will be irreparably lost.” In re Bridgeport Fire Litigation, 51 A.3d 224, 230
n.8 (Pa. Super. 2012); see also Pa.R.A.P. 313(b). Our Supreme Court has
emphasized:
the collateral order doctrine is a specialized, practical
[exception to] the general rule that only final orders are
appealable as of right. Thus, Rule 313 must be interpreted
narrowly, and the requirements for an appealable collateral
order remain stringent in order to prevent undue corrosion of
the final order rule. To that end, each prong of the collateral
order doctrine must be clearly present before an order may
be considered collateral.
Melvin v. Doe, 836 A.2d 42, 46-47 (Pa. 2003) (internal citations omitted).
- 10 -
J-A11019-19
Moreover, and in keeping with the narrow interpretation of the collateral
order doctrine, our Supreme Court has held that “the collateral order rule’s
three-pronged test must be applied independently to each distinct legal issue
over which an appellate court is asked to assert jurisdiction pursuant to Rule
313.” Rae, 977 A.2d at 1130. Therefore, even if the collateral order test “is
satisfied with respect to one [appellate] issue,” the assertion of jurisdiction
does not necessarily mean that we have “jurisdiction to consider every issue
within the ambit of the appealed order.” Id. at 1123.
As our Supreme Court has held, an order is “separable from and
collateral to the main cause of action” if it is capable of review without
considering the merits of the underlying cause of action. Ben v. Schwartz,
729 A.2d 547, 551-552 (Pa. 1999); Melvin, 836 A.2d at 45-46. In the case
at bar, Appellants claim that the trial court erred when it directed that they
comply with Barbara’s discovery requests in aid of execution, even though
Appellants appealed the underlying judgment and Appellants obtained (and
the trial court approved) an appropriate supersedeas bond. This issue is
“separable from and collateral to the main cause of action,” as it is solely
concerned with a discovery request regarding Appellants’ personal assets and
the effect of a supersedeas bond upon discovery in aid of execution.
Therefore, the order satisfies the first prong of the collateral order doctrine.
Next, we must determine whether the directive that Appellants comply
with Barbara’s discovery requests, notwithstanding their appeal and
acquisition of a supersedeas bond, “involves a right too important to be denied
- 11 -
J-A11019-19
review.” In re Bridgeport Fire Litigation, 51 A.3d at 230 n.8. Our Supreme
Court has explained:
In analyzing the importance prong, we weigh the interests
implicated in the case against the costs of piecemeal
litigation.
For purposes of defining an order as a collateral order under
Rule 313, it is not sufficient that the issue be important to the
particular parties. Rather it must involve rights deeply rooted
in public policy going beyond the particular litigation at hand.
The overarching principle governing “importance” is that . . .
an issue is important if the interests that would potentially go
unprotected without immediate appellate review of that issue
are significant relative to the efficiency interests sought to be
advanced by adherence to the final judgment rule.
Ben, 729 A.2d at 552 (citations, corrections, and some quotations omitted).
Post-judgment discovery in aid of execution demands the disclosure of
the defendant’s personal assets – information in which the defendant
possesses a right of privacy. See Pa.R.C.P. 3117(a) (discovery in aid of
execution is done “for the purpose of discovery of assets of the defendant”);
see also Szarmack v. Welch, 318 A.2d 707, 710-711 (Pa. 1974) (explaining
the difference between discovery regarding the extent of insurance coverage
and discovery regarding the “private financial information” of the defendant);
Iorio v. Carnegie Borough, 13 Pa. D. & C. 3d 236 (C.C.P. Allegheny Cty.
1980) (Wettick, J.) (“[t]he disclosure of personal assets constitutes an
invasion of privacy and the Supreme Court has never required the disclosure
of such information until liability has been established”).
- 12 -
J-A11019-19
Our Supreme Court has held that the mere “assertion of an attendant
privacy concern [does not] transform a discovery order that otherwise is not
appealable by right into a collateral order subject to as-of-right interlocutory
appellate review.” Dougherty v. Heller, 138 A.3d 611, 628 (Pa. 2016).
Instead, the Supreme Court held:
the specific privacy concern in issue must be evaluated and
adjudged to satisfy the importance requirement. In this
regard, we make the distinction among different orders of
privacy interests, such as those of a constitutional magnitude
or recognized as such by statute, as compared with lesser
interests.
Id. at 628-629 (footnote omitted).
The Dougherty Court highlighted the statutorily-recognized privacy
interest of “information contained in federal tax returns,” which is “made
confidential per federal statute.” Id. at 629 n.10, citing 26 U.S.C. § 6103(a)
(providing that federal income tax returns and “return information shall be
confidential”).
Barbara seeks discovery of Appellants’ personal financial information in
aid of execution, notwithstanding the fact that Appellants filed a timely notice
of appeal, the trial court approved Appellants’ supersedeas bond, and
execution in this case has been stayed. The information Barbara seeks is
“contained in [Appellants’] federal tax returns;” as such, the information is
“made confidential per federal statute” and is afforded a heightened privacy
interest. See Dougherty, 138 A.3d at 629 n.10.
- 13 -
J-A11019-19
Appellants’ heightened privacy interest, when combined with the fact
that Appellants filed a timely notice of appeal and the trial court approved
Appellants’ supersedeas bond (thus staying execution), leads us to conclude
that the trial court’s July 20, 2018 order involves a right too important to be
denied review. We arrive at this conclusion because the right to privacy is
“deeply rooted in public policy going beyond the particular litigation at hand”
and the privacy interests that “would potentially go unprotected without
immediate appellate review . . . are significant relative to the efficiency
interests sought to be advanced by adherence to the final judgment rule.”
Ben, 729 A.2d at 552 (quotations, citations, and corrections omitted); J.S. v.
Whetzel, 860 A.2d 1112, 1117 (Pa. Super. 2004) (holding: trial court’s
discovery order, which directed that the appellant produce certain income tax
returns, satisfied the second prong of the collateral order doctrine because the
appellant’s “privacy interest in his income information raises a sufficiently
important public policy concern”); see also Feldman v. Ide, 915 A.2d 1208,
1211 (Pa. Super. 2007) (holding that a discovery order, which directed
defendant to disclose his medical expert’s income tax returns, satisfied the
second prong of the collateral order doctrine because: “the underlying privacy
rights implicate matters of public policy that extend beyond the current
controversy. In that [the defendant], and not [the expert witness], was the
party served with the request, not only are [the expert witness’] privacy rights
implicated by the trial court's order, [the defendant’s] right to choose the
means by which to defend himself is also implicated. These rights have
- 14 -
J-A11019-19
obvious implications extending beyond the confines of this case”) (citations
and some capitalization omitted); Merithew v. Valentukonis, 869 A.2d
1040, 1043 (Pa. Super. 2005) (holding: “[r]egarding the second prong [of
the collateral order doctrine], the [trial court’s] order compels [the appellant]
to answer interrogatories that would permit the [plaintiffs] to determine [the
appellant’s] complete financial worth. We agree with [the appellant] that her
privacy interest in her financial information raises a sufficiently important
public policy concern, and the second prong is established”).4 Further, as will
be explained below, because of the stay, Barbara does not yet have any right
to intrude upon Appellants’ privacy interests in their personal financial
information. Therefore, we conclude that this portion of the trial court’s order
satisfies the second prong of the collateral order doctrine.
Finally, we must determine whether the order “presents a question that,
if review is postponed until final judgment in the case, the claim will be
irreparably lost.” In re Bridgeport Fire Litigation, 51 A.3d at 230 n.8. We
____________________________________________
4 The Merithew Court applied a “whole order approach” to the collateral order
doctrine and, in effect, ruled that if one issue in an order satisfies the collateral
order doctrine, the entire order was subject to review. See Merithew, 869
A.2d at 1044 (proceeding to determine whether the information sought in the
discovery order was relevant – which is an issue that is not “separable from
and collateral to the main cause of action”). In Rae, the Pennsylvania
Supreme Court held that this “whole order approach” was incorrect and that
“the collateral order rule's three-pronged test must be applied independently
to each distinct legal issue over which an appellate court is asked to assert
jurisdiction pursuant to Rule 313.” Rae, 977 A.2d at 1130. Thus, Rae
abrogated Merithew to the extent that Merithew applied the “whole order
approach” to the collateral order doctrine. See Rae, 977 A.2d at 1127 n.9.
- 15 -
J-A11019-19
conclude that this factor has also been met in this case because, once
Appellants’ personal financial information has been disclosed to Barbara,
Appellants’ privacy interests in that information will have been lost – and the
action cannot be undone. See Ben, 729 A.2d at 552. Therefore, we conclude
that the trial court’s July 20, 2018 order, directing that Appellants comply with
Barbara’s discovery in aid of execution, is appealable under the collateral order
doctrine. We now turn to the merits of Appellants’ claim.
On appeal, Appellants claim that the trial court erred in ordering that
they respond to Barbara’s discovery in aid of execution requests because
Appellants are in the process of appealing the underlying judgment against
them and Appellants obtained, and the trial court approved, a supersedeas
bond for 120% of the monetary judgment. Appellants’ Brief at 25. According
to Appellants, since the bond fully secures Barbara and since the execution
proceedings are stayed during the pendency of the appeal, Barbara “may not
pursue discovery in aid of execution.” Id. at 31. We agree.
“Generally, on review of an order concerning discovery, an appellate
court applies an abuse of discretion standard.” McNeil v. Jordan, 894 A.2d
1260, 1268 (Pa. 2006). However, where an issue presents a pure question of
law, our standard of review is de novo and our scope of review is plenary.
Shinal v. Toms, 162 A.3d 429, 441 (Pa. 2017).
The parties and the trial court all agree that the trial court’s approval of
Appellants’ supersedeas bond (in the amount of 120% of the monetary
judgment against them) triggered a stay of execution on the judgment,
- 16 -
J-A11019-19
pending resolution of Appellants’ appeal from that judgment. See Barbara’s
Brief at 18; Appellants’ Brief at 24; Trial Court Opinion, 11/1/18, at 12-13;
see also Pa.R.A.P. 1735(a) (“[t]he filing of appropriate security in the amount
required by or pursuant to this chapter within 30 days from the entry of the
order appealed from shall stay any execution theretofore entered”); Pa.R.A.P.
1731(a) (“an appeal from an order involving solely the payment of money
shall . . . operate as a supersedeas upon the filing with the clerk of the lower
court of appropriate security in the amount of 120% of the amount found due
by the lower court and remaining unpaid”). Therefore, we, too, will proceed
under the assumption that the trial court’s approval of Appellants’ supersedeas
bond triggered a stay of execution on the judgment.
The dispute on appeal concerns the effect of the stay of execution upon
Barbara’s ability to conduct discovery in aid of execution. According to
Appellants, the stay of execution on the judgment also stays any discovery in
aid of execution. On the other hand, Barbara and the trial court contend that
the stay of execution has no effect upon discovery in aid of execution. We
agree with Appellants.
Pennsylvania Rule of Civil Procedure 3117 provides:
Rule 3117. Discovery in Aid of Execution
(a) Plaintiff at any time after judgment, before or after the
issuance of a writ of execution, may, for the purpose of
discovery of assets of the defendant, take the testimony of
any person, including a defendant or a garnishee, upon oral
examination or written interrogatories as provided by the
rules relating to Depositions and Discovery. The
- 17 -
J-A11019-19
prothonotary of the county in which judgment has been
entered or of the county within this Commonwealth where
the deposition is to be taken, shall issue a subpoena to
testify.
(b) All reasonable expenses in connection with the discovery
may be taxed against the defendant as costs if it is
ascertained by the discovery proceedings that the defendant
has property liable to execution.
Pa.R.C.P. 3117.
As we explained:
Discovery under Rule 3117 . . . is “pure discovery,” intended
as an ancillary aid in the discovery of assets.
The language of Rule 3117 makes its broad application clear.
Discovery under the rule may be pursued “at any time after
judgment, before or after the issuance of a writ of execution.”
Discovery in aid of execution thus is not linked to a pending
execution or attachment, but rather may be pursued even
before issuance of a writ in order to locate assets subject to
execution and obtain the information necessary to begin the
process of execution or attachment. Moreover, Rule 3117
permits discovery requests to be directed to “any person,
including a defendant or garnishee.” Thus, in keeping with
the “pure discovery” purposes of the rule, plaintiffs are not
restricted to obtaining discovery from defendants or
garnishees, but may seek discovery from any person who
may have information regarding the location of assets of the
judgment debtor.
PaineWebber, Inc. v. Devin, 658 A.2d 409, 412-413 (Pa. Super. 1995)
(citations omitted).
The body of Rule 3117 does not speak to the question of whether a stay
of execution also stays discovery in aid of execution. Nevertheless, the rule
is titled “Discovery in Aid of Execution.” Id. (emphasis added). Further,
- 18 -
J-A11019-19
under our rules of construction, “[t]he title or heading of a rule may be
considered in construing the rule.” Pa.R.C.P. 129(a).
The title of Rule 3117 makes it clear that discovery under Rule 3117
must be “in aid of execution.” Given that execution has been stayed in this
matter, we conclude discovery in aid of the execution must likewise be stayed.
As we have held: “‘Stay’ is defined as ‘[t]he postponement or halting of a
proceeding, judgment or the like.’ Black's Law Dictionary, Seventh Edition,
1999. By its definition, the word stay . . . directs that the proceeding in the
trial court should be postponed or halted until” the stay is lifted. Roth Cash
Register Co. v. Micro Sys., Inc., 868 A.2d 1222, 1226 (Pa. Super. 2005).
Simply stated, with the execution stayed, there can be no discovery to aid the
execution, as the execution and the execution proceedings have been
“postpone[d]” and “halt[ed]” during the pendency of the stay.
Therefore, we conclude that the trial court erred when it ordered
Appellants to respond to Barbara’s discovery in aid of execution requests
during the pendency of the stay of execution.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2019
- 19 -