J-A07006-15
2015 PA Super 75
CHRISTOPHER M. BOBACK IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JENNIFER O. ROSS AND DAVID A. ROSS
APPEAL OF: DAVID A. ROSS No. 941 WDA 2014
Appeal from the Order May 9, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): AR 13-004860
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
OPINION BY BENDER, P.J.E.: FILED APRIL 14, 2015
David A. Ross (“Garnishee”) appeals from the May 9, 2014 order that
states in pertinent part:
Execution on the Judgment against Garnishee David A. Ross
shall be held in abeyance so long as the Judgment is paid to
Plaintiff Christopher M. Boback at the rate of Four Hundred
Dollars ($400.00) per month for twenty (20) consecutive months
beginning as of the date of this Order by having Plaintiff
Christopher M. Boback intervene as a judgment-creditor in the
case captioned as Jennifer O. Ross vs. David A. Ross, Docket No.
FD-12-001508-011, PACSES Case No. 440113454 (Court of
Common Pleas of Allegheny County, Pennsylvania) and by
having Plaintiff Christopher M. Boback added as an alternate
payee to the Order of Court dated January 24, 2014 … so that he
shall collect his Judgment in installments of $400.00 per month
for 20 consecutive months from the payments collected and
disbursed by the Pennsylvania State Collection and
Disbursement Unit (“Pa SCDU”).”
Trial Court Order, 5/9/14, at ¶ 5. The trial court also directed that “the
Department of Court Records shall assess the amount of the unliquidated
Judgment filed against Garnishee David A. Ross on April 21, 2014, to be
fixed in the amount of $8,000.00[.]” Id. at ¶ 4. After review, we reverse.
J-A07006-15
Garnishee and Jenifer O. Ross (“Wife”) were formerly husband and
wife and are the parents of three children. During a portion of the divorce
litigation, namely, the child and spousal support proceedings, Christopher M.
Boback (“Boback”) represented Wife against Garnishee. On October 18,
2013, Boback withdrew from his representation of Wife due to unpaid fees.
Wife retained new counsel and on January 21, 2014, Garnishee and Wife
entered into consent orders relating to custody and support and signed a
marital settlement agreement (MSA). Pursuant to the MSA, Garnishee was
required to pay Wife alimony and child support through PACSES by way of a
wage attachment on Garnishee’s wages.
On October 22, 2013, Boback filed a civil complaint against Wife
seeking the outstanding attorney’s fees due him. A verdict was rendered in
the amount of $7,483.80 for Boback and against Wife when she failed to
appear at the scheduled hearing on February 18, 2014. Judgment was
entered on March 17, 2014. Thereafter, Boback began execution
proceedings, directing interrogatories to Garnishee, who in his answer
acknowledged that he owed Wife monthly alimony and child support
payments.1 Based on this acknowledgment, on April 21, 2014, Boback filed
____________________________________________
1
The pertinent question and the answer provided by Garnishee to Boback’s
interrogatories states:
1. At the time you were served or at any subsequent time did
you owe [Wife] any money or were you liable to [Wife] on any
(Footnote Continued Next Page)
-2-
J-A07006-15
a praecipe for judgment by admission against Garnishee in an unliquidated
amount. Boback also filed a motion for a hearing to assess the amount of
the judgment. On May 9, 2014, Garnishee moved to strike the judgment
and for attorney’s fees “on the grounds that it was inappropriate for the
Department of Court Records to have entered judgment against [Garnishee]
based on his answers to the interrogatories….” Garnishee’s brief at 7.
Rather than holding a hearing on May 9, 2014, the trial court heard
argument on Garnishee’s motion to strike the judgment and on Boback’s
motion to fix the amount of the judgment. The court then entered the
above-quoted order, essentially entering judgment in Boback’s favor against
Garnishee for $8,000.00, directing Boback’s intervention in Garnishee’s and
Wife’s support case, and permitting Boback to receive $400.00 per month
for 20 months from Garnishee’s payments to Pa SCDU until Boback’s
judgment was paid.
_______________________
(Footnote Continued)
negotiable or other written instrument, or did [Wife] claim that
you owed [Wife] any money or were liable to [Wife] for any
reason?
ANSWER: Nothing other than the monthly alimony and child
support payment I owe her each month.
Garnishee’s Answers to Interrogatories, 4/21/14, ¶ 1.
-3-
J-A07006-15
Garnishee filed a timely appeal,2 and now raises the following issues
for review:
A. Did the Allegheny County Department of Court Records err in
granting a Judgment by Admission against Garnishee, Ross?
B. Did the trial court err in refusing to strike or open the
judgment by admission against Garnishee, Ross?
C. Did the trial court err in entering judgment against
Garnishee, Ross, without an evidentiary hearing, in the amount
of $8,000?
Garnishee’s brief at 5.
We begin by noting that Pa.R.C.P. 3146(b) authorizes the entry of
judgment against a garnishee based on admissions contained in answers to
interrogatories. Rule 3146(b) states in pertinent part that:
(b)(1) … [t]he prothonotary, on praecipe of the plaintiff, shall
enter judgment against the garnishee for the property of the
defendant admitted in the answer to interrogatories to be in the
garnishee's possession, subject to any right therein claimed by
the garnishee, but no money judgment entered against the
garnishee shall exceed the amount of the judgment of the
plaintiff against the defendant together with interest and costs.
The entry of judgment shall not bar the right of the plaintiff to
proceed against the garnishee as to any further property or to
contest any right in the property claimed by the garnishee.
Pa.R.C.P. 3146(b)(1). However, “[a]dmissions of a garnishee in answers to
a judgment creditor’s interrogatories will support the entry of a judgment
thereon ‘only in a clear case, where there is a distinct admission of liability
____________________________________________
2
No order requesting the filing of a Pa.R.A.P. 1925(b) statement was issued
by the trial court, therefore, Garnishee did not file a statement.
-4-
J-A07006-15
by the garnishee….’” Ruehl v. Maxwell Steel Co. Inc., 474 A.2d 1162,
1163-64 (Pa. Super. 1984) (quoting Bartram Building and Loan Assoc. v.
Eggleston, 6 A.2d 508,510 (Pa. 1939)). The Ruehl case further discussed
this principle by quoting the following comment from Goodrich-Amram 2d §
3146(b):1.1:
Certainly if there is any doubt regarding the garnishee's
admission, the prothonotary cannot and should not enter
judgment on the plaintiff’s praecipe. The prothonotary, who acts
in this regard in a purely ministerial capacity, can enter
judgment only if the answers are clear and unequivocal; to
analyze or interpret the garnishee’s answers would be in effect
to exercise a judicial function, which is in excess of his powers.
The prothonotary should be guided by the usual practice in
assumpsit actions. Conformity to that practice is in fact dictated
by Rule 3145(a). In assumpsit, judgment on admissions in the
pleadings -- perhaps the closest analogue to judgment against
the garnishee on the basis of admissions in his answer -- cannot
be entered unless some part of the plaintiff’s claim is
“unequivocally and unqualifiedly admitted to be due by the
defendant’s answer.” (emphasis added) (footnotes omitted).
Ruehl, 474 A.2d at 1164. “Where judgment against a garnishee is
improperly entered on the basis of admissions in the garnishee’s answers to
interrogatories, the judgment may be stricken.” Id.
Because Garnishee’s three issues are interrelated, we address them
together. Garnishee first argues that the court erred in granting judgment
by admission against him based upon the court’s assumption that alimony
and child support “constitute a ‘debt’ for purposes of garnishment….”
Garnishee’s brief at 10 (citing Trial Court Opinion, 7/8/14, at 2). Garnishee
also asserts that the Department of Court Records (DCR) should not have
-5-
J-A07006-15
entered judgment on Boback’s praecipe, based solely on Garnishee’s answer
to Boback’s interrogatory in that the answer was “ambiguous and did not
admit that he owed [Wife] a debt.” Id. at 11. Garnishee further claims that
“the DCR could not clearly determine that [Garnishee] has or had any of
[Wife’s] ‘property’ in his possession that might be subject to garnishment
and as a result, should have refused to enter judgment by admission.” Id.
at 11-12.
Additionally, Garnishee contends that only “debts [that] are not
dependent upon a contingency but are certain and payable are properly
attachable in garnishment proceedings.” Id. at 13 (citing Brown v.
Canderola, 708 A.2d 104, 108 (Pa. Super. 1998) (“Only such debts as are
not dependent upon a contingency but are certain and payable are properly
attachable in garnishment proceedings.”)). Then, providing a number of
examples, Garnishee indicates that “[s]upport payments, whether in the
form of alimony or child support, are subject to a wide variety of
contingencies.” Id. See 23 Pa.C.S. § 3701(e) (providing that upon
substantial and continuing changed circumstances of either party, the
alimony “order may be modified, suspended, terminated or reinstituted or a
new order made.”).
Also, in connection with this point, Garnishee discusses whether
Garnishee’s support obligation is in fact a “debt” that can be garnished.
Garnishee, noting the limited number of cases dealing with this subject,
-6-
J-A07006-15
provided this Court at argument with a recent case that discussed this
subject, i.e., whether alimony and support are recognized as debts. See
Uveges v. Uveges, 103 A.3d 825 (Pa. Super. 2014). The Uveges case
deals with a former wife’s right to attach her ex-husband’s disability benefits
that he was receiving under the Longshore and Harbor Workers’
Compensation Act (LHWCA), 33 U.S.C. § 901, et seq. This Court affirmed
the trial court’s decision allowing the attachment so that the wife could
recoup the $2,500.00 per month permanent alimony, with arrearages of
$56,912.80, as prescribed by the parties’ agreement. In arriving at its
decision, this Court in Uveges stated that “Pennsylvania precedent has
recognized that a spouse’s alimony and/or support obligations are not
‘debts.’” Id. at 830. The Uveges decision relied in part on Parker v.
Parker, 484 A.2d 168, 169 (Pa. Super. 1984), concluding that
[an] anti-attachment clause in the statute governing the
husband's service-connected disability Veterans' Administration
benefits did not preclude the trial court from considering those
monthly payments as a source of income for alimony pendente
lite purposes. This Court noted that the purpose of the anti-
attachment clause was “to protect the recipient of the benefits
from claims of creditors, and to afford some degree of security to
the recipient’s family and dependents.” Parker, 484 A.2d at
169 (citations omitted). Given this purpose, we concluded that
the anti-attachment clause did not apply “since a wife seeking to
recover alimony pendente lite is not a ‘creditor’ of her husband,
the claim not being based on a debt.” Id.
Uveges, 103 A.3d at 828 (citing Parker, 484 A.2d at 169) (emphasis
added). See also Hogg v. Hogg, 816 A.2d 314 (Pa. Super. 2003) (stating
“[t]raditionally, the Bankruptcy Code has protected non-debtor spouses and
-7-
J-A07006-15
children by precluding discharge of a debtor spouse’s alimony and support
obligations”).
What we glean from the above-stated case law is that the support/
alimony due Wife is not a debt that is owed to her by Garnishee, nor is Wife
a creditor. Therefore, Boback’s praecipe for judgment by admission should
not have been entered against Garnishee. This is “consistent with the
historical treatment by Pennsylvania appellate courts of anti-attachment
clauses vis-à-vis a claim for support or alimony.” Uveges, 103 A.3d at 830.
Moreover, we note that the court’s determination that Boback was owed
$8,000.00 was not based upon any evidence of record, since the court did
not hold a hearing at which evidence could have been presented to establish
the specific amount owed to Boback at this juncture. As for Garnishee’s first
issue, alleging an error by the DCR, it appears from the certified record that
the DCR entered judgment by admission at the direction of the trial court;
however, under the circumstances here, the DCR should not have entered
judgment in that the monies owed Wife from Garnishee were dependent on
possible future changes in circumstances. See Brown, supra. Accordingly,
we reverse the determination that Boback holds a judgment by admission
against Garnishee. Boback is not entitled to receive $400.00 per month for
20 months from payments collected by the Pa SCDU.
Order reversed.
-8-
J-A07006-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
-9-