J-A33005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTOPHER M. BOBACK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JENNIFER O. ROSS AND DAVID A. ROSS
Appellee No. 240 WDA 2016
Appeal from the Order February 10, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): AR-13-004860
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 27, 2017
Christopher M. Boback appeals from the order, entered in the Court of
Common Pleas of Allegheny County, awarding David A. Ross
(“Husband/Garnishee”) attorney’s fees and expenses in the amount of
$13,731.31, plus costs, for the underlying garnishment action. After our
review, we affirm the trial court’s order, sua sponte award
Husband/Garnishee additional attorney’s fees and remand for calculation and
imposition of those fees.
Husband/Garnishee and Debtor/Jennifer O. Ross (“Wife”), formerly
Husband and Wife, are the parents to three minor children, all of whom
primarily reside with Wife. In 2012 and 2013, Boback represented Wife in
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*
Retired Senior Judge assigned to the Superior Court.
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child and spousal support proceedings against Husband/Garnishee. On
October 22, 2013, Boback filed a complaint against Wife alleging breach of
contract and seeking damages in the amount of $7,483.80 for Wife’s willful
failure to pay legal fees.
Following a non-jury trial before the Honorable Timothy Patrick
O’Reilly, the court entered a verdict in favor of Boback, for $7,483.80, plus
court costs. The verdict was reduced to judgment, and, on April 1, 2014,
Boback filed a praecipe for writ of execution. PNC Bank and Husband were
named as garnishees.
In his written response to garnishment interrogatory number one,
Husband/Garnishee admitted that he owed monthly alimony and child
support payments to Wife. On April 21, 2014, Boback filed a praecipe for an
unliquidated judgment against Husband based upon his admission.
On May 9, 2014, Judge O’Reilly was presented with three motions: (1)
Boback’s motion for a hearing to assess the amount of the unliquidated
judgment by admission; (2) Wife’s motion for exemption of property from
levy or attachment and a demand for a sheriff’s exemption hearing; and (3)
Garnishee’s motion to strike Boback’s judgment by admission and request
for attorney fees. Judge O’Reilly entered an order essentially entering
judgment in Boback’s favor against Husband/Garnishee for $8,000.00,
directing Boback’s intervention in Husband/Garnishee’s and Wife’s support
case, and permitting Boback to receive $400.00 per month for 20 months
from Husband/Garnishee’s payments to Pennsylvania State Collection and
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Disbursement Unit (“Pa. SCDU”) until Boback’s judgment was paid.1
Husband/Garnishee filed a motion for reconsideration, which the court
denied. Husband/Garnishee appealed the $8,000 garnishment judgment
against him.
On April 14, 2015, this Court reversed the trial court’s order. See
Boback v. Ross, 114 A.3d 1042, 1046 (Pa. Super. 2015) (holding judgment
creditor/Boback was not entitled to judgment by admission against
Husband/Garnishee, and evidence did not support determination that
judgment creditor/Boback was owed $8,000).2 On October 30, 2015, the
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1
The May 9, 2014 order 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 v. 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.
2
Specifically, this Court stated:
(Footnote Continued Next Page)
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Supreme Court of Pennsylvania denied allowance of appeal. Boback v.
Ross, 126 A.3d 1281 (Pa. 2015).
On November 18, 2015, this Court remanded the record to the trial
court. On November 23, 2015, Garnishee filed a motion with the trial court
to schedule a hearing to assess attorney fees and costs pursuant to 42
Pa.C.S.A. § 2503(3).3 The Honorable Judith A. L. Friedman held a hearing
_______________________
(Footnote Continued)
[T]he support/ alimony due Wife is not a debt that is owed
to her by [Husband/]Garnishee, nor is Wife a creditor.
Therefore, Boback’s praecipe for judgment by admission
should not have been entered against
[Husband/]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 v.]Uveges, 103 A.3d 825, 830 [(Pa.
Super. 2014)]. 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 [Husband/] 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 [Husband/]
Garnishee were dependent on possible future changes in
circumstances. . . . Accordingly, we reverse the
determination that Boback holds a judgment by admission
against [Husband/] Garnishee. Boback is not entitled to
receive $400.00 per month for 20 months from payments
collected by the Pa SCDU.
Boback, 114 A.3d at 1046.
3
Section 2503(3) of the Judicial Code provides:
(Footnote Continued Next Page)
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on December 8, 2015. Judge Friedman determined that the amount charged
was reasonable with respect to Husband/Garnishee’s successful defense of
the garnishment proceeding against him, including costs and fees related to
the Superior Court and Supreme Court appeals. Judge Friedman entered an
order on February 10, 2016, granting Garnishee’s Motion for Attorney Fees,
and entering judgment against Boback in the amount of $13,731.31.
Boback filed this appeal, contending that Husband/Garnishee did not raise
the issue of attorney fees in his appeal and, therefore, the trial court lacked
jurisdiction to decide the issue.
Boback raises the following issues:
1. Whether the trial court erred as a matter of law by granting
Garnishee’s 2nd Motion for Attorney Fees[4] because
Garnishee failed to appeal the denial of his 1st Motion for
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(Footnote Continued)
§ 2503. Right of participants to receive counsel fees
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(3).
4
We note that Boback refers in his issues and throughout his brief to
Garnishee’s “1st” and “2nd” motions for attorney fees. This confuses the
issue. Although Garnishee may have included a request for counsel fees in
his defense to the underlying garnishment action, there was no order
disposing of that request since Garnishee was not the prevailing party.
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Attorney Fees, claimed under 42 Pa.C.S. § 2503, with the
entry of the trial court’s final order dated May 9, 2014, and
because the Superior Court of Pennsylvania did not reverse
the denial of that claim for attorney fees with the entry of its
final order dated April 14, 2015, and as such the Garnishee’s
2nd Motion for Attorney Fees, claimed under 42 Pa.C.S. §
2503, is barred by the doctrine of res judicata?
2. Whether the trial court erred as a matter of law by granting
Garnishee’s 2nd Motion for Attorney Fees because the
Superior Court of Pennsylvania’s final order dated April 14,
2015, did not remand the record with instructions to the trial
court to undertake any further proceedings for the entry of a
new final order, after disposing of the appeal from the trial
court’s final order dated May 9, 2014, and as such the trial
court lacked subject matter jurisdiction under 42 Pa.C.S. §
5505 to act upon Garnishee’s 2nd Motion for Attorney Fees?
3. Whether the trial court erred as a matter of law by awarding
Garnishee attorney fees and costs incurred by Garnishee
during the appellate proceedings on the appeal from the trial
court’s final order dated May 9, 2014, because the Garnishee
failed to request appellate fees and costs pursuant to
Pa.R.A.P. 2744 and 2751 and the Superior Court of
Pennsylvania did not order appellate fees and costs on
remand of the record pursuant to Pa.R.A.P. 2761?
4. Whether the trial court erred as a matter of law by awarding
the Garnishee attorney fees and costs incurred by Garnishee
between April 15, 2015 and May 15, 2015 in court
proceedings before the Honorable Mark V. Tranquilli in
Allegheny County’s Family Division in the Garnishee’s
domestic relations case docketed at FD-12-001508-011
because the trial court lacked subject matter jurisdiction with
respect to the domestic relations proceedings?5
Appellant’s Brief, at 6-7.
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5
We will not address this claim. The trial court’s order specifically stated
that the awarded fees and costs “related only to the garnishment proceeding
against [Garnishee].” Order, 2/10/16.
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Whether the trial court had jurisdiction to entertain
Husband/Garnishee’s Motion for Attorney Fees under Section 2503 is a
question of law. Our standard of review, therefore, is de novo, and our
scope of review is plenary. See Mazur v. Trinity Area School District,
961 A.2d 96, 101 (Pa. 2008).
Boback argues that the trial court did not have jurisdiction to entertain
Husband/Garnishee’s Motion for Attorney Fees because Husband/Garnishee
appealed only the $8,000 garnishment judgment against him. Boback
claims the doctrine of res judicata precluded Judge Friedman from
addressing Husband/Garnishee’s motion for attorney fees. We disagree, and
we are somewhat perplexed at Boback’s argument. As Judge Friedman
correctly notes, Husband/Garnishee had no right to “appeal” an issue that
had not been decided.
The trial court in the garnishment proceeding entered judgment in
favor of Boback, and thus had no basis upon which to award
Husband/Garnishee attorney fees; he was not the prevailing party. See 42
Pa.C.S.A. § 5903(3). There was no attorney fees order for
Husband/Garnishee to appeal. Husband/Garnishee’s entitlement to attorney
fees under section 2503(3) did not arise until he obtained judgment in his
favor, on October 30, 2015. At that time, Husband/Garnishee was found to
have “no indebtedness due to or other property of the debtor [Wife].” 42
Pa.C.S.A. § 2503(3). See Miller Electric Co. v. DeWeese et al. v.
Birmingham Bistro, Inc., 907 A.2d 1051, 1056 (Pa. 2006) (where one or
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both parties appeal from judgment, the final determination as to whether
garnishee “wins” an action, in the sense that he is found to have no
indebtedness due, will depend on the outcome of the appeal).
A trial court's jurisdiction generally extends for thirty days after the
entry of a final order. See 42 Pa.C.S.A. § 5505 (“Except as otherwise
provided or prescribed by law, a court upon notice to the parties 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). Here, the final order was entered in the Supreme Court
on October 30, 2015; the record was remanded to the trial court on
November 18, 2015, see Pa.R.A.P. 2572(a)(i), and Husband/Garnishee filed
his motion for attorney fees on November 23, 2015. Cf. Miller, supra
(where garnishee succeeds in securing a verdict in its favor, yet is
subsequently denied its entitlement to attorney’s fees under § 2503(3) by
order of court, garnishee may appeal within 30 days of date of denial,
regardless of when final judgment was entered).
Our rules of appellate procedure allow this Court to sua sponte impose
an award of reasonable counsel fees against a party if we determine that
“the appeal is wholly frivolous . . . or that the conduct of the participant
against whom costs are to be imposed is dilatory, obdurate or vexatious.”
Pa.R.A.P. 2744. Because we conclude that this appeal lacks any basis in law
or in fact, counsel fees shall be assessed by the lower court against Boback
under Rule 2744. Accordingly, we affirm the trial court’s order awarding
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Husband/Garnishee attorney fees and costs, and we remand to the trial
court for the calculation of additional reasonable counsel fees in accordance
with Rule 2744.
Order affirmed. Remanded for imposition of additional attorney fees.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2017
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