The opinion
J-S47011-23
2024 PA Super 152
FEDEX CORPORATE SERVICES, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
COSTUME GALLERY, INC. :
:
APPEAL OF: COSTUME GALLERY :
ASSOCIATES, LLC AND RADG :
HOLDINGS, LLC : No. 1585 EDA 2023
Appeal from the Order Entered May 18, 2023
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2022-02761
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
DISSENTING OPINION BY KUNSELMAN, J.: FILED JULY 22, 2024
I respectfully dissent. Two companies, Costume Gallery Associates, LLC
and RADG Holdings, LLC, are Third Parties to this case. They appeal from an
order denying their petition to set aside FedEx Corporate Services, Inc.’s Writ
of Execution, Levy, and Sheriff’s Sale against named-Defendant, Costume
Gallery, Inc. The Majority sua sponte raises the issue of the Third Parties’
standing and reverses the trial court’s ruling that the Third Parties’ failure “to
follow the proper procedures for asserting a claim to the personal property
subject to the levy” deprived them of standing. Majority Opinion at 8 (citing
Trial Court Opinion, 7/24/23, at 5). However, the Third Parties did not raise
or argue that issue on appeal. As such, I would affirm the trial court’s order.
On April 6, 2022, FedEx secured a default judgment against Costume
Gallery in federal court. A few months later, it transferred that judgment to
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* Former Justice specially assigned to the Superior Court.
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the trial court and, on August 10, 2022, praeciped the Prothonotary of Bucks
County to issue a writ of execution and attachment. The praecipe was two
paragraphs long. The first paragraph, “Praecipe for Writ of Execution,” sought
a levy on Costume Gallery’s cash on hand, accounts receivable, and
personalty; the second paragraph, “Praecipe for Writ of Attachment
Execution,” directed to Truist Bank, as garnishee, sought any of Costume
Gallery’s property that the bank held.
The next day, the sheriff served the Writs of Execution and Attachment,
along with a set of interrogatories, upon Truist Bank and Costume Gallery. On
August 18, 2022, the bank replied that it possessed no money or property
belonging to Costume Gallery. Thus, FedEx praeciped to “discontinue the
above-captioned matter against Truist, Garnishee, ONLY, without prejudice”
and served a copy of the discontinuance on Costume Gallery. Praecipe to
Discontinue at 1 (emphasis in original).
Two months later, on November 29, 2022, the sheriff levied several
pieces of personal property at 925 Canal Street, Building 3, Floor 7, in Bristol,
Pennsylvania. FedEx believed the personalty belonged to Costume Gallery.
The sheriff set a date of December 28, 2022 to sell the levied personalty.
Before the sale occurred, the Third Parties filed a Petition to Set Aside the Writ
of Execution, the Levy, and the Sheriff’s Sale under Pa.R.C.P 3121(b).
The Third Parties offered two grounds for setting aside the Writ. First,
they claimed the sheriff untimely levied the personalty, because the levying
occurred more than 90 days after issuance of the Writ of Execution. Second,
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the Third Parties contended that they, rather than the Defendant, Costume
Gallery, owned the levied personalty. Thus, they claimed to be the real parties
in interest and the levied personalty was therefore exempt from execution.
FedEx filed a response opposing the petition on two grounds. FedEx
claimed the sheriff properly levied the personalty, because his attachment at
the bank and initial service of the Writs of Execution upon Costume Gallery
occurred within the 90 days required under Pa.R.C.P. 3106(d). In FedEx’s
view, service of the Writs upon the bank and Costume Gallery tolled the clock
for the sheriff to levy the personalty at 925 Canal Street any time thereafter.
FedEx also explicitly challenged the Third Parties’ standing. See FedEx’s
Response to Petition at 1. FedEx contended the “proper mechanism for a third
party to make an ownership claim to property that [the sheriff has] levied
upon is by filing a property claim, as set forth in Pa.R.C.P. 3202 and not by
filing a petition as a non-party to the action.” Id. at 2. FedEx asserted the
question of whether the Third Parties owned the levied personalty must
originally “be determined by the sheriff and then potentially appealed by either
party in an interpleader,” where the party claiming ownership would have the
burden of proof. Id. at 3.
The trial court stayed the sheriff’s sale, pending its disposition of the
petition. The Third Parties filed a brief reiterating their claims in the petition.
Notably absent from the brief was any response to FedEx’s claim that the Third
Parties lacked standing pursuant to Pa.R.C.P. 3202.
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Three weeks later, FedEx filed a responsive brief and argued that the
Third Parties lacked standing, because they failed to raise the question of who
owned the levied property under Pa.R.C.P. 3202. According to FedEx’s trial-
court brief:
[The Third Parties] claim that the Writ should be set aside under
Pa.R.C.P. 3121(d)(2), because the property is exempt or immune,
must also fail. The appropriate avenue for the [Third Parties] to
bring the argument that they are asserting here is by filing a
property claim under Pa.R.C.P. 3202. There is a substantial
distinction between property that is exempt and/or immune from
execution and property of a third party. [The Third Parties are]
relying on a rule relating to exemption and immunity, when they
truly are seeking to have a sheriff determine that [Costume
Gallery] is not the owner of the property that is levied upon. As
such, their misplaced reliance must result in the petition being
denied.
A property claim is the exclusive avenue for a third party to
enforce its rights to property that has been levied upon which is
not owned by the defendant. “A claim to tangible property levied
upon pursuant to a writ of execution SHALL be in writing and
SHALL be filed with the sheriff prior to any execution sale of the
property claimed.” Pa.R.C.P. 3202 (emphasis added). “Within ten
days after the claim is filed the sheriff shall, with or without formal
hearing, determine whether the claimant is prima facie the owner
of the property in whole or part.” Pa.R.C.P. 3204. Either party is
allowed to object to the sheriff’s ruling which would result in an
interpleader. “Upon the filing of the objection an interpleader shall
be at issue in which the claimant shall be the plaintiff and all other
parties in interest shall be defendants. The only pleading shall be
the claim, all averments of which shall be denied.” Pa.R.C.P.
3206. This is an important distinction. It puts the burden of proof
on the claimants, who would be the [Third Parties] in this case.
This action is entirely distinct from a claim for exemption or
immunity.
Exemptions and immunity from execution are discussed
separately in Pa.R.C.P. 3123 and 3123.1. These rules set forth
specific property and types of property that are exempt and/or
immune from execution. They are listed as exemptions under
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Pennsylvania Law and exemptions under Federal Law as the note
to Pa.R.C.P. 3123.1 [enumerates]. There is no mention in the list
or in the Pennsylvania or Federal statutes that it references to
property that is held by parties who are not the defendant.
The reason for this, as stated above, is that the exclusive
remedy for those third parties is to file a property claim. The rules
of statutory construction tell us that when you have one rule or
statute that is specific to a situation, we should not create a
conflict with another rule that is not specific to apply. The [Third
Parties’] attempt to add a third-party property claim to a rule that
clearly states exemptions or immunity, which are defined in other
rules, is improper and directly conflicts with the rules of statutory
construction. Since this property claim doesn’t fall under
Pa.R.C.P, 3121 (d)(2), the Petition to Set Aside the Writ should be
denied.
FedEx’s Memorandum of Law at 3-5 (emphasis added by FedEx, some
punctuation and capitalization omitted).
Because neither party requested oral argument, the trial court decided
the petition based on the filings and briefs of record. On May 18, 2023, the
trial court issued an order denying the petition. This timely appeal followed,
and the trial court issued a Pa.R.A.P. 1925(a) Opinion.
In that opinion, the trial court explained that it denied the Third Parties’
petition, because it adopted both of FedEx’s legal theories. First, the court
opined the sheriff’s levy was timely, because “the attachment accompanying
the writ of execution allowed for the levy to be served beyond 90 days.” Trial
Court Opinion, 7/24/23, at 3. Second, and importantly to this appeal, the trial
court also agreed with FedEx that, in order to acquire standing, the Third
Parties needed to comply with Pa.R.C.P. 3202.
Regarding Rule 3202, the trial court opined that:
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[the Third Parties] failed to follow the appropriate procedures to
raise their claims in this cause of action as it is currently captioned.
The proper mechanism for [the Third Parties] to have challenged
the Writ/Service/Levy was pursuant to Pennsylvania Civil
Procedure Rule 3202, which provides: “a claim to tangible
personal property levied upon pursuant to a writ of execution shall
be in writing and shall be filed with the sheriff prior to any
execution sale of the property claimed.” Pa.R.C.P. 3121(a).
Pursuant to this Rule, the appropriate course of action would have
been for [the Third Parties] to raise a claim for the Personal
Property pursuant to Rule 3202, which they did not do. As such,
even in the event the Superior Court determines that this Court
erred in denying the Petition to Set Aside the Writ based on a
procedural defect [in the Writ], the error is harmless in that [the
Third Parties] failed to properly assert their rights as Parties-In-
Interest in this matter.
Trial Court Opinion, 7/24/23, at 5 (some punctuation omitted).
In other words, the trial court ruled that the Third Parties filed the wrong
type of petition. In the trial court’s view, they needed to assert their alleged
ownership of the personalty with the sheriff in a different form. Instead, the
Third Parties challenged the sheriff’s levy under Pa.R.C.P. 3123.1, claiming
that the property was exempt or immune. According to the trial court, that
Rule gives named defendants grounds to challenge the levy of their property,
but third parties do not have standing to claim exemption or immunity from
levy. Rather, the Third Parties were challenging the ownership of the levied
property and needed to comply with Rule 3202.
On appeal, the Third Parties do not raise the trial court’s ruling that they
lacked standing under Pa.R.C.P. 3202 as grounds for reversible error. Indeed,
as the Majority acknowledges, the Third Parties “raise a single issue, asserting
that their petition to set aside should have been granted as a matter of law
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because the service deadline was November 8, 2022 (90 days after the date
on which the writ of execution was issued), and service did not take place until
the levy was untimely made on November 29, 2022.” Majority Opinion at 4-
5; see also Third Parties’ Brief at 2. Thus, whether the trial court was correct
in its analysis of Pa.R.C.P. 3202 is not before us in this appeal. In fact, Rule
3202 – one of two independent bases for the trial court’s denial of the petition
– does not even appear in the Third Parties’ appellate brief. See Third Parties’
Brief, Table of Citations, at ii. Nevertheless, my learned colleagues in the
Majority raise the issue of the Third Parties’ standing under Pa.R.C.P. 3202
sua sponte and reverse the trial court’s alternative basis for denying the
petition.
The Majority cites no authority for the proposition that this Court may
address a trial court’s ruling on standing sua sponte. The Supreme Court of
Pennsylvania has repeatedly held that “the matter of standing is not available
to be raised by a court sua sponte.” Rendell v. Pennsylvania State Ethics
Comm'n, 983 A.2d 708, 717 (Pa. 2009). “Therefore, the issue of standing
cannot be raised sua sponte and is waived if not properly raised.” In re
Duran, 769 A.2d 497, 501 n.2 (Pa. Super. 2001).
Generally, under the Rules of Appellate Procedure, appellants have the
obligation to raise appellate issues, or they are waived. 1 Even if issues are
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1 “The issue of waiver presents a question of law, and, as such, our standard
of review is de novo, and our scope of review is plenary.” Trigg v. Children’s
Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).
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raised, appellants also have the obligation to develop a cogent and complete
argument on each, specific issue for this Court to grant them appellate relief.
Such procedural obligations preserve the adversarial system of justice and
restrain appellate courts to the adjudicator role.
When drafting an appellate brief, the appellant must identify all waivable
appellate issues in the statement of questions involved. “The statement of
the questions involved must state concisely the issues to be resolved . . . No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a) (emphasis added).
Hence, this Court “will not ordinarily consider any issue if it has not been set
forth in or suggested by an appellate brief’s statement of questions involved
. . . .” Krebs v. United Ref. Co. of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006). In such instances, we dismiss any unraised issue as waived.
See id.
Moreover, even where an issue appears in the statement of questions
involved, the argument portion of the appellant’s brief must develop a full
analysis of that issue in order to permit appellate review. “The argument shall
be divided into as many parts as there are questions to be argued; and shall
. . . [include] such discussion and citation of authorities as are deemed
pertinent.” Pa.R.A.P. 2119(a). “When an appellant’s argument is
underdeveloped, we may not supply it with a better one. In such situations,
we shall not develop an argument for an appellant, nor shall we scour the
record to find evidence to support an argument; instead, we will deem the
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issue to be waived.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875,
884–85 (Pa. Super. 2019), appeal denied, 221 A.3d 644 (Pa. 2019) (some
punctuation omitted).
Here, with respect to the trial court’s ruling that the Third Parties lacked
standing because they failed to petition the sheriff under Pa.R.C.P. 3202, the
Third Parties waived any claim of error regarding that ruling. They failed to
raise such a claim in their statement of questions involved, and they made no
argument that the trial court misapplied Pa.R.C.P. 3202 in dismissing their
petition. Again, I observe that the Third Parties’ Brief does not mention Rule
3202, much less provide an analysis concerning the trial court’s interpretation
of it. Thus, the Third Parties offer no authority to suggest that the trial court
misapplied Rule 3202. See Pa.R.A.P. 2119(a).
Despite these clear commissions of waiver, the Majority raises the issue
of whether the trial court erroneously determined that the Third Parties lacked
standing under Pa.R.C.P. 3202 sua sponte. In doing so, I believe the Majority
mistakenly provides the Third Parties with a complete appellate argument on
an issue they neither raised nor argued on appeal. Under our precedents, I
respectfully suggest the Third Parties have waived the issue of whether they
violated Rule 3202 when the court dismissed the petition on that alternative
basis. See Krebs, supra; see also Pi Delta Psi, supra.
Additionally, because the Third Parties neglected to challenge the trial
court’s ruling that they lacked standing, I find that the sole issue they raised
on appeal is moot.
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“It is well established in this jurisdiction that [appellate courts] will not
decide moot questions.” In re Gross, 382 A.2d 116, 119 (Pa. 1978). An
issue becomes moot when, due to some change in the circumstances of the
case or the law, it is “impossible to grant relief by deciding the issue . . . .”
Id. at 120.
The trial court denied the Third Parties’ petition on the grounds that they
lacked standing to challenge the Writs and levy, because they did not file a
petition with the sheriff under Pa.R.C.P. 3202. Because the Third Parties did
not appeal that ruling and instead waived it, the trial court’s lack-of-standing
determination is, in my mind, final. Given that the Third Parties lack standing,
this Court may not “grant [them] relief by deciding the issue” that they raise
on appeal. Gross, 382 A.2d at 120. Hence, that issue is moot. See id.
Simply stated, a party without standing is not entitled to appellate relief.
In sum, the Majority erroneously addresses the issue of the Third
Parties’ standing sua sponte; the Third Parties neither raised nor briefed that
issue. It is waived and may not serve as grounds for reversal. Further, the
Third Parties’ lack of standing moots the appellate issue that they raised and
briefed. Because the Majority reverses the trial court’s order based on waived
and moot issues, I respectfully dissent.
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