Opinion

FedEx Corporate Services v. Costume Gallery

  • 320 A.3d 129
  • 2024 Pa. Super. 152
Court
Superior Court of Pennsylvania
Filed
Jul 22, 2024
Status
Published
On the bench
Kunselman, J.
Cited by
1 cases
Authority
More cited than 50.6%

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

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S47011-23

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

____________________________________________

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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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