Boback, C. v. Ross, J., Appeal of: Ross, D.

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.

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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)

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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.

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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.

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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

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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,

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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

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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.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015

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