DeGiorgis v. 3G'S Contracting, Inc.

62 A.3d 1024
CourtSuperior Court of Pennsylvania
DecidedFebruary 1, 2013
StatusPublished
Cited by3 cases

This text of 62 A.3d 1024 (DeGiorgis v. 3G'S Contracting, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeGiorgis v. 3G'S Contracting, Inc., 62 A.3d 1024 (Pa. Ct. App. 2013).

Opinion

OPINION BY COLVILLE, J.:

Appellant attempts to appeal several orders and a judgment, all of which were entered in connection to a sheriffs inter-pleader. We affirm.

The trial court summarized the background underlying this matter in the manner that follows.

This Appeal stems from an Interpleader’s Objection to a Sheriffs determination in a mortgage foreclosure action. On December 2, 2009, Plaintiff [Louis DeGiorgis, Trustee of the Gino’s Home Repair Plan and Trust dated July 17, 2001 (“Appellee”) ] filed a Complaint which alleged that Defendants Joseph Falcone [ (“Falcone”) ] and Diane Wert-man [ (collectively referred to as “Defendants”)] executed a note to secure a loan of $275,000 by a first note and $60,000 by a second note, in the same instrument dated July 81, 2006 and Defendants signed and delivered a mortgage on real property as security for that obligation. [Appellee] alleged that Defendants failed to comply with the terms of the note by failing to make payments, thus causing a default and $810,175 was due and owing.
[Appellee] filed a Praecipe for Default Judgment on February 3, 2010 and a Praecipe for Writ of Execution on February 9, 2010. On September 23, 2010, [Appellee] filed a Petition for Deficiency Judgment, alleging that Defendants are in default under the terms of the note and thus, $422,475.77 is due and owing. [Appellee’s] Petition was denied by Order of [c]ourt on September 29, 2010 for failure to file a certificate of service, as required by Pa.R.C.P. 208.1. [Appellee] refiled the Petition in conformance with the applicable Pennsylvania Rules of Civil Procedure and [the trial court] issued a Rule returnable on September 30, 2010. The Rule, having been properly served on Defendants and no response having been filed, was made absolute on January 3, 2011.
On April 4, 2011, [Appellee] filed a Prae-cipe for Writ of Execution (Money Judgment) in the amount of $242,475.77, directing the Sheriff to execute against [ ] Falcone and Jane E. Phraner, as Garnishee, on [] Falcone’s interest in a mortgage filed at Book 2321 Page 2660 to satisfy the amount due in this action. [Appellee] filed a Praecipe to Reissue the Writ of Execution against [ ] Falcone and asked the Prothonotary to direct the Sheriff to levy upon [] Falcone’s one-half interest in a note and mortgage from Jane E. Phraner. In that mortgage, the lender is [ ] Falcone and Appellant Joseph Ariale [ (“Appellant”) ]. The Prothonotary signed the Writ of Execution on October 18, 2011.
Following an interpleader hearing on November 22, 2011, the Pike County Sheriff filed a Sheriffs Determination Against Property Claimant in which the Sheriff determined that Appellant [ ] is not the owner of the property at issue. Sheriff Bueki’s determination was based on the temporal relationship between the Writ of Execution and the assignment [of Falcone’s interest in the claimed property to Appellant], specifically that the assignment of [Falcone’s] one-half mortgage interest [to Appellant] took place after the Writ of Execution had been served. Appellant filed an Objection to Sheriffs Determination on December 16, 2011. After several continuances, a hearing was held before [the trial court] on April 3, 2012. There[1026]*1026after, [Appellee] filed a legal memo and Appellant filed a post-hearing brief. On June 1, 2012, [the trial court] affirmed the Sheriffs Determination Against Property Claimant. On June 8, 2012, Appellant filed a Motion For Post-Trial Relief, which was denied by Order dated June 14, 2012.
Appellant filed a Praecipe to Enter Judgment against himself, which was entered by the Prothonotary on June 26, 2012. Appellant filed a Notice of Appeal on June 8, 2012 challenging [the trial court’s] June 1, 2012 Order. Appellant also filed a Notice of Appeal on June 29, 2012 challenging both the June 14 [Order] and June 26 [Judgment]....

Trial Court Opinion, 08/07/12, at 1-3.

In his brief to this Court, Appellant asks us to consider the following questions:

1. Whether a promissory note and mortgage are owned in equal shares by the alleged co-owners where one of the owners provides nearly all of the funding, receives acceptable and agreed-upon monthly payments from the obligors, and no trial evidence contradicted the owner’s sworn testimony concerning his ownership interest?
2. Whether a lower court must allow evidence of the details concerning the transaction by which a promissory note and mortgage are acquired by the remaining co-owner after that owner purchased an assignment from the other co-owner several months prior to the sheriffs determination in a sheriffs inter-pleader action and no trial evidence challenged the validity of the assignment?
3. Whether a sheriff and lower court must strictly comply with Pennsylvania Rules of Civil Procedure governing sheriffs interpleader actions, Pa.R.Civ.P. 3201-3216?

Appellant’s Brief at 3. We need not address these issues because Appellant’s attempt to obtain relief via a sheriffs inter-pleader was improper.

We initially point out that a review of the transcript of the April 3rd hearing makes clear that the parties and the court were unsure how to proceed in this matter. Throughout the proceeding, the court stated its uncertainty as to whether to review the sheriffs determination or to consider the matter de novo. In fact, at the beginning of the proceeding, Appellant’s counsel specifically stated his uncertainty as to the procedural process to be employed in this case. Appellant also filed a notice of appeal, wherein he appealed the court’s June 1st order, the same day that he filed a motion for post-trial relief. After the court denied Appellant’s motion, he appealed again, this time from the order denying his post-trial motion and from the entry of judgment. This uncertainty has spilled over into Appellant’s brief to this Court, wherein Appellant violated Pa. R.A.P. 2111(a)(3) by failing to include a statement of the scope and standard of review this Court should utilize in considering this appeal.

We gleaned what follows from the certified record and the parties’ briefs. Appel-lee has a judgment against Falcone. Fal-cone owns, or perhaps owned, an interest in a mortgage and a note, and Appellant, at least at some point in time, co-owned the mortgage and note. Mrs. Phraner is the mortgagor/lendee.

In an attempt to collect the judgment it holds against Falcone, Appellee filed a writ of execution, and later reissued the writ of execution, naming Mrs. Phraner as the garnishee and seeking to levy “upon [Fal-cone’s]1^ interest in a Note and Mortgage from Jane E. Phraner.” Praecipe to Reissue Writ of Execution, 10/18/11; see also Appellant’s Brief at 4 (“On April 4, 2011, [1027]*1027[Appellee] filed a Praecipe For Writ Of Execution (Money Judgment) and sought to execute on [ ] Falcone’s alleged one-half interest in a certain promissory note and mortgage in which Jane E. Phraner was the obligor.”). Appellant claims that Fal-cone does not own an interest in the mortgage or note; rather, Appellant is the sole owner of these items. See, e.g., Appellant’s Brief at 11 (“The lower court erred by failing to give effect to the assignment and by failing to find that [Appellant] is the sole owner of the promissory note and mortgage.”). Appellant asserted his claim through the sheriffs interpleader procedure set forth at Pa.R.C.P. 3201-16.

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Cite This Page — Counsel Stack

Bluebook (online)
62 A.3d 1024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/degiorgis-v-3gs-contracting-inc-pasuperct-2013.