First Nat. Bank of Northeast v. Gooslin

Supreme Court of Pennsylvania

First Nat. Bank of Northeast v. Gooslin

582 A.2d 1054, 399 Pa. Super. 496, 1990 Pa. Super. LEXIS 2897

CourtSupreme Court of Pennsylvania

DecidedOctober 9, 1990

Docket00188

StatusPublished

Cited by6 cases

This text of 582 A.2d 1054 (First Nat. Bank of Northeast v. Gooslin) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First Nat. Bank of Northeast v. Gooslin, 582 A.2d 1054, 399 Pa. Super. 496, 1990 Pa. Super. LEXIS 2897 (Pa. 1990).

Pincite

Opinions

MONTEMURO, Judge:

The appellant, Norman J. Wilcke (“Wilcke”), has appealed from the December 13, 1989 Order of the Court of Common Pleas of Lancaster County, denying his petition for special damages and counsel fees.

The record reveals that in 1983, Walter D. Gooslin, Robert Efford and the Flyin’ Goose Corporation, pledged a dredge as collateral for a loan issued to them by the First National Bank of Northeast (“Bank”), appellee herein. The debtors subsequently defaulted on the loan, and the Bank entered judgment against the debtors in the Court of Common Pleas of Chester County. Based upon this judgment, the Sheriff of Lancaster County levied upon the dredge, known as “Rhonda Crystal”, which was located within Lancaster County. After the levy was issued, Wilcke filed a property claim pursuant to Pa.R.C.P. 3202:

(a) A claim to tangible personal property levied upon pursuant to a writ of execution shall be in writing and substantially in the form provided by Rule 3258 and shall be filed with the sheriff prior to any execution sale of the property claimed.

[498]*498(b) The claim shall be signed by the claimant or some one on his behalf, and shall set forth.

(1) a list of the property claimed sufficient to identify it;

(2) an estimate of the value of the property;

(3) a statement of the source of the claimant’s ownership of the property.

See Pa.R.C.P. 3202.

The Sheriff of Lancaster County subsequently determined that Wilcke was the owner of the Rhonda Crystal. The Bank objected to the Sheriff’s findings, thus commencing an action in interpleader. Evidentiary hearings were held in May and in June of 1987. On July 1, 1988, Wilcke filed a petition, requesting that the court order the Bank to pay the storage and maintenance costs associated with the Rhonda Crystal. R.R. at 3a. Thereafter, on January 30, 1989, the trial court upheld the Sheriff’s determination that Wilcke was the owner of the Rhonda Crystal. In so doing, the court rejected various theories offered by the Bank to support the position that Walter Gooslin was the owner of the Rhonda Crystal, i.e., abandonment by Wilcke and the existence of a lease-purchase agreement between Wilcke and Gooslin. The January 30,1989, Order by its terms does not award to Wilcke any monies for storage and maintenance costs. The trial court never ruled upon Wilcke’s July 1, 1988, petition seeking storage and maintenance costs. Neither the Bank nor Wilcke appealed from the January 30, 1989, Order.

Over three months after the entry of the Order confirming title to the Rhonda Crystal in Wilcke, Wilcke filed a petition again seeking payment for the costs of storing and maintaining the Rhonda Crystal during the above-described proceedings. Wilcke also sought, for the first time, counsel fees pursuant to 42 Pa.C.S.A. § 2503(5). The trial court denied Wilcke’s petition, ruling that Wilcke waived these claims by failing to appeal from the court’s Order of January 30, 1989. We affirm.

[499]*499In regard to Wilcke’s claim for storage and maintenance costs, Wilcke filed a claim for these monies on July 1, 1988, using the same docket number, Execution No. 54, January 1985, as his then-pending property claim under Pa.R.C.P. 3202. By failing to seek a modification of the trial court’s Order of January 30, 1989, or to file an appeal therefrom, Wilcke waived his claim that the trial court erred when the court did not award the requested storage and maintenance costs. The January 30, 1989, Order determined the issue of ownership of the Rhonda Crystal as a final matter, thus resolving the dispute under Execution No. 54, January 1985.

Turning to Wilcke’s claim for counsel fees, we note that Wilcke did not request such fees until over three months after the entry of the January 30, 1989, Order. It is settled law that counsel fees cannot be sued for separately from the principal claim. “Separate suits constitute an impermissible splitting of but one cause of action.” Goldberg v. Goldberg, 306 Pa.Super. 504, 506, 452 A.2d 838, 839 (1982) (citation omitted). See also Kessler v. Old Guard Mutual Insurance Co., 391 Pa.Super. 175, 570 A.2d 569 (1990) (claim for prejudgment interest on prior judgment was waived where insureds made no attempt to amend the judgment, which had been entered by the trial court and affirmed on appeal, to include prejudgment interest); Mantell v. Mantell, 384 Pa.Super. 475, 559 A.2d 535 (1989) (separate action to recover counsel fees, where recoverable, is part of principal action and must be asserted therein). Wilcke’s contention that he had an absolute right to recover counsel fees pursuant to 42 Pa.C.S.A. § 2503(5) does not alter our conclusion that he cannot recover counsel fees in this action. Even assuming, arguendo, that Wilcke did have such a right to attorney fees, his failure to assert it in his action under Pa.R.C.P. 3202 results in a waiver of this claim. It is axiomatic that finality of judgment extends not only to matters actually determined but also to matters [500]*500which could properly have been raised and determined therein.¹

Based upon the foregoing, we affirm.

DEL SOLE, J., files a dissenting opinion.

¹

. Given our disposition of the case sub judice, we need not consider whether Wilcke has an absolute right to recover reasonable attorney fees under 42 Pa.C.S.A. § 2503(5). Even were this Court to decide that the holding of First National Bank of Allentown v. Koneski, 392 Pa.Super. 533, 573 A.2d 591 (1990), that an award of attorneys fees is mandatory where the debtor prevails in a confession of judgment action involving residential real estate, should be extended, we nevertheless conclude that this right, like many others can be waived.

We do note that the language of 42 Pa.C.S.A. § 2503 employs the terms "shall" in setting forth the right of litigants to receive counsel fees:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:

******

(5) The prevailing party in an interpleader proceeding in connection with execution upon a judgment.

42 Pa.C.S.A. § 2503(5). See also Drum v. Leta, 354 Pa.Super. 448, 512 A.2d 36 (1986) (given the language in 41 P.S. § 407(b), that a debtor shall be entitled to recover fees and costs, an award of attorney fees is mandatory where debtor has successfully prevailed in causing judgment by confession against him to be stricken).

Free access — add to your briefcase to read the full text and ask questions with AI

MONTEMURO, Judge:

The appellant, Norman J. Wilcke (“Wilcke”), has appealed from the December 13, 1989 Order of the Court of Common Pleas of Lancaster County, denying his petition for special damages and counsel fees.

The record reveals that in 1983, Walter D. Gooslin, Robert Efford and the Flyin’ Goose Corporation, pledged a dredge as collateral for a loan issued to them by the First National Bank of Northeast (“Bank”), appellee herein. The debtors subsequently defaulted on the loan, and the Bank entered judgment against the debtors in the Court of Common Pleas of Chester County. Based upon this judgment, the Sheriff of Lancaster County levied upon the dredge, known as “Rhonda Crystal”, which was located within Lancaster County. After the levy was issued, Wilcke filed a property claim pursuant to Pa.R.C.P. 3202:

(a) A claim to tangible personal property levied upon pursuant to a writ of execution shall be in writing and substantially in the form provided by Rule 3258 and shall be filed with the sheriff prior to any execution sale of the property claimed.

[498]*498(b) The claim shall be signed by the claimant or some one on his behalf, and shall set forth.

(1) a list of the property claimed sufficient to identify it;

(2) an estimate of the value of the property;

(3) a statement of the source of the claimant’s ownership of the property.

See Pa.R.C.P. 3202.

The Sheriff of Lancaster County subsequently determined that Wilcke was the owner of the Rhonda Crystal. The Bank objected to the Sheriff’s findings, thus commencing an action in interpleader. Evidentiary hearings were held in May and in June of 1987. On July 1, 1988, Wilcke filed a petition, requesting that the court order the Bank to pay the storage and maintenance costs associated with the Rhonda Crystal. R.R. at 3a. Thereafter, on January 30, 1989, the trial court upheld the Sheriff’s determination that Wilcke was the owner of the Rhonda Crystal. In so doing, the court rejected various theories offered by the Bank to support the position that Walter Gooslin was the owner of the Rhonda Crystal, i.e., abandonment by Wilcke and the existence of a lease-purchase agreement between Wilcke and Gooslin. The January 30,1989, Order by its terms does not award to Wilcke any monies for storage and maintenance costs. The trial court never ruled upon Wilcke’s July 1, 1988, petition seeking storage and maintenance costs. Neither the Bank nor Wilcke appealed from the January 30, 1989, Order.

Over three months after the entry of the Order confirming title to the Rhonda Crystal in Wilcke, Wilcke filed a petition again seeking payment for the costs of storing and maintaining the Rhonda Crystal during the above-described proceedings. Wilcke also sought, for the first time, counsel fees pursuant to 42 Pa.C.S.A. § 2503(5). The trial court denied Wilcke’s petition, ruling that Wilcke waived these claims by failing to appeal from the court’s Order of January 30, 1989. We affirm.

[499]*499In regard to Wilcke’s claim for storage and maintenance costs, Wilcke filed a claim for these monies on July 1, 1988, using the same docket number, Execution No. 54, January 1985, as his then-pending property claim under Pa.R.C.P. 3202. By failing to seek a modification of the trial court’s Order of January 30, 1989, or to file an appeal therefrom, Wilcke waived his claim that the trial court erred when the court did not award the requested storage and maintenance costs. The January 30, 1989, Order determined the issue of ownership of the Rhonda Crystal as a final matter, thus resolving the dispute under Execution No. 54, January 1985.

Turning to Wilcke’s claim for counsel fees, we note that Wilcke did not request such fees until over three months after the entry of the January 30, 1989, Order. It is settled law that counsel fees cannot be sued for separately from the principal claim. “Separate suits constitute an impermissible splitting of but one cause of action.” Goldberg v. Goldberg, 306 Pa.Super. 504, 506, 452 A.2d 838, 839 (1982) (citation omitted). See also Kessler v. Old Guard Mutual Insurance Co., 391 Pa.Super. 175, 570 A.2d 569 (1990) (claim for prejudgment interest on prior judgment was waived where insureds made no attempt to amend the judgment, which had been entered by the trial court and affirmed on appeal, to include prejudgment interest); Mantell v. Mantell, 384 Pa.Super. 475, 559 A.2d 535 (1989) (separate action to recover counsel fees, where recoverable, is part of principal action and must be asserted therein). Wilcke’s contention that he had an absolute right to recover counsel fees pursuant to 42 Pa.C.S.A. § 2503(5) does not alter our conclusion that he cannot recover counsel fees in this action. Even assuming, arguendo, that Wilcke did have such a right to attorney fees, his failure to assert it in his action under Pa.R.C.P. 3202 results in a waiver of this claim. It is axiomatic that finality of judgment extends not only to matters actually determined but also to matters [500]*500which could properly have been raised and determined therein.¹

Based upon the foregoing, we affirm.

DEL SOLE, J., files a dissenting opinion.

¹

. Given our disposition of the case sub judice, we need not consider whether Wilcke has an absolute right to recover reasonable attorney fees under 42 Pa.C.S.A. § 2503(5). Even were this Court to decide that the holding of First National Bank of Allentown v. Koneski, 392 Pa.Super. 533, 573 A.2d 591 (1990), that an award of attorneys fees is mandatory where the debtor prevails in a confession of judgment action involving residential real estate, should be extended, we nevertheless conclude that this right, like many others can be waived.

We do note that the language of 42 Pa.C.S.A. § 2503 employs the terms "shall" in setting forth the right of litigants to receive counsel fees:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:

******

(5) The prevailing party in an interpleader proceeding in connection with execution upon a judgment.

42 Pa.C.S.A. § 2503(5). See also Drum v. Leta, 354 Pa.Super. 448, 512 A.2d 36 (1986) (given the language in 41 P.S. § 407(b), that a debtor shall be entitled to recover fees and costs, an award of attorney fees is mandatory where debtor has successfully prevailed in causing judgment by confession against him to be stricken).

Cite This Page — Counsel Stack

Bluebook (online)

582 A.2d 1054, 399 Pa. Super. 496, 1990 Pa. Super. LEXIS 2897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-nat-bank-of-northeast-v-gooslin-pa-1990.

Opinions

Related

Cite This Page — Counsel Stack