Painewebber, Inc. v. Devin

658 A.2d 409, 442 Pa. Super. 40, 1995 Pa. Super. LEXIS 1030
CourtSuperior Court of Pennsylvania
DecidedMay 10, 1995
StatusPublished
Cited by13 cases

This text of 658 A.2d 409 (Painewebber, Inc. v. Devin) 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
Painewebber, Inc. v. Devin, 658 A.2d 409, 442 Pa. Super. 40, 1995 Pa. Super. LEXIS 1030 (Pa. Ct. App. 1995).

Opinion

BECK, Judge:

The issue in this appeal is whether a subpoena duces tecum issued in aid of execution was properly quashed on the basis that the recipient of the subpoena, who was not a party to the original action, did not have any assets of the judgment debtor. We hold that it was error to quash the subpoena. Accordingly, we reverse.

In January 1993, Plaintiff-appellant Paine-Webber, Inc. filed a complaint against defendant Richard Devin for breach of contract, unjust enrichment and conversion stemming from an overpayment received by Devin following a sale of stock. On September 8, 1993, summary judgment was granted against Richard Devin in the amount of $18,-800.

In attempting to execute on this judgment, PaineWebber garnished the contents of a safety deposit box, but the attachment was dissolved upon notification by the garnishee that the box was registered, not in the name of Richard Devin, but rather in the name of Todd Devin Food Equipment (“TDFE”).

PaineWebber subsequently served upon Todd Devin, son of the original defendant and owner of TDFE, a subpoena duces te-cum directing him to appear on December 23, 1993, to testify and to bring with him “any and all documents which refer or relate to ownership interests in Todd Devin Food [412]*412Equipment, Inc., and any and all documents which refer or relate to any assets of Todd Devin Food Equipment, Inc. and/or Richard Devin.” Todd Devin did not appear for the scheduled deposition, and no documents were produced. However, through counsel Todd Devin provided PaineWebber with an affidavit certifying: 1) that he is the sole owner of TDFE; 2) that Richard Devin is neither an owner nor an employee of TDFE, and; 3) that Richard Devin does not draw any funds from TDFE. PaineWebber accepted this affidavit and agreed to cancel the deposition.

On February 16, 1994, PaineWebber conducted a deposition of Richard Devin in an effort to discover assets. Richard Devin testified that he is an officer of TDFE and performs some services for TDFE, but that he receives no compensation for such services. He further testified that his living expenses are paid for by Todd Devin with the help of one other person.

Suspicious that Richard Devin was in fact receiving compensation for the services he performed for TDFE, PaineWebber served a subpoena duces tecum on Todd Devin, directing him to appear on April 20,1994, to testify and to bring with him TDFE’s corporate tax returns for tax years 1988 through 1992, or, in the alternative, authorizations allowing PaineWebber to secure copies of those tax returns from the Internal Revenue Service. Todd Devin refused to produce the tax returns or authorizations and filed a motion to quash the subpoena. The motion was granted on June 2, 1994, and this timely appeal followed.

In its opinion in support of the order quashing the subpoena, the court of common pleas, after reciting the above factual history, stated that the order was entered “on the basis that neither Todd Devin nor TDFE had any assets belong [sic] to the original defendant, Richard Devin.” Appellant asserts that it was error to preclude discovery in aid of execution on the basis that the recipient of a discovery request was not known to possess assets of the defendant. We agree.

Discovery in aid of execution is permitted by Rule 3117 of the Rules of Civil Procedure. It provides, in pertinent part:

Rule 3117. Discovery In Aid of Execution
(a) Plaintiff at any time after judgment, before or after the issuance of a writ of execution, may, for the purpose of discovery of assets of the defendant, take the testimony of any person, including a defendant or a garnishee, upon oral examination or written interrogatories as provided by the rules relating to Depositions and Discovery. The prothonotary of the county in which judgment has been entered or of the county within this Commonwealth where the deposition is to be taken, shall issue a subpoena to testify.

Pa.R.C.P. 3117(a), 42 Pa.Cons.Stat.

Discovery in aid of execution under Rule 3117 should be distinguished from interrogatories served upon a garnishee under Rule 3144 of the Rules of Civil Procedure. Interrogatories to the garnishee under Rule 3144 are procedurally linked to the writ of attachment and are designed to ascertain the property in the possession of a known garnishee. Helms v. Chandler, 423 Pa. 77, 223 A.2d 30 (1966). They may be served only at the time of or after issuance of the writ and only upon a garnishee. Pa.R.C.P. 3144(a), Pa.Cons.Stat. In the context of the attachment proceeding, such interrogatories are analogous to a complaint, and require the garnishee to respond and assert any available defenses or suffer entry of a default judgment. Pa.R.C.P. 3145, 3146, Pa.Cons. Stat. Discovery under Rule 3117, in contrast, is “pure discovery,” intended as an ancillary aid in the discovery of assets. Helms v. Chandler, supra.

The language of Rule 3117 makes its broad application clear. Discovery under the rule may be pursued “at any time after judgment, before or after the issuance of a writ of execution.” Discovery in aid of execution thus is not linked to a pending execution or attachment, but rather may be pursued even before issuance of a writ in order to locate assets subject to execution and obtain the information necessary to begin the process of execution or attachment. Moreover, Rule 3117 permits discovery requests to be directed to “any person, including a defendant or garnishee.” Thus, in keeping [413]*413with the “pure discovery” purposes of the rule, plaintiffs are not restricted to obtaining discovery from defendants or garnishees, but may seek discovery from any person who may have information regarding the location of assets of the judgment debtor.

The range of discovery tools available to plaintiffs under Rule 3117 is also broad. The rule explicitly permits plaintiffs to conduct discovery by oral examination or written interrogatories “as provided by the rules relating to Depositions and Discovery.” Thus the mechanisms and procedures set out in Rules 4004 through 4006 (relating to written interrogatories) and in Rules 4007.1 through 4008 (relating to oral examinations) are available not only in preparation for trial, but also in aid of execution. Where testimony is to be taken by oral examination, Rule 4007.1(d) provides for production by the person to be examined of designated documents and other materials. If the person to be examined is a party, documents may be obtained through a request for production of documents in compliance with Rule 4009. If the person to be examined is not a party, the production of materials specified in the notice of deposition is obtained through issuance of a subpoena duces tecum. Pa.R.C.P. 4007.1(d), 42 Pa.Cons.Stat.1 Where documents or other materials have been produced at a deposition pursuant to these rules, the moving party is entitled to inspect and copy the documents produced, to require the producing witness to identify them, and to examine the producing witness about them. Woods v. Dunlop, supra.

The scope of discovery under Rule 3117, defined by the rule’s purpose of “discovery of assets of the defendant,” is similarly broad. It is not, however, unlimited. Discovery in aid of execution may be restricted if the requested testimony or material is not relevant to the discovery of assets of the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
658 A.2d 409, 442 Pa. Super. 40, 1995 Pa. Super. LEXIS 1030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/painewebber-inc-v-devin-pasuperct-1995.