Perlmutter, D. v. Sutton Invest.

• Court: Superior Court of Pennsylvania
• Decided: August 23, 2022
• Docket: 2440 EDA 2021
• Status: Unpublished

Opinion

J-A17034-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAWN PERLMUTTER AND THOMAS : IN THE SUPERIOR COURT OF BOLICK : PENNSYLVANIA : Appellants : : : v. : : : No. 2440 EDA 2021 SUTTON INVESTMENTS, LLC AND : TRINA AND JEFFREY VARONE, H/W : AND UNITED STATES OF AMERICA : WILLIAM BARR ATTORNEY GENERAL : U.S. DEPARTMENT OF JUSTICE :

Appeal from the Order Entered October 28, 2021 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2020-01609

BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED AUGUST 23, 2022

Appellants, Dawn Perlmutter and Thomas Bolick, appeal, pro se, from

the order (i) granting the motion of Appellees, Trina Varone, Jefferey Varone,

and Sutton Investments, LLC, to dismiss Appellants’ petition to open/strike a

transferred Maryland judgment; (ii) granting Appellees’ motion to dismiss

Appellants’ complaint; and (iii) barring Appellants from pursuing any further

pro se litigation against Appellees raising similar claims without leave of court

pursuant to Pennsylvania Rule of Civil Procedure 233.1. We affirm on the

basis of the trial court opinion.

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* Retired Senior Judge assigned to the Superior Court. J-A17034-22

We briefly recount the procedural and factual background in this case

that is set forth in great depth in the trial court opinion. See Trial Court

Opinion, 2/24/22, at 2-16. Ms. Perlmutter and Mrs. Varone are sisters; in

2010, their mother, Joan Sutton, died. Mrs. Varone was named as one of the

personal representatives of her mother’s estate, which was administered in

Maryland. Ms. Perlmutter and Mr. Bolick1 filed a petition to remove Mrs.

Varone as personal representative. On January 29, 2014, the orphans’ court

of Montgomery County, Maryland granted Mrs. Varone’s motion to strike the

petition for removal; the order provided that any further filings that are

deemed bad faith proceedings would be subject to costs and sanctions.

In 2016, Appellants filed an action in the Circuit Court of Montgomery

County, Maryland, asserting that the Varones and the other personal

representative of Ms. Sutton’s estate defrauded Ms. Perlmutter out of her

inheritance from her mother’s estate. On September 22, 2016, the Maryland

Circuit Court granted the defendants’ motion to dismiss, awarded $12,611.50

in attorneys’ fees, prohibited Appellants from any more filings without leave

of the court, and provided that any further filing without leave would result in

a finding of contempt of court. Appellants appealed, and the Maryland Court

of Special Appeals affirmed the lower court’s order and also directed that the

costs of the appeal be borne by Appellants. The defendants then filed a motion

1 As the trial court explained, “Mr. Bolick is a family friend and business associate of Ms. Perlmutter to whom she has assigned a percentage of her ‘inheritance rights.’” Trial Court Opinion, 2/24/22, at 2 n.2.

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for conformance with the mandate of the appellate court regarding the award

of costs of the appeal, and on September 12, 2018, the Maryland Circuit Court

entered judgment against Appellants, jointly and severally, in the amount of

$1,980.00, plus post-judgment interest.

On March 9, 2020, the Varones filed a praecipe in the trial court to

transfer the September 12, 2018 Maryland Circuit Court judgment in the

amount of $1,980.00.2 On April 1, 2020, Appellants filed a “Verified Counter-

Claim Complaint” naming Appellees as defendants and asserting a claim for

declaratory relief and claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1985.

The allegations in the complaint generally related to Appellants’ contention

that the Varones defrauded Ms. Perlmutter out of her share of Ms. Sutton’s

estate. Appellants later filed an amended complaint based on similar

allegations and adding the United States as a defendant.

On November 24, 2020, Appellants filed a “Motion/Petition to

Open/Strike and Second Amended Verified Counter-Claim Complaint.” In this

filing, Appellants requested that the trial court strike or open all judgments

obtained by the Varones in the Maryland Circuit Court as those judgments

2 According to the trial court, the Varones also concurrently transferred the $12,611.50 attorneys’ fee judgment from the Maryland Circuit Court, as well as an $8,927.40 judgment entered against Appellants in a District of Columbia action. Trial Court Opinion, 2/24/22, at 4. These other two judgments were docketed separately and, although Appellants requested consolidation of these other transferred judgments in their pleadings, they never filed a motion to consolidate. Id. at 4, 5 n.4, 6 n.5. Therefore, this appeal solely relates to the $1,980.00 transferred judgment.

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were obtained through fraud and by denial of due process for Appellants.

Appellees filed a motion to dismiss the “Motion/Petition to Open/Strike and

Second Amended Verified Counter-Claim Complaint” pursuant to Rule 233.1.

After holding two hearings, the trial court entered an order on October

28, 2021 granting Appellees’ motion to dismiss, denying Appellants’ request

to open or strike the transferred judgment, and dismissing their

‘counterclaims’ against Appellees. In addition, the trial court’s order provided

that, pursuant to the court’s authority under Rule 233.1, Appellants are barred

from bringing additional pro se litigation against Appellees on the same issues

raised in the current matter without obtaining leave of the court. Appellants

filed a motion for reconsideration of the order, but prior to the trial court ruling

on the motion, they filed this timely appeal.3

Appellants raise the following issues before this Court:

A. Whether the [trial] court erred by denying [Appellants’] Petition/Motion to Strike [Appellees’] recorded judgment where the record contains judicial admissions showing the judgment to be void ab initio?

B. Whether the [trial] court erred and abused [its] discretion by not opening the judgment?

C. Whether the trial court erred and abused [its] discretion in granting [Appellees’] Motion to Dismiss brought pursuant to Rule 233.1 without notice thereby denying [Appellants’] due process of law?

3Appellants filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal on December 9, 2021. The trial court filed its Pa.R.A.P. 1925(a) opinion on February 24, 2022.

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Appellants’ Brief at 11 (unnecessary capitalization omitted).

Our standard of review from the denial of a petition to open or strike a

foreign judgment is limited to whether the trial court manifestly abused its

discretion or committed an error of law. Olympus Corp. v. Canady, 962

A.2d 671, 673 (Pa. Super. 2008).

Generally speaking, a default judgment may be opened if the moving party has (1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the complaint.

Capstone Capital Group, LLC v. Alexander Perry, Inc., 263 A.3d 1178,

1181 (Pa. Super. 2021) (citation omitted). A petition to strike a judgment

operates as a demurrer to the record and may only be granted based upon a

fatal defect or irregularity appearing on the face of the record. Digital

Communications Warehouse, Inc. v. Allen Investments, LLC, 223 A.3d

278, 284 (Pa. Super. 2019). Such a petition does not entitle a court to review

the merits of the allegations; rather the petition to strike is directed towards

defects that affect the validity of the judgment and entitle the petitioner to

relief as a matter of law. Id. at 285.

Under the full faith and credit clause of the United States Constitution,

“[a] final judgment in one State, if rendered by a court with adjudicatory

authority over the subject matter and persons governed by the judgment,

qualifies for recognition throughout the land.” Capstone, 263 A.3d at 1182

(citation omitted); see U.S. Const. art. IV, § 1. The full faith and credit clause

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has been codified in this Commonwealth through the adoption of the Uniform

Enforcement of Foreign Judgments Act (“UEFJA”). See 42 Pa.C.S. § 4306.

Pursuant to the full faith and credit clause and UEFJA, a Pennsylvania

court as to which the foreign judgment is transferred may not revisit the

merits of the underlying litigation resolved in the foreign state and instead the

foreign judgment may only be challenged on the basis that “the sister state

must have had proper jurisdiction over the defendant and afforded him or her

due process of law.” Capstone, 263 A.3d at 1183 (citation omitted). The

party challenging the validity of the foreign judgment bears the burden of

demonstrating the procedural or jurisdictional irregularity in the foreign

proceeding. Id.

Under Rule 233.1, a defendant in a pro se action may file a motion to

dismiss on the basis that the plaintiff is alleging the same or related claims

brought by the plaintiff in an earlier action against the defendant and those

claims were settled or resolved by the court in the earlier action. Pa.R.Civ.P.

233.1(a). When a trial court grants a motion to dismiss pursuant to the rule,

“the court may bar the pro se plaintiff from pursuing additional pro se litigation

against the same or related defendants raising the same or related claims

without leave of court.” Pa.R.Civ.P. 233.1(c). However, the pro se plaintiff is

not then barred from asserting counterclaims “in litigation that the pro se

plaintiff did not institute.” Pa.R.Civ.P. 233.1(d), Note. We review the trial

court’s grant of a motion to dismiss under Rule 233.1 under an abuse of

discretion standard, although to the extent our review involves the

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interpretation of the Rules of Civil Procedure, our standard of review is de

novo. Gray v. PennyMac Corp., 202 A.3d 712, 715 (Pa. Super. 2019).

Appellants argue that the trial court erred by not striking or opening the

transferred September 12, 2018 judgment because all proceedings in the

Maryland Circuit Court subsequent to the September 22, 2016 dismissal of

their action were void. Appellants assert that the judgment was void because,

after they “murdered” Ms. Sutton, the Varones conducted “an ongoing

fraudulent scheme” in conspiracy with the trial judge and other government

actors to deprive Perlmutter of her rightful inheritance from her mother.

Appellants’ Brief at 25. Appellants further claim that they were denied due

process of law and that personal jurisdiction was improper in Maryland as a

result of this fraudulent scheme. With respect to the dismissal of their

complaint against Appellees under Rule 233.1, Appellants contend that they

were not provided adequate notice, dismissal was improper under the rule as

counterclaims are specifically exempted from the rule’s application, and that

dismissal violated their right to access of the courts under the Pennsylvania

Constitution.

After a thorough review of the record, the parties’ briefs, the applicable

law, and the well-reasoned opinion of the Honorable Denise M. Bowman, we

conclude that Appellants’ issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of Appellants’ appellate

issues. See Trial Court Opinion, 2/24/22, at 18-37 (explaining that petition

to strike was properly denied as Appellants fully litigated jurisdictional and due

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process claims in the Maryland Circuit Court proceeding and they did not meet

burden of showing any irregularity in the prior case; claim of “judicial

admissions” of fraud was waived because no actual admissions identified;

petition to open was properly denied as courts may not reach any potentially

meritorious defenses under full faith and credit clause and, in any event,

petition was untimely because it was filed eight months after transfer of

judgment; dismissal of Appellants’ claims was appropriate under Rule 233.1

as their allegations mirrored those raised in the Maryland proceedings;

Appellants are not rescued by Rule 233.1’s exception for counterclaims

because Appellees only transferred a judgment to Pennsylvania and did not

assert any substantive claims against Appellants as to which a counterclaim

would be appropriate; notwithstanding Appellants’ vague claims that their

constitutional rights were violated by dismissal, Rule 233.1 has been held to

be constitutional by Pennsylvania courts).

Accordingly, we conclude that the trial court did not abuse its discretion

or commit legal error in dismissing Appellants’ petition to open/strike the

transferred foreign judgment, dismissing Appellants’ complaint, and barring

Appellants from asserting similar pro se claims without leave of court pursuant

to Rule 233.1. We therefore affirm on the basis of the trial court opinion. The

parties are instructed to attach the opinion of the trial court in any filings

referencing this Court’s decision.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/23/2022

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