Jones v. McGreevy

270 A.3d 1

Brian W. JONES, Assignee of Wilson C. Fox, Appellant

v.Janice MCGREEVY, Administratrix of the Estate of Daniel McGreevy, Janice McGreevy, Snowden Capital Advisors LLC, also known as Snowden Lane Partners, Pershing LLC, Bank of New York Mellon NA, also known as BNY Mellon

Brian W. Jones, Appellant

v.Janice McGreevy, Administratrix of the Estate of Daniel M. McGreevy, Janice McGreevy, Lauren Rose McGreevy-Gruszka, Brent Gruszka, Brendan McGreevy, Janice McGreevy, Administratrix of the Estate of Daniel M. McGreevy, as Trustee for the Daniel M. Mcgreevy Separate Share Trust, and all other immediate and mediate transferees

No. 269 WDA 2021

No. 286 WDA 2021

Superior Court of Pennsylvania.

Argued September 29, 2021

Filed: January 11, 2022

John K. Foster III, Pittsburgh, for appellant.

Samuel A. Hornak, Pittsburgh, for appellee.

Jason M. Plakosh, Sewickley, for appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

OPINION BY BENDER, P.J.E.:

Brian W. Jones ("Appellant"), assignee of Wilson C. Fox ("Fox"), appeals from the February 4, 2021 judgment entered at docket no. 269 WDA 2021 after a non-jury verdict in favor of the debtor, Daniel M. McGreevy ("McGreevy"), and the garnishees, Snowden Capital Advisors LLC, a/k/a Snowden Lane Partners ("Snowden"), Pershing LLC ("Pershing"), and Bank of New York Mellon NA, a/k/a BNY Mellon ("BNY Mellon") (collectively "Garnishees"). In addition, Appellant appeals from the February 18, 2021 order entered at docket no. 286 WDA 2021, which sustained the preliminary objections filed by the defendant, McGreevy, and the transferees, Janice McGreevy, Lauren Rose McGreevy-Gruszka, Brent Gruszka, Brendan McGreevy, the Daniel McGreevy Separate Share Trust, and all other immediate and mediate transferees (collectively "Transferees"), and dismissed Appellant's complaint.¹ After careful review, we vacate the judgment entered at docket no. 269 WDA 2021, vacate the February 18, 2021 order entered at docket no. 286 WDA 2021, and remand these cases for further proceedings consistent with this opinion.

We glean the following relevant facts and procedural background of these matters from the record. On December 16, 2008, Fox commenced a civil action against McGreevy in the Westmoreland County Court of Common Pleas at docket no. 14497 of 2008, after McGreevy defaulted on an agreement to purchase two collectible shotguns from him for $40,000.00. On July 10, 2009, Fox obtained a default judgment against McGreevy in the amount of $50,800.00. On September 17, 2009, the judgment was transferred to the Allegheny County Court of Common Pleas at docket no. GD-09-016053 ("Garnishment Action"). Fox subsequently sold and assigned the judgment to Appellant.

On August 2, 2018, Appellant began post-judgment enforcement proceedings via the Garnishment Action, by requesting the issuance of a writ of execution and naming PNC Bank as the garnishee.² That action resulted in the garnishing of funds from McGreevy's individual checking and savings accounts with PNC Bank in the amount of $4,945.17, which was paid towards the balance owed to Appellant on the judgment.

On January 23, 2019, Appellant requested a writ of execution be reissued and served on BNY Mellon, as garnishee.³ The sheriff personally served BNY Mellon with the writ of execution, along with interrogatories in attachment on January 24, 2019. BNY Mellon never filed an answer to the interrogatories. On February 27, 2019, Appellant filed a praecipe to reissue a writ of execution, naming Snowden and Pershing as garnishees.⁴ Appellant subsequently served Pershing with the writ of execution, along with interrogatories in aid of execution,⁵ on March 1, 2019, via certified mail at its corporate office located in New Jersey, as agreed upon by Pershing.⁶ On April 1, 2019, Pershing filed its answers to the interrogatories, in which it indicated that it had frozen the funds in McGreevy's individual brokerage/checking account, totaling $102,549.08, and that it elected not to freeze the assets in McGreevy's other accounts, because there were enough funds in his individual checking account to pay the balance owed on the judgment.

In February and March of 2019, McGreevy filed claims for exemption and immunity of his assets in Garnishees’ custody from levy or attachment, pursuant to Pa.R.C.P. 3123.1(a).⁷ Additionally, in April of 2019, McGreevy filed preliminary objections to the writ of execution served on Pershing, in which he asserted that his property held in Pershing's custody was exempt or immune from execution.⁸ On September 25, 2019, McGreevy's wife, Janice McGreevy ("Wife"), joined the Garnishment Action as an interested party and adopted McGreevy's preliminary objections. On September 29, 2019, the trial court stayed the preliminary objections and declared that the issue of whether McGreevy's assets in Pershing's custody are exempt or immune from execution would be decided at a non-jury trial.

Senior Judge Paul F. Lutty, Jr., presided over the non-jury trial held on March 3, 2020. At the close of trial, Judge Lutty directed McGreevy and Appellant to submit proposed findings of fact and conclusions of law. Both parties complied. On June 23, 2020, Judge Lutty entered the following order:

AND NOW, this 23^rd day of June 2020, it is hereby ORDERED, ADJUDGED AND DECREED that verdict is entered in favor of ... McGreevy and against ... Appellant.... The writs of execution issued against ... Garnishees on January 23, 2019 and February 27, 2019 are dismissed and dissolved, and all property owned and held by [McGreevy], or established for the benefit of [McGreevy] or otherwise associated with [McGreevy], including all accounts in the custody of Pershing ... is hereby ordered, adjudged and decreed to be immune and exempt from attachment, levy and execution. Pershing ... is hereby ordered and directed to release any and all holds and/or freezes on the accounts of ... McGreevy on deposit and within the custody of Pershing....

Trial Court Order ("Order"), 6/23/20, at 1-2 (unnumbered; some capitalization omitted).⁹ See Pa.R.C.P. 3121(a)(4) (requiring the court to set aside a writ of execution upon the showing of exemption or immunity of property from execution). No findings of fact were issued by the trial court, nor was the Non-Jury Verdict accompanied by a memorandum explaining Judge Lutty's decision.

On June 29, 2020, Appellant filed a motion for post-trial relief. Oral argument was held on the post-trial motion on September 24, 2020, and continued on October 15, 2020. Both parties subsequently submitted briefs at the trial court's request. On February 4, 2021, Appellant filed a praecipe for entry of judgment on the Non-Jury Verdict pursuant to Pa.R.C.P. 227.4(1)(b), as more than 120 days had passed since the filing of his request for post-trial relief and the trial court had not yet disposed of the motion. Judgment was entered on the same date. On February 8, 2021, Appellant filed a timely notice of appeal at docket no. 269 WDA 2021, followed by the filing of a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

McGreevy died on January 17, 2021, just prior to the filing of the appeal in the Garnishment Action. Wife was appointed as administratrix of his estate ("Administratrix") in February of 2021 and, on March 23, 2021, McGreevy's counsel filed a notice of McGreevy's death, along with a request to substitute Administratrix for the deceased as the defendant in the Garnishment Action, in compliance with Rules 2355 and 2352. See Pa.R.C.P. 2355(a) ("If a named party dies after the commencement of an action, the attorney of record for the deceased party shall file a notice of death with the prothonotary. The procedure to substitute the personal representative of the deceased party shall be in accordance with Rule 2352."); Pa.R.C.P. 2352 (directing the filing of a statement of material facts on which the right to substitution of a party is based). The prothonotary adjusted the caption accordingly.¹⁰

While the Garnishment Action was still pending, Appellant instituted a separate action on October 9, 2020, in the Warren County Court of Common Pleas at docket no. A.D. 454 of 2020, with the filing of a complaint against McGreevy, in which he alleged that McGreevy attempted to harbor transferred and subsequently acquired assets and/or funds from the reach of creditors, in violation of the Pennsylvania Uniform Voidable Transactions Act ("PUVTA"), 12 Pa.C.S. §§ 5101 - 5114.¹¹ On November 9, 2020, PUVTA Appellees filed preliminary objections to the complaint, asserting, inter alia , that the trial court lacked subject matter jurisdiction as a result of the Non-Jury Verdict entered in the Garnishment Action, in which Judge Lutty declared all of McGreevy's assets exempt and immune from attachment, levy, and execution. In response, Appellant filed preliminary objections to PUVTA Appellees’ preliminary objections. On February 17, 2021, following argument on the preliminary objections, the trial court entered an order sustaining PUVTA Appellees’ first objection regarding the court's lack of subject matter jurisdiction, which rendered their remaining objections moot, and dismissing the complaint without prejudice.

On February 23, 2021, Appellant filed a timely, pro se notice of appeal at docket no. 286 WDA 2021. The trial court directed Appellant to file a Rule 1925(b) concise statement of errors complained of on appeal. Appellant timely complied.¹²

On July 2, 2021, Garnishment Appellees filed an application to dismiss the appeal at docket no. 269 WDA 2021 as moot. We denied their application. Per Curiam Order, 8/27/21 (single page).¹³

Appeal from Garnishment Action

We first address the issues raised on appeal in the Garnishment Action. Herein, Appellant presents the following questions for our review:

1. Whether [A]ppellant properly exercised his right under Pa.R.C.P. [ ] 227.4(1)(b) to move the case along instead of waiting for the trial

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