HomeMy WebLinkAbout2016-6488KATTIERINE PRO O.
Plaintiff
V.
RICHARD JORAY and
CLYDIENE LIVERMAN
FRANCIS,
Defendants
NO. 2016-6488 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, S.J., March 9, 2018.
In this landlord/tenant case arising out of Defendants' failure to pay rent on a
residential lease, Defendant Clydiene Liverman Francis has filed an appeal to the
Pennsylvania Superior Court' from a corrective order relating to an attachment of her
wages.2 She has also filed an appeal in a similar, companion case?
The bases for the appeal have been expressed in a statement of errors complained
of on appeal as follows:
1. The Court's ex parte grant of Plaintiffs motion to direct the
Prothonotary of Cumberland County to issue an amended writ of
attachment without providing Defendant an opportunity to be heard
was in violation of Defendant's constitutional right to due process of
law.
2. The Court erred as a matter of law by considering Defendant's
gross income rather [than] her net income when it denied her claim
for exemption pursuant to PA Rule of Civil Procedure 3312 and
Section 8127(a)(3.1) of the Judicial Code.
1 Notice of Appeal at No. 2016-6488 Civil Term (Cumberland Co.), filed December 1, 2017. The instant
case is docketed in the Superior Court at 1863 MDA 2017.
Z See Order of Court, dated November 3, 2017. The order was issued by the Honorable M.L. Ebert, Jr.,
who has since retired from the Cumberland County bench to assume the duties of Cumberland County
District Attorney. The case has been assigned to the undersigned senior judge. Order of Court, dated
January 4, 2018.
s Notice of Appeal at No_ 2016-5219 Civil Term (Cumberland Co.), filed December 1, 2017. This
companion case is docketed in the Superior Court at 1864 MDA 2017.
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3. The Court erred as a matter of law by considering child
support, Supplemental Nutrition Assistance Program ("SNAP")
benefits (formerly known as "food stamps"), the Earned Income Tax
Credit CFITC % and an anticipated federal income tax refund in
calculating Defendant's income for purposes of determining her claim
for exemption pursuant to PA Rule of Civil Procedure 3312 and
Section 8127(a)(3.1) of the Judicial Code_a
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of a magisterial district judge's award of $7,416.65 in favor of
Plaintiff and against Defendants, jointly and severally, for unpaid rent on a residential
lease, on January 20, 2015, judgment was entered in this court on November 18, 2016.5
On November 30, 2016, Plaintiff filed a praecipe for notice of intent to attach wages of
Defendant Francis paid by her employer, the Central York School District,6 for purposes
of collection of the judgment.'
The notice (a) was issued by the prothonotary on November 30, 2016, (b) advised
of the institution of proceedings to attach 10% of Defendant's wages to collect the rental
debt, and (c) indicated the availability of an exemption, or partial exemption, where the
debtor's net income fell, or would fall, below poverty income guidelines provided by the
federal Department of Health and Human Services! Defendant Francis filed a pro se
4 Defendant's Statement of Errors Complained of on Appeal, filed March 2, 2018.
Although a motion for reconsideration of the order on appeal was timely filed by Defendant Francis,
this court did not enter an order granting reconsideration within 30 days of its entry, as a consequence of
which jurisdiction of the case resides in the Superior Court. See Pa. R.A.P. 1701(b)(3); Order of Court,
dated February 14, 2018.
5 Notice of Judgment/Transcript, filed November 18, 2016; see PaJLC.P.M.D.J. No. 402A.
6 Praecipe for Notice of intent to Attach Wages, filed November 30, 2016; see Pa. R.C.P. 3302(a).
See Certification by Judgment Creditor—Landlord, filed November 30, 2016.
s Notice of Intent To Attach Wages, Salary or Commissions, filed November 30, 3016; see Pa. R.C.P.
3302(b).
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claim for total exemption from wage attachment on December 12, 2016, asserting that
her net income was already below the poverty income guidelines.9
A hearing on the exemption issue was held by the Honorable M.L. Ebert, Jr., of
this court on February 24, 2017.10 The evidence did not, in the court's view, establish that
Defendant's net income fell below, or would fall below, the applicable poverty income
guidelines, and at the conclusion of the hearing the following order was issued:
AND NOW, this 241h day of February, 2017, after hearing in the above -captioned
matter on the Plaintiff's Motion to Direct the Prothonotary to issue a Writ for Attachment
of the wages pursuant to Pa. R.C.P. 3303(c);
IT IS HEREBY ORDERED AND DIRECTED that the Prothonotary shall issue a
Writ of Attachment of Wages for 10 percent of the net wages of Clydiene Liverman
Francis against the following employer. Central York School District, Attention: Payroll
Department -Stacey Frey, 775 Marion Road, York, Pa. 17406. The total amount attached
is $7,416.65 plus costs and the interest.
IT IS FURTHER ORDERED AND DIRECTED that Central York School
District shall take no punitive action against Clydiene Liverman Francis as a result of this
attachment."
Distributees of the order included Defendant Francis, who was in court when it
was dictated, and her employer, the Central York School District. 12 No appeal was taken
from the order.
The writ of attachment subsequently issued by the prothonotary in response to
Judge Ebert's order, unfortunately, was a generic one simply instructing the employer,
inter alia, to "attach and deduct from the wages of the above employee a sum not to
exceed ten (10%) of the net wages per pay period of said employee or a sum not to place
employees [sic] net income below poverty income guidelines as provided annually by the
Federal Office of Management and Budget, whichever is less."13 To the extent that this
9 Claim for Exemption from Wage Attachment, filed December 12, 2016.
to See Order, dated December 27, 2016 (issued in response to Plaintiff s Motion To Direct Prothonotary
To Issue a Writ for the Attachment of Wages Pursuant to Pa.R.C.P. 3303(c), which motion noted the need
for a hearing on the exemption claim).
" Order of Court, dated February 24, 2017. The order was entered on the docket on March 1, 2017.
12 Id
13 Writ of Attachment, filed March 1, 2017
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writ, construed out of the context of the order that precipitated it, could be understood to
leave a determination of the exemption issue already litigated to the employer, Judge
Ebert issued the following corrective order on November 3, 2017, in response to a motion
of Plaintiff:"
AND NOW, this 3d day of November, 2017, upon consideration of Plaintiff's
Motion to Direct Prothonotary to Issue Amended Writ of Atiacliment in Compliance with
Pa.RCR 3313, said motion is granted. Following the hearing conducted on February 24,
2017, this Court rejected the claim of Defendant, Clydiene Francis, for excmption. It is
therefore directed that the Prothonotary issue the attached Amended Writ of Attachment,
which conforms to Pa. R.C.P. 3313, to Central York School District's payroll department
along with a copy of the within Order.
From this order, Defendant Francis has filed an appeal to the Superior Court.
STATEMENT OF LAW
"It is well settled in Pennsylvania that a trial court has the inherent, common-law
authority to correct `clear clerical errors' in its orders." Commonwealth v. Borrin, 2011
PA Super 10, IL_, 12 A.3d 466, 471 (citations omitted), ajfd on other grounds, 622 Pa.
422, 80 A.3d 1219 (2013). Inherent in the court system is the court's power "to amend
records, to correct mistakes of court officers or counsel's inadvertencies, or to supply
defects or omissions in the record." Commonwealth v. Quinlan, 433 Pa. Super. 111, 118,
639 A.2d 1235, 1239 (1994); see also Manufacturers and Traders Trust Co. v. Greenville
Gastroenterology, S.C., 2015 PA Super 15, 108 A.3d 913; Manak v. Sandlin, 2002 PA
Super 328, 812 A.2d 676; Fish v. Gosnell, 316 Pa. Super. 565, 463 A.2d 1042 (1983).
"The inherent power of the court to correct obvious and patent mistakes is not
eliminated by the expiration of the thirty -day appeal period." Commonwealth v. Quinlan,
433 Pa. Super. 111, 118, 639 A.2d 1235, 1239 (1994). Furthermore, "[a] trial court
maintains this authority even after the expiration of the 30 day time limitation set forth in
14 See Motion To Direct Prothonotary To Issue Amended Writ of Attachment in Compliance with
Pa.RC.P. 3313, filed October 27, 2017.
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42 Pa.C.S.A. §5505 for the modification of orders."15 The power may be exercised by the
court sua sponte. 16
APPLICATION OF LAW TO FACTS
In the present case, the writ of attachment issued by the prothonotary represented a
clerical error to the extent that it could be interpreted as authorizing a determination of
Defendant's exemption status by her employer inconsistent with the court's adjudicated
directive on the issue. While the reasonableness of such an interpretation may be arguable
in light of the clarity of the order that accompanied the writ, when the court became
aware of the putative error it exercised its power to correct it --a power that could be
exercised sua sponte, without regard to any party's preference to the contrary and without
a requirement that the merits of the underlying order be reajudicated.
BY THE COURT,
/V (1-17al / I
J Lesley Olei, r., SJ..
Mark F. Bayley, Esq.
Bayley & Mangan
17 West South Street
Carlisle, PA 17013
Attorney for Plaintiff
George R. Studzinski, Esq.
MidPenn Legal Services
29 North Queen Street
York, PA 17403-1428
Attorney for Defendant Clydiene Liverman Francis
Richard Joray
141 East Main Street
Mechanicsburg, PA 17055
Defendant pro Se
is Commonwealth v. Borrin, 2011 PA Super 10,t, 12 A.3d 466, 471, ard on other grounds, 622 Pa.
422, 80 A.3d 1219 (2013).
16 Commonwealth v. Quinlan, 433 Pa. Super. 111, 118, 639 A.2d 1235, 1239 (1994).
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