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Zokaites v. Pittsburgh Irish Pubs

December 11, 2008

FRANK R. ZOKAITES, APPELLANT
v.
PITTSBURGH IRISH PUBS, LLC AND COLM MCWILLIAMS, APPELLEES



Appeal from the Order February 13, 2008, In the Court of Common Pleas of Allegheny County, Civil Division at No. GD 05-030435.

The opinion of the court was delivered by: Popovich, J.

BEFORE: KLEIN, POPOVICH and FITZGERALD*fn1, JJ.

¶ 1 Appellant Frank R. Zokaites appeals the order denying his Motion to Compel Member Interest to Sheriff as Trustee for Sale to Satisfy Judgment (Motion to Compel), which judgment was entered against Appellees Pittsburgh Irish Pubs, LLC and Colm McWilliams.*fn2 We affirm.

¶ 2 A review of the record establishes the following undisputed facts; to-wit:

On November 21, 2005 [Appellant] obtained a judgment against [Appellees]. [n.1] On April 2, 2007, [Appellant] filed a writ of execution and unsuccessfully attempted to collect his judgment. Thereafter, on September 4, 2007 [Appellee] Pittsburgh Irish Pubs, LLC filed for bankruptcy under Chapter 11.

In an attempt to collect the outstanding judgment from [Appellee] Colm McWilliams, on September 24, 2007 [Appellant] presented to th[e trial c]ourt a Motion to Compel [.]. The Motion sought to compel [Appellee] Colm McWilliams to transfer his 20.5% outstanding member interests in [Appellee] Pittsburgh Irish Pubs, LLC and Molly Brannigans, LLC to the Allegheny County Sheriff for levy and sale. On September 24, 2007, th[e trial c]ourt granted the Motion to Compel and ordered [Appellee] McWilliams to transfer his member interests in [Appellee] Pittsburgh Irish Pubs, LLC and Molly Brannigans, LLC to the Sheriff. [n.2] The Order noted that no one for [Appellees] appeared to contest the motion.

On October 3, 2007, [Appellee] McWilliams filed a Motion for Reconsideration of th[e trial c]ourt's September 24, 2007 Order. Subsequently, th[e trial c]ourt granted the Motion for Reconsideration and vacated the order of September 24, 2007. Oral argument on the underlying Motion to Compel was held for October 4, 2007. At argument, bankruptcy attorney for [Appellee] Pittsburgh Irish Pubs informed th[e trial c]ourt of his intention to file a motion for extension of the automatic stay to [Appellee] Colm McWilliams in Bankruptcy Court. Based upon the representation of bankruptcy counsel for [Appellee] Pittsburgh Irish Pubs that the Motion to Extend the Stay would be immediately filed with the Bankruptcy Court, th[e trial c]ourt deferred a decision on the merits regarding the underlying Motion to Compel pending a decision by the Bankruptcy Court regarding the stay.

On November 27, 2007, Jeffrey A. Deller, United States Bankruptcy Judge for the Western District of Pennsylvania, entered an order denying [Appellee] Pittsburgh Irish Pubs' Motion to Extend the Automatic Stay to [Appellee] McWilliams. Th[e trial c]ourt then scheduled re-argument on the Motion to Compel for February 11, 2008. [n.3]

After argument on February 11, 2008 and consideration of the briefs filed by the parties, th[e trial c]ourt entered an order denying the motions to compel member interest on February 12, 2008. [n.4].

______________________

[n.1] A Complaint in Confession of Judgment was filed by [Appellant] against [Appellees] in the amount of $121,980.50 plus continuing interest.

[n.2] The Order further provided that if the original member interests have not been issued or cannot be found or located within 5 days from the date of this order, [Appellee] McWilliams is directed to execute an affidavit to that effect and directed to cause [Appellee] Pittsburgh Irish Pubs, LLC and Molly Brannigans, LLC to issue the original certificates or to issue replacement certificates and to transfer the certificates to the Sheriff for levy and sale. Further, it was ordered that [Appellee] McWilliams shall be held in contempt of Court upon his failure to perform the foregoing acts and that the Allegheny County Sheriff is directed to enforce this Order an[d] to take [Appellee] McWilliams into custody and to transport[] him to th[e trial c]ourt for further contempt proceedings. [n.3] On February 1, 2008 [Appellant] filed another Motion to Compel [Appellee] McWilliams' Member Interest Transfer in Erie Irish Pubs, LLC and requested that the [trial c]ourt[] consider the Motion in conjunction with the previously filed Motion to Compel Member Interests in [Appellee] Pittsburgh Irish Pubs, LLC and Molly Brannigans, LLC.

[n.4] This Order encompassed both the Motion to Compel Member Interests in [Appellee] Pittsburgh Irish Pubs, LLC and Molly Brannigans, LLC and the Motion to Compel Member Interest Transfer in Erie Irish Pubs, LLC.

Trial court opinion, 4/28/08, at 1-4, n.1-4. Thereafter, on February 13, 2008, the order denying Appellant's Motion to Compel was entered upon the docket pursuant to Pa.R.A.P. 301(a) (Requisites for an Appealable Order - Entry upon docket below). On March 5, 2008, Appellant filed a notice of appeal, which was followed by a Pa.R.A.P. 1925(b) statement on March 18, 2008, raising the question: "Whether the [trial c]ourt erred in holding that Pennsylvania law does not permit the [trial] court to compel the transfer of the member interest of a member of a limited ...


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