Appeal from the Order of March 25, 2008, in the Court of Common Pleas of Allegheny County, Civil Division at No. FD 07 7499-002.
The opinion of the court was delivered by: Colville, J.
BEFORE: MUSMANNO, SHOGAN and COLVILLE*fn1, JJ.
¶ 1 Paul J. McArdle, Esq. ("Appellant") appeals the order striking his judgment lien that he claims had attached to certain realty. The trial court struck the lien because the court found the realty was held under the jurisdiction of the court during certain divorce proceedings and, being under the court's jurisdiction, the realty could not be attached by a lien such as Appellant's. The court's reasoning was based primarily on Klebach v. Mellon Bank, N.A., 565 A.2d 448 (Pa. Super. 1989), discussed more fully infra. Appellant, however, claims the court was without authority to strike the lien because it attached by operation of law as a combined result of 23 Pa.C.S.A. § 3507(a) (division of entireties property between divorced persons),*fn2 42 Pa.C.S.A. § 4303(a) (effect of judgments and orders as liens),*fn3 and Pa.R.C.P. 3023 (judgment, lien, duration).*fn4 Primarily, he claims Pa.R.C.P. 3023 essentially abrogated Klebach. We affirm the order.
¶ 2 Jeffrey and Carol Frantz ("Husband" and "Wife") held certain realty as tenants by the entireties. In May 2007, Husband filed a divorce complaint against Wife. For some part of the divorce proceedings, Appellant represented Wife. On or about January 8, 2008, he withdrew as her counsel and filed an action against her for unpaid legal fees.
¶ 3 On January 29, 2008, the Frantzes settled their equitable distribution claims by consent order. Part of the order awarded Husband the aforesaid realty as his sole property. By decree dated February 5, 2008, Husband and Wife were divorced.
¶ 4 On February 19, 2008, Appellant obtained a default judgment against Wife and filed a notice of judgment lien against all her real property.
¶ 5 It appears Husband filed a motion to strike the lien in an effort to ensure the realty awarded to him was not encumbered. Appellant filed a response, claiming that, upon entry of the divorce decree, the entireties realty became property held by tenants in common. Appellant's position was that, after Wife's interest became that of a tenant in common, but before her interest was conveyed (if indeed it was ever conveyed) by deed to Husband, Appellant obtained a judgment lien against Wife's in-common interest. The court disagreed and entered an order indicating the judgment lien had not attached to the realty in question.
¶ 6 Due to some confusing words in the order, the court attempted to clarify its intent by entering a second order as follows:
NOW, to wit, this 25th day of March 2008, it is hereby ORDERED and DECREED that in clarification of the Court's Order of March 11, 2008, the Motion to Strike Judgment Lien of the Plaintiff, Husband, is granted; and that the judgment lien arising on February 19, 2008, in favor of judgment creditor Paul J. McArdle did not attach to the interest of Carol Ann Frantz (if any) in the former entireties property . . ..
Final judgment shall be entered on this order. Order of Court, 03/25/08.
¶ 7 In its later opinion, the court indicated its belief, pursuant to Klebach, that the realty in question simply could not be attached by Appellant's lien because the realty was held in the custody of the court pending the ...