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Korman Commercial Properties, Inc. v. Furniture.com, LLC

Superior Court of Pennsylvania

November 12, 2013

KORMAN COMMERCIAL PROPERTIES, INC.
v.
THE FURNITURE.COM, LLC A/K/A FURNITURE.COM, INC.
v.
PAYPAL, INC. Appellant

Appeal from the Order of September 19, 2012 In the Court of Common Pleas of Bucks County Civil Division at No.: 2011-03293

BEFORE: SHOGAN, J., WECHT, J., and COLVILLE, J. [*]

OPINION

WECHT, J.

PayPal, Inc. ("PayPal") appeals the September 19, 2012 order. That order granted summary judgment for Korman Commercial Properties, Inc. ("Korman"). In this case, we are called upon to decide whether the effective date of a writ of execution relates back to the date of service in circumstances where the writ was served improperly but objection to service was later waived. The trial court concluded that the writ did relate back to the date of service. Following review, we agree, and we accordingly affirm.

The trial court aptly summarized the factual and procedural history as follows:

The Furniture.com ("The Furniture") rented a property from Lincoln Subsidiary Joint Venture III ("Lincoln"). The rented property was located in Trevose, Bucks County. Korman, the plaintiff, served as agent for Lincoln. The Furniture breached its lease, and Korman filed suit and confessed judgment against the Furniture on April 7, 2011. Judgment was entered for Korman against The Furniture in the amount of $156, 603.07. A Writ of Execution ("the Writ") was issued to PayPal on April 13, 2011, and was received by PayPal [with whom The Furniture had an account] on April 18, 2011. Korman sent the Writ via certified mail.
A PayPal employee signed for the Writ on April 18, 2011, and the Writ was brought to the mail room at the PayPal office. The Writ was then internally routed to a secretary at PayPal who "eventually delivered it to a person who opens up the mail in the legal department . . . ." At the time the Writ was received, The Furniture had $116, 404.17 in the garnished account with PayPal. However, on April 20, 2011, The Furniture was permitted to make two withdrawals from the garnished account in the amounts of $60, 000 and $56, 404.17.
Once the envelope containing the Writ was opened and reviewed, it was forwarded to PayPal's Operations Center in Nebraska. The Writ was received at that location on or about April 26, 2011. At that time, the account was placed on a limitation in compliance with the Writ's instruction. However, at the time the limitation was placed on the account, the account had a balance of zero dollars. PayPal answered the interrogatories attached to the Writ on April 27, 2011. At no point did PayPal raise preliminary objections to the Writ.
On August 1, 2011, Korman filed a Motion for Contempt against PayPal for failure to obey the mandates of the Writ. This Court conducted a hearing on that motion on September 8, 2011. On October 28, 2011, this Court denied the motion. Korman initiated an appeal of that decision with the Superior Court on November 23, 2011. The appeal was quashed by the Superior Court on March 28, 2012, because the order denying the Contempt Motion was not a final order. On June 26, 2012, Korman filed the instant Motion for Summary Judgment. After considering the pleadings filed by Korman and PayPal, this Court granted the Motion for Summary Judgment against PayPal on September 19, 2012. PayPal filed a Notice of Appeal on October 18, 2012. On November 6, 2012, this Court ordered PayPal to submit a Statement of Errors Complained of on Appeal within [twenty-one] days.

Trial Court Opinion ("T.C.O."), 1/3/2013, at 1-3 (citations to record omitted). Appellant timely filed its concise statement pursuant to Pa.R.A.P. 1925(b).

PayPal raises the following issues on appeal:

1. Whether the Lower Court committed an error of law and/or abused its discretion in granting [Korman's] Motion for Summary Judgment when PayPal attended to the Writ within a reasonable time given that the garnishment lien did not attach on April 18, 2011, but attached on April 27, 2011, seven days after [The Furniture.com, LLC ("Furniture.com")] withdrew the $116, 404.77 in question.
2. Whether the Lower Court committed an error of law and/or abused its discretion in granting [Korman's] Motion for Summary Judgment, by failing to properly consider the effect that improper service had on PayPal's ability to prevent the withdrawal of the $116, 404.77 in question and by failing to find that PayPal acted within a reasonable period of time given such improper service.
3. Whether the Lower Court committed an error of law and/or abused its discretion in granting [Korman's] Motion for Summary Judgment, when PayPal was not served at a time and in a manner affording it a reasonable opportunity to act to prevent the ...

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