J-S03033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD MAGID, SUCCESSOR IN 

INTEREST TO FIRST NIAGARA BANK, NA

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

FRED POTOK

Appellee No. 1975 EDA 2014

Appeal from the Order Entered June 10, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2011-29389

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED APRIL 16, 2015

Edward Magid, successor in interest to First Niagra Bank, N.A., (Magid) 

appeals from the order entered June 10, 2014, in the Court of Common 

Pleas of Montgomery County, denying his emergency petition for 

supplementary relief in aid of execution, pursuant to Pa.R.C.P. 3118. Magid 

presents two questions: (1) “Whether the trial court abused its discretion in 

denying [Magid’s] Motion seeking a stay of execution and extension of the 

levy,” and (2) “Whether the trial court erred by not ruling that the Writ did 

not expire due to the continued dispute over the property claim pursuant to 

Pa.R.C.P. 3121(a)(3)[.]”1 Based upon the following, we affirm.

____________________________________________

1

 Magid’s Brief at 1. Magid discusses these questions in a single argument, 

and this Court will also address these questions in one discussion.
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The trial court has summarized the facts underlying this appeal as 

follows:

First Niagara Bank, NA, filed a complaint in confession of 

judgment against Defendant, Fred B. Potok. On November 21, 

2012, Edward Magid, as successor in interest to First Niagara, 

filed a Praecipe for Writ of Execution, directing the Sheriff to levy 

upon the Defendant’s personal property located at 992 Sheffield 

Lane, Huntingdon Valley, PA 19006. On April 30, 2013, [Magid] 

filed another Praecipe for Writ of Execution against the same 

property of the Defendant’s. On July 25, 2013, the Sheriff levied 

upon the Defendant’s personal property at the Huntingdon Valley 

residence. 

Jack Potok, the Defendant’s brother, filed a third party 

property claim for all items located at the address, except for a 

safe. After a hearing, the Sheriff granted Jack Potok’s claim as to 

all personal property at the residence, except for the contents of 

the garage and the safe. Subsequently, Edward Magid filed an 

objection to the Sheriff’s determination. A hearing on Magid’s 

objection was held before the Honorable S. Gerald Corso, who 

issued an order, dated October 16, 2013, which denied Magid’s 

objection to the [S]heriff’s determination, with the exception of 

the items that Fred Potok jointly owned with Jack Potok.1

_______________________________________________

1 Brian Rachlin also filed a third-party property claim. 

Rachlin objected to the Sheriff’s determination and his 

claim was also heard before Judge Corso and decided in a 

separate October 16, 2013 order.

_______________________________________________

Thereafter, a Sheriff’s sale of the personal property was 

scheduled for January 23, 2014. [Magid] cancelled that Sheriff’s 

sale, as the parties were unable to reach an agreement on which 

items were to be sold. The Sheriff took the position that the sale 

of personal property could not proceed since the court’s [October 

16, 2013] order was not specific as to what items were to be 

sold. [Magid] did not file a motion to clarify the order with the 

trial court and did not take an appeal. Subsequently, [Magid] 

filed an Emergency Petition for Supplementary Relief in Aid of 

Execution pursuant to Pa.R.Civ.P. 3118. 
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A hearing was held on the matter, at which [Magid’s] counsel 

summarized his position as follows:

There was testimony taken that a home improvement 

loan was taken out by the defendant and his brother, 

which, in effect, resulted in a complete remodeling of the 

entire house. There were older items of furniture and 

antiques and things that we were not — we were 

accepting the Court's determination [that] those were 

assets left through the mom’s estate to Mr. Potok’s 

brother. But as far as the remodeling was concerned, the 

testimony was that they redid everything, all new 

appliances. There was new furniture put in. There were 

these desks, brand new bookcases and things, that all, in 

our opinion, is subject to the sale.

(N.T. 6/3/14, pp. 5-6). Thereafter, this court issued an order, 

dated June 6, 2014, denying [Magid’s] petition. [Magid] now 

appeals this court’s determination.

Trial Court Opinion, 8/5/2014, at 1–2.2

At the outset, we note the trial court’s findings that the January 23, 

2014, Sheriff’s sale was cancelled by Magid when the Sheriff expressed 

concerns regarding the court’s October 16, 2013, order, and that Magid did 

not file a motion to clarify the order. Against this background, we address 

____________________________________________

2 The docket reflects that the trial court did not order Magid to file a concise 

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), 

and none was filed with the court. There is, however, a copy of a Rule 

1925(b) concise statement prepared by Magid’s attorney, attached to the 

brief of appellee, Fred Potok. However, since the concise statement was not 

court-ordered, waiver principles do not apply. See Commonwealth v. 

Antidormi, 84 A.3d 736, 745 n.7 (Pa. Super. 2015) (“The requirements of 

Rule 1925(b) are not invoked in cases where there is no trial court order 

directing an appellant to file a Rule 1925(b) statement.”).
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the issue presented in this appeal, namely, whether the court erred in 

denying relief pursuant to Pennsylvania Rule of Civil Procedure 3118, 

“Supplementary Relief in Aid of Execution.”3 

____________________________________________

3 Rule 3118 provides, in relevant part:

(a) On petition of the plaintiff, after notice and hearing, the court 

in which a judgment has been entered may, before or after the 

issuance of a writ of execution, enter an order against any party 

or person 

(1) enjoining the negotiation, transfer, assignment or 

other disposition of any security, document of title, pawn 

ticket, instrument, mortgage, or document representing 

any property interest of the defendant subject to 

execution; 

(2) enjoining the transfer, removal, conveyance, 

assignment or other disposition of property of the 

defendant subject to execution;

(3) directing the defendant or any other party or person 

to take such action as the court may direct to preserve 

collateral security for property of the defendant levied 

upon or attached, or any security interest levied upon or 

attached; 

(4) directing the disclosure to the sheriff of the 

whereabouts of property of the defendant;

(5) directing that property of the defendant which has 

been removed from the county or concealed for the 

purpose of avoiding execution shall be delivered to the 

sheriff or made available for execution; and

(6) granting such other relief as may be deemed 

necessary and appropriate.

Pa.R.C.P. 3118(a).
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“When reviewing the grant or denial of Rule [3118] supplementary 

relief, this Court’s review is limited to determining whether the trial court 

abused its discretion.” Marshall Ruby & Sons v. Delta Min. Co., 702 A.2d 

860, 862 (Pa. Super. 1997) (citation omitted). 

“Rule 3118 authorizes summary proceedings in aid of execution for the 

purpose maintaining the status quo as to the judgment-debtor’s property 

and it may be used only for that purpose.” Greater Valley Terminal 

Corporation v. Goodman, 202 A.2d 89, 94 (Pa. 1964). See also Kaplan 

v. I. Kaplan, Inc., 619 A.2d 322, 326 (Pa. Super. 1993) (“[T]he grant of 

[Rule 3118] relief does nothing more than maintain the status quo of a 

debtor’s property.”), appeal denied, 636 A.2d 634 (Pa. 1993).

Magid, in his Emergency Petition for Supplementary Relief in Aid of 

Execution Pursuant to Pa.R.C.P. 3118, pleaded, inter alia:

1. [Magid] is the Plaintiff herein as successor in interest to First 

Niagra Bank and who holds a judgment against [Fred Potok] in 

the above matter.

...

5. On May 1, 2013, [Fred Potok] was served with the Writ of 

Execution.

6. Due to prior difficulties serving [Fred Potok], on May 15, 

2013, [Magid] filed a Motion to Direct the Sheriff to Break 

Premises to Effect Personal Property Levy.

7. On July 3, 2013, the Court granted the Petition to Break and 

Enter.

...
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10. On July 25, 2013, the Sheriff levied upon [Fred Potok’s] 

personal property situated in 992 Sheffield Lane, Huntingdon 

Valley, PA.

11. On August 1, 2013, a third party property claim was filed by 

Jack Potok, [Fred Potok’s] brother, which claimed ownership of 

all of the contents with the exception of a safe.

12. On August 21, 2013, the Sheriff issued a determination in 

favor of Jack Potok.

13. [Magid] appealed the Sheriff’s determination.

14. On October 16, 2013, the Court denied [Magid’s] appeal 

with the “exception of items jointly owned with Fred Potok.”

15. [Magid] obtained a transcript of the October 16, 2013 

hearing and forwarded it to the Sheriff.

16. [Magid] scheduled the Sheriff’s Sale for January 23, 2014.

17. [Magid] was forced to cancel the Sheriff Sale because the 

Sheriff could not ascertain what was to be sold.

18. The parties were unable to reach an agreement on the issue 

of the items to be sold.

19. [Magid] requested the Sheriff and its then Solicitor, Thomas 

Speers, Esquire that the sale be rescheduled, but was advised 

that they would not do so.

20. [Magid] contacted the new Solicitor, Sean Cullen, Esquire 

and was advised by letter faxed April 2, 2014 they would be 

doing nothing to assist[.] [Magid’s] counsel was out of the office 

until today, April 3, 2014 when he saw the letter.

21. The Writ expires today, April 3, 2014.

22. Under the circumstances, [Magid] seeks a Stay of 

Execution, the Extension of the Writ, and the Preservation of the 

Lien.

WHEREFORE, [Magid] respectfully requests that this Honorable 

Court enter an Order that:
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a. stays the execution;

b. extends the Writ of Extension (sic);

c. maintains [Magid’s] lien; and 

d. schedules the Sheriff Sale on all assets levied upon[.]

Magid’s Emergency Petition For Supplementary Relief In Aid of Execution 

Pursuant to Pa.R.C.P. 3118, 4/3/2014, at ¶¶ 1, 5-7, 10–22 & Wherefore 

Clause.

Here, the trial court opined that Rule 3118 is limited to the 

preservation of the status quo with regard to the judgment debtor’s assets, 

and concluded the facts of this case do not establish a basis for relief. See

Trial Court Opinion, supra, at 3. Magid, however, contends Pa.R.C.P. 

3118(a)(6) allows the court to grant “such other relief as may be necessary 

and appropriate,” and the relief sought by the emergency petition, i.e., a 

stay of execution and extension of the writ, was authorized by Pa.R.C.P. 

3121(a)(3) and (b)(2).4

Rule 3121 provides, in pertinent part:

(a) Execution shall be stayed as to all or any part of the 

property of the defendant

...

(3) pending disposition of a property claim filed by a 

third party;

...

____________________________________________

4 The trial court, in its August 5, 2014, opinion, did not discuss Rule 3121.
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(b) Execution may be stayed by the court as to all or any part of the 

property of the defendant upon its own motion or application of 

any party in interest showing

...

(2) any other legal or equitable ground therefor.

Pa.R.C.P. 3121(a)(3), (b)(2). 5

[A] court in which the execution proceedings are pending has an 

inherent power to stay the proceedings where it is necessary to 

protect the rights of the parties. Pa.R.C.P. 3121 authorizes a 

court to stay an execution upon the showing of a legal or 

equitable ground therefor. “The grant of a stay of execution is 

within the sound discretion of the trial court, and its decision will 

not be disturbed absent a clear abuse of that discretion.” In re 

Upset Sale, Tax Claim Bureau of Berks, 505 Pa. 327, 339, 

479 A.2d 940, 946 (1984), citing Pennsylvania Company v. 

Scott, 329 Pa. 534, 549, 198 A. 115, 122 (1938); Augustine v. 

Augustine, 291 Pa. 15, 18, 139 A. 585, 586 (1927). 

Kronz v. Kronz, 574 A.2d 91, 94 (Pa. Super. 1990).

Regarding the applicability of Rule 3121(a)(3), the third-party property 

claim filed by Jack Potok was resolved by the Court’s October 16, 2013, 

order, and no party sought to appeal or to clarify that determination. 

Thereafter, the Sheriff’s sale scheduled for January 23, 2014, was cancelled 

by Magid upon learning the Sheriff was “unclear as to how to proceed based 

____________________________________________

5 We note Magid, in his Memorandum of Law in Support [of] Emergency 

Petition for Supplementary Relief in Aid of Execution Pursuant to Pa.R.C.P. 

3118, cited, inter alia, Rule 3121(b)(2), which provides for a discretionary 

stay. At argument on the emergency petition, Magid cited Rule 3121(a)(3), 

which provides for a mandatory stay, and also argued for a “discretionary 

stay” without specific citation to Rule 3121(b)(2). N.T., 6/3/2014, at 7–8. 
J-S03033-15

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on the court order.”6 However, the issue of the Sheriff’s concerns regarding 

the specificity of the court’s October 16, 2013, order is not tantamount to 

“pending disposition of a property claim filed by a third party.” Pa.R.C.P. 

3121(a)(3). 

Regarding the applicability of Rule 3121(b)(2), providing that a stay of 

execution may be granted to, inter alia, any party in interest showing “any 

other legal or equitable ground therfor[,]” Magid, plaintiff/judgment-creditor, 

argued to the court:

If, on the other hand, Your Honor doesn’t see fit to find 

that it’s still part of the property claim dispute, Your Honor, still 

there’s a discretionary extension of the stay, which I think, 

again, in the interest of justice [is] warranted in this case, that

Your Honor could issue a stay nunc pro tunc, could extend the 

writ, so that we don’t have to go back to square one. 

I think maybe the resolution might be, since the parties 

can’t agree, and if the sheriff won’t go to a sale, that we either 

go back to Judge Corso and get a clarification of what he 

intended, but we’re being put out of court as a result of the 

sheriff’s recalcitrance.

N.T., 6/3/2014, at 8. However, we are not persuaded that this argument 

presented an equitable basis for the court to grant a stay of execution 

pursuant to Pa.R.C.P. 3121(b)(2).7

____________________________________________

6 See January 23, 2014 facsimile letter of Magid to Sheriff, attached as 

Exhibit “D” to Third-Party Claimants, Jack Potok and Brian Rachlin’s 

Response to [Magid’s] Emergency Petition for Supplementary Relief in Aid of 

Execution Pursuant to Pa.R.C.P. 3118.

7 Appellee, Fred Potok, in his brief to this Court, posits that Magid 

“effectively exercised his right to stay execution by voluntarily directing the 

(Footnote Continued Next Page)
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In sum, we conclude the trial court properly acted within its discretion 

in denying Magid’s emergency petition for supplementary relief in aid of 

execution, seeking relief pursuant to Pa.R.C.P. 3118.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/2015

(Footnote Continued) _______________________

Sheriff to cancel the Sheriff’s Sale that had been scheduled for January 23, 

2014.” Potok’s Brief, at 15–16, citing Pa.R.C.P. 3121(a)(1) (“Execution shall 

be stayed as to all or any part of the property of the defendant ... upon 

written direction of the plaintiff to the sheriff[.]”). Therefore, it is not even 

clear that Magid needs the relief he requested pursuant to Pa.R.C.P. 

3121(a)(3) and (b)(2).