J-A33005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER M. BOBACK IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JENNIFER O. ROSS AND DAVID A. ROSS

Appellee No. 240 WDA 2016

Appeal from the Order February 10, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): AR-13-004860

BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED MARCH 27, 2017

Christopher M. Boback appeals from the order, entered in the Court of 

Common Pleas of Allegheny County, awarding David A. Ross 

(“Husband/Garnishee”) attorney’s fees and expenses in the amount of 

$13,731.31, plus costs, for the underlying garnishment action. After our 

review, we affirm the trial court’s order, sua sponte award 

Husband/Garnishee additional attorney’s fees and remand for calculation and 

imposition of those fees. 

Husband/Garnishee and Debtor/Jennifer O. Ross (“Wife”), formerly 

Husband and Wife, are the parents to three minor children, all of whom 

primarily reside with Wife. In 2012 and 2013, Boback represented Wife in 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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child and spousal support proceedings against Husband/Garnishee. On 

October 22, 2013, Boback filed a complaint against Wife alleging breach of 

contract and seeking damages in the amount of $7,483.80 for Wife’s willful 

failure to pay legal fees. 

Following a non-jury trial before the Honorable Timothy Patrick 

O’Reilly, the court entered a verdict in favor of Boback, for $7,483.80, plus 

court costs. The verdict was reduced to judgment, and, on April 1, 2014, 

Boback filed a praecipe for writ of execution. PNC Bank and Husband were 

named as garnishees. 

In his written response to garnishment interrogatory number one, 

Husband/Garnishee admitted that he owed monthly alimony and child 

support payments to Wife. On April 21, 2014, Boback filed a praecipe for an 

unliquidated judgment against Husband based upon his admission.

On May 9, 2014, Judge O’Reilly was presented with three motions: (1) 

Boback’s motion for a hearing to assess the amount of the unliquidated 

judgment by admission; (2) Wife’s motion for exemption of property from 

levy or attachment and a demand for a sheriff’s exemption hearing; and (3) 

Garnishee’s motion to strike Boback’s judgment by admission and request 

for attorney fees. Judge O’Reilly entered an order essentially entering 

judgment in Boback’s favor against Husband/Garnishee for $8,000.00, 

directing Boback’s intervention in Husband/Garnishee’s and Wife’s support 

case, and permitting Boback to receive $400.00 per month for 20 months 

from Husband/Garnishee’s payments to Pennsylvania State Collection and 
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Disbursement Unit (“Pa. SCDU”) until Boback’s judgment was paid.1 

Husband/Garnishee filed a motion for reconsideration, which the court 

denied. Husband/Garnishee appealed the $8,000 garnishment judgment 

against him. 

On April 14, 2015, this Court reversed the trial court’s order. See

Boback v. Ross, 114 A.3d 1042, 1046 (Pa. Super. 2015) (holding judgment 

creditor/Boback was not entitled to judgment by admission against 

Husband/Garnishee, and evidence did not support determination that 

judgment creditor/Boback was owed $8,000).2 On October 30, 2015, the 

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1 The May 9, 2014 order states in pertinent part:

Execution on the Judgment against Garnishee David A. Ross 

shall be held in abeyance so long as the Judgment is paid to 

Plaintiff Christopher M. Boback at the rate of Four Hundred 

Dollars ($400.00) per month for twenty (20) consecutive months 

beginning as of the date of this Order by having Plaintiff 

Christopher M. Boback intervene as a judgment-creditor in the 

case captioned as Jennifer O. Ross v. David A. Ross, Docket No. 

FD–12–001508–011, PACSES Case No. 440113454 (Court of 

Common Pleas of Allegheny County, Pennsylvania) and by 

having Plaintiff Christopher M. Boback added as an alternate 

payee to the Order of Court dated January 24, 2014 . . . so that 

he shall collect his Judgment in installments of $400.00 per 

month for 20 consecutive months from the payments collected 

and disbursed by the Pennsylvania State Collection and 

Disbursement Unit (“Pa SCDU”).

Trial Court Order, 5/9/14, at ¶ 5.

2 Specifically, this Court stated: 

(Footnote Continued Next Page)
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Supreme Court of Pennsylvania denied allowance of appeal. Boback v. 

Ross, 126 A.3d 1281 (Pa. 2015). 

On November 18, 2015, this Court remanded the record to the trial 

court. On November 23, 2015, Garnishee filed a motion with the trial court 

to schedule a hearing to assess attorney fees and costs pursuant to 42 

Pa.C.S.A. § 2503(3).3 The Honorable Judith A. L. Friedman held a hearing 

(Footnote Continued) _______________________

[T]he support/ alimony due Wife is not a debt that is owed 

to her by [Husband/]Garnishee, nor is Wife a creditor. 

Therefore, Boback’s praecipe for judgment by admission 

should not have been entered against 

[Husband/]Garnishee. This is “consistent with the historical 

treatment by Pennsylvania appellate courts of antiattachment clauses vis-à-vis a claim for support or 

alimony.” [Uveges v.]Uveges, 103 A.3d 825, 830 [(Pa. 

Super. 2014)]. Moreover, we note that the court’s 

determination that Boback was owed $8,000.00 was not 

based upon any evidence of record, since the court did not 

hold a hearing at which evidence could have been 

presented to establish the specific amount owed to Boback 

at this juncture. As for [Husband/] Garnishee’s first issue, 

alleging an error by the DCR, it appears from the certified 

record that the DCR entered judgment by admission at the 

direction of the trial court; however, under the 

circumstances here, the DCR should not have entered 

judgment in that the monies owed Wife from [Husband/] 

Garnishee were dependent on possible future changes in 

circumstances. . . . Accordingly, we reverse the 

determination that Boback holds a judgment by admission 

against [Husband/] Garnishee. Boback is not entitled to 

receive $400.00 per month for 20 months from payments 

collected by the Pa SCDU.

Boback, 114 A.3d at 1046.

3

 Section 2503(3) of the Judicial Code provides: 

(Footnote Continued Next Page)
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on December 8, 2015. Judge Friedman determined that the amount charged 

was reasonable with respect to Husband/Garnishee’s successful defense of 

the garnishment proceeding against him, including costs and fees related to 

the Superior Court and Supreme Court appeals. Judge Friedman entered an 

order on February 10, 2016, granting Garnishee’s Motion for Attorney Fees, 

and entering judgment against Boback in the amount of $13,731.31. 

Boback filed this appeal, contending that Husband/Garnishee did not raise 

the issue of attorney fees in his appeal and, therefore, the trial court lacked 

jurisdiction to decide the issue. 

Boback raises the following issues:

1. Whether the trial court erred as a matter of law by granting 

Garnishee’s 2nd Motion for Attorney Fees[4] because 

Garnishee failed to appeal the denial of his 1st Motion for 

(Footnote Continued) _______________________

§ 2503. Right of participants to receive counsel fees

The following participants shall be entitled to a reasonable 

counsel fee as part of the taxable costs of the matter:

* * *

(3) A garnishee who is found to have in his possession 

or control no indebtedness due to or other property of 

the debtor except such, if any, as has been admitted by 

answer filed.

42 Pa.C.S.A. § 2503(3).

4

 We note that Boback refers in his issues and throughout his brief to 

Garnishee’s “1st” and “2nd” motions for attorney fees. This confuses the 

issue. Although Garnishee may have included a request for counsel fees in 

his defense to the underlying garnishment action, there was no order 

disposing of that request since Garnishee was not the prevailing party. 
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Attorney Fees, claimed under 42 Pa.C.S. § 2503, with the 

entry of the trial court’s final order dated May 9, 2014, and 

because the Superior Court of Pennsylvania did not reverse 

the denial of that claim for attorney fees with the entry of its 

final order dated April 14, 2015, and as such the Garnishee’s 

2nd Motion for Attorney Fees, claimed under 42 Pa.C.S. § 

2503, is barred by the doctrine of res judicata? 

2. Whether the trial court erred as a matter of law by granting 

Garnishee’s 2nd Motion for Attorney Fees because the 

Superior Court of Pennsylvania’s final order dated April 14, 

2015, did not remand the record with instructions to the trial 

court to undertake any further proceedings for the entry of a 

new final order, after disposing of the appeal from the trial 

court’s final order dated May 9, 2014, and as such the trial 

court lacked subject matter jurisdiction under 42 Pa.C.S. § 

5505 to act upon Garnishee’s 2nd Motion for Attorney Fees?

3. Whether the trial court erred as a matter of law by awarding 

Garnishee attorney fees and costs incurred by Garnishee 

during the appellate proceedings on the appeal from the trial 

court’s final order dated May 9, 2014, because the Garnishee 

failed to request appellate fees and costs pursuant to 

Pa.R.A.P. 2744 and 2751 and the Superior Court of 

Pennsylvania did not order appellate fees and costs on 

remand of the record pursuant to Pa.R.A.P. 2761?

4. Whether the trial court erred as a matter of law by awarding 

the Garnishee attorney fees and costs incurred by Garnishee 

between April 15, 2015 and May 15, 2015 in court 

proceedings before the Honorable Mark V. Tranquilli in 

Allegheny County’s Family Division in the Garnishee’s 

domestic relations case docketed at FD-12-001508-011 

because the trial court lacked subject matter jurisdiction with 

respect to the domestic relations proceedings?5

Appellant’s Brief, at 6-7. 

____________________________________________

5

 We will not address this claim. The trial court’s order specifically stated 

that the awarded fees and costs “related only to the garnishment proceeding 

against [Garnishee].” Order, 2/10/16. 
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Whether the trial court had jurisdiction to entertain 

Husband/Garnishee’s Motion for Attorney Fees under Section 2503 is a 

question of law. Our standard of review, therefore, is de novo, and our 

scope of review is plenary. See Mazur v. Trinity Area School District, 

961 A.2d 96, 101 (Pa. 2008). 

Boback argues that the trial court did not have jurisdiction to entertain 

Husband/Garnishee’s Motion for Attorney Fees because Husband/Garnishee 

appealed only the $8,000 garnishment judgment against him. Boback 

claims the doctrine of res judicata precluded Judge Friedman from 

addressing Husband/Garnishee’s motion for attorney fees. We disagree, and 

we are somewhat perplexed at Boback’s argument. As Judge Friedman 

correctly notes, Husband/Garnishee had no right to “appeal” an issue that 

had not been decided. 

The trial court in the garnishment proceeding entered judgment in 

favor of Boback, and thus had no basis upon which to award 

Husband/Garnishee attorney fees; he was not the prevailing party. See 42 

Pa.C.S.A. § 5903(3). There was no attorney fees order for 

Husband/Garnishee to appeal. Husband/Garnishee’s entitlement to attorney 

fees under section 2503(3) did not arise until he obtained judgment in his 

favor, on October 30, 2015. At that time, Husband/Garnishee was found to 

have “no indebtedness due to or other property of the debtor [Wife].” 42 

Pa.C.S.A. § 2503(3). See Miller Electric Co. v. DeWeese et al. v. 

Birmingham Bistro, Inc., 907 A.2d 1051, 1056 (Pa. 2006) (where one or 
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both parties appeal from judgment, the final determination as to whether 

garnishee “wins” an action, in the sense that he is found to have no 

indebtedness due, will depend on the outcome of the appeal). 

A trial court's jurisdiction generally extends for thirty days after the 

entry of a final order. See 42 Pa.C.S.A. § 5505 (“Except as otherwise 

provided or prescribed by law, a court upon notice to the parties may modify 

or rescind any order within 30 days after its entry, notwithstanding the prior 

termination of any term of court, if no appeal from such order has been 

taken or allowed). Here, the final order was entered in the Supreme Court 

on October 30, 2015; the record was remanded to the trial court on 

November 18, 2015, see Pa.R.A.P. 2572(a)(i), and Husband/Garnishee filed 

his motion for attorney fees on November 23, 2015. Cf. Miller, supra

(where garnishee succeeds in securing a verdict in its favor, yet is 

subsequently denied its entitlement to attorney’s fees under § 2503(3) by 

order of court, garnishee may appeal within 30 days of date of denial, 

regardless of when final judgment was entered).

Our rules of appellate procedure allow this Court to sua sponte impose 

an award of reasonable counsel fees against a party if we determine that 

“the appeal is wholly frivolous . . . or that the conduct of the participant 

against whom costs are to be imposed is dilatory, obdurate or vexatious.” 

Pa.R.A.P. 2744. Because we conclude that this appeal lacks any basis in law 

or in fact, counsel fees shall be assessed by the lower court against Boback 

under Rule 2744. Accordingly, we affirm the trial court’s order awarding 
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Husband/Garnishee attorney fees and costs, and we remand to the trial 

court for the calculation of additional reasonable counsel fees in accordance 

with Rule 2744. 

Order affirmed. Remanded for imposition of additional attorney fees. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2017