J-A09043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JESSICA LYNN RAKER

Appellee

v.

BAR-B-Q PIT, INC. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1037 MDA 2016

Appeal from the Order Entered June 21, 2016

In the Court of Common Pleas of Berks County 

Civil Division at No(s): 14-1877

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 13, 2017

Appellant, Bar-B-Q Pit, Inc. (“Bar-B-Q Pit”), appeals from the order of 

the Berks County Court of Common Pleas, which denied Bar-B-Q Pit’s motion 

to strike a writ of execution entered in favor of Appellee, Jessica Lynn Raker. 

We affirm.

The relevant facts and procedural history of this case are as follows. 

On June 16, 2010, Ms. Raker sued Bar-B-Q Pit in federal court for 

employment discrimination, alleging, inter alia, that while she worked as a 

server at Bar-B-Q Pit from November 2007 until July 2008, her boss, 

Hippocrates Deligiannis, a principal and/or owner of Bar-B-Q Pit, subjected 

her to a hostile work environment due to constant sexual harassment. Ms. 

Raker complained to the Bar-B-Q Pit managers, who were Mr. Deligiannis’ 

daughters; but they rebuked the complaints and retaliated by reducing Ms. 

Raker’s hours of employment. On February 28, 2013, the federal district 
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court granted judgment in Ms. Raker’s favor on the issue of liability and 

scheduled a trial on damages. The court held a bench trial on damages on 

March 18, 2013; representatives of Bar-B-Q Pit failed to appear. After 

hearing Ms. Raker’s uncontroverted testimony, the federal court entered 

judgment in Ms. Raker’s favor in the amount of $112,878.80 (“federal 

judgment”). 

Ms. Raker filed a praecipe to transfer the federal judgment to the 

Berks County Court of Common Pleas on February 18, 2014, which was 

entered at the current docket No. 14-1877. Ms. Raker subsequently filed a 

praecipe for writ of execution. On April 4, 2014, the sheriff levied upon 

property located on the Bar-B-Q Pit premises. 

Prior to the scheduled sheriff’s sale, on April 24, 2014, Bar-B-Q Pit 

issued notice of filing for Chapter 7 bankruptcy, triggering an automatic stay 

of all proceedings. The bankruptcy court vacated the automatic stay on July 

9, 2014, to allow Ms. Raker to resolve her rights to the levied property. 

Meanwhile, the principals of Bar-B-Q Pit, and other related entities, 

claimed ownership of the levied property. On July 15, 2014, the sheriff 

issued a determination of ownership concerning some of the property. 

Specifically, the sheriff decided Hippocrates Deligiannis owned the liquor 

license levied upon, another entity called Anna’s Bar-B-Q Pit, Ltd. owned 

various tables and chairs and $1,172.19 in cash found in the registers, and 

another entity called Grecian Terrace, Ltd. owned #1-23, #31-34, and #37-

46 listed on the levy attached to Ms. Raker’s writ of execution. Ms. Raker 
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filed objections to the sheriff’s determination of ownership on July 24, 2014.1 

On August 20, 2014, the writ was stayed and the levy was released.2

Shortly thereafter, on August 26, 2014, Ms. Raker filed a separate 

lawsuit in the Berks County Court of Common Pleas at docket No. 14-17806 

(“tort case”) against Anna’s Bar-B-Q Pit, Ltd., Grecian Terrace, Ltd., 

Hippocrates Deligiannis, Anna Deligiannis, Eleni Deligiannis, and Georgine 

Deligiannis a.k.a. Georgine Zdravecki. In her tort complaint, Ms. Raker 

alleged counts of fraudulent transfer and successor liability. Essentially, Ms. 

Raker complained the tort defendants committed wrongful acts to avoid 

enforcement of the federal judgment by transferring Bar-B-Q Pit’s assets to 

Anna’s Bar-B-Q Pit and operating Anna’s Bar-B-Q Pit in the same manner 

and location. The tort case proceeded to trial and, after twelve days of 

testimony/evidence, the parties reached a settlement on April 4, 2016, for 

$350,000.00.3 The tort defendants subsequently sought to undo the 

settlement agreement on the ground of duress; so Ms. Raker made an oral 

motion to enforce the settlement agreement, which the court granted after a 

____________________________________________

1 Ms. Raker states in her appellate brief that her objections to the sheriff’s 

determination of ownership remain outstanding. 

2 The bankruptcy case was closed and terminated on September 4, 2014. 

The bankruptcy trustee found Bar-B-Q Pit had no assets to distribute. 

3 The terms of the settlement agreement were memorialized on the record in 

the tort case but are not included in the certified record before us in this 

appeal. 
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hearing on May 26, 2016. On that date, the court entered judgment against 

the tort case defendants, jointly and severally, in the amount of 

$350,000.00, plus interest.4 

On June 8, 2016, Ms. Raker filed another writ of execution concerning 

the federal judgment in the present case.5 Significantly, Ms. Raker had 

discovered testimony from Bar-B-Q Pit’s accountant in other proceedings 

confirming that Bar-B-Q Pit actually owned certain property the sheriff had 

determined belonged to other entities back in April 2014. 

Bar-B-Q Pit filed a motion to strike the writ of execution on June 10, 

2016, and alleged: (1) Ms. Raker was precluded from executing on property 

which the sheriff had already determined in April 2014 was not owned by 

Bar-B-Q Pit; and (2) no execution on the federal judgment should occur 

because, at that time, the tort case was pending on appeal. On Bar-B-Q 

Pit’s latter point, it argued the levy arising from the federal judgment was 

“intertwined” with the tort case, because the settlement agreement in the 

____________________________________________

4 The tort defendants filed a notice of appeal, which this Court quashed on 

procedural grounds by per curiam order on September 13, 2016. On May 9, 

2017, our Supreme Court denied the tort case defendants’ petition for 

allowance of appeal. On August 7, 2017, the tort case defendants filed a 

petition for writ of certiorari in the United States Supreme Court, which is 

still pending. 

5 During the pendency of the tort case, the parties to the tort lawsuit filed a 

joint request to re-assign the present case, involving the transferred federal 

judgment, to the jurist presiding over the tort case; the court granted that 

request. 
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tort case incorporated the federal judgment. 

On June 13, 2016, the court scheduled a hearing and stayed execution 

concerning the federal judgment pending the hearing and upon Bar-B-Q Pit’s 

posting of a bond. The court held a hearing on June 21, 2016. Bar-B-Q Pit 

argued the terms of the settlement agreement in the tort case constituted a 

“global resolution” of the tort case and the federal judgment. Because the 

tort case was, at that time, pending on appeal, Bar-B-Q Pit insisted Ms. 

Raker could not execute on the federal judgment.6 The court disagreed with 

Bar-B-Q Pit’s position, explaining the federal judgment was a final, 

unappealed judgment against Bar-B-Q Pit. The court emphasized that BarB-Q Pit was not even a party in the tort case. The court concluded the tort 

case defendants’ pending appeal did not prohibit Ms. Raker from executing 

on the federal judgment where Ms. Raker had produced testimony from BarB-Q Pit’s accountant confirming that Bar-B-Q Pit owned certain property. At 

the conclusion of the hearing, the court denied Bar-B-Q Pit’s motion to strike 

the writ of execution. 

On June 22, 2016, Bar-B-Q Pit filed a notice of appeal.7 The court 

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6 Bar-B-Q Pit made no argument at the hearing regarding its earlier position 

that Ms. Raker was precluded from executing on property the sheriff had 

previously decided was not owned by Bar-B-Q Pit. 

7 Following the notice of appeal, the court entered additional orders related 

to the amount and manner in which Bar-B-Q Pit was required to post 

security to stay execution pending this appeal. Bar-B-Q Pit challenges those 

(Footnote Continued Next Page)
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ordered Bar-B-Q Pit on July 12, 2016, to file a concise statement of errors 

complained of on appeal, which Bar-B-Q Pit timely filed on July 28, 2016. 

On July 22, 2016, Ms. Raker filed an application to quash this appeal. 

Ms. Raker argued the June 21, 2016 order denying Bar-B-Q Pit’s motion to 

strike is interlocutory and merely permits the normal execution process to 

continue. Ms. Raker claimed the sheriff must levy the property, after which 

any objections to the levy and any property claims will be adjudicated by the 

sheriff. At the conclusion of that process, including any appeal from the 

sheriff’s decision in the Court of Common Pleas, there will be a final and 

appealable order. Bar-B-Q Pit filed a response, claiming the appeal is proper 

under the collateral order doctrine. On September 7, 2016, this Court 

denied Ms. Raker’s application to quash without prejudice to her right to 

raise the issue before the merits panel. 

Bar-B-Q Pit raises the following issues for our review:

DID THE HONORABLE TRIAL COURT ERR WHEN IT 

DETERMINED THE LEGAL PRINCIPLE OF THE LAW OF THE 

CASE DOCTRINE DID NOT APPLY, WHEN ANOTHER 

JUDGMENT AROSE FROM THE EXACT SAME JUDGMENT IN 

STATE COURT BY PIERCING THE CORPORATE VEIL, BY 

DENYING THE MOTION TO STRIKE?

HAS THE HONORABLE TRIAL COURT ERRED BY DENYING 

THE MOTION TO STRIKE [MS. RAKER’S] WRIT OF 

EXECUTION UNDER PA.R.C.P. 3121?

(Footnote Continued) _______________________

orders in a separate, companion appeal pending before this Court, docketed 

at No. 1390 MDA 2016. 
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(Bar-B-Q Pit’s Brief at 3). 

Preliminarily, “[t]he appealability of an order directly implicates the 

jurisdiction of the court asked to review the order.” Bloome v. Alan, 154 

A.3d 1271, 1273 (Pa.Super. 2017) (internal citation omitted). As a result, 

“this Court has the power to inquire at any time, sua sponte, whether an 

order is appealable.”8 Id. “An appeal may be taken from: (1) a final order 

or an order certified as a final order (Pa.R.A.P. 341); (2) an interlocutory 

order as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission 

(Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral order 

(Pa.R.A.P. 313).” Id. 

Pennsylvania Rule of Appellate Procedure 341 defines “final orders” 

and states: 

Rule 341. Final Orders; Generally

(a) General rule. Except as prescribed in 

subdivisions (d) and (e) of this rule, an appeal may be 

taken as of right from any final order of a government unit 

or trial court.

(b) Definition of final order. A final order is any 

order that:

(1) disposes of all claims and of all parties; or

* * *

(3) is entered as a final order pursuant to paragraph 

(c) of this rule.

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8 Neither party has briefed the jurisdictional issue. 
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(c) Determination of finality. When more than one 

claim for relief is presented in an action, whether as a 

claim, counterclaim, cross-claim, or third-party claim or 

when multiple parties are involved, the trial court...may 

enter a final order as to one or more but fewer than all of 

the claims and parties only upon an express determination 

that an immediate appeal would facilitate resolution of the 

entire case. Such an order becomes appealable when 

entered. In the absence of such a determination and entry 

of a final order, any order...that adjudicates fewer than all 

the claims and parties shall not constitute a final order. ... 

Pa.R.A.P. 341(a)-(c). 

Pennsylvania Rule of Appellate Procedure 311 provides for 

interlocutory appeals as of right and states:

Rule 311. Interlocutory Appeals as of Right

(a) General rule.—An appeal may be taken as of 

right and without reference to Pa.R.A.P. 341(c) from:

* * *

(2) Attachments, etc.—An order confirming, 

modifying, dissolving, or refusing to confirm, modify or 

dissolve an attachment, custodianship, receivership, or 

similar matter affecting the possession or control of 

property, except for orders pursuant to 23 Pa.C.S.A. §§ 

3323(f), 3505(a). 

Pa.R.A.P. 311(a)(2). An order denying a motion to set aside a writ of 

execution is appealable as a matter of right under Rule 311(a)(2) because it 

affects “the possession or control of property.” Foulke v. Lavelle, 454 A.2d 

56, 58 (Pa.Super. 1982) (holding order denying appellant’s motion to set 

aside or stay writ of execution affects possession or control of property and 

falls within class of orders appealable as of right under Rule 311(a)(2)). 
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Instantly, Ms. Raker filed an application to quash the appeal, 

complaining the court’s June 21, 2016 order denying Bar-B-Q Pit’s motion to 

strike the writ of execution is a non-final order under Rule 341. 

Nevertheless, the June 21, 2016 order impacts the sheriff’s ability to levy 

and sell Bar-B-Q Pit’s property to satisfy the federal judgment. Thus, we 

conclude the order appealed from affects the possession or control of 

property and is immediately reviewable under Rule 311(a)(2).9 See

Pa.R.A.P. 311(a)(2); Foulke, supra.

For purposes of disposition, we combine Bar-B-Q Pit’s issues. Bar-B-Q 

Pit concedes the present case, involving the transferred federal judgment, 

and the tort case, have different docket numbers and different parties. 

Nevertheless, Bar-B-Q Pit argues both cases are “intertwined” because they 

originate from Ms. Raker’s attempt to collect on the federal judgment. BarB-Q Pit asserts the parties agreed to a settlement in the tort case on April 4, 

2016, in the amount of $350,000.00. Bar-B-Q Pit claims the tort case 

settlement originated directly from the federal judgment because without 

the underlying federal judgment, Ms. Raker’s claims of successor liability and 

fraudulent transfer would not exist. Bar-B-Q Pit contends that Ms. Raker 

attempted to execute on the tort case, but the tort case defendants filed an 

appeal and posted a supersedeas bond to stay execution. Bar-B-Q Pit 

____________________________________________

9 Due to our disposition, we do not need to consider Bar-B-Q Pit’s position 

that the order at issue qualifies as a collateral order. 
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complains Ms. Raker is now taking a “second bite of the apple” by trying to 

execute on the federal judgment. Bar-B-Q Pit insists the appeal in the tort 

case is “law of the case,” which prohibits Ms. Raker from executing on the 

federal judgment. Bar-B-Q Pit emphasizes Ms. Raker is attempting to 

execute on property the sheriff already decided in 2014, did not belong to 

Bar-B-Q Pit. Bar-B-Q Pit also claims Ms. Raker’s objections to the sheriff’s 

determination of ownership are still outstanding. Bar-B-Q Pit concludes Ms. 

Raker cannot execute on the federal judgment under these circumstances, 

and this Court must vacate the order denying Bar-B-Q Pit’s motion to strike 

the writ of execution. We disagree. 

The “law of the case doctrine sets forth various rules that embody the 

concept that a court involved in the later phases of a litigated matter should 

not reopen questions decided by another judge of that same court or by a 

higher court in the earlier phases of the matter.” Ario v. Reliance Ins. 

Co., 602 Pa. 490, 505, 980 A.2d 588, 597 (2009). “We may depart from 

the law of the case only in exceptional circumstances such as where there 

has been an intervening change in the controlling law, a substantial change 

in the facts or evidence giving rise to the dispute in the matter, or where the 

prior holding was clearly erroneous and would create a manifest injustice if 

followed.” Block v. Bilinski, 823 A.2d 970, 972 (Pa.Super. 2003) (internal 

citation omitted). “The doctrine is designed to promote judicial economy, 

uniformity of decision making, protect the settled expectations of the 
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parties, maintain the consistency of the litigation and end the case.” 

Gateway Towers Condominium Ass’n v. Krohn, 845 A.2d 855, 861 

(Pa.Super. 2004). 

Significantly, however, the doctrine applies only to the 

actions of an appellate court, and cannot be applied to 

prevent a trial judge from reconsidering his or her prior 

ruling. Although the related “coordinate jurisdiction” rule 

may prevent one trial judge from reversing the rulings of 

another trial judge on the same question, that rule applies 

only where a second judge purports to review the order of 

a different judge. It does not prevent a judge from reexamining and correcting his or her own rulings.

Id. (internal citations omitted) (emphasis in original). 

Instantly, the trial court explained its rationale for denying Bar-B-Q 

Pit’s motion to strike the writ of execution as follows:

[Bar-B-Q Pit argues] that this [c]ourt erred when it 

determined that the legal principle of Law of the Case 

Doctrine did not apply, and that the stay of execution 

occasioned by [the defendants’] appeal from the Tort Case

did not operate to stay execution on the judgment 

transferred from the federal court on February 18, 2014. 

The appeal period for the transferred judgment lapsed 

more than two years prior to the filing of the Writ of 

Execution by [Ms. Raker] on June 8, 2016. 

The Tort Case and the instant case represent and are 

governed by entirely different parties, amounts in 

controversy and principles of law. This case is simply a 

judgment transferred from the federal court for purposes 

of execution. Any right to appeal from the entry of that 

judgment lapsed long ago.

The Tort Case is factually and procedurally more complex. 

It is based on assertions that the multiple individual and 

corporate [d]efendants fraudulently transferred assets to 

avoid the federal judgment. The tort case arises out of 

separate facts that occurred after the federal judgment 
J-A09043-17

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was entered in the instant case. There were numerous 

and extensive pre-trial motions, hearings and arguments, 

settlement discussions, and approximately twelve days of 

testimony in a bench trial before a settlement was reached 

amongst the parties and their counsel, placed on the 

record, the parties having been sworn, and all confirmed 

the terms and conditions. [The d]efendants refused to 

comply with the settlement terms and, almost two months 

after the agreement was recorded, [Ms. Raker] was 

compelled to return to court to enforce the settlement 

agreement.

[The tort case d]efendants never raised any objections to 

the settlement agreement in the Tort Case between the 

time it was entered on the record on April 4, 2016, and 

May 24, 2016, when [Ms. Raker] appeared before the 

[c]ourt to enforce the settlement. Only then did [the 

d]efendants assert that they were not bound to the 

settlement agreement because they felt they were placed 

under duress by the [c]ourt to settle. An evidentiary 

hearing was held to determine the merits of [the 

d]efendants’ duress allegations, and this [c]ourt held that 

the [d]efendants were bound by the terms of the 

settlement agreement. They appealed.

[Bar-B-Q Pit’s] reliance on Law of the Case Doctrine to 

support [its] position that the supersedeas in the Tort Case 

should have operated to stay execution on the transferred 

federal judgment is misplaced for a host of reasons. [The] 

Law of the Case Doctrine is conceptually meant to preclude 

relitigation of issues within the context of a single case 

once they have been decided. The fundamental operation 

of the doctrine binds a trial court to the first adjudication 

of an issue. ... The key instrument of the doctrine is that 

the matters involve the same case, parties and issues. In 

the instant case, there can be no relitigation of the same 

issues in the same case because the two cases, issues and 

parties are not the same in each case. The Tort Case was 

not a relitigation of the instant Transfer of Judgment case, 

nor was it a relitigation of the federal case from which the 

judgment originates.

In the instant case, there were no issues identical or even 

substantially similar enough to those in the Tort Case to 
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warrant concerns relating to relitigation. In addition to 

being two separately docketed cases arising from different 

principles of law and involving different defendants, the 

amounts in controversy were different.

(Trial Court Opinion, filed August 5, 2016, at 5-6) (internal citations 

omitted). We agree with the trial court that the “law of the case” doctrine 

does not apply here.10 See Ario, supra; Gateway Towers, supra; Block, 

supra. 

With respect to Bar-B-Q Pit’s claim that the sheriff’s 2014 

determination of ownership prohibits Ms. Raker from executing on the 

federal judgment, Bar-B-Q Pit abandoned this claim at the June 21, 2016 

hearing on its motion to strike and did not specify it in its court-ordered Rule 

1925(b) statement. Thus, this claim is waived. See Lineberger v. Wyeth, 

894 A.2d 141 (Pa.Super. 2006) (explaining Rule 1925(b) statement must be 

specific enough for trial court to identify and address issues that appellant 

wishes to raise on appeal; concise statement which is too vague to allow 

court to identify issues raised on appeal is functional equivalent of no 

concise statement at all; if concise statement is too vague, this Court may 

deem issue waived). Moreover, following the sheriff’s 2014 determination of 

____________________________________________

10 To the extent Bar-B-Q Pit suggests the tort case settlement agreement 

encompasses the federal judgment to preclude Ms. Raker from collecting on 

both the tort case and the federal judgment, we are unable to confirm that 

claim because the terms of the tort case settlement agreement are not 

included in the certified record. Assuming without deciding the tort case 

settlement constituted a “global resolution” of both cases, we would agree 

only that Ms. Raker is not entitled to a double recovery. 
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ownership, Ms. Raker discovered Bar-B-Q Pit did in fact own certain property 

subject to levy.11 Bar-B-Q Pit cites no law to support its proposition that Ms. 

Raker is prohibited from executing on Bar-B-Q Pit’s property under these 

circumstances.12 As far as other individuals or entities might also have 

claims to the subject property, those claims could proceed in due course 

under the normal execution procedure. See Pa.R.C.P. 3202 (discussing 

procedure for processing claims to personal property levied upon pursuant to 

writ of execution). Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/13/2017

____________________________________________

11 On this record we cannot tell if Ms. Raker’s objections to the sheriff’s 

determination of ownership are still outstanding. Nevertheless, the trial 

court made clear at the June 21, 2016 hearing that Ms. Raker provided 

testimony confirming Bar-B-Q Pit’s ownership of some of the subject 

property including an electronic billboard sign. 

12 Bar-B-Q Pit’s only citation is to Pa.R.C.P. 3121(b)(2) (stating execution 

may be stayed by court as to all or any part of property of defendant upon 

its own motion or application of any party in interest showing any legal or 

equitable ground) and Pa.R.C.P. 3121(d)(2) (stating court may on 

application of any party in interest set aside writ, service or levy upon any 

legal or equitable ground).