text:                                                                                                                            Opinions of the United
  2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                                for the Third Circuit
  
  
  4-6-2004
  
  Savitsky v. Mazzella
  Precedential or Non-Precedential: Non-Precedential
  
  Docket No. 02-3745
  
  
  
  
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  Recommended Citation
  "Savitsky v. Mazzella" (2004). 2004 Decisions. Paper 874.
  http://digitalcommons.law.villanova.edu/thirdcircuit_2004/874
  
  
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                                                                NOT PRECEDENTIAL
  
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
  
                                       NO. 02-3745
                                   __________________
  
                                   ROBERT SAVITSKY
  
                                               v.
  
                                  LOUIS MAZZELLA;
                                 ANNE MAZZELLA, h/w
  
                                      Louis Mazzella,
  
                                             Appellant
  
                         _________________________________
  
                     On Appeal From the United States District Court
                         for the Eastern District of Pennsylvania
                             (E.D. Pa. Civ. No. 89-cv-06314)
                        District Judge: Honorable James T. Giles
                        ________________________________
  
                        Submitted Under Third Circuit LAR 34.1(a)
                                  DECEMBER 15, 2003
  
              Before: ROTH, MCKEE, AND ROSENN, CIRCUIT JUDGES
  
                                    (Filed April 6, 2004)
                                    _________________
  
                                        OPINION
                                    _________________
  
  
  ROTH, Circuit Judge
  
        This matter arises from a civil action pursued in the United States District Court
  for the Eastern District of Pennsylvania by Robert Savitsky against Louis Mazzella. The
  
  background facts of this case are well-known to the parties, and we will only briefly
  
  revisit them here. In the 1980s, Mazzella was the sole shareholder of a property and
  
  casualty insurer, Colonial Assurance Company. At that time, Savitsky was an examiner
  
  for the Pennsylvania Insurance Department. Mazzella filed suit against Savitsky,
  
  alleging, inter alia, that Savitsky examined Colonial Assurance Company, engaged in
  
  inappropriate conduct as an examiner, and erred in his report to the Insurance
  
  Commissioner. Mazzella did not prevail in that action. Savitsky then filed this suit
  
  against Mazzella for wrongful use of civil proceedings. Following a jury trial in 1991,
  
  Savitsky obtained a judgment in the amount of $90,000. This Court affirmed the
  
  judgment (C.A. No. 91-1835).
  
           In August, 2002, Savitsky filed a Motion for Supplementary Relief in Aid of
  
  Execution, pursuant to Rule 69 of the Federal Rules of Civil Procedure and Rule 3118 of
  
  the Pennsylvania Rules of Civil Procedure.1 In his motion, Savitsky alleged that Mazzella
  
  
     1
         Rule 3118, titled “Supplementary Relief in Aid of Execution,” provides:
           (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
  
                                                  2
  is the sole owner of all shares of stock in Colonial Investment Company, a Pennsylvania
  
  corporation, and that the stock was originally possessed by Mazzella, or on his behalf, in
  
  Pennsylvania. Savitsky further alleged his belief that Mazzella has an ownership interest
  
  in other securities and that the securities have been secreted, in part, to avoid execution.
  
  Also, Savitsky alleged that the judgment obtained in 1991 has been registered with the
  
  United States District Courts for the Southern District of Florida, the District of
  
  Connecticut, the Central District of California, the Southern District of New York, the
  
  Southern District of California, and the District of New Jersey.
  
         The District Court granted relief, initially ordering that Mazzella is:
  
                1.     Enjoined from conveying, transferring, liquidating,
                       encumbering, concealing, or selling any certificated
                       and uncertified shares of stock, bonds or other
                       securities in which he has an interest;
                2.     Ordered to provide plaintiff’s counsel, within 7 days
                       hereof a list of the holders identities, quantities and
                       location of all certificated and uncertified shares of
                       stock, bonds and other securities in which he has an
                       interest, the locations of the same and the identities and
                       capacities of any holders thereof, other than himself;
  
  
  
                       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.
  
                                                3
                         and
                  3.     Ordered to deliver to the United States Marshal for this
                         District within 20 days hereof, with appropriate
                         endorsement, all said securities in his control or
                         possession, including but not limited to Colonial
                         Investment Company, together with a copy of this
                         order, and said Marshall is directed to accept the same.
  
  Upon Mazzella’s petition to reconsider the order, the District Court held a hearing.2 After
  
  hearing argument by the parties, the District Court orally amended the third paragraph of
  
  the order only, directing Mazzella to surrender to the United States Marshal for the
  
  Eastern District of Pennsylvania all property found within the district that is solely owned
  
  by Mazzella. The motion was otherwise denied. Mazzella appeals the District Court’s
  
  orders.
  
            We have jurisdiction over this appeal of an order relating to post-judgment
  
  execution. See 28 U.S.C. § 1291; Isidor Paiewonsky Assocs., Inc. v. Sharp Props., Inc.,
  
  998 F.2d 145, 149-50 (3d Cir. 1993). Rule 69 of the Federal Rules of Civil Procedure
  
  governs proceedings in aid of execution and directs that such proceedings shall take place
  
  in accordance with the state in which the District Court sits–Pennsylvania, in this
  
  case–except that any federal statute governs to the extent that it is applicable.
  
  Pennsylvania Rule 3118 permits summary proceedings in aid of execution in order to
  
  
  
  
     2
       Mazzella’s former counsel withdrew his appearance after Savitsky’s motion was
  filed, and present counsel did not enter an appearance until the day of the District Court’s
  order. The District Court initially denied Mazzella’s petition for reconsideration, but on
  the same date, the District Court ordered a hearing on the petition.
  
                                                 4
  maintain the status quo as to the judgment debtor’s property, and it is limited to property
  
  solely owned by the judgment debtor. Greater Valley Terminal Corp. v. Goodman,
  
  202 A.2d 89, 92, 94 (Pa. 1964). We review the District Court’s granting of relief in aid of
  
  execution for an abuse of discretion. See Marshall Ruby & Sons v. Delta Mining Co.,
  
  702 A.2d 860,862 (Pa. Super. 1997). We may affirm on any ground supported by the
  
  record. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
  
         Mazzella’s arguments focus on the application of Rule 3118; he asserts that the
  
  District Court was bound by the parameters of that rule because Savitsky’s motion
  
  specifically cited that basis for relief. Mazzella contends that the District Court abused its
  
  discretion in granting the relief sought by Savitsky because Rule 3118 is not intended to
  
  be a discovery device (there being other specific state court rules governing discovery in
  
  aid of execution), because Rule 3118 applies only to afford relief regarding property
  
  found within the jurisdiction of Pennsylvania, and because Rule 3118 applies only to
  
  afford relief regarding property solely owned by Mazzella.
  
         We will affirm. First, regarding Mazzella’s argument that the discovery provision
  
  in the order exceeds Rule 3118’s limitations and that the District Court was constrained
  
  by the bounds of Rule 3118, we note that Savitsky’s motion was brought pursuant to
  
  Federal Rule of Civil Procedure 69, as well as under Rule 3118. Rule 69 provides, in
  
  part, that “in aid of the judgment or execution, the judgment creditor. . . may obtain
  
  discovery from any person, including the judgment debtor, in the manner provided in
  
  
  
                                                5
  these rules or in the manner provided by the practice of the state in which the district
  
  court is held.” Second, Mazzella’s argument that the District Court abused its discretion
  
  in ordering relief affecting property outside of Pennsylvania, based on Chadwin v.
  
  Krouse, 386 A.2d 33 (Pa. Super. 1978), is unpersuasive. The holding of that case
  
  concerned the erroneous summary compulsion of the judgment debtor to bring property
  
  from outside the state within the state to be delivered to the sheriff or made available for
  
  execution. The District Court’s order, as amended at the hearing on Mazzella’s motion
  
  for reconsideration, is not inconsistent with Chadwin or with Rule 3118’s purpose of
  
  maintaining the status quo regarding a judgment debtor’s property.
  
         Finally, we reject Mazzella’s argument that the District Court abused its discretion
  
  in ordering relief affecting property not solely owned by Mazzella. The case Mazzella
  
  cites in support, Stop 35, Inc. v. Haines, 543 A.2d 1133 (Pa. Super. 1988), is
  
  distinguishable on its facts. Stop 35 involved the (improper) use of Rule 3118 by the
  
  judgment creditor of a debtor-husband to adjudicate the title to property once held by the
  
  husband and wife as tenants in the entirety, where the judgment creditor had only a
  
  potential lien against the entireties property based upon the debtor-husband’s contingent
  
  expectancy to survive the wife and gain sole ownership. Based on the record before us,
  
  the situation here is not congruent with that in Stop 35, and we conclude that the District
  
  Court acted within its discretion to structure the order as it did.
  
         We have considered all of Mazzella’s arguments and find them unpersuasive. We
  
  
  
                                                 6
  conclude that the District Court did not abuse its discretion in this matter. Accordingly,
  
  we will affirm the District Court’s order, as modified at the hearing held on September
  
  24, 2002.
  
  
  
  
                                               7
  