                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                              NOT PRECEDENTIAL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.




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