J-S37016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN M. KISTLER                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                   v.


WELLS FARGO BANK, N.A.

                          Appellee                 No. 1573 MDA 2016


              Appeal from the Order Entered August 23, 2016
           In the Court of Common Pleas of Lackawanna County
                   Civil Division at No(s): 2014 CV 7476


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                      FILED OCTOBER 20, 2017

     John M. Kistler appeals, pro se, from the August 23, 2016 order of the

Lackawanna County Court of Common Pleas granting the preliminary

objections filed by Wells Fargo Bank, N.A. (“Wells Fargo”) and dismissing

Kistler’s amended complaint with prejudice. We affirm.

     On November 21, 2014, Kistler discovered that Wells Fargo had placed

a hold on his checking account pursuant to an Internal Revenue Service

(“IRS”) notice of levy.    On December 10, 2014, Kistler filed suit against

Wells Fargo, alleging that its placement of a hold on Kistler’s bank account

pursuant to the IRS notice of levy, and its subsequent release of Kistler’s

funds to the IRS, violated federal law.     The trial court summarized the

ensuing procedural history of this case in its August 23, 2016 opinion, which

we adopt and incorporate herein. See Trial Ct. Op., 8/23/16, at 2-3.
J-S37016-17



       On August 23, 2016, after a hearing,1 the trial court entered an order

granting Wells Fargo’s preliminary objections and dismissing Kistler’s

amended complaint with prejudice. Kistler timely appealed to this Court.

       On appeal, Kistler raises the following issues:
           1. Whether this case should be remanded to the lower
           court to address the central issue in this case, by Opinion,
           or by summary remand, which has not been addressed,
           and that is the categorical existence of factual disputes
           over the timing of the release of [Kistler’s] funds on
           December 10, 2014, with specific knowledge of the
           existence, through service by [Kistler] of a December 10,
           2014 Order, prohibiting the release of those funds.

           2. Whether the Lower Court erred in its August 23, 2016
           Order by failing to address the central issue in this case, to
           wit, the effect of the Court’s December 10, 2014 Order
           vacating the Notice of Levy, which was served upon [Wells
           Fargo] the same day, prior to the release of [Kistler’s]
           funds to the IRS.

           3. Whether, under the above circumstances, the December
           10, 2014 Order prohibited [Wells Fargo] from releasing
           funds, when the docket shows activity on December 5,
           2014, and a Rule to Show Cause was Returnable on
           January 9, 2015, in order to resolve the validity of the
           levy, but the matter was removed by [Wells Fargo], a
           factual dispute, at least, exists as to whether the funds
           were released before or after the Order, and negated
           [Wells Fargo’s] protections under IRC §6332, also
           committing a fraud upon the court.

           4. Whether, until such time that these matters were to be
           considered, any release of the funds was unlawful, and in
           violation of an express Order of this Court. See Citizen’s
           Bank of Pennsylvania v. Myers, 872 A.2d 827 (Pa.
           Super. 2005) (recognizing the utilization of preliminary
____________________________________________


       The certified record does not contain a transcript of the April 29,
       1

2016 hearing, and neither party references any such transcript in its brief.



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         injunctive relief to enjoin the release of funds held in
         deposit).

         5. Whether 26 U.S.C. §6332 is unconstitutional as it allows
         for the seizure of the property of [Kistler] without due
         process of law, as applied, and that, regardless of its
         constitutionality, [Wells Fargo] had a duty to not release
         the subject funds.

         6. Whether the lower court erred in failing to recognize
         that the levy at issue did not comply with IRC Section
         6331 and the lower Court erred in failing to recognize that
         even under the special rule for banks at IRC Section
         6332(c), a bank is only entitled to the protection of funds
         released within 21 days, except when the property is
         subject to an attachment or execution under court order,
         and the funds in the [Wells Fargo] bank herein were
         specifically subject to such an attachment.

         7. Whether the lower court erred in failing to recognize
         that [Wells Fargo] had, and breached, its contractual and
         fiduciary duties to [Kistler], to hold [Kistler’s] deposit[]s,
         as debtor, and ensure the validity of claims against those
         funds, as recognized generally in the Citizens Bank of
         Pennsylvania, supra, case.

Kistler’s Br. at 4-5.

      Our standard of review of an order granting preliminary objections is

as follows:
            In determining whether the trial court properly
         sustained preliminary objections, the appellate court must
         examine the averments in the complaint, together with the
         documents and exhibits attached thereto, in order to
         evaluate the sufficiency of the facts averred.           When
         sustaining the trial court’s ruling will result in the denial of
         claim or a dismissal of suit, preliminary objections will be
         sustained only where the case is free and clear of doubt,
         and this Court will reverse the trial court’s decision
         regarding preliminary objections only where there has
         been an error of law or an abuse of discretion.




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Haas v. Four Seasons Campground, Inc., 952 A.2d 688, 691 (Pa.Super.

2008) (quoting Rambo v. Greene, 906 A.2d 1232, 1235 (Pa.Super. 2006)).

      Kistler’s first four issues challenge Wells Fargo’s alleged violation of a

December 10, 2014 court order directing Wells Fargo to release the levied

funds to Kistler.   Specifically, Kistler asserts that the trial court “failed to

address the central issue in this case, to wit, the effect of the Court’s

December 10, 2014 Order vacating the Notice of Levy . . . prior to the

release of [Kistler’s] funds to the IRS.” Kistler’s Br. at 9. In response to

Kistler’s claims, Wells Fargo contends that it was never served with either

the “Motion for Release of Levy/Lien” referenced in the December 10, 2014

order or the order itself and that no such motion appears in the record or on

the trial court docket.

      The order at issue is titled “Order for Release of Levy/Lien” and states:
            And now, this 10th day of December, 2014 upon
         consideration of [Kistler’s] Motion for [R]elease of
         Levy/Lien Notice filed by IRS agent James Smith of the
         Philadelphia office against his funds in WELLS FARGO
         BANK . . . it is hereby ORDERED and DECREED that said
         Motion is hereby GRANTED on the grounds that Mr. Smith
         has failed to attach[] a required copy of the COURT
         ORDER signed by a Judge after a “Due Process Hearing”,
         which appears to have never been afforded Mr. Kistler in
         violation of his 5th Amendment rights and a multitude of
         other Civil Rights Violations, laws and statutes at both the
         State and Federal levels.

           Therefore WELL[S] FARGO BANK is hereby
         ORDERED to “IMMEDIATELY” release all funds
         belonging to Mr. Kistler and reverse any and all over
         draft charges and fees associated with this incident
         and to refrain from this irresponsible practice again


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         in the future against Mr. Kistler or any other
         depositor.

Trial Ct. Order, 12/10/14 (emphases in original). This order appears to bear

the trial judge’s signature and appears to have been entered on December

10, 2014, the same date as Kistler’s initial complaint.

      The parties briefly discussed the December 10, 2014 order at the

hearing on Wells Fargo’s preliminary objections to Kistler’s initial complaint:
         MR. KISTLER: . . . Your Honor, on December 10th I had a
         Court Order signed by Judge Minora to release my money.
         I had a lengthy discussion with Judge Minora.

                                      ...

         THE COURT: You went into motion Court –

         MR. KISTLER: Yes, I did, Your Honor.

         THE COURT: – and you weren’t there I take it.

         [WELLS FARGO’S COUNSEL]: That’s correct, Your Honor.

         MR. KISTLER: They were not involved at that point in
         time. I had just found out about this. The other fact –

         THE COURT:      Well, they were involved at that time
         because they are the bank. You went into . . . Motion
         Court, and you had Judge Minora sign an order ordering
         Wells Fargo Bank to immediately release your funds.

         MR. KISTLER: Right. But they were not even involved at
         this point in time because I had not filed –

                                      ...

         THE COURT: What happened procedurally?

         [WELLS FARGO’S COUNSEL]: Your Honor, what happened
         is that order – strangely, it doesn’t have a court number
         on it – it was filed at the exact time Mr. Kistler’s complaint
         was filed. We ended up removing to Federal Court, but
         the language of that order was somewhat strange. It



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J-S37016-17


           didn’t have a Court term and number. We had no notice of
           anything –

           THE COURT: Right. You have to give them notice.

           [WELLS FARGO’S COUNSEL]: And then we ended up when
           we removed to Federal Court, it ended up being moot.

N.T., 12/14/15, at 18-20.

       The    December       10,   2014    order,    regardless   of   any   procedural

irregularities, has no bearing on whether Kistler’s amended complaint was

legally    sufficient   to   overcome     Wells     Fargo’s   preliminary    objections.

Accordingly, none of Kistler’s first four issues warrants relief in this appeal. 2

       Turning to Kistler’s remaining issues, the trial court determined that

Kistler’s amended complaint was legally insufficient on several grounds,

including: failure to state a claim upon which relief can be granted; failure

to join indispensable parties; failure to conform to the rules of court;

inclusion of scandalous and impertinent matters; and failure to plead fraud

with particularity.     We agree with and adopt the cogent reasoning of the

Honorable Carmen D. Minora and incorporate his opinion herein. See Trial

Ct. Op., 8/23/16, at 3-5.




____________________________________________


       2 On May 31, 2017, after the filing of his notice of appeal, Kistler filed
with the trial court a petition for contempt based on Wells Fargo’s alleged
failure to comply with the December 10, 2014 order. The trial court did not
rule on the petition, as it lacked jurisdiction due to the pending appeal.
Therefore, because the trial court has not ruled on the petition for contempt,
we cannot consider it.



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J-S37016-17



       Accordingly, we conclude that the trial court properly granted Wells

Fargo’s preliminary objections and dismissed Kistler’s amended complaint

with prejudice.3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




____________________________________________


       3 We are compelled to note that, in his reply brief, Kistler makes
unfounded accusations against the judges and employees of this Court. See
Kistler’s Reply Br. at 1-3 (unpaginated). We recognize that litigation is
necessarily contentious and that Kistler is personally invested in the outcome
of this appeal. However, we caution Kistler to exercise restraint and civility
should he continue to represent himself in future legal proceedings.



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