J-A02021-17

                                  2017 PA Super 122



BOLLARD & ASSOCIATES, INC.                        IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

H&R INDUSTRIES, INC. AND HARRY
SCHMIDT AND WELLS FARGO BANK,
N.A.

                                                      No. 1601 EDA 2016


                      Appeal from the Order May 23, 2016
                 In the Court of Common Pleas of Bucks County
                     Civil Division at No(s): No. 2016-01222


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

OPINION BY RANSOM, J.:                                 FILED APRIL 24, 2017

        Appellant, Bollard & Associates, Inc., appeals from the May 23, 2016,

order determining that $188,536.31 in a Wells Fargo Bank account was

exempt from garnishment. We reverse and remand for further proceedings

in accordance with this opinion.

        We adopt the following statement of facts from the trial court’s

opinion, which in turn is supported by the record. See Trial Court Opinion,

8/2/16, at 1-5.        In February 2016 judgment was entered in favor of

Appellant and against H&R Industries, Inc. and Harry Schmidt (“Appellee”) in

the amount of $405,984.07 plus interest at 6% per annum.           Appellant

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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commenced execution on the judgment and served interrogatories in aid of

execution against Appellee and Wells Fargo Bank, N.A. (“Wells Fargo”), as

garnishee.        In response, Wells Fargo filed an answer and new matter,

averring that Gary Schmidt, Appellee’s son (“Mr. Schmidt”), held a joint

bank account with Appellee. Accordingly, Wells Fargo could not release the

attached assets without appropriate order of the court.

      Mr. Schmidt and Appellee filed a claim for exemption, seeking a

statutory exemption of $300.00 and for social security payments totaling

$2,103.00. Mr. Schmidt also sought an exception for other money held in a

joint bank account with Appellee, namely, proceeds from the sale of a home.

Prior to the hearing on the claim, the parties agreed that Appellee and Mr.

Schmidt were entitled to a $300.00 statutory exception and the first

$10,000.00 of a direct deposit of social security benefits.

      In May 2016, the trial court held an evidentiary hearing. Mr. Schmidt

testified that prior to 2013, he resided at 2032 Arch Street in Philadelphia,

Pennsylvania.        The residence was titled jointly in Mr. Schmidt’s and

Appellees’ names, but Mr. Schmidt averred that the home was his and titled

jointly solely for estate planning purposes.         Mr. Schmidt paid taxes,

insurance, and utility bills for the property. In 2013, Mr. Schmidt moved in

with Appellee to a different location.

      In May 2015, Mr. Schmidt sold the Arch Street home for net proceeds

of $385,073.36; he placed the proceeds into a joint bank account held with

Appellee     at    Wells   Fargo.   Mr.   Schmidt   made   withdrawals   totaling

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J-A02021-17



$196,537.15 from the account over the course of approximately ten months.

Mr. Schmidt also acknowledged that he and Appellee each received an IRS

form 1099 for the proceeds of the sale, reflecting a 50% share of the gross

proceeds.    However, the 1099 form for Mr. Schmidt was not entered into

evidence at the conclusion of the hearing.

      Following the hearing, the trial court entered an order finding that

$188,536.31 held in the joint Wells Fargo Account was exempt from

judgment.    This amount represented the balance remaining from the net

proceeds of the sale of the property.

      Appellant filed a motion for reconsideration, arguing that 1099 forms

provided by Appellee and signed by Mr. Schmidt were evidence that the

property was jointly owned, as Mr. Schmidt and Appellee each received a

50% share of the gross proceeds. See Motion for Reconsideration, 5/23/16,

Exhibit C.   Appellant also argued that Mr. Schmidt had acknowledged in

writing that the proceeds were intended to be distributed jointly. The court

denied the motion.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.       The trial court issued a

responsive opinion.

      Herein, Appellant raises two questions for our review:

      A. Did the trial court improperly deny [Appellant’s] [motion] to
      reconsider based on the prior representation that Gary Schmidt
      was seeking an exemption of one-half of the garnished funds?



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J-A02021-17


      B. Was the trial court finding of exemption contrary to and
      against the weight and sufficiency of the evidence?

Appellant’s Brief at 4 (unnecessary capitalization and punctuation omitted).

      Appellant first argues that the trial court improperly denied its motion

for reconsideration. See Appellant’s Brief at 13. Appellant contends that a

1099 form provided by Appellee’s counsel established that Mr. Schmidt was

only entitled to half of the proceeds of the sale, and that Appellee was

entitled to the other half. Id. Moreover, according to Appellant, Appellee

acknowledged in a handwritten addition to the 1099 form that Mr. Schmidt

intended to claim only half of the proceeds. See Motion for Reconsideration,

5/23/16, Exhibit C.   Importantly, the alleged acknowledgement was never

entered into evidence.

      An order denying reconsideration is unreviewable on appeal.        See

Huntington Nat. Bank v. K–Cor, Inc., 107 A.3d 783, 787 (Pa. Super.

2014) (“Pennsylvania case law is absolutely clear that the refusal of a trial

court to reconsider, rehear, or permit reargument of a final decree is not

reviewable on appeal.”); see also Rabatin v. Allied Glove Corp., 24 A.3d

388, 391 (Pa. Super. 2011) (noting that issues not raised before the trial

court are not preserved for appeal, and issues raised in motions for

reconsideration are beyond the jurisdiction of this Court).   Further, a trial

court may also properly refuse to consider new evidence presented for the

first time in a motion for reconsideration. See Kelly v. Siuma, 34 A.3d 86,

94 n.8 (Pa. Super. 2011). Accordingly, Appellant is not entitled to relief on

this issue.

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J-A02021-17



      Next, Appellant argues that the trial court’s finding of exemption was

contrary to and against the weight and sufficiency of the evidence.      See

Appellant’s Brief at 20.     According to Appellant, undisputed evidence

established that Appellee was entitled to one-half of the proceeds of the Arch

Street property sale. Id.

      Mr. Schmidt filed a claim for exemption from attachment pursuant to

Pa.R.C.P. 3123.1(a), which provides that a defendant may claim exemption

or immunity of property from attachment by filing with the sheriff a claim

substantially in the form provided by the rules of civil procedure.      Both

parties agreed, and the trial court accepted, that the instant matter concerns

ownership of proceeds from the sale of property held in a joint bank account,

which is governed by Chapter 63 of the Probate, Estates, and Fiduciaries

Code and, specifically, the Multiple-Party Accounts Act.     See Trial Court

Opinion (TCO) at 7; see also 20 Pa.C.S. §§ 6101-6103.

      The Act provides that joint accounts belong, during the lifetime of all

parties, to the parties in proportion to the net contributions by each to the

sum on deposit, unless there is clear and convincing evidence of a different

intent.   See 20 Pa.C.S. § 6303(a).       A person depositing funds into a

multiple-party account does not normally intend to make a gift of any part of

the funds.   See Deutsch, Larrimore & Farnish, P.C. v. Johnson, 848

A.2d 137, 143 (Pa. 2004) (plurality) (citing Official Comment to 20 Pa.C.S. §

6303). In determining the ownership interests of funds deposited in a joint

account, courts should consider evidence provided by the parties and that

                                    -5-
J-A02021-17



individual ownership of certain funds may be attributable to the account

holders’ respective deposits and withdrawals.      Id.   With regard to the

standard of review, “clear and convincing evidence” is the highest burden in

our civil law and requires that the fact-finder be able to “come to clear

conviction, without hesitancy, of the truth of the precise fact in issue.”

Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991). Appellate courts are

bound by the trial court’s findings of facts, unless not based on competent

evidence, and by the trial court’s assessment of credibility. See Thatcher's

Drug Store of W. Goshen, Inc. v. Consol. Supermarkets, Inc., 636

A.2d 156, 160 (Pa. 1994).

      Here, the trial court made an express finding that Mr. Schmidt was

credible in his assertions that he purchased the Arch Street property alone

and only jointly titled the property for estate planning purposes. TCO at 8.

The court relied upon further evidence that Mr. Schmidt resided alone in the

property and paid all bills and expenses related to the property as proof that

the property was solely his. Id.

      However, the trial court ignored other undisputed evidence provided

which established that the proceeds from the sale of the house were shared.

For example, Mr. Schmidt admitted that the property was jointly titled and

that the check was made payable to both Mr. Schmidt and Appellee.        See

Notes of Testimony, 5/23/16, at 24-25. Further, at the evidentiary hearing

on the exemption, Mr. Schmidt was questioned regarding the tax forms as

follows:

                                    -6-
J-A02021-17



       Q: Well, when you sold the property, you sold the property and a
       check was made payable to both you and your father, correct?

       A: Correct.

       Q: And do you recall providing your counsel with a copy of your
       1099 from the sale of the property for $203,000 at the last
       hearing?

       A: There was a tax paper – I can’t – they split it between both of
       us, and I believe it was 207, 210? It was definitely not 203.

       Q: 207. The sale price was 415.1           So it would have been
       $207,000?

       A: Right, for the taxes, right, split between the two for tax
       purposes.

See N.T. at 25-26.2 The questioning then moved on to withdrawals that Mr.

Schmidt had made from the account.

       Although the court found credible Mr. Schmidt’s assertion that the

titling was for estate purposes, this testimony was not supported by any

other evidence in the record and flies in the face of the evidence actually

introduced at the hearing.         In our view, balanced against the undisputed

evidence that proceeds from the sale of the house were to be shared

equally, Mr. Schmidt’s self-serving testimony did not establish by clear and

convincing evidence a different intent. 20 Pa.C.S. § 6303.



____________________________________________


1
  As noted above, the net proceeds of the sale were $385,073.36.
2
  The 1099 was never entered into evidence, as discussed supra. However,
this questioning establishes the split for tax purposes.



                                           -7-
J-A02021-17



      Accordingly, the trial court abused its discretion in finding that

$188,536.31 was exempt from garnishment, as the testimony provided did

not prove by clear and convincing evidence that the money was solely Mr.

Schmidt’s property. See Thatcher's Drug Store of W. Goshen, Inc., 636

A.2d at 160; Kelly, 34 A.3d at 94 n.8; cf. Deutsch, 848 A.2d at 144.

      Order vacated; case remanded for proceedings consistent with this

opinion; jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2017




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