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2003 PA Super 174
RICHARD R. BLOCK
IN THE SUPERIOR COURT OF
No. 2571 EDA 2001
Appeal from the Order dated July 3, 2001
In the Court of Common Pleas of Philadelphia County
Civil No. 5094 November Term 1989
BEFORE: FORD ELLIOTT, KLEIN and MONTEMURO*, JJ.
OPINION BY MONTEMURO, J.:
Filed: May 1, 2003
This is an appeal from the Order docketed July 3, 2001, in the
Philadelphia County Court of Common Pleas denying Appellant Dianne
Bilinski's petition to assess counsel fees as costs. For the reasons that
follow, we are constrained to quash this appeal.
Sometime prior to 1989, Appellee Richard R. Block, an attorney,
represented Bilinski on a domestic relations matter. In November of 1989,
to guarantee payment for these legal services, Bilinski executed a judgment
note, containing a confession of judgment clause, in the amount of
$6,742.00. On November 30, 1989, after Bilinski defaulted and pursuant to
the terms of the note, Block praeciped for entry of judgment.1 In June of
1 Bilinski also executed a second judgment note for $4,845.45. Under a
separate docket number, Block praeciped for entry of judgment on this note
in April of 1990. Although this note is referred to in both parties' briefs and
in many of the documents contained in the certified record, the note itself
does not appear in the record, and is not mentioned in the trial court
*Retired Justice assigned to Superior Court.
1992, however, Bilinski filed for protection under Chapter 13 of the
Bankruptcy Code. Because her plan contained no provision for repayment of
the secured debt owed to Block, his claim survived her discharge of
Block filed writs of revival on the judgment in April of 1995, and again
in September of 2000. In November of 2000, Block took steps to execute on
the judgment by levying on Bilinski's personal property located at her
residence at 8044 Craig Street in Philadelphia. Bilinski's petition to stay the
execution sale and quash the writ of execution was granted by Order dated
March 28, 2001. On May 10, 2001, Bilinski filed a petition to assess counsel
fees pursuant to § 407(b) of Pennsylvania's Loan Interest and Protection
Law3 and § 362(h) of the federal Bankruptcy Code.4 However, her petition
Opinion. Indeed, the writs of revival and writs of execution which are
contained in the record refer only to the first judgment note. Accordingly,
we will refer only to the first judgment note, as consideration of the second
does not in any way alter our disposition of this appeal.
2 The decision of the Bankruptcy Judge on this matter was affirmed by the
Third Circuit Court of Appeals. See Plaintiff's Memorandum of Law in
Response to Defendant's Petition to Assess Counsel Fees as Costs, filed
6/11/01, at Exhibit 7, In Re: Dianne Bilinski, No. 98-2067, Memorandum
Opinion (3d Cir. filed March 28, 2000).
3 41 P.S. § 407(b) provides:
Any debtor who prevails in any action to remove, suspend or
enforce a judgment entered by confession shall be entitled to
recover reasonable attorney's fees and costs as determined by
4 11 U.S.C. § 362(h) provides:
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was denied by Order docketed July 3, 2001. This timely appeal follows in
which Bilinski challenges the trial court's denial of her petition for counsel
fees under both statutes.
Preliminarily, we must address Block's argument that this appeal
should be quashed as interlocutory. He bases this contention, albeit
inartfully, on the doctrine of the law of the case. "The doctrine of `the law of
the case' is that, when an appellate court has considered and decided a
question submitted to it upon appeal, it will not, upon a subsequent appeal
on another phase of the same case, reverse its previous ruling even though
convinced it was erroneous." Reamer's Estate, 200 A. 35, 37 (Pa. 1938).
See also Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). 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." Starr, supra at 1332.
Here, the doctrine is activated by a quash order entered by this Court
in a previous appeal from a similar order. That order was entered after the
one appealed from sub judice. On May 10, 2001, the same day Bilinski
An individual injured by any willful violation of a stay provided by
this section shall recover actual damages, including costs and
attorneys' fees, and, in appropriate circumstances, may recover
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petitioned to assess counsel fees based on the trial court's March 28th Order,
Block sought to execute the confessed judgment on Bilinski's real property
at the Craig Street location. Bilinski filed a motion to quash this second writ
and stay the sheriff's sale scheduled for August 7, 2001. However, prior to
any ruling on the motion to quash, Block voluntarily stayed the scheduled
sheriff's sale. Accordingly, on August 1, 2001, the trial court dismissed
Bilinski's motion to quash as moot. Bilinski then petitioned the court to
assess counsel fees pursuant to 41 P.S. § 407(b). By Order dated
November 6, 2001, the court granted Bilinski's petition and assessed counsel
fees in favor of Bilinski and against Block in the amount of $1,735.00. Block
subsequently filed a timely appeal. In an unpublished memorandum
decision, a panel of this Court quashed Block's appeal as interlocutory.5
In the present case, the award of attorney's fees was a matter
collateral to the primary litigation regarding the execution on the
confessed judgments. In an analogous circumstance, we
concluded that an immediate appeal could not lie from an award
of attorney's fees. Brawley Distributing v. Heartland
Properties, 712 A.2d 331 (Pa. Super. 1998) (appeal from an
award of attorney's fees granted for frivolous filing of preliminary
objections in a contract case quashed). We see no material
distinction between Brawley and the present case.
Block v. Bilinksi, No. 81 EDA 2002, unpublished memorandum at 3 (Pa.
Super. filed November 8, 2002).
5 We note that although an unpublished memorandum decision generally has
no precedential value, it "may be relied upon or cited when it is relevant
under the doctrine of law of the case . . . ." Vetter v. Fun Footwear Co.,
668 A.2d 529, 535 (Pa. Super. 1995), appeal denied, 676 A.2d 1199 (Pa.
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Based on the doctrine of the law of the case, we are bound by this
Court's prior determination that an appeal from an order either awarding or
denying attorney's fees is interlocutory. We find no intervening change in
the law or facts to justify departure from our original conclusion.6
In her Reply Brief, Bilinski attempts to distinguish the two appeals by
arguing that the order from which Block appealed, under docket number 81
EDA 2002, was not final and appealable because Block himself "did not treat
the proceedings as final." (Bilinski's Reply Brief at 8). Indeed, when alerted
to the appealability issue by this Court's Central Legal Staff, Block agreed
that the appeal was premature. However, Bilinski provides no support for
her contention that the appealability of an order is controlled by the manner
in which it is treated by the appellant.
6 However, we must acknowledge that there appears to be support for
Bilinski's assertion that the present order is appealable. Indeed, in several
cases, this Court has decided an appeal from an order either granting or
denying attorney's fees pursuant to 41 P.S. § 407(b). See Continental
Bank v. Rosen, 585 A.2d 49 (Pa. Super. 1991) (affirming trial court orders
granting stays of execution and awarding attorney's fees under § 407(b));
First National Bank v. Koneski, 573 A.2d 591 (Pa. Super. 1990)
(reversing trial court order denying attorney's fees when appellant had
successfully petitioned to open confessed judgment; appellant prevailed in
action as required by § 407(b) notwithstanding fact that judgment still
valid); Drum v. Leta, 512 A.2d 36 (Pa. Super. 1986) (reversing trial court
order granting petition to strike judgment but denying attorney's fees;
award of fees to prevailing party mandatory under § 407(b)); Gardner v.
Clark, 503 A.2d 8 (Pa. Super. 1986) (affirming award of attorney's fees to
party who successfully avoided opposing party's attempt to enforce
judgment against residence, despite fact that underlying judgement still
valid). Although in none of these cases was the issue of the appealability of
the order directly addressed, we must assume that this Court implicitly
determined that the orders were, in fact, appealable.
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As noted supra, we may depart from the law of the case doctrine when
"the prior holding was clearly erroneous and would create a manifest
injustice if followed." Starr, supra at 1332. Even if this Court's prior
holding was "clearly erroneous," we find that no "manifest injustice" will
occur if we follow it and quash this appeal. Indeed, if we were to review the
merits of Bilinski's claims, we would affirm based on the well-reasoned
Opinion of the trial court.7
Therefore, because we conclude that we are bound by the doctrine of
the law of the case, we quash this appeal as interlocutory.
¶10 Appeal quashed.
¶11 Klein, J. did not participate in the decision of this matter.
7 The trial court concluded that the provision for attorney's fees under 41
P.S. § 407(b) was inapplicable because the writ at issue here was executed
against personal property, rather than real property as required by the
statute. Moreover, the court found that it was without jurisdiction to award
fees under the Bankruptcy Code. (Trial Ct. Op. at 3-4).
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