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2003 PA Super 17
TAMMY M. CUTLIP,
IN THE SUPERIOR COURT OF
LAWRENCE C. SHUGARS JR.,
No. 742 WDA 2002
Appeal from the Order entered on February 1,
2002, in the Court of Common Pleas of Clearfield County, Domestic
Relations Division, at No(s). 91-476-SD.
BEFORE: LALLY-GREEN, TODD, and POPOVICH, JJ.
OPINION BY LALLY-GREEN, J.:
Filed: January 14, 2003
Appellant, Lawrence C. Shugars Jr., appeals pro se from the order
entered on February 1, 2002, seizing assets from Appellant's bank account
in order to satisfy his child support obligations. We reverse and remand for
The factual and procedural history of the case is as follows. On
September 9, 1991, Tammy Cutlip ("Mother") filed a child support petition
concerning her daughter, C.C., born on December 21, 1986. Appellant
petitioned for a blood test and requested a jury trial to determine the
paternity of C.C. The tests determined a 99.91% probability that Appellant
was indeed the father. On June 18, 1992, a hearing officer determined that
Appellant should pay $25.00 per month in child support.1 In 1995, for
1 Appellant was given 10 days to file an appeal de novo from the hearing officer's
recommendation. The record does not contain any such appeal.
reasons which are not clear from the record, Appellant was incarcerated.
Appellant remains incarcerated in SCI Huntingdon.
On July 20, 1999, the court suspended the support order, effective
August 11, 1997, because the court determined that C.C. no longer resided
with Mother. The order stated that the case would be terminated "upon
payment of arrearages due the Department of Public Welfare." Docket Entry
On December 19, 2001, pursuant to 23 Pa.C.S.A. 4304.1 and 4305,3
the court issued an "Order to Freeze Assets," directing the First
Commonwealth Bank to freeze up to $1,236.16 in assets held by Appellant.4
The Domestic Relations Section (DRS) provided notice of the court's order to
Appellant on December 31, 2001. On January 29, 2002, Appellant filed an
"Objection to Seizure [sic] of Assets Notice." Appellant raised two
objections: (1) the bank account at issue was his prison account, which is
not subject to attachment as a matter of law; and (2) there was a mistake in
2 The record contains no information on the circumstances or the petition (if any) giving rise
to this order.
3 23 Pa.C.S.A. § 4304.1 sets forth, inter alia, the ways in which banks and other financial
institutions must cooperate with the domestic relations section in providing information
about child support obligors. Section 4305(b)(10)(iii) authorizes the domestic relations
section to attach and seize assets of the obligor held in financial institutions. The Rule of
Civil Procedure implementing these substantive provisions is Pa.R.C.P. 1910.23. See,
Pa.R.C.P. 1910.23 Official Comment.
4 Earlier, on November 9, 2001, the court issued an order to the State Correctional
Institution Huntingdon, directing the prison to withhold $100.00 per month from
Appellant's income in order to satisfy Appellant's outstanding support obligation. This order
is not at issue in this appeal.
the amount of overdue support. With respect to this second issue, Appellant
argued that the Domestic Relations Section (DRS) failed "to properly adjust
[his] arrearages" to reflect the fact that he is in prison. Docket Entry 21 at
2. The DRS received Appellant's Objection on January 29, 2002.5
On February 1, 2002, the court issued an "Order to Seize Assets"
pursuant to Pa.R.C.P. 1910.23. The order directed the First Commonwealth
Bank to seize up to $1,236.16 in assets held by Appellant. Appellant
responded by filing a timely notice of appeal from this order.6
Appellant raises one issue on appeal:
Does not the Office of Domestic Relations' failure to
judiciously dispose of the Appellant's substantive
objections to the notice of freezing/seizing of assets
violate the Pa.R.C.P., Rule 1910.23(b)?
Appellant's Brief at 4.
Appellant argues that the trial court failed to provide sufficient due
process to Appellant before seizing the assets in his bank account.7 We
5 Appellant's Objection was filed with the trial court on April 10, 2002, long after the entry
of the February 1, 2002 order at issue in this case.
6 The appeal was filed from prison by mail on February 28, 2002. On March 22, 2002, the
court ordered Appellant to file a Concise Statement of Matters Complained of on Appeal
under Pa.R.A.P. 1925. The court responded to all four issues in an Rule 1925 opinion dated
April 25, 2002.
On March 6, 2002, Appellant filed an Application for Stay/Supersedeas of the court's
order. Docket Entry 19. The court did not respond to this application.
7 There is no dispute that the DRS has standing to enforce the support obligation. See,
Middleton/DPW v. Robinson, 728 A.2d 368 (Pa. Super. 1999).
construe this issue as whether the court followed the applicable Rules of Civil
Procedure. Thus, we begin by reviewing the relevant rules.
Under Rule 1910.20(b)(3), "upon the obligor's failure to comply with a
support order," the order may be enforced under Rule 1910.23 by "attaching
and seizing assets of the obligor in financial institutions." The trial court
invoked Pa.R.C.P. 1920.23 in support of its order to seize Appellant's
assets.8 Rule 1910.23 provides, in relevant part, as follows:
Support Order. Enforcement.
Attachment of Assets Held by Financial
Upon identification of an obligor's assets held
by a financial institution, the court shall, upon
certification of the overdue support owed by the
obligor, enter an immediate order prohibiting the
release of those assets upon further order of court. .
. . Service of the order upon the financial institution
shall attach the asset up to the amount of the
overdue support until further order of court.
The domestic relations section shall provide
written notification of the attachment to the obligor.
The obligor and any joint owner of the account who
has been notified by the financial institution may
object to the attachment in writing or by personal
appearance before the domestic relations section
within 30 days after issuance of the notice. The
grounds for an objection are limited to the following:
(1) no overdue support exists under the support
order or there is a mistake in the certified amount of
overdue support; (2) there is a mistake in the
identity of the obligor; or (3) the account is not
subject to attachment as a matter of law.
8 Rule 1910.23 was adopted in 2000. We have not found case law interpreting this new
If no objection is made within 30 days after
notice was issued, the court shall, upon proof that
the obligor was properly served with notice of the
attachment, enter an order seizing the assets up to
the amount of overdue support owed. The order
shall be served on the financial institution and a copy
of the order provided to both parties.
In the instant case, there is no dispute that the court complied with
Rule 1910.23(a) by initially issuing a freeze order. Similarly, there is no
dispute that the DRS complied with Rule 1910.23(b) by sending notice of the
freeze to Appellant. Moreover, Appellant complied with his obligation under
Rule 1910.23(b) by filing written objections with the DRS within 30 days of
receiving notice of the freeze. We note that the rule does not require
objections to be filed with the Court; rather, they need only be filed with the
¶10 The problem arises with the fact that the Rule is silent as to what the
DRS or the court should do after the DRS receives timely objections. Rule
1910.23(c) states that if the obligor does not object within 30 days, the
court may immediately proceed to issue a seizure order. Pa.R.C.P.
1910.23(c). The Rule does not explain how the DRS or the court should
respond if it does receive timely objections. On the other hand, the Rule
implies, and common sense dictates, that the court should take some action
to consider and dispose of the objections before proceeding further with a
seizure order.9 This procedure will allow the court to consider the merits of
the objections at a time when it still has jurisdiction over the case.10
¶11 In the instant case, the record reflects that the trial court acted as if
no objections had been timely filed. The court did not consider Appellant's
objections, and did not issue any order disposing of the objections. Nothing
in the Court's Rule 1925 Opinion suggests that the court first considered
Appellant's objections before entering the seizure order. Rather,
approximately 31 days after the DRS notified Appellant of the freeze, the
court issued a seizure order without further comment. This procedure is not
contemplated by Rule 1910.23. Accordingly, we reverse the seizure order
and remand for the trial court to consider the merits of Appellant's timely-
filed objections. We express no opinion on the procedures that the court
and/or DRS may wish to take upon remand, or on the merits of Appellant's
¶12 Order reversed. Remanded for further proceedings. Jurisdiction
9 See, Pa.R.C.P. 128(b) (when interpreting the Supreme Court's intention in promulgating
a Rule of Civil Procedure, courts should presume that the Supreme Court intends the entire
rule to be effective and certain). We also note the "fundamental maxim of statutory
construction, `expresio unius est exclusio alterius,' [which] stands for the principle that the
mention of one thing in a statute implies the exclusion of others not expressed."
Commonwealth v. Spotz, 716 A.2d 580, 590 (Pa. 1998). This principle may be applied to
the instant case. If the Rule authorizes an immediate seizure order when no timely
objections are filed, it follows that the trial court may not issue an immediate seizure order
when timely objections are filed. Rather, the court should first dispose of the objections.
1 0 In the instant case, the court addressed the merits of Appellant's claims for the first time
in a Rule 1925 opinion, after the court was divested of jurisdiction to act.
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