Toscano, F. v. A. Bassaner, et al (memorandum)

Annotate this Case

Download PDF

J-A09042-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FRANK TOSCANO AND CHERYL TOSCANO, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA v. BASSANER LTD A/K/A BASSANER MOVING COMPANY, LTD A/K/A BASSANER MOVING AND STORAGE, AND ANDREW BASSANER Appellants No. 2088 EDA 2013 Appeal From The Judgment Entered June 10, 2013 In The Court of Common Pleas of Philadelphia County Civil Division At No(s): 011201636 BEFORE: BOWES, OTT, and JENKINS, JJ. MEMORANDUM BY JENKINS, J.: FILED JUNE 23, 2014 against the Bassaners in 2005. The Bassaners argue that the trial court lacked personal jurisdiction over Andrew Bassaner. This argument is not cognizable in revival of judgment proceedings. Moreover, the Bassaners litigated this issue without success during earlier stages of this case, so the law of the case doctrine bars them from raising it again. The Bassaners J-A09042-14 insurer extinguishes their right of recovery from the Bassaners. This argument is not cognizable within the narrow scope of revival proceedings. Moreover, payment from a collateral source such as the of their damages from the Bassaners. For these reasons, and for others discussed below, we affirm. in proper context. Andrew Bassaner was the principal of Bassaner LTD, a moving company. In 2000, the Toscanos contracted with Bassan another1. residence on July 31, 20002. 1 Bassaner LTD delayed delivery until For Summary Judgment (6/10/13), exhibit 1. 2 (June 3, 2013), exhibit B, pp. 8-10 (summarizing evidence that the Toscanos introduced in a July 2011 arbitration proceeding against the Bassaners in the American Arbitration Association). The evidence introduced during the arbitration proceeding is not in dispute, because as explained on pages 2-6, infra, (1) the Toscanos prevailed in the arbitration, (2) the trial court confirmed the arbitration award and 2 J-A09042-14 at the time of delivery3. The Toscanos filed a report with the Philadelphia Police Department, which informed them that Andrew Bassaner had been arrested for theft4. The Bassaners, it turned out, had been accused of illegally selling personal property of over 100 victims who had entrusted them to move their personal belongings 5. On August 20, 2000, the Toscanos accompanied the police to the -soaked and rat-infested warehouse in an attempt to recover their property6. The Toscanos could only find a few recovered items were all damaged7. Despite subsequent visits, the Toscanos only recovered one third of the items they had entrusted to the Bassaners8. In October 2000, the Toscanos filed a civil complaint and later an amended complaint against the Bassaners in the Court of Common Ple 3 Id., pp. 10-13. 4 Id., pp. 13-14. 5 Id., p. 19. 6 Id., pp. 14like Beiru Id., p. 14. A Id., p. 17. 7 Id.. pp. 14-16. 8 Id., pp. 15-19. 3 J-A09042-14 No. 1786. Both Andrew Bassaner and Bassaner LTD filed preliminary objections through Charles Kovler, Esquire, the same attorney who represents them in the present appeal9. In early 2001, the Toscanos discontinued their action in the trial court and commenced an action against the 10 . Bassaners in the American Arbitration Association On November 7, 2001, following a four-day hearing, an arbitrator awarded the Toscanos $177,675.00 in damages against the Bassaners11. On December 12, 2001, the Toscanos filed a petition in the trial court at December Term, 2001, No. 1636 to confirm the arbitration award. The docket at this caption number reflects that the Toscanos served the petition upon Andrew Bassaner on March 20, 2002, while he was awaiting criminal trial on hundreds of charges relating to his thefts as principal of Bassaner, LTD. On April 4, 2002, Andrew Bassaner pled guilty in the criminal division of the trial court to 174 theft-related charges12. The trial court sentenced him to 2-4 years of 9 ket entries from action at October Term, 2000, No. 1786. 10 Id. 11 Id., exhibit 6. 12 Judgment Of Revival, p. 12 n. 12 (filed April 30, 2013). In addition, this Court takes judicial notice of Andr CP-51-CR-0405441-2001. , 139 A.2d 560, 563 4 J-A09042-14 incarceration plus 21 years of probation and ordered him to pay over $1 million in fines and restitution13. The Bassaners filed preliminary objections to strike service of the petition to confirm, which the trial court sustained. In October 2003, the Toscanos filed an amended petition to confirm the arbitration award, and after multiple attempts, they successfully served the amended petition on both Bassaner, LTD and Andrew Bassaner. On November 19, 2003, the Bassaners filed a motion to vacate the award insisting the AAA arbitrator lacked jurisdiction over Andrew Bassaner and therefore had no authority to enter an award against him personally14. On April 22, 2004, the trial court denied the motion to vacate the award15. On April 26, 2005, the trial court award and entered judgment against the Bassaners in the amount of he entire record of this estate, including the record before the various courts, was admitted into evidence and, even if it were not, we could tak 13 Id. 14 R.R. 148-157a. 15 Trial Court Docket, December Term, 2001, No. 1636. 5 J-A09042-14 $177,675.0016. This Court subsequently held that the April 26, 2005 order was a final, appealable order for purposes of appeal17. On July 5, 2005, the Bassaners appealed to the Superior Court at 1934 EDA 2005. The Toscanos moved to quash this appeal as untimely. In an answer to the motion to quash, the Bassaners claimed that they had the right to appeal nunc pro tunc, because they never received service of the April 26, 2005 order confirming the arbitration award (or, for that matter, service of the October 2003 amended petition to confirm the arbitration award). On September 12, 2006, this Court remanded the case for an evidentiary hearing on the issue of service18. On February 6, 2007, the trial court entered findings of fact and conclusions of law determining that Andrew Bassaner received valid service of the amended petition on October 15, 2003 at the Alternative and Special Detention Work Release Center, where he was serving his criminal sentence19. The trial court also determined that on or after November 18, 2003, counsel received service of the amended petition on behalf of Bassaner LTD20. Finally, the trial court 16 R.R. 164a. 17 Toscano v. Bassaner, 1934 EDA 2005, slip op., pp. 5-6 (8/3/07). 18 Toscano v. Bassaner, 1934 EDA 2005, slip op. (9/12/06). 19 R.R. 166-168a. 20 Id. 6 J-A09042-14 found that the Bassaners received notice of the April 26, 2005 order confirming the arbitration award21. On August 3, 2007, based on the EDA 200522. Between 2007 and 2013, the Toscanos did not pursue collection efforts on the judgment because they believed the Bassaners were insolvent. This changed on January 23, 2013, when a Florida attorney notified the Tosca central Florida under an alias and apparently had significant financial resources, since he was renting a home for $14,000 a month and driving a luxury car23. The following day, the Toscanos filed a praecipe for writ of revival of the 2005 judgment24. On February 14, 2013, the Toscanos served the writ of revival on Andrew Bassaner during his violation of parole hearing in Philadelphia25. 21 Id. 22 Toscano v. Bassaner, 1934 EDA 2005, slip op. (8/3/07). 23 24 Trial court Docket, December Term, 2001, No. 1636. 25 Writ Of Revival, p. 5). Andrew Bassaner objected in the trial court to service of the writ while he was in custody, but he does not raise this objection in his appellate brief. 7 J-A09042-14 On April 15, 2013, the Bassaners filed an answer requesting the trial court to strike the writ of revival because (1) it lacked jurisdiction over Andrew Bassaner; (2) the compensation that the Toscanos received from their own insurance company constituted a satisfaction of their judgment against the Bassaners; (3) the release that the Toscanos signed with their own insurance company extinguished their attorney was a fraudster26. Furthermore, on April 14, 15, and 16, 2013, the Bassaners served discovery requests on the Toscanos27. On April 30, 2013, the Toscanos filed a motion for judgment on their writ of revival28. One week later, the Toscanos filed a motion for 29 . On May 14, 2013 and May 31, 2013, without obtaining leave of to the writ of revival30. 26 R.R. 24-31a. 27 R.R. 51-56a. 28 R.R. 37-45a. 29 R.R. 46-50a. 30 On June 10, 2013, the Bassaners filed a R.R. 120a. 8 J-A09042-14 motion for summary judgment, but the prothonotary did not docket this motion until June 11, 201331. In an order signed on June 10, 2013 and docketed the next day, of revival and ordered the prothonotary to enter judgment of revival against the Bassaners32. Presumably, when the trial court signed the On July 2, 2013, the Bassaners filed a notice of appeal to this Court33 undecided. motion for summary On July 19, 2013, the Bassaners filed a statement of matters complained of on appeal34. for sum protective order35. 31 See trial court docket. 32 R.R. 129a (showing that court signed order on June 10, 2013); see also docket (showing date of entry on docket). 33 See trial court docket. 34 Id. 35 Id. 9 J-A09042-14 Having outlined the procedural history of this case, we now Generally, an appeal is only permissible from a final order unless otherwise permitted Appalachian by Timber statute or Products, rule of Inc., 72 court. A.3d Zitney v. 281, 285 (Pa.Super.2013) (citing Fanning v. Davne, 795 A.2d 388, 391 (Pa.Super.2002)). Here, the trial court clearly intended its June 11, 2013 be a final determination. Technically, however, there was no final ed undecided. Nevertheless, we have jurisdiction over this appeal pursuant to notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the Under Rule 905(a)(5), when an appeal is filed after a final determination but before entry of judgment, the entry of judgment perfects what otherwise would be a premature appeal. See Jones v. Rivera, 866 A.2d 1148, 1149 n. 1 (Pa.Super.2005) (under Rule 905(a)(5), appeal filed after the denial of post-trial motions was perfected through subsequent entry of judgment). 10 J-A09042-14 their notice of appeal, it subsequently was perfected by the entry of th order. Stated in terms of Rule 905(a)(5), the June 11, 2013 order was questions presented: 1. Is lack of contractual in-personam jurisdiction and failure to serve Andrew Bassaner personally with a notice of claim before the [AAA] a non-waivable defense unless a signed submission form is presented to the arbitrator which if proven renders the judgment void as a matter of law and can that defense be raised in defense to a writ of revival? 2. Are the verifications of defense sufficient that asserted no in personam jurisdiction over Andrew Bassaner, recovery of property in kind that may be considered payment of the judgment, general release and res judicata sufficient to permit discovery to develop the defenses and was it an abuse of discretion by the court to deny discovery where the plaintiffs and their counsel have engaged in a heroic effort to conceal by fraud and conspiracy the fact that they have recovered their property and is that de facto payment of the lien of judgment thus a defense to the writ of revival? 36 36 twenty issues raised in their Pa.R.A.P. 1925(b) statement of matters complained of on appeal, a number approaching the level of prolixity that we cautioned against in Kanter v. Epstein, 866 A.2d 394 (Pa.Super.2004) (quashing appeal due to extraordinarily lengthy Rule 1925(b) statement). 11 J-A09042-14 Bassaners do not have the right to contest jurisdiction in a proceeding to revive a judgment. The only cognizable defenses in a proceeding to revive a judgment lien are that the judgment does not exist, has been paid or has been discharged. , 634 A.2d 645, 649 (Pa.Super.1993). The claim that the AAA arbitrator lacked jurisdiction over Andrew Bassaner falls outside this narrow class of defenses. Even if this defense were cognizable in a revival proceeding, the Bassaners previously litigated this issue without success during an earlier stage of this case. In November 2003, after the Toscanos filed their amended petition in the trial court to confirm their AAA arbitration award, the Bassaners moved to vacate the award on the ground that the AAA arbitrator lacked jurisdiction over Andrew Bassaner. In April 2005, the trial court rejected this argument and judgment against the Bassaners. The Bassaners had the right to appeal this decision, but their appeal was quashed as untimely in A AAA had jurisdiction over Andrew Bassaner is no longer subject to challenge. Garrison v. Erb, 227 A.2d 848, 849 (1967) (where issues raised in mortgagors' petition for resale of property at sheriff's sale 12 J-A09042-14 with a rule to show cause were adjudicated against the mortgagors, and their appeal from that decision was quashed, issues could not be relitigated in subsequent action to quiet title). Moreover, under the law of the case doctrine, the trial court could not reopen jurisdictional questions during revival of judgment proceedings that it decided in the course of affirming the arbitration award in 2005. Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa.1995) (law of the case doctrine embodies concept that a court involved in the later phases of a litigated matter should not reopen questions decided by the same court in an earlier phase)37. In their second argument on appeal, the Bassaners contend that the trial court should have permitted discovery during revival proceedings on the issues of (1) jurisdiction over Andrew Bassaner, (2) recovery of property in kind that may be considered payment of the judgment, (3) general release and (4) res judicata. None of these subjects warrant discovery. The trial court stated that this argument fails because the Bassaners raised these defenses in supplemental 37 Although the trial court opinion did not mention Garrison, Starr or the concepts therein, we may affirm on any ground that appears in the record. Commonwealth v. Truong, 36 A.3d 592, 593 n. 2 (Pa.Super.2012) (en banc for any reason, including such reasons not considered by the trial 13 J-A09042-14 answers to the writ of revival without seeking leave of court or the 38 . We agree with the reasoning of the distinguished trial court, and we also affirm on other grounds rooted in the record. Truong, supra. First, as discussed above, the Bassaners have no right to challenge jurisdiction over Andrew Bassaner in this stage of the case. laim that the Toscanos concealed their recovery of property falls outside the three types of issues that the Bassaners can raise in revival proceedings. Balsamo, supra. Whether the Toscanos recovered items is irrelevant to whether this judgment exists (it clearly does), whether it has been paid (it clearly has not), or whether it has been discharged (it clearly has not). Even if this defense were cognizable in revival proceedings, it is devoid of merit. The Toscanos testified during the arbitration in 2001 that they had recovered various items, all of which were damaged. There is no evidence that the Toscanos concealed recovery of any items. Third, the Bassaners assert that the Toscanos signed a release with their insurance company, Lititz, in order to receive $52,000 in insurance proceeds for damaged property. The Bassaners take the novel position that this release somehow operates to release the Bassaners in full. 38 Once again, this claims falls outside the three Trial Court Opinion, 8/18/13, p. 5. 14 J-A09042-14 cognizable issues in revival proceedings: (1) whether a judgment exists, (2) has been paid or (3) has been discharged. Even if we reviewed this claim on the merits, it would fail, for under the collateral source rule, the Bassaners obtain no benefit from payments by Lititz to the Toscanos. Nigra v. Walsh, 797 A.2d 353, 356 (Pa.Super.2002) source shall not diminish the damages otherwise recoverable from the see also Beechwoods Flying Service, Inc. v. Al Hamilton Contracting Corp., 476 A.2d 350, 352 (1984) (collateral redress for his or her injury merely because coverage for the injury n addition, the plain language of the release does not apply to the Bassaners. employees, agents, insurers and attorneys, of and from any further 39 claims or liability under a poli The Bassaners do not fall within any of these categories. Finally, the Bassaners have waived their res judicata argument by failing to develop it in their brief or citing to any relevant authority. In Re S.T.S., Jr., 76 A.3d 24, 42 (Pa.Super.2013) (issue is waived 39 R. 118-119a. 15 J-A09042-14 when appellant fails to develop his issue in an argument and fails to cite any legal authority). to quash appeal denied as moot. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/23/2014 16

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.