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J. A46016/97
More recently, in CrtJ,skey I'. Cro.skey, 306 Pa. 423, 160 A. 103 (1932), our
supreme court noted that the common law presumption of payment of a debt,
which arises twenty years atler entry of judgment, is to be measured, not from the
entry of the original judgment, but IrOln the entry of judgment on the sd/'e.ftlda,\'.
/d. at 426, 160 A. at 104. As the supreme court stated:
[I)t may be observed that we are not dealing with the
original judgment or with a presumption of its payment,
the judgment in question is that entered on the scL fa., as
to which, of course, there is no presumption. It was
entered within twenty years of the issue and service of
the seL fa. Indeed, as to the original judgment, the law is
to the contrary, the sci. fa. to revive it having issued
within twenty years.
/d. at 426, 160 A. at 104. The court observed that in the cases relied upon by
defendant, the presumption of payment was upheld because of the pendency of the
sci.la. for more than twenty years. /d. 'I
Likewise. in Davis v. Davis, 174 F. 786 (1909), the Circuit Court of Appeals
for the Fourth Circuit observed, "unlike the practice in England and in most of the
of 1705, sect. 9, 1 Sm!.. 57, 61 (1810). The Supreme Court docs not appear to have shared this
view of Dllff. See .fllp,.lI,
'I The trial court had dissolved un auaehment served on a garnishee tllr three reasons, two of
which lire relevant herc: I) the presumption ofpaymcnt lifter tIVenty years from thc entry of the
original judgment; lInd 2) the upplieability of the Act of May 19. 1887. In addition to the reasuns
stated above Illr reversul. the supreme court also Illllnd that the Act of May 19, 1887 did not
apply because u writ of attachment sur judgment is notu writ of execution. lei. at 426-427. 160
A. at 104.
- 10-
J, A46016/97
(setting forth a New Mexico statute oflimitations providing that actions founded
on any judgment may be brought within seven years "lrom and after the rendition
or revival of the judgment, and not atlerward[J"). We must remember, however,
that because "this Court's formal purpose is to maintain and effectuate the
decisional law of our supreme court as faithfully as possible, we are not authorized
to create or adopt a new standard," Dominick I'. SllIle,mullIlm. Co., 692 A,2d 188
(Pa.Super. 1997), appeal denied, No, _, 1998 Pa. Lexis 466 (Pa. March 18,
1998), citing Commonwellltll,'. Dugger, 506 Pa. 537, 545,486 A.2d 382, 386
( 1985).
As long ago as 1740, the writ ofscirelacia.l' in Pennsylvania took a path
different from the one taken by a majority of jurisdictions. The legislature must
have been aware of that fact when it drafted S 5529(a). We do not believe we
violate either the spirit or the letter of * 5529(a) by allowing ajudgment creditor to
execute on a judgment within twenty years of its revival. If either the supreme
court or the legislature disagrees, they are in a better position than we to effeet
change.
For all of the foregoing reasons, we aftirm the trial court's order granting
summary judgment as to Shearers and denying summary judgment as to
Natlzingers.
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J-49-1999
Associates InvestiQative and ConsullinQ Svcs., Inc, v, GPI LId.. Inc., 711 A.2d 506, 508
(Pa. Super. 1998), Therefore, ~ 5529 prevents a judgment creditor frorn satisfying its
judgment by executing against the personal property of the debtor more than twenty
years after the judgment was entered, A judgment lien, however, merely "prevents a
debtor from encumbering or conveying any real property he might own in such a way as
to divest the effect of the judgment, [and] also prevent[s] later lienholders from satisfying
their debt without first paying the earlier lien," Mid-State BanI< and Trust Co, v,
Globalnet Int'llnc" 710 A.2d 1187, 1192 (Pa, Super, 1998) (quoting In re UDset Sale,
505 Pa, 327, 334,479 A.2d 940, 943 (1984)), Thus, a writ of revival of a judgment lien
does nothing more than preserve the judgment creditor's existing rights and priorities,
The Shearers did not file a writ of execution in anticipation of satisfying their
judgment against the Naftzingers; they merely filed a writ of revival. The plain language
of ~ 5529 concerns execution against the lien property only and expresses no time
limitation on filing a writ of revival of the judgment lien, Thus, the twenty-year statute of
limitations in ~ 5529 regarding execution against personal property does not constitute a
defense to a writ of revival.
It is well settled that this Court may affirm the decision of the immediate lower
court on any basis, without regard to the basis on which the court below relied, Donnellv
v, Bauer, 553 Pa, 596, 720 A.2d 447, 454 ('1998); Adams Sanitation Co.. Inc, v,
Commonwealth DeD't of Envtl. Protection, 552 Pa, 304, 715 A.2d 390, 396 (1998); E.J,
McAleer & Co, v, Iceland Products, Inc" 475 Pa, 610,613 n.4, 381 A.2d 441, 443 n.4
(1977), In affirming the grant of summary judgment in favor of the Shearers, the
Superior Coun delves into a complex analysis of real versus personal property
-3-
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J-49-1999
judgment liens. It then relies on this discussion to determine whether a writ of revival
restores the running of the statute of limitations against execution upon personal
property, We believe that because ~ 5529 is not a defense to the entry of a writ of
revival of a judgment lien we need not go through such an analysis, Therefore,
although we find that the Shearers' motion for summary judgment was properly granted,
we do so based on the plain meaning of ~ 5529,
The order of the Superior Court is therefore affirmed,
Mr, Justice Zappala files a concurring opinion in which Messrs, Justice Cappy,
Castille join.
JUDGMENT ENTERED:
03/06/00
Shirley B
Chief Cler
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judgment, therefore in this case the twenty year limitation period for the Shearers to
execute on personal property of the Naftzingers had not expired,
This analysis confuses a judgment with the lien against real property established by
a judgment, and misapprehends what it is that is revived, A money judgment acts as a lien
against real property, but only for five years, The lien must be continued (or revived) to
maintain (or obtain a new) place of priority, However, properly speaking, it is the lien that
is revived, not the judgment, There Is no outer time limit to executing against real property
to satisfy a judgment, but the proceeds of such a sale must be distributed according to the
priority of liens, Thus the Shearers can revive the judgment lien as often as they wish and
execute against any real property the Naftzingers might come to own in the future,1
Different rules apply with respect to personal property. A judgment continues to
exist. and can be executed on by having the sheriff sell personal property,. whether or not
a writ of revival Is ever filed, Again, it is the lien against real property that is revived, not the
judgment. Section 5529 simply places an outer limit of 20 years on executing against
personal property to satisfy a judgment. Thus, in this case, the Shearers are no longer able
to execute against personal ~"perty to satisfy the $9,600 judgment they obtained In 1974,
The fact that the Shearers can no longer execute against personal property to
satisfy the judgment, however, is irrelevant to whether they can continue or revive the lien
against real property, In terms of the particular question presented in this case, 42 Pa,C,S,
~ 5529 Is not a defense to their proceeding to revive and continue the lien of judgment.
Accordingly, the grant of summary judgment In favor of the Shearers is properly affirmed,
Perhaps a more common scenario would be that if the Naftzingers attempted to
obtain a mortgage loan to purchase real property, the lender would require as a condition
of approval that the Shearers' judgment be satisfied, because otherwise the Shearers' lien
might have priority over the lender's,
[J-49-1999] - 2
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PAGE 00.
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Among the Rccnnh and Prncccdin~\ cnrollL'd in Ihe court 01' Cummon Pleils in and fur Ihe
counlyor
Clrnherl ilnn
No. 104 IIBG 19n
96-1437 Civil Tenn
Term, 19
j", \-'untailled the following:
in the Commonwcalth or Pcnn\yhrania
10 No,
COl'Y OF
^nncarflnre
(lOCKET ENTRY
Paul E. Shearer and Jeanne Shearer
vs.
Charles w. Naftzinger and Elizabeth A. Naftzinger
June 19, 1996, Praecipe for Writ of Revival ilnd Writ of Revival, issued.
Please issue writ of revival of jungnent entered in this Court ilt Civil
Tenn, 19B9 No. 2029 ilnd index it in the judgnent index against Charles W.
Naftzinger and Elizabeth A. Naftzinger in the urrount of $9,GOO.OO with
interest from May 10, 1984.
By: Robert E. Myzrs, Esq.
June 25, 1997, Sheriff's Return of Service, filed.
July 11, 1996, Answer With New Miltter, filed.
July 29, 1996, Reply to New ~Iatter, filed.
Aug. 1, 1996, Answer with New Matter, filed.
Oct. 25, 1996. Affidavit, filed.
Nov. 12, 1996. Plaintiffs' Motion for Summary Judgnent, filed.
Nov. 15, 1996, Plaintiffs' Praecipe to Append Motion for S~m<,ry Judgment,
filed.
Nov. 18, 1996, Praecipe for Listing Case for Argument, filed.
By: I.. C. Heim, Esq.
Dec. 4, 1996, Motion for Summary Judgment, filed.
Dec. 23, 1996, Stipulation, filed.
It is hereby stipulated between counsel for the Plaintiff and counsel
for the Defendant that with regard to the above matter that both the Plain-
tiff's and the Defendant's Motion for Summary Judgment shall be decided bas
upon the briefs subnitted and the argument held on December 11, 1996.
By: L. C. Heim, Esq.
Richard W. Stewart, Esq.
Jan. 2. 1997, Opinion and Order of Court, filed. In Re: Plaintiffs' Motion
for Surnnary Judgment: Defendants' Motion for SumtliJry .ludgnent
AND NOd, this 2nd day of January, 1997, upon consideration of Pla'ntiff '
Motion for Summary Judgnent and of Defendants' Motion for Summary .Judgment,
Plaintiffs' rrotion for s~l1nary judgnent is GRJ\NTED ilnd Defendants' motion is
DENIED.
By the Court, Harold E. Sheely, P.J.
Jan. 31. 1997, Notice of Appeill, fil~l.d
Notice is hereby given thilt Cllilrles W. Naitzinger and Elizabeth A.
Naftzinger, his wife, Defendants above niJ/l1ed, hereby ilppeal to the Superior
Court of Pennsylvaniil fran the Order entered in this lnatter on the 2nd day
of Jilnuary, 1997. This Ortler has been entered in the docket as evidenced by
the attached copy of the docket entry.
By: Ric~lrd W. Stewilrt, Esq.
Feb. 7, 1997, Superior Court of Pennsylviln:iil Notice of Appeal IXJckeUng 1:0
Case No. 104 1113(; 1997, fiJ ~1.
Briefs
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0079I3-OOOOlIloly 5. 1996IRWSIM1U5467J111'\
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7. On or about May 10, 1984, the Ptaintlffs filed a Praecipe for a Writ of Revival agal!lSt the Defendants
In the Court of Common Pleas of Cumberland County, Pennsylvania to number 1360 Civil Term 1984 In which the
Plaintiffs purported to revive a judgment entered to number 2382 Civil Term 1979.
8. In the Praecipe for Writ of Revival flied to number 1360 Civil Term t984, no reference was made to
the judament entered to number 6tO September Term 1974,
9, No judament of revival was ever entered In the action entered to number 1360 Civil Term 1984.
10. On or about June 7, 1989, the Plaintiffs filed a Praecipe for a Writ of Revival In the Court of Common
Pleas of Cumberland CountJ, Pennsylvania entered to number 2029 Civil t 989 purporting to revive a judgment
purportedly entered to number 1360 Civil Term 1984,
11, The Praecipe for Writ of Revival filed to number 2029 Civil Term 1989 made no reference to the
judgment entered to number 6tO September Term 1974 nor to the action commenced to number 2382 Civil Term 1979.
12. No judgment was ever entered in the action docketed to number 2029 Civil Term 1989.
13. On or about June 19, 1996 Plaintiffs filed a Praecipe for Writ of Revival to the term and number set
forth above purporting to allemptto revive a judgment purportedly entered to number 2029 Civil 1989.
14, In the Praecipe for Writ of Revival filed to the above term and number, no reference was made to the
judgment entered to number 610 September Term 1974 nor to the actions docketed to number 2382 Civil Term 1979
and numbers 1360 Civil Term 1984.
t5. The cause of action averred in the Plaintiffs' Praecipe for Writ of Revival arose more than twenty years
after the entry of the judgment of the Plaintiffs entered against the Defendants to number 610 September Term 1974
and Is barred by the statute of limitations set forth in 42 Pa,C.S,A. 5529,
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As used herein, "Defendants," "you" and "your" means the Defendants to which these requests
for admissions and accompanying interrogatory arc addressed, its ofticers, employees, agents,
servants, assigns, representatives, past and present, and each and every attorney, past and
present, of each and every such individual or entity,
2, These requests for admissions and aceompanying interrogatory encompass all
information, documents and records that arc in the possession, control, or custody of Defendant
or any of its officers, employees, agents, servants, attorneys and assigns.
3. If any obj~ctions are made to any request for admission or to the accompanying
interrogatory, the reasons therefor shall be st.lted,
4, If there is any claim of privilege rclating to any request to admit, or interrogatory,
you shall set forth fully the basis for the claim of privilege, including the facts upon which you
rely to support the claim of privilege in sufficient detail to permit the court to rule on tbe
propriety of the privilege,
5. If your response to any request i~ not an unqualified admission, your answer shall
specifically deny the matter or set forth in detail the reasons why you cannot truthfully admit or
deny the matter.
6, A denial shall fairly meet the substance of the requested admission, and when good
faith requircs that you qualify your answer or deny only a part of the matter of whieh an
admission is requested, you should specify so much of it as is true and qualify or deny the
remainder,
7. You may not give lack of information or knowledge as a reason for failure to admit
or deny, unless you state that you have made reasonable inquiry and that the information known
to you or readily ob:ainable by you is insufticientto enable you to admit or deny.
8. These requests for admission and interrogatory are continuous in nature and must be
supplemented promptly if Defendants obtains or learns further or different information between
the date of the response and the time of trial by which Dcfendants knows that a previous
response was incorrect whcn made. or though corrcct when made, it thcn no longer true,
9. Unless otherwise indicatcd, the time period to which thesc requcsts for admission and
interrogatory are directed is from on or about July 12 , 1974 through the present.
10, This request seeks the admission of the genuineness of various documents. In some
cases, there are printed number and letter codes that run along the bottom of particular
documents, In other cases, the word "evidence" and other identification marks may be affixed
to the document. Such number. Ictters and identi fying words were aftixcd during thc
accumulation and copying of the documents for this casc and are not to be considered part of
the document itself, except for purposes of referencing the document. The request docs not seek
2
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0079I),oooollluI130, lii6lllWSIDC
17_,
PAUL E, SHEARER and
JEANNE SHEARER, his wif~,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 2382 CIVIL TERM t979
vs,
CIVIL ACTION. LAW
CHARLES W. NAFTZINGER and
ELIZABETH A, NAFfZINGER. his wif~,
Defendants
NOTICE TO PLEAD
TO: Paul E, Shearer and Jeanne Shearer. his wife
You are hereby notified to tile a written response to the enclosed Answer with New Matter within twenty (20)
days from service hereof or a judgment may be entered against you,
Respectfully submilled.
JOHNSON, DUFFIE, STEWART & WEIDNER
By: .-;q(1 ~:--d;:;.}l
Richard W, Stewan
1.0, No, 18039
301 Market Street
p, O. !lox t09
Lemoyne, PA 17043.0109
(717) 761-4540
Allorneys for Def~ndants
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CERTIFICATE OF SERVICE
Thc undersigned hercby eerti fics that a truc and corrcct copy of thc forcgoing
was scrvcd upon the following pcrson on this datc by dcpositing a copy of samc
in the United States mail, postage prepaid, addresscd as follows:
Richard W, Stewart, Esquire
JOHNSON, DUFFIE, STEWART & WEIDNER
301 Market Strcet
P,O. Box 109
Lemoyne, PA 17043-0109
DATE: kll \ \(D\\qq~
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C. Hcim
45 East Market Street
York, PA 17403
(717) 854-5124
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IS TilE COl-'RT 01. CO\I.\IO:\ I'l.L\S 01 Cl!\IIlI.Rl.,\Sll cutSr)', I'I.SSSYlS,\SI'\
p,\UL [, SHEARER and
JEANNE A, SHE:\REJ(, hi, wif~,
1'/lIiI/IU/I
C\I.il :\,'tion - I.aw
\'s,
No, 'N,N-:.1S]
CHARl.ES W, NAI'TZIN(jER and
ELIZ:\lIETH :\. N:\j.TI.IN(iER, his \\if~,
{)e/i'lIdlll/l.1
EL6.l!'{.!JiJ S~ _KL<2UJSU.:()IL\ !),,' US5ICX-::S b:--:J lAC( :()~11.' !\]';_y .I.~(i_
!JSJ!J( IW~L:\JI)g)'__T<) 1)1 J j.r-; )),\ NT
)\'JJJU~I().l.USrL<:WJ~!(QI)tIC!JO~()!. .I )()(~I'~.II:J'!JS
TO: Charks W, Naftzin~L'r and
Elinh~th :\, t\aftzinfL'r
:]23 Hald~lllan "wnUL'
N~w CUlllberl;lI\d, 1':\ 17070
Pursuant to I';\.R,(',I', No, ':01':, I'laintifl" I':\tlt. L SHEARER and JEANNE A,
SI-ll,:\RER, by th~ir un(krsifn~d attorneys, hereby rL';lu~st' th.lt Ilc't'L'ndants Illake the following
admissions within thirty d;\y' after s,'rvi~e, for the IHlrJhIS'" nf this actinn nnly and suhject to
all pertinent ohje(.tions as to rL'kvan~y which 1\1;\Y he interpcl,~d <It the tri;t1 of this case, In
addition, pursu;\I11 to I'OI,IU' ,1', No, 4005, Plainti ff hereby requests that Defendants anS\\'L'r
under oath the foll,'wing internlgatllry, Responses tel these requests and interrogatCIry are to be
servcd within thirty ,I.1Y5 alkr servicc upon Plaintiff's an"rney at the Of lice of Kathern~an &
Heim, P,c,. .1-;5 F;"t ~larkel Street. York, Pennsylv.\I1ia 17,\0.1, In addition, pursuant to
1'.I.R,I',(',p, /';0, .;(il)), I'iailllifl' h~rehy requL.;I; the plL1du~til'n (If the following documents hy
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for adrnis<.;ioll) and ;l':~omp.1nyir\g int~rr()~at(lry arl: addrc:sl;jcd, ih (lfliccr~, t.'l1lployc('s, agents.
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the dale of Ih~ rc.;p,1:t\C ;\1\(\ 11:;' time of tri;11 by I'.hi,'h D;'knd;uII' kn(w:~ that a previous
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5"1
0079lJ.OOOOI/Do..mb,,3. 1996IllWSIDCP" '43
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-3437 CIVIL TERM
PAUL E, SHEARER and
JEANNE SHEARE&, his wife,
vs.
CIVIL ACTION. LAW
CHARLES W. NAFTZINGER and
ELIZABETH A, NAFTZINGER, his wife.
Dcfendants
BRIEF IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
AND IN SUPPORT OF TIlE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I. HISTORY OF TIlE CASE
On or about July 12, 1974, the Plaintiffs entered judgment by confession against the Defendants in the amount
of $9,600.00 in the Court of Common Pleas of Cumberland County, Pennsylvania, to No. 610 September Termt974,
on a Judgment Note that bears a date of July 13, 1965. On or about May 29, 1979, the Plaintiffs filed a Praecipe for
Writ of Revival to revive the judgment entered to No. 610 September Term 1974 in the Court of Common Pleas of
Cumberland County to No. 2382 Civil Term 1979. At no time was a judgment of revival entered in the preceding
file to No, 2382 Civil Term 1979,
On or about May 10, 1984, the Plaintiffs filed a Praecipe for Writ of Revival against the Defendants in the
Court of Common Pleas of Cumberland County, Pennsylvania, to No. 1360 Civil Term 1984, in which the Plaintiffs
purported to revive a judgment entered to No. 2382 Civil Term 1979. In the Praecipe for Writ of Revival filed to No.
1360 Civil Term t984, no reference was made to the judgment entered to No. 610 September Term 1974, No
judgment of revival was ever entered In the action entered to No, t360 Civil Term 1984.
On or about June 7, 1989, the Plaintiffs filed a Praecipe for Writ of Revival in the Court of Common Pleas
of Cumberland County, Pennsylvania, cntered to No, 2029 Civil Term t989 purporting to revive a judgment
purportedly entered to No, 1360 Civil Term t984, A Praecipe for Writ of Revivat filed to No, 2029 Civil Term 1989
made no reference to the judgment entered to No. 6tO Civil Tcrm 1974 or to the action commenced to No. 2382 Civil
Term 1979. No judgment was ever entered in the action docketed to No. 2029 Civil Term 1989.
~I
0079U.ooooliDoc.mb.rJ, 199dIRWSIDCP' ~J
On or about June 19, 1996, the Plaintiffs flied a Praecipe for Writ of Revlvat In the Court of Common Pleas
of Cumberland County, Pennsylvania, to No. 96,3437 Civil Term, purporting to attempt to revive a judgment
purportedly entered to No, 2029 Civil Ttrm 1n9, In the Praecipe for Writ of Revival filed to No. 96,3437, no
reference was made to the judgment entered to No. 6tO September Term 1974 or the actions docketed to No, 2382
Clvll Term 1979 and No, 1360 Civil Term t984,
The Defendants flied an Answer with New Matter alleging that the action was barred by the statute of
limitations.
The Plaintiffs filed a Motion for Summary Judgment referencing No. 96-3437 and No. 79-238t, thus creating
some confusion as to what matter Is before the court, The Defendants have filed a cross motion for summary
judgment to No. 96-3437 which matters are before the Court for consideration,
II. ARGUMENT
Nothing lasts forever including a judgment. 42 Pa. C,S.A.(a) provides that:
. An execution against personal property must be Issued within 20 years after the elltry of the judgment
upon which the execution Is to be Issued,.
Since the original judgment was entered In 1974, no execution can be had on It or any of the unperfected or
perfected revival actions since the revival of a judgment Is nothing but a continuation of the original action. As Qur
Supreme Court stated in Elrod v, Hazlett's Administrator. 38 Pa, 16 (1860) at p. 32:
The revival of the original judgment is but a continuation of it, In form, the proceeding by s.d.fi. is
a distinct action, but, in fact, is not so, Satisfaction of the original judgment is satisfaction of the
judgment in lliJ'L'
The purpose of the revival action is to extend a lien upon real estate but the revival cannot extend the lien
beyond the life of the judgment itself, The case of Davis v, Davis, 174 F. 786, 98 C.C.A. 494 (1909), contains a
good discussion of the two acts that are predecessors of 42 Pa. C.S,A, 5529 and 42 Pa. C,S.A, 5526. The life of a
lien against real estate is five years unless revived but the judgment itself is not dead, The judgment itself has a life
tel
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NO. 96-3437 CIVIL TERM
Term 1974 (Cumberland County).' Praecipes for writs of revival
were filed on May 29, 1979, May 10, 1984, and June 7, 1989.'
On June 19, 1996, Plaintiffs filed the praecipe for writ of
revival presently at issue.' It is undisputed that the judgment
debt in question has never been paid.'
Defendants have interposed the statute of limitations quoted
above,' arguing that "[ s] ince the original judgment was entered in
1974, no execution can be had on it or any of the ... revival
actions since the revival of a judgment is nothing but a
continuation of the original action. ,,7
Stated succinctly,
, See Brlef in Support of Plaintiffs' Motion for summary
Judgment, at 1; Brief in "Opposition to Plaintiffs' Motion for
Summary Judgment and in Support of the Defendants' Motion for
Summary Judgment, at 1.
, Defendants' Answer with New Matter, paragraphs 5-12;
Plaintiffs' Reply to New Matter, paragraph 5-12. It is not
suggested by Defendants that judgment was not entered on the most
recent writ. See Defendants' Answer with New Matter.
,
This praecipe references the previous revival action in
1989.
, See Affidavit, filed October 25. 1996 (Plaintiffs' Request
for Admissions).
· Defendants' Answer with New Matter, paragraph 12 (filed
August 1, 1996). This pleading apparently superseded a filing by
Defendants on July 11, 1996.
1 Brief in Opposition to Plaintiffs' Motion for Summary
Judgment and in Support of the Defendants' Motion for Summary
Judgment, at 2.
2
70
.-...,
--
NO. 96-3437 CIVIL TERM
revivals of judgment liens." It would be anomalous for a judgment
lien upon realty to be capable of indefinite duration while a
judgment debtor's personal property would be automatically exempted
from execution at a certain point. In this regard, it is not to be
presumed that the legislature intended an absurd or unreasonable
result.
Act of December 6, 1972, P.L. 1339, S3, 1 Pa. C.S.
S1922(1) .
Second, statutes of limitations with respect to enforcement of
judgments have traditionally been calculated from the most recent
revival of the judgment rather than from the original judgment.lI
If this were not the case, successive revivals of the lien of a
judgment would not be possible. To compute the 20-year period
provided for execution upon personal property from the date of the
10 The lien may, of course, lose priority or be lost forever
by failure to observe the statute of limitations applicable to
revivals of judgment liens. A good discussion of this subject is
contained in United States v. Shadle, 16 Pa. D. & C.4th 297
(Cumberland Co. 1992) (Bayley, J.).
The statute of limitations applicable to revivals of
judgment liens provides as follows:
The following actions and proceedings must be
commenced within five years:
(1) An action for revival of a
judgment lien on real property....
Act of July 9, 1976, P.L. 586, S2, 42 Pa. C.S. S5526; see Pa.
R.C.P. 3027 (c).
11
See Pa. R.C.P. 3027(c).
4
72 !
,-,
.-.
NO. 96-3437 CIVIL TERM
original judgment, without regard to intervening revivals, would be
inconsistent with this practice.
Finally, not all judgments are of an adversarial nature. Many
are the result of amicable arrangements intended to provide a
degree of security to a lender or other obligee not available by
way of private agreement.
It does not seem probable that the
legislature intended to frustrate such arrangements by withdrawing
the instrument of revival as it pertains to the debtor's personal
property.
For the foregoing l:eaeons, Plaintiffs' motion for summary
judgment will be granted and Defendants' motion will be denied.
Nothing in this opinion is intended to represent a holding as to
whether the lien of Plaintiffs' judgment has been lost as to real
estate by virtue of the timing and/or any irregularities in the
various revival proceedings preceding that in 1989."
ORDER OF COURT
AND NOW, this ~N"day of January, 1997, upon consideration of
Plaintiffs' Motion for Summary Judgment and of Defendants' Motion
for Summary Judgment, Plaintiffs' motion for summary judgment is
I' Defendants indicate that this is somewhat of a moot point,
inasmuch as "Defendants have not owned any real estate for well
over a decade." Brief in Opposition to Plaintiffs' Motion for
Summary Judgment and in Support of the Defendant13' Motion for
Summary JUdgment, at 3.
5
PYS510 cumbe4reiIog~;~ i~g~~~~otary's ftl;fice Page
1996-03437 SHEARER PAUL E ~T AL (VS) NAFTZINGER CHARL~S W ET AL
Reference No..: ' 2029 CIVIL 1989 Filed........:
Case Type.....: WRIT OF REVIVAL Time.........:
Judgment......: 9600.00 Execution Date
Judge Assigned: SHEELY HAROLD E PJ Sat/Dis/Gntd..
Jury Trial....
Higher Court 1
Hiqher Court 2
..**.............**..................****........***..**........................
General Index
SHEARER PAUL E
SHEARER JEANNE
NAFTZINGER CHARLES W
223 HALDEMAN AVENUE
NEW CUMBERLAND PA 17070
NAFTZINGER ELIZABETH A
223 HALDEMAN AVENUE
NEW CUMBERLAND PA 17070
1
6/19/1996
10 III
0/00/0000
0/00/0000
PLAINTIFF
PLAINTIFF
DEFENDAN'l'
Attorney Info
MYEHS ROBERT E
MYERS ROBERT E
DEFENDANT
Judgment Index
NAFTZINGER CHARLES W 9 600.00 6/19/1996 WRIT OF REVIVAL
NAFTZINGER ELIZABETH A 9'600.00 6/19/1996 WRIT OF REVIVAL
............................***.......L*.*....******..********.*******.....***.*
* Date Entries *
........***...........***....*..****..*.*...*****.****...******...*.**......**..
06/19/96 PRAECIPE FOR WRIT OF REVIVAL AND WRIT OF REVIVAL ISSUED WITH
INTEREST FROM MAY 10 1984 (2029 CIVIL 1989)
COSTS $92.10 PD ATTY DUE COUNTY $2.00--
06/25/96 SHERIFF'S RETURN FILED
Litigant.: NAFT~INGER CHARLES W
SERVED : 6/24/96
DATE RETD: 7/05/96
Costs....: $29.52 Pd By: ROBERT E. MYERS 06/25/1996
06/25/96 SHERIFF'S RETURN FILED
Litigant.: NAFTZINGER ELIZABETH A
SERVED : 6/24/96
DATE RETD: 7/05/96
Costs....: $8.00 Pd By: ROBERT E. MYERS 06/25/1996
ANSWER WITH NEW MATTER
REPLY TO NEW MATTER
ANSWER WITH NEW MATTER
AFFIDAVIT
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
PLAINTIFFS' PRAECIPE TO APPEND MOTION FOR SUMMARY JUDGMENT - BY L C
HElM ESO
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY L C HElM ESQ
MOTION FOR SUMMARY JUDGMENT
STIPULATION
OPINION AND ORDER OF COURT - DATED 1/2/97 - IN RE PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT - DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT -- PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IS GRANTED AND
DEFENDANTS' MOTION IS DENIED - BY HAROLD E SHEELY PJ - COPIES
MAILED 1/2/97
.....****...***.***.***********..*********************..............*...........
* Escrow Information *
* Fees & Debits Beq Sa1 Pvmts/Adi End Bal *
*..****************.*****...****f**.***.*~****.*'***....*.****........*...*....*
07111/96
07/29/96
08/01/96
10/25/96
11/12196
11/15/96
11/18/96
12/04/96
12/23/96
01/02/97
WRIT OF REVIVAL 15.00 15.00 .00
------------------------ ------------
15.00 15.00 .00
..******..*******.******.****...*****.*..**.*****************....*****......*...
* End of Case Information *
.***.....**.***...*.****.************.****...*......*.*...*...*.*.**.*...**.....
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Judgment which is currently before the Court for disposition.
II. ARGUMe~I
Summary judgment should be granted "only in cases where the right is
clear and free of doubt." ChryJler Credit Corp. v. Smith, 434 Pa. Super. 429,
643 A.2d 1098, 1100 (1994), 643 A.2d at 1100. "Summary judgment serves
to eliminate the waste of time and resources of both litigants and the courts in
cases where a trial would be a useless formality." Liles v. Balmer, 389 Pa.
Super. 451,567 A.2d 691, 692 (1989). In addition, pursuant to Pennsylvania
Rule of Civil Procedure 1035(b), summary judgment shaIl be rendered "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of
law."
The only defenses generaIly available in a revival action are that: I) the
judgment did not exist, 2) that is has been satisfied, or 3) that it has otherwise
been discharged. Goodrich-Andram 2nd *3030:2. See also Hammel vs.
Hammel, 431 Pa. Superior 230,636 A.2nd 2]4, footnote 2 (1994), citing
Cardesa vs. Humes, 5 Serge & Rawle 65. Defendants allege in their Answer
and New Matter that: I) Defendants owe no funds to the Plaintiffs; 2) that a
2
'"
.-
judgment of revival has not previously been entered on the Writ of Revival
filed to No. 2382 Civil Term 1979; and 3) that the cause of action averred in
the Writ of Revival arose more than twenty (20) years after the entry of
judgment in the original action and therefore, is barred by the 42 Pa.C.S.
~5529.
No rule of civil procedure nor any statute sets a time limitation on the
entry of a judgment of revival following the filing of a writ of revival. If the
Plaintiff fails to act within the time limits of Rules 3025 and 3030, the lien of
judgment may be lost, however, this does not limit the entry of judgment. In
this case the lien of the original judgment was lost years ago, but not the ability
to enter a judgment of revival.
The statute of limitations relied upon by Defendants, 42 Pa.C.S. ~5529,
is not applicable to this case. It provides that an execution against personal
property must be issued within twenty (20) yr.ars after the entry of judgment
upon which the execution is to be issued. This case is concerned with the entry
of judgment of revival, not the execution against personal property on the
judgment entered in 1974.
Finally, Defendants allege in their answer that no funds are due and
owing from the Defendants to the Plaintiffs for the reasons set forth their New
3
0079I3-OOOOIID."ml>.,3, 1~6I1lWS/DCPI5"
'" .
PAUL E, SHEARER and
JEANNE SHEARER, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-3437 CIVIL TERM
Defendants
CIVIL ACTION . LAW
~..o (J-.J,/vJ^J\-
(, \.. '1.'.0 -.J
vs,
CHARLES W. NAFTZINGER and
ELIZABETH A. NAFTZINGER, his wife,
BRIEF IN OPPOSITION TO I'LAINTIFFS' MOTION FOR SUMMARY JUDGMENT
AND IN SUPPORT OF TIlE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I, IIlSTORY OF TIlE CASE
On or about July 12, 1974, the Plaintiffs entered judgment by confession against the Defendants in the amount
01'$9,600,00 In the Court of Common Pleas of Cumberland County, Pennsylvania,to No, 610 September Term 1974,
on a Judgment Note that bears a date of July 13, 1965, On or about May 29, 1979, the Plaintiffs t1Ied a Praecipe for
Writ of Revival to revive the judgment entered to No, 610 September Term 1974 in the Court of Common Pleas of
Cumberland County to No, 2382 Civil Term 1979. At no time was a judgment of revival entered in the preceding'
file to No. 2382 Civil Term 1979.
On or about May 10, 1984, the Plaintiffs tiled a Praecipe for Writ of Revival against the Defendants in the
Court of Common Pleas of Cumberland County, Pennsylvania, to No, 1360 Civil Term 1984, in which the Plaintiffs
purported to revive ajudgment entered to No, 2382 Civil Term 1979. In the Praecipe for Writ of Revival tiled to No,
1360 Civil Term 1984, no reference was made to the judgment entered to No, 610 September Term 1974. No
judgment of revival was ever entered in the action entered to No, 1360 Civil Term 1984.
On or about June 7, 1989, the Plaintiffs tiled a Praecipe for Writ of Revival In the Court of Common Pleas
of Cumberland County, Pennsylvania, entered to No. 2029 Civil Term 1989 purporting to revive a judgment
purportedly entered to No, 1360 Civil Term 1984, A Praecipe for Writ of Revival tiled to No, 2029 Civil Term 1989
made no reference to the judgment entered to No, 611) Civil Term 1974 or to the action commenced to No, 2382 Civil
Term 1979. No Judgment was ever entered in the action docketed to No, 2029 Civil Term 1989,
0079U-OClOOIIllo<:.mbc,l. 199<lIRWSlDCP"~
1""\
On or about Ju;!e 19, 1996. the Plaintiffs flied a Praecipe for Writ of Revival In the Court of Common Pleas
of Cumberland County, Pennsylvania. to No, 96-3437 Civil Term, purporting to attempt to revive a judgment
purportedly entered to No, 2029 Civil Term 1989. In the Praecipe for Writ of Revival filed to No, 96-3437, no
reference wu made to the judllment entered to No. 610 September Term 1974 or the actions docketed to No, 2382
Civil Term 1979 and No, 1360 Civil Term 1984.
The Defendants l1Ied an Answer with New Maller alleging that the action was barred by the statute of
IImlllltlons,
The Plaintiffs flied a Motion for Summary Judgment referencing No, 96.3437 and No. 79.2381, thus creating
some confusion as to what mailer Is before the court, The Defendants have tiled a cross motion for summary
Judgment 10 No, 96-3437 which mailers are before the Court for consideration,
II. ARGUMENT
~~l'
Nothing lasts forever including a judgment. 42 Pa, C.S.A.(a) provides that:
,..
, An execution against personal property must be issued within 20 years after the entry of the judgment
upon which the execution is to be issued.'
Since the original judgment was entered in 1974, no execution can be had on it or any of the unperfected or
perfected revival actions since the revival of a judgment Is nothing but a continuation of the original action, As our
Supreme Court stated in Elrod v, Hazlett's Administrator, 38 Pa, 16 (1860) at p, 32:
The revival of the original judgment Is but a continuation of It, In form, the proceeding by illJa. is
a distinct action, but, in fact, is not so, Satisfaction of the original judgment is satisfaction of the
judgment in lliJa.."
The purpose of the revival action is to extend a lien upon real estate but the revival cannot extend the lien
beyond the life of the judgment itself, The case of Davis v. Davis. 174 F. 786, 98 C,C,A, 494 (1909), contains a
good discussion of the two acts that are predecessors of 42 Pa, C,S,A. 5529 and 42 Pa. C.S,A, 5526. The life of a
lien against real estate is five years unless revived but the judgment itself is not dead, The judgment itself has a life
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PAGE NJ.
1 - 3
4 - 5
6 - 12
13 - 17
16 - 23
24 - 32
33 - 36
37 - 56
57 - 56
59 - 65
66 - 67
68 - 74
75 - 76
79 - 80
81 _ 'H
.
Among the Records and Proceedings enrolled in the court of Common Picas in ilOd for the
county of
Cunberland
No. 104 IfBG 1997
96-]437 Civil Term
Term, 19
hi I:nnlaincd Ihe following:
in the Cnmmonwcallh of Pcnm.ylvania
It) No.
COI'Y OF
Anocarance
DOCKET ENTR Y
Paul E. Shearer and Jeanne Shearer
VB.
Charles W. Naftzinger and Elizabeth A. Naftzinger
June 19, 1996. Praecipe for Writ of Revival and Writ of Revival, issued.
Please issue writ of revival of judgment entered in this Court at Civil
Term, 1989 No. 2029 and index it in the jtrlgment index against Charles W.
Naftzinger and Elizabeth A. Naftzinger in the amount of $9,600.00 with
interest from May 10, 1984.
By: Robert E. Myers, Esq.
June 25. 1997. Sheriff's Return of Service, filed.
July 11. 199~. Answer With New Matter, filed.
July 29. 1996. Repl.y to New Matter, filed.
Aug. 1. 1996, Answer with New Matter, filed.
Oct. 25. 1996. Affidavit, filed.
Nov. 12. 1996. Plaintiffs' Motion for Summary Judgment, filed.
Nov. 15. 1996. Plaintiffs' Praecipe to Append Motion for Summary Judgment,
filed.
Nov. 18. 1996. Praecipe for Listing Case for Argument, filed.
By: L. C. Heim, Esq.
Dec. 4. 1996. Motion for Summary Judgment, filed.
Dec. 23. 1996, Stipulation, filed.
It is hereby stipulated between counsel for the Plaintiff and counsel
for the ~fendant that with regard to the above matter that both the Plain-
tiff's and the Defendant's Motion for Summary Judgment shall be decided bas
upon the briefs submitted and the argument held on ~cember II, 1996.
By: L. C. lIeim, Esq.
Richard W. Stewart, Esq.
Jan. 2. 1997. Opinion and Order of Court, filed. In Re: Plaintiffs' Motion
for SUlTmary Judgment: ~fendants' ~Iotion for Summary .Iudgment
AND NOW, this 2nd day of January, 1997, upon consideration of Plaintiff'
Motion for Summary Judgment and of Defendants' Motion for Sunmary Judgment,
Plaintiffs' motion for summary judgment is GRANTED and ~fendants' motion is
DENIED.
By the Court, lIarold E. Sheely, 1',,1.
Jan. 31. 1997, !';otice of Appeal, filed.d
Notice j 3 "erehy given that Charles W. N.-.t'tzingcr and Eli~abeth A.
Naftzinger, his wife, Defendants ahove named, hereby appeal to the Superior
Court of Pennsylvania fran the Order entercd in this ",.-.tter on the 2nd day
of January, l')'J7. This Dnler has been entered in the docket as evidenced by
the att,lehed copy of the docket entry.
By: flld.lnl W. Stewart, Esq.
Feb. 7. 1997, Superior Court of Pennsylvania Notice at' Appe.:Jl ~)(~keting to
Case No. lO4 11I](; IlJl)7, filed.
Driefs