HomeMy WebLinkAbout09-2671WRIT OF EXECUTION (MONEY JUDGMENTS) & ATTACHMENT
P.R.C.P. 3101 TO 3149 ?to. a9 .2 L 11 ?Q 7 --.
-
COMMONWEALTH OF PENNSYLVANIA, COUNTY OF DAUPHIN
CIVIL ACTION - LAW
William G. Basonic
VS.
Joshua D. Lock
37 Hillcrest Drive tc e -A,
Wormleysburg, PA 17043
Writ No. 2008-CV-02574-NT
Amount Due: $50,000.00
COSTS
Plaintiff Paid: $81.00
Sheriffs Costs: $200.00
Attorney: $3.00
This Writ: $33.25
O THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs against JOSHUA D. LOCK, Defendant(s).
(1) You are directed to levy upon the property of the defendant(s) and to sell his, her (or their) interest
therein.
(2) You are also directed to attach the property of the defendant not levied upon in the possession of as
Garnishee(s) as follows:
Any clothing, personal effects, or property located at 37 Hillcrest Drive,
Wormleysburg, PA 17043 or on his person wherever located.
and to notify the Garnishee(s) that: (a) an attachment has been issued; (b) except as provided in paragraph (c), the
garnishee is enjoined from paying any debt to or for the account of the defendant and from delivering any property
of the defendant or otherwise disposing thereof;
(c) the attachment shall not include any funds in an account of the defendant with a bank or other financial
institution
(i) in which funds are deposited electronically on a recurring basis and are identified as being funds that
upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law, or
(ii) the total $300 or less. If multiple accounts are attached, a total of $300 in all accounts shall not be
subject to levy and attachment as determined by the executing officer. The funds shall be set aside pursuant to
the defendant's general exemption provided in 42 Pa.C.S. sect. 8123.
(3) if property of the defendant not levied upon and subject to attachment is found in the possession of anyone
other than a named garnishee, you are directed to notify such other person that he or she has been added as a
garnishee and is enjoined as above stated.
WITNESS, the Honorable Richard A. Lewis, President Judge of the Court of Common Pleas of Dauphin County at
the City of Harrisburg Friday, April 17, 2009.
Stephen E. Farina`; #riAhogotary
By: oLus?q? 6kL46-)s
Deputy
Requesting Party:
John M. Kerr, Esquire
5020 Ritter Road, Ste 109
Mechanicsburg, PA 17055
(717) 766-4008
AND NOW,
Writ re-issued
Stephen E. Farina, Prothonotary
Ztg APR
#- 10.
A.I V??ryfll
1 J... I ? ?? ?`7ryi
-Pei , Jk,,- W - 3?,.v
0-0- 6933-V
nn ? ,? ?y3 S8
Pjpp rs Actjpe-cS
qi4o V.
5"Gl-P3-j r
kL-)P`' aa?
0E :Zi d I Z Hdd bOOZ
WILLIAM G. BARONIC, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
JOSHUA AND JOANNE LOCK,
Defendants WRIT OF EXECUTION - 09-2671 c r
'v a' -r
MO.)
PRAECIPEA
c'
cc:
TO THE PROTHONOTARY:
-� .,T �:u
Please strike the Writ of Execution issued in the above-captioned matter. Plaintiff secured
issuance of this writ on April 17, 2009. As is apparent from a review of docket entries of the
Dauphin County Prothonotary's Office, copies of which are attached hereto, the underlying
judgment was stricken on April 5, 2013 as a result of an Opinion issued by the Pennsylvania
Superior Court on October 14, 2009 which ordered that the judgment be stricken. A copy of that
Opinion is attached hereto.
Date: l3
Th Weber, Esquire
Atty I.D.No. 588853
Goldberg Katzman, P.C.
4250 Crums Mill Road, Ste 301
P.O. Box 6991
Harrisburg, Pennsylvania 17112
Telephone: 717-234-4161
Fax: 717-234-6808
.r•
J. A09004/09
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT Y.O.P. 65.37
WILLIAM G. BASONIC, . , IN�THE SUPERIOR PJURi OFo
PENNSYLVATA
Appellee
V.
7" C•_ N
JOANNE AND JOSHUA LOCK, N �-
Appellants No. 1254 MDA 2.008
Appeal from the Order Entered June 19, 2008, in the Court
of Common Pleas of Dauphin County, Civil Division, at No.
2008-CV-02574-NT.
BEFORE: BOWES, DONOHUE and FREEDBERG, JJ.
MEMORANDUM: FILED October 14, 2009
Joanne and Joshua Lock appeal from the June 19, 2008 order denying
their petition to open or strike a confessed judgment entered in favor of
William G. Basonic. We reverse.
On March 4, ' 2008, Appellee obtained a- $50,000 judgment by
C
confession against,Appel lants based on representations that they defaulted
on a June 20, 2005 promissory note. When Appellants filed a petition to
open or strike the judgment on the ground that the loan contemplated by
that note was never executed, Appellee filed a response wherein he
conceded that point but argued that the judgment should not be disturbed
because Appellants had borrowed more than $50,000 from him through a
J. A09004/09
Rait Partnership, L.P. v. E Pointe Properties I, Ltd., 957 A.2d 12751
1277 (Pa.Super. 2008).
Appellants' primary contention on appeal is that the trial court erred in
refusing to strike the judgment because Appellee admitted that he never
loaned the funds described in the June 20, 2005 promissory note. This
argument is based on the principle that a confessed judgment cannot
include an item that is not authorized by a warrant of attorney. See
Appellants' brief . at 7 (citing Langman v. Metropolitan Acceptance
Corporation, 465 A.2d 5 (Pa.Super. 1983)). We have reviewed the
pertinent law and find that Appellants' position has merit.
Pennsylvania courts have repeatedly observed that a confession of
judgment entered pursuant to a warrant of attorney "can be an oppressive
weapon;" thus, strict adherence to the provisions of the warrant is
mandatory. Langman, supra at 7; see also Crum v. F.L. Shaffer Co.,
693 A.2d 984 (Pa.Super. 1997); PNC Bank v. Bolus, 655 A.2d 997
(Pa.Super. 1995); Beckett v. Laux, 577 A.2d .1341 (Pa.Super, 1990).
Consistent with this view, we have held that when a confessed judgment
includes an item that is not authorized by the warrant, the judgment is void
in its entirety and must be stricken. See Dollar Bank v. Northwood
Cheese Co., Inc., 637 A.2d 309 (Pa.Super. 1994); Bolus, supra.
- 3 -
J. A09004/09
In the case at bar, Appellee utilized a warrant of attorney contained in
a promissory note dated June 20, 2005. The note provided that in the event
of default, Appellee's attorney was authorized to confess judgment "for the
unpaid principal balance of this note . ." Promissory note attached to
praecipe to enter judgment, 3/4/08, at 1 (emphasis added). However, in his
pro se response to Appellants' petition to open or strike the judgment,
Appellee admitted that Appellants "did not receive $50,000 in a lump sum
on the date in question" and that he was actually attempting to recover
funds advanced through a "series of [other] loans . . . . in excess of
$50,000."2 Answer to petition to strike/open judgment, 4/17/08, at 1.
Thus, it is evident from the record that the judgment herein pertains solely
to loans that were not encompassed by the June 20, 2005 promissory note.3
As Appellee cannot use the confession of judgment clause in the June 20,
2005 note to collect monies due under other notes, the judgment at issue is
void in its entirety and must be stricken. Accord Bolus, supra (confessed
2 In his answer to Appellants' petition to open or strike the judgment,
Appellee alleged that Appellants executed a series of notes to secure
multiple non-interest loans from him. However, there is no evidence in the
record to support this claim. Moreover, assuming arguendo that such notes
do exist, it is unclear whether they contain confession of judgment clauses.
3 Appellee repeatedly avers that Appellants are improperly asking this Court
to consider "matters outside the record." Appellee's brief at 5, 6. This claim
is unfounded, as Appellants' argument is premised on Appellee's admission
that he sought to recover funds advanced through other loans. That
admission_is contained in a responsive pleading that was filed on April 17,
2008, approximately two months before the June 19, 2008 hearing.
- 4 -
J. A09004/09
In the case at bar, Appellee utilized a warrant of attorney contained in
a promissory note dated June 20, 2005. The note provided that in the event
of default, Appellee's attorney was authorized to confess judgment "for the
unpaid principal balance of this note Promissory note attached to
praecipe to enter judgment, 3/4/08, at 1 (emphasis added). However, in his
pro se response to Appellants' petition to open or strike the judgment,
Appellee admitted that Appellants "did not receive $50,000 in a lump sum
on the date in question" and that he was actually attempting to recover
funds advanced through a "series of [other] loans . . . . in excess of
$50,000."2 Answer to petition to strike/open judgment, 4/17/08, at 1.
Thus, it is evident from the record that the judgment herein pertains solely
to loans that were not encompassed by the June 20, 2005 promissory note.3
As Appellee cannot use the confession of judgment clause in the June 20,
2005 note to collect monies due under other notes, the judgment at Issue is
void in its entirety and must be stricken. Accord Bolus, supra (confessed
2 In his answer to Appellants' petition to open or strike the judgment,
Appellee alleged that Appellants executed a series of notes to secure
multiple non-interest loans from him. However, there is no evidence in the
record to support this claim. Moreover, assuming arguendo that such notes
do exist, it is unclear whether they contain confession of judgment clauses.
3 Appellee repeatedly avers that Appellants are improperly asking this Court
to consider "matters outside the record." Appellee's brief at 5, 6. This claim
is unfounded, as Appellants' argument is premised on Appellee's admission
that he sought to recover funds advanced through other loans. That
admission.is contained in a responsive pleading that was filed on April 17,
2008, approximately two months before the June 19, 2008 hearing,
- 4 -
J. A09004/09
judgment was deemed void where warrant of attorney did not authorize
bank to confess judgment for delinquent taxes and insurance premiums),
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
l
Deputy Prothonotary
October 14, 2009
Date:
e tit be for going Is a,
bV0 and 0ftet Copy of the odgingj
- 5 -
WILLIAM G. BASONIC IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
JOANNE AND JOSHUA LOCK NO. 2008-CV-2574-NT
PRAECIPE
To The Prothonotary:
Please strike the confession of judgement entered by William G.Basonic against Joanne and
Joshua Lock pursuant to the memorandum opinion of the Pennsylvania Superior Court at 1254 MDA
2008 which held that"[T]he judgement at issue is void in its entirety and must be stricken."
Date: s\\ l
Jo hu D. Lock, Esq.
Go b g Katzman P.C.
4250 Crums Mill Road
Harrisburg, PA 17112
(717) 234-4161
Atty. Reg.No. 17042
Ic
AJ kv
1 hereby certity�hat tide fioregoing is a
true an&borrect copy oti'he original q F
filled.
Arothor+ "'7'
Date: 4/5/2013 Dauphin County User: SFARINA
Fime: 02:10 PM ROA Report
gage 1 of 4 Case: 2008-CV-02574-NT
Current Judge: Joseph H. Kleinfelter
William G Basonicvs.Joshua D Lock
Notes
Date Judge
3/4/2008 New Civil Case Filed This Date. No Judge
Filing: Judgment- Note/Bond Paid by: Basonic, William G (plaintiff) No Judge
Receipt number: 0154596 Dated: 3/4/2008 Amount: $23.00(Cash)
Judgment in favor of Plaintiff and against Defendant in the sum of Fifty No Judge
Thousand and 00/100 Dollars ($50,000.00) by virture of authority contained
in note filed dated June 20, 2005 payable on demand (see note)with
interest, costs, etc. ---- for colt'n.
Inquisition and Exemption Waived.
Entered At 1:34 p.m.
Stephen E. Farina, Prothonotary
Copies of Ali Documents Mailed.
3/28/2008 Filing: Petition Paid by: Goldberg Katzman, PC Receipt number: 0156824 No Judge
Dated: 3/28/2008 Amount: $117.00 (Check)
Petition to Strike and/or Open Judgment by Confession, filed. No Judge
3/31/2008 Judge assigned to case. Joseph H. Kleinfelter
Upon consideration of the Petition to Strike and/or Open the Default Joseph H. Kleinfelter
Judgment which was entered against Joshua D. Lock on March 4, 2008, a
Rule is hereby served upon Plaintiff, who is directed to show cause why the
default judgment should not be stricken, or, in the alternative, opened.
Rule returnable within 20 days. See RULE TO SHOW CAUSE, filed.
Copies distributed 4-1-2008.
1/2/2008 Brief in Support of Defendant's Petition to Open and/or Strike the Judgment No Judge
Entered by Confession, filed.
1/17/2008 Plaintiffs Answer to Defendant's Petition to Strike/Open Judgment, filed. No Judge
5/6/2008 Writ Expired. Sheriffs Cost$166.68. So Answers, J.R. Lotwick, Sheriff. No Judge
3/3/2008 Hearing scheduled for (Oral Argument 06/19/2008 09:00 AM) See Order Joseph H. Kleinfelter
filed copies dist by chambers 6/4/08
;1912008 Hearing result for Oral Argument held on 06/19/2008 09:00 AM: Hearing Joseph H. Kleinfelter
Held See Order filed
Upon consideration of the Petition to Strike and/or Open Judgment by Joseph H. Kleinfelter
Confession of the Petition to Strike and/or Open Judgment argument held
thereon this date, IT IS HEREBY ORDERED that the Petition is granted.
The Court, upon review of the note in question, finds the Confession of
Judgment is authorized only by an attorney at law, and that Confession was
taken by Plaintiff, William G. Basonic, who is not a member of the bar of
Pennsylvania. for this reason, the Confession was defective and must be
stricken. See Order filed
ENTERED IN ERROR.
7/17/2008 Filing: Appeal -Superior/Commonwealth Court Paid by: Weber, Thomas J No Judge
(attorney for Lock, Joshua D) Receipt number: 0166576 Dated: 7/17/2008
Amount: $54.00 (Check) For: Lock, Joshua D (defendant)
RECEIPTED TO WRONG CASE, CORRECT CASE IS 2008 CV 02579
NT.
7/22/2008 Filing: Writ of Execution Paid by: Basonic, William G (plaintiff) Receipt No Judge
number: 0166899 Dated: 7122/2008 Amount: $29.00 (Cash) For: Basonic,
William G(plaintiff)
Filing: Writ of Execution Paid by: Basonic, William G (plaintiff) Receipt No Judge
number: 0166900 Dated: 7/22/2008 Amount: $29.00(Cash) For: Basonic,
William G (plaintiff)
late: 4/5/2013 Dauphin County User: SFARINA
ime: 02:16 PM ROA Report
,age 2 of 4 Case: 2008-CV-02574-NT
Current Judge: Joseph H. Kleinfelter
William G B asonicvs.Joshua D Lock
Notes
)ate - Judge
1/22/2008 Writ of Execution No Judge
Garnishee-
Sheriff-Cumberland County
Amount Due$19401.24+ Costs.
See Praecipe, filed.
Writ of Execution No Judge
Garnishee-
Sheriff-Dauphin County
Amount Due$19401.24 + Costs.
See Praecipe, filed.
7/30/2008 Writ Stayed per Plaintiff.- So Answers, J.R. Lotwick, No Judge
Dauphin County Writ of Execution Amended to Add Joanne Lock. No Judge
See Praecipe, filed.
Cumberland County Writ of Execution Amended to Add Joanne Lock. No Judge
See Praecipe, filed.
8/11/2008 Answers to Interrogatories, filed. No Judge
8/15/2008 Defendants'Concise Statement of Errors Complained of on Appeal, filed. No Judge
See 2008-CV-02579-NT.
11/5/2008 After hearing, we're satisfied that the party taking exception to the levy has Joseph H. Kleinfelter
met its burden of proof, and the items that were levied upon by the Sheriffs
office in th offices of Godiberg-Katzman will be released from the levy and
shall not be subject to sale to satisfy the judgment. See Order filed copies
dist by chambers. 11/6/08
After hearing on the exception of the Plaintiff to the property claims of Joseph H. Kleinfelter
Martin Lock as contained in Defendants Exhibits 1 and 2, the Court finds
that the property levied upon is the property of Martin Lock. Therefore, the
exception to the Sheriffs determination is dismissed and denied. The levy
against this property is stricken. See Order filed copies dist by chambers.
11/6/08
The Court finds that its prior Order dated June 19, 2008 disposing of the Joseph H. Kleinfelter
Defendant's Petition to Strike and/or Open Judgment by Confession were
inadvertently transposed between docket numbers 02574 and 02579. The
Order denying the Petition to Strike should have been indexed to 02574,
and the Order granting the Petition to Strike should have been indexed to
02579.The Prothonotary of Dauphin County is directed to correct the
docket accordingly, See Order filed copies dist by chambers. 11/6/08
11/6/2008 Letter from Thomas J. Weber, Esquire, filed. No Judge
11113/2008 Docket Corrected to Reflect the Following: No Judge
June 19,2008 Joseph H. Kleinfelter
Upon consideration of the Defendants Petition to Strike and/or Open
Judgment by Confession and the Plaintiffs Answer filed thereto; the
Defendant having been afforded an opportunity this date to present
evidence in support of the Petition and having failed to do so,
IT IS HEREBY ORDERED that the Petition is denied.
See ORDER OF COURT, filed,
Copies Distributed by Chambers 06119108.
late: 4/5/2013 Dauphin County User: SFARINA
'ime: 02:10 PM ROA Report
'age 3 of 4 Case: 2008-CV-02574-NT
Current Judge: Joseph H. Kleinfelter
William G Basonicvs.Joshua D Lock
Notes
)ate Judge
11/13/2008 July 17, 2008 No Judge
Notice of Appeal to Superior Court of Pennsylvania filed on behalf of
defendants, Joanne Lock and Joshua D. Lock.
Copy mailed to Superior Court July 18, 2008.
July 25, 2008 Joseph H. Kleinfelter
This court having been notified by the Superior Court of Pennsylvania
that Defendants have filed a Notice of Appeal, Defendants are hereby
directed to file of record and concurrently serve upon this court a concise
statement of errors complained of on appeal no later 21 days after entry of
this ORDER.
Any issue not properly included in said statement shall be deemed
waived.
*Our Order of June 19, 2008, incorrectly shows a docket number of 2008
CV 02574. The correct docket number is 02579. The prothonotary is
directed to correct the record.
See ORDER [Pursuant to Pa.R.A.P. 1925(b)], filed. Copies Distributed
07/28/08.
July 31, 2008 No Judge
Letter from Judge Joseph H. Kleinfelter to the Prothonotary of the Superior
Court of Pennsylvania regarding docket corrections, filed.
August 15, 2008 No Judge
Defendants' Concise Statement of Errors Complained Of on Appeal, filed.
11/17/2008 Record Sent to the Superior Court of Pennsylvania from the Prothonotary's No Judge
Office.
Appeal Papers mailed to: No Judge
Thomas J. Weber, Esquire and
William G. Basonic
4/17/2009 Filing:Writ of Execution Paid by: Law Office of John M Kerr, Esquire No Judge
Receipt number: 0190854 Dated: 4/17/2009 Amount: $33.25(Check) For:
Basonic, William G (plaintiff)
Writ of Execution No Judge
Garnishee-
Sheriff-Cumberland County
Amount Due$50000.00 + Costs.
See Praecipe, filed.
5/6/2009 Filing: Writ of Execution Paid by: John M Kerr, Esquire Receipt number: No Judge
0192413 Dated: 5/6/2009 Amount: $33.25 (Check) For: Lock, Joshua D,
(defendant)
Writ of Execution No Judge
Garnishee-
Sheriff-Dauphin County
Amount Due$50,000.00 + Costs.
See Praecipe, filed.
10/14/2009 Order reversed. Case remanded. Jurisdiction relinquished. Judgment No Judge
Entered.
See MEMORANDUM from the Superior Court of Pennsylvania filed
November 24, 2009.
11/24/2009 Record Returned to the Prothonotary's Office from the Superior Court of No Judge
Pennsylvania.
2/5/2010 Writ Expired. Sheriffs Cost$93.64. So Answers, J.R. Lotwick, Sheriff. No Judge
)ate: 4/5/2013 Dauphin County User: SFARINA
ime: 02:16 PM ROA Report
'age 4 of 4 Case:2008-CV-02574-NT
Current Judge: Joseph H. Kleinfelter
William G Basonicvs.Joshua D Lock
Notes
)ate Judge
1/6/2010 Writ Return Abandonment of Levy. Sheriffs Cost$113.00. So Answers, No Judge
J,R. Lotwick, Sheriff.
1/19/2010 Transcript of Proceedings Objections to Sheriffs Determination, before the Joseph H. Kleinfelter
Honorable Joseph H. Kleinfelter,taken Wednesday, November 5, 2008,
filed.
Transcript of Proceedings Petition to Open Judgment by Confession, Joseph H. Kleinfelter
before the Honorable Joseph H. Kleinfelter, taken Thursday, June 19,
2008,filed.
1/512013 The above captioned matter is hereby ended, settled, satisfied & No Judge
Discontinued pursuant to the memorandum opinion from Pennsylvania
Superior Court, See Praecipe filed. (per SEF)
Filing: Satisfaction Paid by: Lock,Joshua D(defendant) Receipt number: Joseph H. Kleinfelter
0293215 Dated: 4/5/2013 Amount: $13.00(Cash) For: Lock, Joshua D
(defendant)
i hereby certify foregoing
is a
true grid tredt-copy bfthe original
fitted.
A"o
toth n
ate:' 4/29/2013 Dauphin County User: SFARINA
me: 10:35 AM PARTY HISTORY
age 1 of 1 Civil Judgments
Lock,Joshua D
Filing Date Judgment In Favor Of
Dase Role Disposition Tvpe Judgment Type Judgment
2008-CV-02579-NT Defendant 3/4/2008 6/19/2008 Plaintiff
William G Basonicvs.Joshua D Lock, etal. Stricken/Order Judgment
14564.67
2008-CV-02574-NT Defendant 5/6/2009 4/5/2013 Plaintiff
William G Basonicvs.Joshua D Lock Stricken/Order Writ of Execution
50,000.00
Defendant 4/17/2009 4/5/2013 Plaintiff
Stricken/Order Writ of Execution
50000.00
Defendant 7/22/2008 4/5/2013 Plaintiff
Stricken/Order Writ of Execution
19401.24
Cumberland County
Defendant 7/22/2008 4/5/2013 Plaintiff
Stricken/Order Writ of Execution
19401.24
Dauphin County
Defendant 3/4/2008 4/5/2013 Plaintiff
Stricken/Order Judgment
50000.00
2 Cases
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing document was served on the person listed below on the date indicated by
first class mail.
John Kerr, Esquire
5020 Ritter Rd., #109
Mechanicsburg, PA 17055
May 1, 2013
Tho s ebe squire
Atty I.D. No. 58853
Goldberg Katzman, P.C.
4250 Crums Mill Road, Ste 301
P.O. Box 6991
Harrisburg, Pennsylvania 17112
Telephone: 717-234-4161
Fax: 717-234-6808