HomeMy WebLinkAbout00-431 civilADAM W. THOMAS, · IN THE COURT OF COMMON PLEAS OF
Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA
o
VS. · 2000-431 CIVIL
GREGG R. CARIGNAN, '
Defendant · CIVIL ACTION -LAW
MEMORANDUM AND ORDER
In this case a writ of possession has been issued with respect to the property located at
450 Gettysburg Pike, Mechanicsburg, PA 17055, pursuant to a confession of judgment dated
January 24, 2000. At the time the writ was served, the plaintiff had chosen to proceed pursuant
to Pa.R.C.P. 2973.3. The writ, however, was not accompanied by the written notice prescribed
in Pa.R.C.P. 2974.3 nor with a form of petition to strike the judgment and request for prompt
hearing prescribed by Pa.R.C.P. 2967. Had these forms been served upon the defendant, he
would have had the opportunity to request a hearing while he remained in possession. Instead he
was evicted.
Had the defendant requested a hearing, the burden of proof would be on the plaintiff to
prove that the defendant "voluntarily, intelligently and knowingly waived the fight to notice and
hearing prior to the entry of the judgment." See Pa.R.C.P. 2973.3(b). In the meantime, pending
the resolution of that question, the defendant would remain in possession. In this case, because
of faulty service, the defendant remains out of possession in clear contravention of the rules.
In this case, the defendant signed a contract drafted by his attorneys purporting to waive
notice of execution. The defendant contends, however, that this language was never brought to
his attention. The plaintiff has offered no testimony on this issue. A proper resolution of this
legal question would require that we take the matter under advisement as there does not appear to
be any Pennsylvania case law construing the rather recently adopted provisions of Pa.R.C.P.
2973.3. This, however, we will not do in light of the seriously flawed procedural posture of this
case. The defendant would remain out of possession while the issue was resolved; something not
contemplated by the rules.
Because we do not reach the issue of the voluntariness of the defendant's waiver, we will
take neither course of action with regard to striking the judgment as set out in Pa.R.C.P.
2973.3(c)(1) and (2). Instead, we will simply vacate the previously served writ of possession
pending further proceedings.
ORDER
AND NOW, this '~ ~ day of February, 2000, the writ of possession
previously issued in this case is VACATED and the defendant restored to the subject premises.
BY THE COURT,
K ss, J.
Timothy J. Colgan, Esquire
For the Plaintiff
Gregg R. Carignan
Pro Se
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