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HomeMy WebLinkAbout90-4229 CivilRAYMOND B. RICCI and DOROTHY L. RICCI, Plaintiffs V. CUISINE MANAGEMENT SERVICES, INC., Defendant IN THE COURT O COMMON PLEAS OF CUMBERLAND CO TY, PENNSYLVANIA NO. 4229 CIVIIb 1990 RE: MOTION OF OLEWINE'S, INC FOR JUDGMENT ON THE PLEADINGS BEFORE: HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this2tiday of March, 1992, the Mot Inc., for Judgment on the Pleadings is GRANTED. is directed to indicate on the judgment index t to Olewine's, Inc., is STRICKEN. BY THE COURT, E. Keller Kline, III, Esq. Barbara A. Reynolds, Esq. :rc Dn of Olewine's, The Prothonotary t the revival as J. RAYMOND B. RICCI and DOROTHY L. RICCI, Plaintiffs V. CUISINE MANAGEMENT SERVICES, INC., Defendant OLER, J. IN THE COURT O COMMON PLEAS OF CUMBERLAND COU TY, PENNSYLVANIA NO. 4229 CIVIA 1990 RE: MOTION OF OLEWINE'S, INC FOR JUDGMENT ON THE PLEADINGS BEFORE: HOFFER and OLER, JJ. OPINION AND ORDER OF COURT This case presents the issue of whether a Ijudgment lien is extinguished as to a terre tenant' where an atteiipt to revive the lien is first occurring more than five years af�er entry of the judgment. The following facts are not in disput4. Raymond B. Ricci and Dorothy L. Ricci (Plaintiffs) caused a judgment to be entered in Cumberland County in thJir favor against Cuisine Management Services, Inc. (Original Defendant) on or about July 12, 1985.2 The judgment effected a lien upod a parcel of land ' "A terre tenant is one who has purchsed real estate subject to the lien of a judgment." Shughart, P nnsylvania Civil Practice §34.1, at 362 n.7 (1988). 2 The judgment, docketed at No. 2038 Civil 1985, was in the amount of $50,000.00. It appears that Raymond B. Ricci was president of Cuisine Management Services, Inc.; he executed the note to himself and Dorothy L. Ricci on behalf of Cuisine in that capacity. "Local practice dictates whether the capti n [of a praecipe for writ of revival] will have the term and numbe of the original judgment or bear a new one." Meyer & Shapiro, Pennsylvania Civil Practice Handbook §46.07, at 483 (1982). owned by Original Defendant in this county.' Original Defendant mortgaged this land, and on August 8, 1988, trans Eerred it in lieu of mortgage foreclosure to Olewine's, Inc. (Terre Tenant).° More than five years after the entry of judgment, Plaintiffs, on December 7, 1990, filed a praecipe for writ of revival, naming Original Defendant in the caption and directing t at it be indexed against Terre Tenant. Based on the passage of the five-year period prior to the writ, Terre Tenant has moved for judgment on the pleadings. In general, it may be said that "[t]he Jud ment Lien Act of 19475 contains the substantive law which governs the renewal of judgments." Shughart, Pennsylvania Civil Practice §34.1, at 361 (1988). Thus, "[t]he substantive law relating to terre tenants is contained in the Judgment Lien Law ...." Meyer & hapiro, Pennsyl- 3 The land, in Lower Mifflin Township, contained .2203 acres and was improved with a grocery store building. 4 The deed was recorded on August 17, 198E. Executing the warranty deed on behalf of Cuisine were Robert B. icci and Dorothy L. Ricci as president and secretary. 5 Act of July 3, 1947, P.L. 1234, 12 P.S. §§877 et sect., repealed, Judiciary Act Repealer Act of April 28 1978, P.L. 202, §2(a), 42 P.S. §20002(a)[1257], preserved as ccmmon law pendin general rules on subject, Judiciary Act Repealer Act of April 28, 1978, P.L. 202, §3(b), 42 P.S. §20003(b). Effective June 27, 1980, the Judgment Lien Law was repealed absolutely. See Judiciary Act Repealer Act of April 28, 1978, P.L. 202, §4(b), 4 P.S. §20004(b). h: No. 4229 Civil 1990 vania Civil Practice Handbook §46.07, at 483 (192).6 with respect to revival of judgment liens a ainst defendants and terre tenants, the following provision of the �udgment Lien Law is relevant hereto: The lien of a judgment may be rev ved by the indexing of (1) a judgment of revival by agreement between the plaintiff and def endant, or of ( 2 ) a writ of scire facias, [' ] f such judgment by agreement is entered of record in or such writ is issued out of the c urt in which the original judgment was entered within five years after the date on which the original judgment or the last pr ceding judgment of revival, as the case may lie, was indexed: Provided, that if any inte est in any part of the real property bound by the lien of the judgment has been acquired by a terre-tenant, then the lien of such jILdgment shall be revived as to such part of t e real property only if the terre-tenant wit in the five-year period, hereinbefore desi nated, joins in the agreement or is made a p rty to the scire facias proceedings, as the CiLse may be .... 6 The citation to the Judgment Lien Law preceding footnote summarizes its history preservation as common law. "The Judicial Code provides that all ma judgments, including the determination of the peri duration of liens of judgments, shall be the sul the supreme court. Until this time, rules have covering the duration of the lien of a judgment Therefore, under the provisions of the Judicial C Lien Act continues as a part of the comm commonwealth." Shughart, Pennsylvania Civil Praci (1988); see Note, Pa. R.C.P. 3025 ("For the governing the revival of judgments against defe tenants see the Judgment Lien Law of 1947 ....") ' Now a writ of revival. See Pa. RR. C.P. 3 !ontained in the of repeal and Iters relating to :)d respecting the ject of rules of not been adopted on real estate. )de, the Judgment on law of the ice §34.1, at 361 substantive law ndants and terre 13025 et sea. No. 4229 Civil 1990 Act of July 3, 1947, P.L. 2345, §3(a), 12 P.S. § 79(a).$ This law has been interpreted as precluding revival of a judgment lien as to a terre tenant where an attempt to revive the lien is first occurring more than five years after entry of the judgment. Sutersville Lumber Co. v. Snow onstruction and Development Corp., 58 Westmoreland County L.J. 1 6 (1976), aff'd, 248 Pa. Super. 645, 374 A.2d 729 (1977); see Swo a v. Turner, 193 Pa. Super. 217, 163 A.2d 714 (1960); Harris vl Holdi, 181 Pa. Super. 339, 124 A.2d 182 (1956); Truver v. Hasker 20 D. & C. 3d 769 (Carbon Co. 1981); (York Co. 1975). , 70 D. & C.2d 99 Plaintiffs suggest that the enactment in 19p6 as part of the Judicial Code9 of a five-year statute of limitations as to revival of a judgment lien on real property10 effected a replacement of the 8 Repealed, Judiciary Act Repealer Act of April 28, 1978, P.L. 202, §2(a), 42 P.S. §20002(a)[1257], preserred as common law Pending general rules on subject, Judiciary Act Repealer Act of April 28, 1978, P.L. 202, §3(b), 42 P.S. §20003(b). Effective June 27, 1980, the Judgment Lien Law was repealed bsolutely. See Judiciary Act Repealer Act of April 28, 1978, P. . 202, 94(b), 42 P.S. §20004(b). 9 Act of July 9, 1976, P.L. 586, §2, 42 11a. C.S. §§101 et Act of July 9, 1976, P.L. 586, §2, 42 Ila. C.S. §5526(1) (effective June 27, 1978). This subsection provides that "[a]n action for revival of a judgment lien on real propertyll must be "commenced within five years." 4 No. 4229 Civil 1990 time frame set forth in the Judgment Lien Law.11 it is argued that "[t]he five (5) year statute of limitations commences running from the date the terre-tenant takes title to the real Estate [a]ffected by the revival of the judgment. ,12 Pennsylvania courts, however, have unifor ly declined to discern in the limitation period recited in the Judicial Code an intent to alter established practice arising out of the Judgment Lien Law as it relates to lien revivals. See e.q, Home Consumer Discount Co. of Wilkes-Barre v. Hashagen, 35 D. & C.3d 668 (Luzerne Co. 1985) (statute of limitations in Judicial Code held not to alter prior practice under Judgment Lien Law of p rmitting revival against judgment debtor notwithstanding passage cf more than five years prior to initial revival); Mercer Count St to Bank v. Troy, 27 D. & C.3d 751 (Mercer Co. 1983)(same); Truver v. Hasker, 20 D. & C.3d 769 (Carbon Co. 1981) (same); cf. Dauphin Deposit Bank and Trust Co. v. Verhovshek, 18 D. & C.3d 108 (Cumberland Co. 1980). In this regard, it has been pointed out that the five-year period contained in the Judicial Code in connection with lien revivals is the progeny of statutes enacted in 1E145 and 1854, one permitting an execution on a judgment in court if revived within the preceding five years and the other precluding execution on a 11 Plaintiffs' Memorandum in Opposition tot a Terre -Tenant's Motion for Judgment on the Pleadings, at 3. 12 Id. 5 No. 4229 Civil 1990 judgment of a justice of the peace or aldermar if not revived within the preceding five years. Truver v. Hask r, 20 D. & C.3d 769, 771 n.l (Carbon Co. 1981); see Mercer Coun v State Bank v. Troy, 27 D. & C.3d 751 (Mercer Co. 1983).13 Ne ther statute is inconsistent with lien revival practice as it de eloped under the Judgment Lien Law. And it is understandable that courts have been reluctant to presume an intent in an enactment Dased upon these laws to revise established practice as to lien rev Lvals, upon which the assumed state of so many interests in land d pends. For these reasons, we hold that in accordance with practice under the Judgment Lien Law a judgment lien is extinguished as to a terre tenant where an attempt to revive the lien is first occurring more than five years after entry of the judgment, notwithstanding the argument that the provision of the Judicial 13 "According to the official source note, se tion 5526 is the progeny of two statutes: The Act of April 16, 1845, P.L. 538, sec. 4, 12 P.S. §2093, repealed by section 20002 a](214) of the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, 42 P.S. §20002[a](214), effective June 27, 1978, which st ted: 'Hereafter it shall not be deemed error to issue any writ cf execution on a judgment, in any court, which has not been revi ed within a year and a day, if the same have been revived within ive years.' "And the Act of May 5, 1854, P.L. 581, Sec. 1, 42 P.S. §833, repealed by The Judicial Act Repealer Act, 42 P.S §20002[a](301), effective June 27, 1978, which stated: "'From and after passage of this act no acution shall be issued on a judgment rendered before a justice of the peace or alderman, after five years from the rendition such judgment, unless the same shall have been revived by scire f cias or amicable confession."' Truver v. Hasker, 20 D. & C.3d 769 771 n.l (Carbon Co. 1981). 0 No. 4229 Civil 1990 Code reciting a five-year statute of limitatio s applicable to revival of judgment liens mandates a different result. The Terre Tenant's Motion for Judgment on the Pleadings Oust therefore be granted. ORDER OF COURT AND NOW, thisa'6ftay of March, 1992, the Mot�on of Olewine's, Inc., for Judgment on the Pleadings is GRANTED. IThe Prothonotary is directed to indicate on the judgment index th�t the revival as to Olewine's, Inc., is STRICKEN. E. Keller Kline, III, Esq. Barbara A. Reynolds, Esq. :rc BY THE COURT, 7 J.