1904 Proposed amendments governing liens upon real property and revival of judgments; proposed recommendation no. 151

Title 231--RULES OF CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CHS. 200, 1300 AND 3000]

Proposed Amendments Governing Liens Upon Real Property and Revival of Judgments; Proposed Recommendation No. 151

[28 Pa.B. 5759]

   The Civil Procedural Rules Committee proposes that the Rules of Civil Procedure be amended as provided herein with respect to liens upon real property and revival of judgments. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed recommendation should be sent not later than February 12, 1999 to: Harold K. Don, Jr., Esquire, Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, Pennsylvania 17055, or E-Mail to [e-mail].

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. The comment will neither constitute part of the rules of civil procedure nor be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 200.  BUSINESS OF COURTS

   (Editor's Note: The following is a new rule. It is printed in regular type to enhance readability.)

Rule 227.5.  Entry of Judgment in Judgment Index.

   (a)  Upon entry of judgment by the court or on order of court or praecipe of a party, the prothonotary shall immediately index the judgment in the judgment index.

   (b)  The entry in the judgment index shall state

   (1)  the names of the parties,

   (2)  the number of the case,

   (3)  the amount of the judgment if for a sum certain, and

   (4)  the date of indexing.

   Official Note: Section 8142 of the Judicial Code, 42 Pa.C.S. § 8142(e), requires the prothonotary to ''note on the dockets in such office where each verdict, judgment, order, instrument or writ creating a lien against real property is entered, the time it was recorded, rendered, left for filing, or issued.''

CHAPTER 1300.  COMPULSORY ARBITRATION

Rule 1307.  Award. Docketing. Notice. Lien. Judgment. Molding the Award.

*      *      *      *      *

   (b)  The award for the payment of money when entered in the judgment index shall be a lien [upon the party's real estate,] which shall bind the real property, located within the county, title to which is recorded in the name of the person against whom the award was entered. The lien shall continue [during the pendency of an appeal or until extinguished according to law.] for five years from the date on which the award was entered in the judgment index or until sooner discharged according to law, regardless of the pendency of an appeal. If the appeal is not concluded or the lien is not discharged within five years after the date on which the award was indexed in the judgment index, the court may extend the lien as provided by Rule 3030(c).

   [Official Note: Subdivision (b) continues the practice under the Act of June 16, 1836, P. L. 715, 5 P. S. § 54, repealed by the Judiciary Act Repealer Act of 1978 (JARA), 42 P. S. 20002(a)[149].]

   (c)  If no appeal is taken within thirty days after the entry of the award on the docket, the prothonotary on praecipe shall enter judgment on the award.

   [Official Note: Subdivision (c) continues the practice under the Act of June 16, 1836, P. L. 715, 5 P. S. § 58, repealed by JARA, and under superseded Rule 247.1.]

CHAPTER 3000.  JUDGMENTS

   Editor's Note: Rules 3020 and 3021 are new rules. They are printed in regular type to enhance readability.)

Rule 3020.  Verdict or Order. Indexing. Lien. Award of Arbitrators.

   (a)  The prothonotary shall index a verdict or order for a specific sum of money in the judgment index with the notation ''verdict'' or ''order'' and include its amount and the date and time it was rendered.

   (b)  A verdict or order when indexed in the judgment index shall be a lien which shall

   (1)  date from the time of its rendition, provided that no innocent purchaser without notice shall be prejudiced,

   (2)  bind the real property, located within the county, title to which at the time of the verdict's rendition is recorded in the name of the person against whom the verdict or order was rendered, and

   (3)  continue for five years from the date on which the verdict or order was indexed in the judgment index or until sooner discharged according to law.

   (c)  An award of arbitrators shall be a lien as provided by Rule 1307(b).

   Official Note: An order is defined by section 102 of the Judicial Code, 42 Pa.C.S. § 102, to include, inter alia, a decision, a decree and an adjudication.

   Section 8141(3) of the Judicial Code provides that the lien of a verdict for a specific sum of money shall have priority from the time it is recorded by the court. Section 8142(b) provides for the endorsement of time on recorded verdicts.

Rule 3021.  Judgment. Lien. Duration.

   (a)  Except as provided by subdivisions (b) and (c), a judgment entered and indexed in the judgment index in a court of record in any county in this Commonwealth shall be a lien which shall bind real property, located in the county, title to which at the time of indexing is recorded in the name of the person against whom the judgment is indexed.

   Official Note: See Rule 3001 et seq. for the transfer of a judgment to another county.

   (b)  The lien of a judgment entered upon a verdict or order indexed as provided by Rule 3020 shall

   (1)  date from the time the verdict or order was rendered, provided that no innocent purchaser without notice shall be prejudiced, and

   (2)  bind real property, located in the county, title to which is recorded in the name of the person against whom the judgment was indexed, both at the time the verdict or order was indexed and at the time the judgment is indexed.

   (c)  The lien of a judgment entered upon an award pursuant to Rule 1307(c) shall

   (1)  date from the time of the indexing of the award in the judgment index, and

   (2)  bind real property, located in the county, title to which is recorded in the name of the person against whom the award was indexed, both at the time the award was indexed and at the time the judgment is indexed.

   (d)  The lien shall continue for five years from the date the judgment was entered in the judgment index unless the judgment is revived or sooner discharged.

   Official Note: A judgment may be revived in the manner provided by Rule 3025 et seq.

Subchapter B.  REVIVAL OF JUDGMENTS

Rule 3025.  Commencement of Proceedings. Venue.

   A proceeding to revive and continue the lien of a judgment may be commenced by filing with the prothonotary of the county in which the judgment has been entered

   (1)  a praecipe for a writ of revival in substantially the form provided by Rule [3033] 3032, or

   (2)  an agreement to revive judgment in substantially the form provided by Rule 3034.

   Official Note:  [For the substantive law governing the revival of judgments against defendants and terre-tenants see the Judgment Lien Law of 1947, 12 P. S. 877 et seq.

   The Acts approved September 26, 1951, P. L. 1505, 12 P. S. 885, as amended, and May 16, 1923, P. L. 207, as amended, 53 P. S. 7183, providing additional methods of revival of judgments in favor of the Commonwealth and for municipal and tax claims by the filing of suggestion of nonpayment remain unsuspended by these rules.

   The Act approved April 22, 1909, P. L. 112, 12 P. S. 875 providing for consolidation and revival of separate judgments against the same defendant remains unsuspended by these rules.]

   Section 5526(1) of the Judicial Code requires that an action for revival of a judgment lien must be commenced within five years. See also Section 605 of the Goods and Services Installment Sales Act, 69 P. S. § 1605(b), requiring that a proceeding for revival of a judgment subject to the Act and entered by confession be commenced within one year from the lapse of the lien.

   The following statutes provide for revival or continuation of liens by filing with the prothonotary a suggestion of nonpayment and an averment of default:

   Section 1404 of the Act of April 9, 1929, P. L. 343, as amended, 72 P. S. § 1404, providing for revival of liens for state taxes, unpaid bonus, interest and penalties;

   Section 15 of the Act of May 16, 1923, P. L. 207, as amended, 53 P. S. § 7183, providing for continuation of liens on municipal and tax claims;

   Section 9 of the Act of May 16, 1923, P. L. 207, as amended, 53 P. S. § 7143 relating to municipal claims for taxes, water rents or rates, lighting rates, power rates and sewer rates.

   See also statutory provisions relating to revival of municipal claims and liens, 53 P. S. § 7391 et seq.

   Tax liens required to be filed by the Department of Revenue continue without the necessity of revival. See the Act of April 9, 1929, P. L. 343, No. 176, § 1404.1, 72 P. S. § 1404.1, added by Section 5 of the Act of December 12, 1994, P. L. 1015, No. 138.

   (Editor's Note:  The following is a new rule. It is printed in regular type to enhance readability.)

Rule 3025.1.  Consolidation of Judgments.

   (a)  A plaintiff who owns two or more judgments recovered against the same person in a particular county may combine and consolidate the judgments by filing a single praecipe requesting the issuance of a single writ of revival. The praecipe shall contain the court, number and amount of each judgment being consolidated. The new judgment, when entered, shall include the amounts due on all the old judgments.

   (b)  Two or more judgments against the same person may also be consolidated and revived by an agreement, substantially in the form provided by Rule 3034, which states the court, number and amount of each judgment and provides for the consolidation of the judgments, and sets forth the amount of the consolidated revived judgment.

   Official Note:  The terms ''plaintiff'' and ''defendant'' as used in the rules governing judgment liens and revival of judgments refer generally to the judgment creditor and judgment debtor, respectively. Thus, a defendant who holds a judgment against the plaintiff on a counterclaim would be a plaintiff for the purpose of these rules.

Rule 3026.  Parties. Generally.

   (a)  The plaintiff shall name in the caption the original defendant and any terre-tenant against whom [he seeks to revive and continue] the lien of the judgment is to be revived and continued.

   (b)  If the judgment has been assigned or transferred, the caption shall contain the name of the original judgment plaintiff and the name of the real party in interest.

   Official Note: [For the effect of failure to name a defendant or terre tenant, see § 3 of the Judgment Lien Law of 1947, 12 P. S. 879.] As to joinder of personal representatives of a deceased defendant, see Section 3382 of the Probate, Estates and Fiduciaries Code, [Act of June 30, 1972, P. L. 508, No. 164, § 3382,] 20 Pa.C.S. § 3382.

   See Rule 3026.2 governing terre-tenants as parties and Rule 3026.3 governing revival against a terre-tenant.

   (Editor's Note:  Rules 3026.1--3026.3 are new rules. They are printed in regular type to enhance readability.)

Rule 3026.1.  Parties. Joint Defendants.

   (a)  Except as provided by subdivision (b), if there is a judgment against two or more joint defendants, no revival shall be effective against any of such defendants unless all joint defendants are made parties to the revival proceedings.

   (b)  If all or fewer than all joint defendants agree to be bound, the revival shall be effective against all of the defendants so agreeing.

Rule 3026.2  Parties. Terre-Tenants.

   (a)  As used in Rule 3025 et seq., a terre-tenant is a person in whom title to real property subject to a lien provided by the Rules of Civil Procedure has vested.

   Official Note: The rules governing the action of mortgage foreclosure use the term ''real owner'' in a similar sense. See Rule 1144(a)(3).

   See Rule 3020 which provides for the lien of a verdict or order or compulsory arbitration award, Rule 3021 which provides for the lien of a judgment, Rule 3027 which provides for the lien of a writ or agreement of revival and Rule 3104 which provides for the lien of a writ of execution.

   (b)  The term ''terre-tenant'' shall not include

   (1)  any person claiming under or whose claim of title passes through a deed which is not recorded in the county where the real property is located, or

   (2)  any person claiming under or though a deceased defendant or terre-tenant whose will has not been filed with, or letters of administration on whose estate have not been issued by, the register of wills or orphans' court of such county.

   (c)  Any person claiming under or through a deceased defendant or terre-tenant who was not a resident of the county at the time of death, may qualify as a terre-tenant under this rule by recording in the office of the recorder of deeds of the county where the real property is located, a certified copy of the will of the decedent, or, if the decedent died intestate, a declaration of interest accompanied by a certificate of the register of wills or probate court or officer of the county, state or country in which the decedent resided at the time of death that letters of administration have been issued in the estate of the decedent.

Rule 3026.3.  Revival of Lien of Judgment as to Property of Terre-Tenant.

   (a)  Except as provided by subdivision (b), if an interest in real property bound by the lien of a judgment has been acquired by a terre-tenant, then the lien of the judgment on the property shall be revived only if the terre-tenant joins in an agreement to revive or is made a party to the writ of revival.

   (b)  If a writ of revival or an agreement to revive is indexed against the defendant at a time when a terre-tenant's deed or other evidence of title is of record, but without the joinder of the terre-tenant, the lien may be revived as to the terre-tenant within five years after the recording of the terre-tenant's deed or other evidence of title by (1) agreement between the plaintiff and the terre-tenant alone or between the plaintiff, defendant and terre-tenant, or (2) by writ of revival issued against the terre-tenant alone, or against the defendant and terre-tenant jointly. The lien shall continue as to the terre-tenant for the same period as it continues against the defendant, when it must be revived against both parties.

   Official Note:  The mere recording of a terre-tenant's deed or other evidence of title is ineffective to revive a lien as to any part of the property acquired by a terre-tenant without specific revival by agreement or by writ.

   For the effect of a judgment of revival against a terre-tenant, see Rule 3031.1(c).

Rule 3027.  Writ of Revival. Indexing. Lien.

   (a)  Upon issuance of the writ of revival or the filing of an agreement for a judgment of revival, the prothonotary shall index it in the judgment index against each defendant and terre-tenant named therein.

   (b)  The writ or agreement, when indexed, shall be a lien [upon all] which shall bind real property [within] located in the county

   (1)  title to which at the time of indexing is [owned by the defendant] recorded in the name of the person against whom the original judgment [is entered.] was indexed, and

   (2)  which is subject to the lien of the original judgment or a revival thereof but title to which is recorded in the name of a terre-tenant.

   Official Note:  The lien attaches whether or not the real property was owned by the defendant at the time the judgment was indexed or previously revived and whether or not the lien of the judgment had been lost as to the property.

   (c)  The lien of a writ of revival or an agreement of revival shall continue for a period of five years from the date on which the writ or agreement was indexed.

Rule 3028.  Service of the Writ.

   [The writ shall be served in the manner provided by Rule 400 et seq. for service of original process. A return of no service shall be equivalent to personal service.

   Official Note:  See Rule 400 et seq. governing service and return.]

   The writ shall be served within ninety days after its issuance by the sheriff or a competent adult who is not a party to the action

   (1) by handing a copy in the manner provided by Rule 402,

   (2) by mailing a copy in the manner provided by Rule 403, or

   (3) if service cannot be made as provided by subparagraphs (1) and (2), then by publication in the manner prescribed by Rule 430(b).

   Note:  A special order of court under Rule 430(a) is not a prerequisite to service by publication under this rule.

Rule 3029.  Reissuance and Substitution of Writ.

   The writ may be reissued or substituted as in a civil action.

   Official Note:  See Rule [1010] 401(b) governing reissuance and substitution of a writ of summons.

Rule 3031.  Judgment upon default or admission. Assessment of damages.

   (a)  The prothonotary, on praecipe of the plaintiff, shall enter judgment against a defendant or terre-tenant for failure within the required time to plead to the writ or for any relief admitted to be due by the defendant's or terre-tenant's pleading. The prothonotary shall assess damages as directed in the praecipe for judgment.

   Official Note:  See the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C. App. § 520 requiring an affidavit setting forth facts showing that the defendant is not in military service as a prerequisite to the entry of a default judgment.

   (b)  In all cases the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.

   (Editor's Note:  The following is a new rule. It is printed in regular type to enhance readability.)

Rule 3031.1.   Judgment of Revival. Duration of Lien.

   (a)   Except as provided by subdivisions (b) and (c), the extent and duration of a lien of a judgment of revival shall be as provided by Rule 3021 governing the liens of judgments generally.

   (b)  If judgment entered on a writ of revival is not indexed within a period of five years after the issuance of the writ or if an order continuing the lien has not been entered as provided by Rule 3030(c), the lien shall continue only for a period of five years from the date on which the writ was indexed.

   (c)  If an interest in real property bound by the lien of a judgment has been acquired by a terre-tenant and a judgment of revival is entered against the terre-tenant, the revived judgment shall not be a personal judgment against the terre-tenant and shall not extend to any other property of the terre-tenant.

Rule 3032.  Praecipe for Writ of Revival. Form.

   The praecipe for writ of revival shall be substantially in the following form:

[Caption]

PRAECIPE FOR WRIT OF REVIVAL

To the Prothonotary:

         Issue writ of revival of judgment entered [to] at ___________________________  and
(Court[, Term,] Number)

Index it in the judgment index against _________________ and _________________
(Name of Defendant(s))                        (Name of Terre-Tenant(s))

in the amount of   $ ______ with interest from ______.

_________________
Attorney for Plaintiff

   Official Note:  For the definition of terre-tenant and the substantive effect of omission of a defendant, a joint defendant, or a terre-tenant, see [the Judgment Lien Law of 1947, 12 P. S. 877 et seq.] Rules 3026, 3026.1 and 3026.2.

Rule 3033.  Writ of revival. Form.

   The writ of revival shall be substantially in the following form:

[Caption]

WRIT OF REVIVAL
 

To