621 Amendment of rules governing confession of judgment for money; no. 256; doc. no. 5

Title 231--RULES OF
CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CHS. 2950, 2980 AND 3000]

Amendment of Rules Governing Confession of Judgment for Money; No. 256; Doc. No. 5

[26 Pa.B. 1806]

Order

Per Curiam:

   And Now, this 1st day of April, 1996, the Pennsylvania Rules of Civil Procedure governing confession of judgment for money are amended as follows:

   1.  Rules 2950, 2951, 2952, 2957, 2959, 2960, 2961, 2962, 2986, 3103, 3129.2 and 3251 are amended to read as follows.

   2.  Rules 2958 and 2961 are rescinded.

   3.  New Rules 2956.1, 2958.1, 2958.2, 2958.3, 2958.4, 2963, 2964, 2965, 2966 and 2967 are promulgated to read as follows.

   4.  Notes to Rules 2955 and 2956 are amended to read as follows.

   This Order shall be effective July 1, 1996 and shall be processed in accordance with Rule of Judicial Administration 103(b).

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 2950.  CONFESSION OF JUDGMENT FOR MONEY

Rule 2950.  [Definition] Definitions.

   As used in this chapter

   ''action'' means a proceeding to enter a judgment by confession for money pursuant to an instrument, other than an instrument executed by a natural person in connection with a consumer credit transaction, authorizing such confession.

   Official Note: The action is abolished insofar as it would apply to a confession of judgment which is part of an instrument executed in connection with a consumer credit transaction.

   ''consumer credit transaction'' means a credit transaction in which the party to whom credit is offered or extended is a natural person and the money, property or services which are the subject of the transaction are primarily for personal, family or household purposes.

Rule 2951.  Methods of proceeding.

   (a) (1)  [The] Upon filing of the documents required by subparagraph (2), the prothonotary shall enter judgment by confession on a note, bond or other instrument confessing judgment or authorizing confession by an attorney at law or other person against the person who executed it in favor of the original holder or, unless expressly forbidden in the instrument, in favor of the assignee or other transferee[, upon filing of the instrument and a certificate of residence of the plaintiff and of the defendant,] without the agency of an attorney and without the filing of a complaint, for the amount which may appear to be due from the instrument. The judgment may include interest computable from the instrument.

   (2)  The documents to be filed in support of the entry of judgment are

   (i)  the instrument

   (ii)  an affidavit that the judgment is not being entered by confession against a natural person in connection with a consumer credit transaction, and

   (iii)  a certificate of residence of the plaintiff and of the defendant.

   Official Note: [Subdivision (a) does not change existing law. It replaces Section 28 of the Act of February 24, 1806, P. L. 334, 4 Sm.L. 270, as amended, 12 P. S. § 739, which is repealed by Section 2(a) of the Judiciary Act Repealer Act, 42 P. S. § 20002(a)(49).]

   Section 2737(3) of the Judicial Code provides that the prothonotary shall have the power and the duty to ''enter all civil judgments, including judgments by confession.''

   A judgment by confession may be entered only in the name of a holder, assignee or other transferee. See Rule 2954.

   For collection of attorneys' fees under such a judgment see Rule 2957. If an instrument authorizes confession for a penal sum judgment may be entered in that amount.

   (b)  If judgment by confession is authorized by the instrument but may not be entered by the prothonotary under subdivision (a), an action shall be commenced by filing with the prothonotary a complaint substantially in the form provided by Rule 2952. Even though the instrument is one on which judgment could be entered by the prothonotary under subdivision (a), the plaintiff may proceed under this subdivision.

   [Official Note: Subdivision (b) replaces Section 8 of the Act of March 21, 1806, 4 Sm.L. 326, 12 P. S. § 738, which is repealed by Section 2(a) of the Judiciary Act Repealer Act, 42 P. S. § 20002(a)(50).]

*      *      *      *      *

   (d)  If the instrument is more than twenty [(20)] years old, judgment may be entered only by leave of court after notice and the filing of a complaint under Subdivision (b).

   (e)  When the plaintiff proceeds under Subdivision (b) and the original or a photostatic copy or like reproduction of the instrument showing the defendant's signature is not attached to the complaint, judgment may be entered only by leave of court after notice.

   Official Note: Amended January 20, 1970. Effective February 15, 1970. The procedure for notice and hearing shall be in accordance with local practice.

   See [sec.] sections 401(h) and [sec.] 1205 of the Goods and Services [Retail] Installment Sales Act, 1966, Special Sess. No. 1, October 28, P. L. 7, effective April 1, 1967, 69 P. S. §§  1401(h) and 2205 which may limit the venue for commencement of an action in certain cases.

Rule 2952.  Complaint; contents.

   (a)  The complaint shall contain the following:

   [(a)] (1)  the names and last known addresses of the parties;

   Official Note: These rules change prior practice by not requiring a separate certification of address.

   [(b)] (2)  the original or a photostatic copy or like reproduction of the instrument showing the defendant's signature; if the original is not attached, an averment that the copy attached is a true and correct reproduction of the original; if neither the original nor a reproduction can be attached, an explanation why they are not available;

   Official Note: If the original instrument is not attached to the complaint, a method of securing inspection thereof is provided by Discovery Rule 4009.

   (3)  an averment that judgment is not being entered by confession against a natural person in connection with a consumer credit transaction;

   [(c)] (4)  * * *

   [(d)] (5)  * * *

   [(e)] (6)  * * *

   [(f)] (7)  * * *

   [(g)] (8)  * * *

   [(h)] (9)  if the instrument is more than twenty [(20)] years old, or if the original or a photostatic copy or like reproduction of the instrument showing the defendant's signature is not attached to the complaint, an application for a court order granting leave to enter judgment after notice;

   Official Note: The procedure for notice and hearing will be in accordance with local practice.

   [(i)] (10)  * * *

   [(j)] (b)  * * *

Rule 2955.  Confession of judgment.

*      *      *      *      *

   Official Note: Added June 27, 1969. Eff. Jan. 1, 1970. Amended Jan. 20, 1970. Eff. Feb. 15, 1970. There are local rules in some counties requiring the filing of an affidavit of non-military service. See also the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.A. Appendix § 520.

   [The Act of May 17, 1929, P. L. 1804, as amended by the Act of June 25, 1937, P. L. 2325, sec. 1, 12 P. S. § 743, requiring certification of the precise residence address of the plaintiff and the last known address of the defendant, remains unsuspended by these rules.]

Rule 2956.  Entry of judgment.

*      *      *      *      *

   Official Note: As to instruments more than 20 years old see Rules 2951(d) and [2952(h)] 2952(a)(9).

   See Rule 236 for the notice required to be given and the documents required to be mailed to the defendant by the prothonotary.

Rule 2956.1.  Execution upon a judgment entered by confession.

   (a)  Except as otherwise provided by subdivisions (b) and (c), a judgment entered by confession shall be enforced as provided by Rule 3101 et seq. governing the enforcement of a judgment for the payment of money.

   (b)  A judgment entered by confession which arises from a retail installment sale, contract or account under the Goods and Services Installment Sales Act or which constitutes a residential mortgage obligation under the Loan Interest and Protection Law shall be conformed as provided by Rule 2981 et seq. prior to execution.

   Official Note: These Acts of Assembly prohibit execution upon these judgments until they have been conformed in a separate action. Once conformed pursuant to Rule 2986, these judgments may be enforced in the same manner as other judgments for the payment of money.

   (c)  Execution upon a judgment entered by confession which is not within the scope of subdivision (b) and to which a petition to open or strike the judgment has not been filed, shall be

   (1)  commenced by a praecipe as provided by Rule 2957 and

   Official Note: The praecipe required by subparagraph (1) is in place of the praecipe prescribed by Rule 3251.

   (2)  conditioned upon the service of notice on the defendant in the judgment as provided by either

   (i)  Rule 2958.1 at least thirty days prior to the filing of the praecipe for the writ of execution, or

   (ii)  Rule 2958.2 with the notice of sale of real property, or

   (iii)  Rule 2958.3 with the writ of execution.

   Official Note: The notice may be given prior to execution under Rule 2958.1 or as part of the execution process under Rule 2958.2 or 2958.3, whichever is applicable.

   Notice prior to execution under Rule 2958.1 may be given in all cases. However, the notice served with the notice of sale of real property under Rule 2958.2 is limited to execution upon real property or real property and personal property subject to Section 9501(d) of the Judicial Code. The notice served with the writ of execution under Rule 2958.3 is limited to an execution upon personal property or personal and real property.

   Written notice under subdivision (c)(2) is required only in connection with execution proceedings and is in addition to the procedural requirements of Rule 3101 et seq. The notice is in addition also to the notice of the entry of the judgment given by the prothonotary under Rule 236.

Rule 2957.  [Execution] Praecipe for writ of execution; amount; items claimed; certification.

   (a)  Plaintiff may include the amount due, interest, attorneys' fees and costs in [his] the praecipe for a writ of execution under Rule [3251(5)] 2963(5). Where judgment has been entered under Rule 2951(a) and there has been a record appearance of counsel at any stage of the proceedings and attorneys' fees are authorized in the instrument, these fees may be included in the praecipe for a writ of execution.

   (b)  The praecipe for the writ of execution shall contain the words ''Confessed Judgment'' immediately below the title of the praecipe and a certification that

   (1)  the praecipe is based upon a confessed judgment and

   (2)  the prothonotary is authorized to issue the praecipe because

   (i)  notice has been served pursuant to Rule 2958.1 as evidenced by a return of service filed of record, or

   (ii)  notice will be served pursuant to Rule 2958.2 because the property to be levied upon consists solely of real property or real property and personal property to be sold with the real property pursuant to Section 9501(d) of the Uniform Commercial Code, or

   (iii)  notice will be served pursuant to Rule 2958.3 because the property to be levied upon consists of personal property or personal property and real property, not within the scope of Rule 2958.2(a)(2), or

   (iv)  notice was served in connection with a prior execution on this judgment and no further notice is required under Rule 2958.4(b), or

   (v)  a petition to open or strike the judgment has been previously filed and notice is not required under Rule 2956.1(c).

   Official Note: See Rule 2963 for the form of the praecipe for writ of execution upon a confessed judgment.

Rule 2958.  Rescinded.

Rule 2958.1.  Notice served prior to execution.

   (a)  A written notice substantially in the form prescribed by Rule 2964 shall be served on the defendant at least thirty days prior to the filing of the praecipe for a writ of execution.

   Official Note: The notice provided for by this rule may be served in all executions within the scope of Rule 2956.1(c). If notice is served under this rule at least thirty days prior to the filing of the praecipe, notice need not be given under Rule 2958.2 governing execution upon real property or Rule 2958.3 governing execution upon personal or personal and real property. Conversely, if notice is served under either Rule 2958.2 or 2958.3, notice need not be given under this rule.

   Rule 2957(b) governing the praecipe for the writ of execution requires a certification that notice has been given as provided by this rule.

   Rule 2959(a)(3) requires a petition for relief from a confessed judgment to be filed within thirty days after service of notice pursuant to this rule.

   (b)  The notice shall be served

   (1)  upon a defendant in the judgment who has not entered an appearance

   (i)  by the sheriff or by a competent adult who is not a party to the action in the manner prescribed by Rule 402(a) for the service of original process upon a defendant, or

   (ii)  by the plaintiff mailing a copy in the manner prescribed by Rule 403, or

   (iii)  pursuant to special order of court as prescribed by Rule 430 if service cannot be made as provided in subparagraphs (i) or (ii), or

   (2)  upon a defendant in the judgment who has entered an appearance, by the plaintiff in the manner provided by Rule 440.

   (c)  The person serving the notice shall file a return of service as provided by Rule 405.

Rule 2958.2.  Notice of execution served with notice of sale of real property.

   (a)  Written notice substantially in the form prescribed by Rule 2965 shall be served upon the defendant at least thirty days prior to the sheriff's sale if the property to be levied upon consists solely of

   (1)  real property, or

   (2)  real property and personal property to be sold with the real property pursuant to Section 9501(d) of the Uniform Commercial Code.

   Official Note: Section 9501(d) of the Uniform Commercial Code, 13 Pa.C.S. § 9501(d) relates to the rights of a secured party when the agreement covers real and personal property.

   The notice required by this rule must be served only when the plaintiff has not proceeded under Rule 2958.1 requiring at least thirty days notice prior to the filing of the praecipe for writ of execution.

   Rule 2957(b) governing the praecipe for the writ of execution requires a certification that notice has been given as provided by this rule.

   Rule 2959(a)(3) requires a petition for relief from a confessed judgment to be filed within thirty days after service of notice pursuant to this rule.

   (b)  The notice shall be served with the written notice of sale of real property and shall be governed by the provisions of Rule 3129.2(c).

   Official Note: Rule 3129.2(c) governing notice of the sale of real property provides for the manner of service, the return of service and the timeliness of the service.

Rule 2958.3.  Notice of execution served with writ of execution. Request for prompt hearing limited to issue of waiver of due process rights.

   (a)  Written notice in the form prescribed by Rule 2966 and a form of petition to strike the judgment and request for prompt hearing in the form prescribed by Rule 2967 shall be served upon the defendant with the writ of execution if the property to be levied upon consists of

   (1)  personal property or

   (2)  personal property and real property, not within the scope of Rule 2958.2(a)(2).

   Official Note: The notice required by this rule must be served only when the plaintiff has not proceeded under Rule 2958.1 requiring at least thirty days notice prior to the filing of the praecipe for writ of execution.

   Rule 2957(b) governing the praecipe for the writ of execution requires a certification that notice has been given as provided by this rule.

   Rule 2959(a)(3) requires a petition for relief from a confessed judgment to be filed within thirty days after service of notice pursuant to this rule.

   (b)  If the writ has been served and property has been levied upon or attached, the defendant may file with the sheriff a petition to strike the judgment in the form provided by Rule 2967. The petition shall be limited to the issue whether the defendant voluntarily, intelligently and knowingly waived the right to notice and hearing prior to the entry of the judgment. The defendant may include in the claim a demand for a prompt hearing. The sheriff shall immediately notify the plaintiff of the filing of the petition.

   (c)  The sheriff shall immediately present the matter to the court. The court shall hear the claim within three business days thereafter upon such notice to the parties as the court shall direct and shall promptly dispose of the matter on the testimony, admissions or other evidence.

   (1)  If the court finds that the plaintiff has shown by a preponderance of the evidence that the defendant voluntarily, intelligently and knowingly waived the right to notice and hearing prior to the entry of judgment, it shall enter an order so determining and the stay of the execution proceedings under subdivision (d) shall terminate automatically.

   (2)  If the court finds that the plaintiff has not made the required showing, it shall enter an order vacating the writ of execution and striking the judgment. Upon entry of the order, any property which has been seized, levied upon or attached pursuant to the writ of execution shall be returned to the defendant.

   (d)  Execution proceedings shall be stayed during the period from the time the defendant files the hearing request form with the sheriff to the time the court makes the determination on the request.

Rule 2958.4.  Choice of procedure. Notice upon subsequent executions.

   (a)  A plaintiff who has given notice pursuant to Rule 2958.1 may not proceed thereafter under Rules 2958.2 and 2958.3.

   (b)  The notice required by Rules 2958.1 through 2958.3 need not be given upon subsequent executions on a judgment if the notice was given prior to or upon a previous execution on that judgment and either

   (1)  the defendant filed a petition for relief from the judgment and the court denied the relief, or

   (2)  the defendant failed to file a petition for relief from the judgment within thirty days after service of the notice as required by Rule 2959(a)(3).

Rule 2959.  Striking off or Opening Judgment. Pleadings. Procedure.

   (a) (1)  Relief from a judgment by confession shall be sought by petition. [All] Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to [him] the sheriff to enforce the judgment.

   (2)  The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only

   (i)  in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and

   (ii)  as provided by Rule 2958.3 or Rule 2973.3.

   (3)  If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied.

*      *      *      *      *

   (c)  A party waives all defenses and objections which [he does] are not [include] included in [his] the petition or answer.

*      *      *      *      *

Rule 2960.  Proceedings upon Opening of Judgment. Pleadings. Jury Trial. Waiver.

   If a judgment is opened in whole or in part the issues to be tried shall be defined by the complaint if a complaint has been filed, and by the petition, answer and the order of the court opening the judgment. There shall be no further pleadings. The right to a jury trial on the opened judgment shall be deemed waived unless a party files and serves a written demand for jury trial within twenty [(20)] days after the order opening judgment; but if the issue is referred to compulsory arbitration, Rule 1007.1 shall apply.

*      *      *      *      *

Rule 2961.  [Effective Date.] Application of Amendments to Pending Actions.

   [These rules shall become effective on the first day of January, 1970. These rules shall apply only to actions commenced after the effective date except Rules 2959 and 2960 which also apply to judgments theretofore entered.]

   (a)  The amendments promulgated in 1996 to the rules of civil procedure prohibiting the entry of a judgment by confession for money in connection with a consumer credit transaction shall apply to actions commenced after the effective date set forth in the Order of the Supreme Court.

   Official Note: The amendments to Rules 2950, 2951 and 2952 generally relate to the prohibition against the entry of a judgment by confession arising from a consumer credit transaction.

   (b)  The amendments promulgated in 1996 to the rules governing execution on a judgment entered by confession for money shall apply to executions commenced after the effective date set forth in the Order of the Supreme Court.

   Official Note: The amendments to Rules 2956.1 through 2959 and Rules 2963 through 2967 generally relate to execution upon a judgment entered by confession and relief from the judgment.

FORMS

Rule 2962.  Confession of Judgment Where Action Commenced by Complaint. Form.

   The confession of judgment required by Rule 2955 shall be substantially in the following form:

(CAPTION)

   Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the complaint filed in this action, I appear for the defendant(s) and confess judgment in favor of the plaintiff(s) and against defendant(s) as follows:

*(Principal) *(Penal) Sum	$ ______
Other authorized items:
_________________	$ ______    (Specify)
** Interest	$ ______
** Attorney fees	$ ______

* Strike out inapplicable item.

** Interest and attorney fees may be included only if authorized by the warrant.

__________
Attorney for Defendant(s)

   Official Note: Added June 27, 1969, effective January 1, 1970. This form is not to be used when judgment by confession is entered by the prothonotary under [the Act of February 24, 1806. See] Rule 2951(a).

Rule 2963.  Praecipe for Writ of Execution. Certification. Form.

   The praecipe for a writ of execution upon a confessed judgment shall be substantially in the following form:

(Caption)

PRAECIPE FOR WRIT OF EXECUTION UPON A
CONFESSED JUDGMENT

To the Prothonotary:

   Issue a writ of execution upon a judgment entered by confession in the above matter.

   (1)  directed to the sheriff of ______ county;

   (2)  against ______ , defendant; and
   (Name of Defendant)

   (3)  against _________________ , garnishee;
      (Name of Garnishee)

   (4)  and index this writ

   (a)  against ______ , defendant and
   (Name of Defendant)

   (b)  against _________________ , as garnishee,       (Name of Garnishee)
as a lis pendens

   against real property of the defendant in name of garnishee as follows:__________     (Specifically describe property)
 
__________
(If space insufficient attach extra sheets)

(5)  Amount due	$ ______
Interest from _____	$ ______
Attorneys' fees**	$ ______
[Costs to be added]	$ ______

^** Where judgment has been entered under Rule 2951(a), attorneys' fees may be included if they are authorized in the instrument and there has been a record appearance of counsel at any stage of the proceedings.

Certification

I certify that

   (a)  This praecipe is based upon a judgment entered by confession, and

   (Delete four of the following paragraphs which are inapplicable.)

   (b)  Notice has been served pursuant to Rule 2958.1 at least thirty days prior to the filing of this praecipe as evidenced by a return of service filed of record.

   (c)  Notice will be served with the writ of execution pursuant to Rule 2958.2.

   (d)  Notice will be served at least thirty days prior to the date of the sheriff's sale of real property pursuant to Rule 2958.3.

   (e)  Notice was served in connection with a prior execution on this judgment and, pursuant to Rule 2958.4(b), no further notice is required.

   (f)  Notice is not required under Rule 2956.1(c) because a petition to open or strike the judgment was previously filed.

__________
(Attorney for Plaintiff)

   Official Note: Under paragraph (1) when the writ is directed to the sheriff of another county as authorized by Rule 3103(b), the county should be indicated. Under Rule 3103(c) a writ issued on a transferred judgment may be directed only to the sheriff of the county in which issued. Paragraph (3) above should be completed only if a named garnishee is to be included in the writ. Paragraph (4)(a) should be completed only if indexing of the execution in the county of issuance is desired as authorized by Rule 3104(a). When the writ issues to another county indexing is required as of course in that county by the prothonotary. See Rule 3104(b). Paragraph (4)(b) should be completed only if real property in the name of a garnishee is attached and indexing as a lis pendens is desired. See Rule 3104(c).

   Certification as to waiver of exemption may be included in the praecipe. Specific directions to the sheriff as to property to be levied upon may be included in the praecipe or by separate direction at the option of plaintiff.

Rule 2964.  Notice of Judgment and Execution Required by Rule 2958.1. Form.

   The notice required by Rule 2958.1 shall be substantially in the following form:

(Caption)

Notice Under Rule 2958.1 of Judgment and
Execution Thereon
_________________

Notice of Defendant's Rights

To: _________________
Defendant(s)

   A judgment in the amount of $ ______ has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you.

   You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.

   YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:

__________
(Name)
__________
(Address)
__________
(Telephone Number)

__________
Attorney for Plaintiff
__________
Address
__________
Telephone Number

Rule 2965.  Notice of Judgment and Execution Required by Rule 2958.2. Form.

   The notice required by Rule 2958.2 shall be substantially in the following form:

(Caption)

Notice Under Rule 2958.2 of Judgment and
Execution Thereon
_________________

Notice of Defendant's Rights

To: _________________
Defendant(s)

   A judgment in the amount of $ ______ has been entered against you and in favor of the plaintiff with- out any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The court has issued a writ of execution which directs the sheriff to levy upon and sell certain real property owned by you to pay the judgment. The sheriff's sale has been scheduled for _________________ .
(Date)

   You may have legal rights to defeat the judgment or to prevent or delay the sheriff's sale.

   I.  YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT OR DELAY OF THE SHERIFF'S SALE PRIOR TO THE SHERIFF'S SALE OR YOU MAY LOSE YOUR RIGHTS.

   II.  YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.

   YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:

__________
(Name)
__________
(Address)
__________
(Telephone Number)

__________
Attorney for Plaintiff
__________
Address
__________
Telephone Number

Rule 2966.  Notice of Judgment and Execution Required by Rule 2958.3. Form.

   The notice required by Rule 2958.3 shall be substantially in the following form:
 

(Caption)

Notice Under Rule 2958.3 of Judgment and
Execution Thereon
_________________

Notice of Defendant's Rights

To: _________________
Defendant(s)

   A judgment in the amount of $ ______ has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The court has issued a writ of execution which directs the sheriff to take your money or other property owned by you to pay the judgment.

   If your money or property has been taken, you have the right to get the money or property back if you did not voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry of judgment or if you have defenses or other valid objections to the judgment.

   You have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If you wish to exercise this right, you must immediately fill out and sign the petition to strike the judgment which accompanies the writ of execution and deliver it to the Sheriff of ______ County at _________________ .

   IT IS IMPORTANT THAT YOU ACT PROMPTLY. IT WILL BE TOO LATE TO REGAIN YOUR PROPERTY IF YOU WAIT UNTIL AFTER THE PROPERTY HAS BEEN SOLD BY THE SHERIFF OR TURNED OVER TO THE PLAINTIFF.

   YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.

   YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:

__________
(Name)
__________
(Address)
__________
(Telephone Number)

__________
Attorney for Plaintiff
__________
Address
__________
Telephone Number
 

Rule 2967.  Petition to Strike Judgment. Form.

   The petition to strike judgment required by Rules 2958.3 and 2973.3 shall be substantially in the following form:

(Caption)

PETITION TO STRIKE JUDGMENT
_________________

REQUEST FOR PROMPT HEARING

   I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry of judgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue.

   I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.

   Notice of the hearing should be given to me at

__________
Street Address
__________
City, State
__________
Telephone Number

Dated: ______ 
______
Defendant(s)

CHAPTER 2980.  STATUTORY ACTION TO CONFORM CONFESSED JUDGMENT

Rule 2986.  Judgment. Conforming the Confessed Judgment.

   (a)  Judgment shall be entered in the action for the amount, if any, due the plaintiff from the defendant or the amount, if any, due the defendant from the plaintiff. That judgment shall merge with the confessed judgment. The court shall enter an appropriate order conforming the confessed judgment to the judgment in the action.

   Official Note: Under Rule 214(g) trial of the action may be advanced by the court for good cause.

   Once the judgment is conformed, it is enforced in the same manner as other money judgments pursuant to Rule 3101 et seq. Notice under Rule 2956.1(c) is not required when a confessed judgment has been conformed pursuant to this rule.

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CHAPTER 3000.  JUDGMENTS

SUBCHAPTER D.  ENFORCEMENT OF MONEY JUDGMENTS FOR THE PAYMENT OF MONEY

Rule 3103.  Commencement; issuance.

   (a)  Execution shall be commenced by filing a praecipe for a writ of execution with the prothonotary of any county in which judgment has been entered. Except as otherwise prescribed by Rule 2963 governing a judgment entered by confession, the praecipe shall be in the form prescribed by Rule 3251.

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Rule 3129.2.  Notice of sale; handbills; written notice; publication.

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   (c)  The written notice shall be prepared by the plaintiff, shall contain the same information as the handbills or may consist of the handbill and shall be served at least thirty days before the sale on all persons whose names and addresses are set forth in the affidavit required by Rule 3129.1.

   (1)  Service of the notice shall be made

   (i)  upon a defendant in the judgment who has not entered an appearance and upon the owner of the property

   (A)  by the sheriff or by a competent adult who is not a party to the action in the manner prescribed by Rule 402(a) for the service of original process upon a defendant, or

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Subchapter E.  ENFORCEMENT OF JUDGMENTS IN SPECIAL ACTIONS

FORMS

Rule 3251.  Praecipe for writ of execution--money judgments.

   [The] Except as provided by Rule 2963 governing execution upon a judgment entered by confession, the praecipe for a writ of execution shall be substantially in the following form:

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Explanatory Comment

   The rules of civil procedure governing confession of judgment for money have been revised in two major respects: the abolition of confession of judgment in a consumer credit transaction and the imposition of a requirement of notice prior to or with execution upon a confessed judgment.

I.  Consumer Credit Transactions

   Abolition of confession of judgment in connection with consumer credit transactions is effected by excluding the transactions from the scope of the action. Three rules are amended. Rule 2950 is revised by adding a definition of the term ''consumer credit transaction'' and defining the term ''action'' to exclude those transactions. Rules 2951 and 2952 are revised to require that the plaintiff file an affidavit if proceeding under Rule 2951(a) or aver in the complaint if proceeding under Rule 2951(b) that the judgment is not being entered in a consumer credit transaction.

II.  Notice

   The provisions for notice are intended to aid the bench and bar in complying with Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (C.A. 3 1994). The significance of the opinion was stated by Judge R. Stanton Wettick, Jr. in S&T Bank v. Coyne, No. GD 94-12141 (Allegheny County, August 11, 1994):

   The Jordan opinion is significant only because the judgment creditor and its attorneys are now also subject to a § 1983 claim by a judgment debtor who did not waive its constitutional rights to notice and a hearing.

   New rules have been promulgated to provide for notice to be served upon the defendant in most cases prior to or during execution on a judgment entered by confession. There are three notices but only one need be given in a particular case.

   1.  New Rule 2958.1 provides for a notice to be served at least thirty days prior to the filing of the praecipe for a writ of execution upon real or personal property. The form of notice is prescribed by new Rule 2964.

   2.  New Rule 2958.2 provides for a notice to be served with the notice of the sale of real property when the property levied upon is solely real property or when the property levied upon is real property and personal property to be sold with the real property pursuant to Section 9501(d) of the Uniform Commercial Code. The form of notice is prescribed by new Rule 2965.

   3.  New Rule 2958.3 provides for a notice to be served with the writ of execution when the property to be levied upon includes personal property or personal and real property and when the plaintiff determines that advance notice of the execution might not be appropriate. The form of the notice is prescribed by new Rule 2966.

   Under new Rule 2959(a)(3), a defendant must file a petition within thirty days of service of the notice to obtain relief from the judgment or to prevent execution. After thirty days, the defendant is barred from relief unless there are ''compelling reasons for the delay''.

   In the case of notice given under Rule 2958.3, the defendant is advised of the right to a hearing on the sole issue of the validity of the waiver of due process rights. The notice also advises the defendant of the right to request a prompt hearing which must be held within three business days after the sheriff presents the request to the court. Execution is stayed pending a determination of the validity of the waiver. The court is to determine whether ''the plaintiff has shown by a preponderance of the evidence that the defendant knowingly, voluntarily and intelligently waived the right to notice and hearing prior to the entry of judgment''. Rule 2958.3 imposes the burden of proof on the plaintiff who is asserting that a constitutional right has been waived. The quantum of evidence required to satisfy the rule is an evidentiary matter outside the scope of the rule.

   Under Rule 2958.4, the plaintiff must choose whether to give thirty-days' advance notice under Rule 2958.1 or to give notice as part of the execution process under Rules 2958.2 and 2958.3. Subdivision (a) of the rule provides that a plaintiff who has given notice pursuant to Rule 2958.1 may not proceed also under Rule 2958.2 or Rule 2958.3. However, once having given the required notice, the plaintiff need not give notice again on a subsequent execution on the same judgment.

   The intent of these rules is to limit the necessity for hearings on issues of due process and waiver by providing the defendant with a pre-deprivation notice and opportunity for hearing on the merits. However, new Rule 2959(a)(2) specifies three instances when the issue of the voluntary, intelligent and knowing waiver of due process rights may be raised. The first is in support of a request for a stay when the court has already denied a prior request for a stay despite timely filing of that request and ''the presentation of prima facie evidence of a defense.'' The second is when personal property has been levied upon or attached without prior notice and hearing under new Rule 2958.2. The third is when a defendant in possession of leased residential real property has been evicted without prior notice and hearing under new Rule   2973.3. In all other instances, the issues upon a petition for relief from the judgment will be the merits and not the waiver of due process rights.

III.  Conforming Amendments

   A paragraph has been added to the note to present Rule 2986 stating that, once a confessed judgment has been conformed pursuant to Rule 2981 et seq., the judgment is enforced in the same manner as other money judgments.

   Execution Rules 3103(a) and 3251 have been amended to cross-refer to the form of praecipe to issue a writ of execution upon a confessed judgment prescribed by new Rule 2963.

   Rule 3129.2(c)(1)(i)(A) governing notice of the execution sale of real property has been amended to provide for service of the notice of sale upon a defendant who has not appeared in the action ''by a competent adult who is not a party to the action'' as well as by the sheriff.

IV.  Application to Pending Actions

   Rule 2961 governing the application of amendments to pending actions has been amended by deleting the former text and substituting two new subdivisions. New subdivision (a) provides that the amendments prohibiting the entry of a confessed judgment in connection with a consumer credit transaction are applicable to actions commenced after the effective date specified in the order of the Supreme Court. Subdivision (b) provides that the amendments relating to execution on a confessed judgment are applicable to executions commenced after the effective date.

By the Civil Procedural Rules Committee,

EDWIN L. KLETT,   
Chairperson

[Pa.B. Doc. No. 96-621. Filed for public inspection April 19, 1996, 9:00 a.m.]