Section 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 or attached 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.

The provisions of this Rule 2958.3 adopted April 1, 1996, effective July 1, 1996, 26 Pa.B. 1806; amended April 17, 1998, effective July 1, 1998, 28 Pa.B. 2026. Immediately preceding text appears at serial pages (213360) to (213361).