Pennsylvania Code
Title 231 - RULES OF CIVIL PROCEDURE
Part I - GENERAL
Chapter 3000 - JUDGMENTS
Subchapter D - ENFORCEMENT OF MONEY JUDGMENTS FOR THE PAYMENT OF MONEY

1. Scope of the rules.

2. The writ of execution.

Sweeping changes are made in the form and scope of the writ of execution. The writs of fi. fa., testatum fi. fa., vendex, liberari facias and attachment execution are abolished. There will be only one writ of execution for real and personal property with directions for either levy or attachment or both. (Rules 3102, 3251, 3252). Civil arrest, except in actions for fines and penalties or as punishment for contempt, is suspended. (Rule 3250). Civil arrest before judgment has already been abolished. (Rule 1481). Return days will be abolished and the writ may be reissued as in assumpsit if service or levy is not made within 90 days or a new writ may be issued. (Rule 3106). A new garnishee may be named in a reissued writ. (Rule 3106(c)). Alias and pluries writs are abolished. Successive writs may be issued at the same or different times without a prior return of an outstanding writ as required by former practice. (Rule 3103(d)).

3. Venue and service.

The writ may be issued in any county in which judgment is entered and may be directed to the sheriff of any county in the Commonwealth (Rule 3103(b)) with the single limitation that on transferred judgments the execution may be directed only to the sheriff of the county in which it is issued. (Rule 3103(c)). Under the prior testatum practice, levies could be directed to other counties but attachment execution could not. These rules make no distinction in this respect between levy and attachment and thus broaden the prior testatum practice. (Rule 3103). The transfer of judgments has been simplified by rules providing merely for the filing of a certified copy of the docket entries in the action and a certification of the amount of the judgment. (Rules 3001 to 3011). With this simplified procedure it may be easier to transfer a judgment and issue execution in the transferee county rather than use testatum process. However, the equivalent of the prior testatum practice is still available under the rules.

4. Indexing.

The rules provide for indexing the execution against the defendant. (Rule 3104). There are special indexing provisions authorizing the indexing of the writ as a lis pendens against a garnishee where real property of the defendant is allegedly held in the name of a garnishee. (Rule 3104(c)). This is an extension not only of the indexing but of attachment procedure. A writ directed to another county may be served before indexing if the plaintiff so directs. (Rule 3104(b)).

5. Order of levy or attachment and sale.

These rules eliminate the ambiquity of the Act of 1836 as to the order of levy and sale of personalty and realty. They provide that real or personal property may be levied upon or attached and sold in any order or simultaneously as the plaintiff may direct. (Rules 3107, 3124). On the other hand they give the court broad powers of stay of execution so that the interests of the defendant may be adequately protected. (Rule 3121).

6. Attachment.

Sweeping changes have also been made in attachment procedure both as to the property subject to attachment (Rules 3101(b), 3108) and as to service (Rules 3111, 3112, 3113). Under the prior practice real property could not be attached and the Act of Assembly authorizing attachment of debts, deposits or personal property, pawned, pledged or demised, was strictly construed so that even the contents of a safe deposit box could not be attached but had to be levied upon by writ of fi. fa. These rules provide for execution against the contents of a safe deposit box by force, if necessary, upon petition. (Rule 3110). Execution against partnership interests is simplified by permitting service on the partnership as a garnishee. (Rule 3108(c)). However, the provisions of the Uniform Partnership Act relating to charging orders and limiting sale of the partnership interest are unsuspended. (Rule 3148(a)(3)). The scope of attachment is also enlarged to include tangible or intangible property of the defendant in the custody, possession, or control of a garnishee. (Rule 3111(b)).

The rules expand attachment procedure to include real estate of the defendant, legal title to which is held in the name of a garnishee. (Rules 3108(e), 3112(a)). They provide for service upon the real owner including substituted service and service by publication. (Rule 3112(b) and (c)). The plaintiff may still proceed as under prior practice to levy upon and sell the interest of the defendant in real property in the name of a garnishee (Rule 3108(f)) and thereafter test the extent of defendant's title by ejectment proceedings; or he may proceed under the Fraudulent Conveyance Act, which is unsuspended. The rules however offer the more expeditious and simplified attachment alternative.

The rules make radical changes in the method of attaching mortgages, judgments or other liens owned by a defendant and secured on real property. They provide a method for the attachment of the debt itself, as well as a separate method of the attachment of the security. (Rules 3101(b)(5), 3108(b), 3108(d), and 3113).

Supplementary proceedings by way of sequestration of rents, principal, interest and income are authorized and the court may order the sheriff to make collection or appoint a sequestrator (Rule 3114) or grant supplementary equitable relief to restrain transfer, etc. (Rule 3118).

Radical changes are also made in connection with the attachment of tangible personal property which under prior practice was restricted to goods pawned, pledged and demised. Under the rules, service of the writ against a garnishee will subject him to the mandate and injunctive order of the writ, restraining him from delivering any property, tangible or intangible, of the defendant which is subject to attachment, to any one except the sheriff or otherwise disposing thereof until further order of the court or discontinuance or termination of the attachment. (Rule 3111(c)).

The rules do not, however, permit the unlimited attachment of tangible personal property. Such property may only be reached by a levy, except in the single situation where the property is in the possession of a third person, not the defendant, who prevents a levy or fails to make the property available to the sheriff for levy. If either of these events occurs, the sheriff may serve the third person as garnishee and the goods in the possession of the garnishee will then be attached. (Rule 3108(a)).

7. Priority of liens.

The prior law as to the lien of levies or attachment remains unchanged. (Rules 3115, 3137). The lien of a levy relates back to the date of delivery of the writ to the sheriff if served during the ninety-day period of validity of the writ. (Rule 3137(a)). Where there are writs of several plaintiffs a levy under one valid writ constitutes a levy under all other writs then in the sheriff's hands or delivered to him before sale or disposition of the proceeds. The other levies may be noted by endorsement although an actual levy may be made if the plaintiff so directs. (Rule 3115(a) and (b)). Where there are several writs in the hands of the sheriff, the withdrawal, abandonment, stay or release of one writ will not affect levy or proceedings on the others. (Rule 3115(c)). The service of a writ of execution upon a garnishee is effective as of the date of service. (Rule 3137(b)). If property which has been attached is improperly disposed of by the garnishee, the law remains as heretofore. The plaintiff has his remedies against the garnishee (Rules 3111(d), 3148(c)), but there is no lien on the property against an innocent third person who takes the property from the garnishee without notice of a violation of the injunction of the writ.

8. Execution against real estate.

The rules make sweeping changes in the method of execution against real estate. As pointed out above, real property of the defendant held in the name of a garnishee may be either levied upon (Rule 3108(f)) or attached (Rule 3108(e)). The prior practice of "paper levies" against real estate by endorsement on the writ is continued. (Rule 3108(f)). The statutes requiring inquisition and condemnation of real estate before sale are suspended by the rules. However the court is given broad power, either on its own motion or on application of the defendant or any party in interest, to grant relief upon a showing that the rents and income will be sufficient within a reasonable period to satisfy the judgment and that the defendant is willing to have the rents so applied either by agreement or by sequestration. (Rule 3121(b)(2) and (c)). The provision for sale of real property extending across county lines is simplified by substituting petition procedure for the complication prior procedure. (Rule 3131). The right of lien creditors to apply their liens against the purchase price remains unchanged (Rule 3133) but the procedure for distribution of proceeds and delivery of the sheriff's deed has been completely revised. (Rules 3135, 3136). It is no longer necessary to have returns of execution of real estate read in open court or advertised and the sheriff may, within ten days after filing the schedule of distribution, if no petition to set aside the sale is filed, execute, acknowledge and deliver the deed to the property sold. The notice of sale has been enlarged to require specified notice as to the filing of exceptions and no further notice is required. (Rules 3128, 3129). Confirmation of sale is no longer required. (Rules 3129, 3135).

Furthermore, an execution, if the writ is served within its ninety-day period of validity, remains valid thereafter for purposes of completing the execution, and authorizes a sale even after the ninety-day period without further issuance of the writ. (Rule 3106(d)). The prior practice of requiring sale of real estate before the return day or within four days thereafter is suspended. (Rule 3106(d)). However the sheriff may consider a levy as abandoned, in the absence of stay or extension, if sale is not held within six months. (Rule 3120). This also applies to execution against personal property.

The prior requirement of a second notice in the event of the postponement of an advertised sale has been modified. One adjournment may now be made without further notice or advertisement, if the adjournment is made to a date certain and is announced at the time and place of the originally advertised sale. (Rules 3128(c), 3129(d)).

9. Supplementary relief.

The types of supplementary relief available to a plaintiff are simplified and expanded. The provisions for oral examination under the Act of 1913 are suspended except as to the immunity provisions. Discovery may be had either before or after the writ of execution upon oral examination or written interrogatories directed to the defendant or to any person or party as provided by the deposition and discovery rules. (Rule 3117). The plaintiff is also given the right to supplementary relief without the necessity of full dress equity proceedings. (Rule 3118). He may upon petition filed in the court in which execution was issued obtain an order enjoining the negotiation, transfer, assignment, or other disposition of any security document of title, pawn ticket, mortgage or other property of the defendant, obtain an order for any action necessary to preserve collateral securities, compel the disclosure to the sheriff of the whereabouts of property and its redelivery to the sheriff if removed from the county for the purpose of avoiding execution and obtain such other equitable relief as may be appropriate under the circumstances. (Rule 3118).

10. Defendant's rights.

The rights of the defendant are also enlarged by the rules. The defendant may upon petition obtain release of the property from levy, either upon filing of bond, or upon showing that the value of the property levied upon is excessive compared to the judgment. (Rule 3119). The defendant is given broad rights as to stay of execution which may be granted on legal or equitable grounds. (Rule 3121). The proceedings for claim of exemption are simplified and failure to claim the exemption in kind will no longer constitute a waiver of exemption but the sheriff is required to set aside either in kind or from the proceeds of sale the amount of the defendant's exemption unless otherwise waived. (Rule 3123). Outside appraisers in exemption claims are abolished; all appraisals will be made by the sheriff. (Rule 3123(b)). Although the procedure as to inquisition and condemnation of real estate is suspended, the court is given broad equitable powers to grant the defendant relief upon showing that the net rents or income can satisfy the judgment within a reasonable time without impairing the ultimate collection of the judgment and without undue hardship to the plaintiff. (Rule 3121(b)(2) and (d)).

Where execution is issued from one county to another, the defendant is given the alternative of filing objections and stay proceedings either in the county of issuance of the writ or in the county where execution is had. (Rule 3122). The Act of March 27, 1945, 12 P. S. §§ 913, 914, authorizing the defendant in confessed judgments to move to open in the county in which judgment was originally entered or in the county of issuance remains unsuspended.

11. Garnishee proceedings.

The proceedings between the plaintiff and garnishee are substantially the same as under the Foreign Attachment Rules. The execution rules are complete in themselves and no longer depend upon cross-reference to the Foreign Attachment Rules. The Attachment Execution Rules (3101 et seq.) adopted in 1954 are superseded.

The garnishee will be under no duty to resist the attachment or defend the action after he has given notice to the defendant. (Rules 3140, 3141). The interrogatory procedure between the plaintiff and the garnishee is the same as though the interrogatories were a complaint and the answer of the garnishee an answer in assumpsit. (Rules 3145(a) and (b)). The garnishee's rights are however enlarged to permit under "new matter" the setting forth of any claim which he could assert against the plaintiff if sued by him. (Rule 3145(b)(3)). The garnishee is also given a choice of venue when the writ is directed to another county. (Rule 3141). If the garnishee is found to have only a lien upon the property, the rights of all parties may be enforced by a conditional verdict or order. (Rule 3148(d)).

12. Miscellaneous provisions.

The right of the sheriff to break and enter in order to sell personal property levied upon is continued but the requirement of bond is eliminated. (Rule 3127). The procedure authorizing sale of inventory in course of trade is a new procedure which may help preserve the real value of the assets for the benefit of both plaintiff and defendant. (Rule 3126). Similarly, securities dealt with upon recognized stock exchanges or commodity exchanges may be sold by the sheriff through such exchanges instead of by ordinary execution sale. (Rule 3130).