Pennsylvania Bulletin

PA Bulletin, Doc. No. 96-622

THE COURTS

[231 PA. CODE CHS. 2970 AND 3000]

Amendment of Rules Governing Confession of Judgment in Ejectment for Possession of Real Property; No. 257; Doc. No. 5

[26 Pa.B. 1814]

Order

Per Curiam:

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

   1.  Rules 2970, 2971, 2974, 2976, 3161, and 3254 are amended to read as follows.

   2.  Rules 2973 is rescinded.

   3.  New Rules 2973.1, 2973.2, 2973.3, 2973.4, 2974.1, 2974.2, 2974.3, 2975 and 3161.1 are promulgated 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 2970.  CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY

Rule 2970.  Conformity. Scope.

   Except as otherwise provided in this chapter, the procedure in an action to enter a judgment in ejectment for possession of real property by confession pursuant to an instrument, other than a residential lease executed by a natural person, authorizing such confession shall be in accordance with the rules relating to confession of judgment for money.

   Official Note: [The United States District Courts in Pennsylvania have held the procedure governing confession of judgment in ejectment to be unconstitutional insofar as the procedure applies to residential leases. Attorneys should ascertain whether such an action is permissible in the particular county.]

   Confession of judgment in ejectment is abolished with respect to a residential lease executed by a natural person.

Rule 2971.  Commencement of Action.

   (a)  An action shall be commenced by filing with the prothonotary a complaint substantially in the form provided by Rule 2952. The complaint shall also contain

   (1)  an averment, in place of that required by Rule 2952(a)(3), that the judgment is not being entered against a natural person in connection with a residential lease, and

   (2)  a description of the property and

   (3)  a demand for judgment in ejectment.

*      *      *      *      *

Rule 2973.  Rescinded.

Rule 2973.1.  Execution.

   Except as otherwise provided by subdivisions (b) and (c), a judgment in ejectment entered by confession shall be enforced in the manner provided by Rule 3160 et seq. governing the enforcement of a judgment in an action of ejectment.

   Official Note: The form of praecipe required by subdivision (b) is in place of the form of praecipe prescribed by Rule 3254. The notice required by subdivision (c) is in addition to the procedural requirements of Rule 3160 et seq.

   (b)  Execution shall be commenced by filing a praecipe for a writ of possession in the form prescribed by Rule 2974.1.

   (c)  If no petition to open or strike the judgment has been filed, written notice shall be served upon the defendant in the judgment either

   (1)  prior to execution as provided by Rule 2973.2, or

   (2)  with the writ of possession as provided by Rule 2973.3.

   Official Note: The written notice provided by this rule is required only in connection with execution proceedings. The notice is in addition to the notice of the entry of judgment required by Rule 236.

Rule 2973.2.  Notice Served Prior to Execution.

   (a)  A written notice in the form prescribed by Rule 2974.2 shall be served on the defendant at least thirty days prior to the filing of the praecipe for a writ of possession.

   Official Note: 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 2973.3. Conversely, if notice is served under Rule 2973.3, notice need not be given under this rule.

   Rule 2974.1 governing the form of the praecipe for the writ of possession 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 2973.3.  Notice Served with Writ of Possession. Prompt Hearing Limited to Issue of Waiver of Due Process Rights.

   (a)  A written notice in the form prescribed by Rule 2974.3 and a form of petition to strike the judgment and request for prompt hearing prescribed by Rule 2967 shall be served upon the defendant with the writ of possession.

   Official Note: 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 2973.2.

   Rule 2974.1 governing the form of the praecipe for the writ of possession requires a certification that notice will be given as provided by this rule.

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

   (b)  A defendant who has been given notice pursuant to Rule 2973(a) 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 possession and striking the judgment. Upon entry of the order, any property from which the defendant has been evicted pursuant to the writ of possession shall be returned to the defendant's possession.

   (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 petition.

Rule 2973.4.  Choice of Procedure. Notice Upon Subsequent Executions.

   (a)  A plaintiff who has given notice pursuant to Rule 2973.2 may not proceed thereafter under Rule 2973.3.

   (b)  The notice required by Rules 2973.2 and 2973.3 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).

FORMS

Rule 2974.  Confession of [Judgments] Judgment. Form.

   The confession of judgment required by Rule 2971(b) shall be substantially in the following form:

*      *      *      *      *

Rule 2974.1.  Praecipe for Writ of Possession.

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

[Caption]

PRAECIPE FOR WRIT OF POSSESSION UPON A
CONFESSED JUDGMENT

To the Prothonotary:

   Issue writ of possession upon the judgment in ejectment entered by confession in the above matter.

Certification

I certify that

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

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

   (2)  Notice pursuant to Rule 2973.3 has been served at least thirty days prior to the filing of this praecipe as evidenced by a return of service filed of record.

   (3)  Notice pursuant to Rule 2973.4 will be served with the writ of possession.

   (e)  Notice was served in connection with a prior execution on this judgment and, pursuant to Rule 2973.4(b), no further notice is required.

   (f)  Notice is not required under Rule 2973.1(c) because a petition to open or strike the judgment was previously filed.

__________
Attorney for

Rule 2974.2.  Notice of Judgment and Execution Required by Rule 2973.2.  Form.

   The notice required by Rule 2973.2 shall be substantially in the following form:

(Caption)
Notice under Rule 2973.2 of Judgment and Execution
_________________

Notice of Defendant's Rights

To: _________________
Defendant(s)

   A judgment for possession of real property has been entered against you and in favor of the plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The sheriff may remove you from the property at any time after thirty 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 being removed from the property. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT MUST BE FILED 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 2974.3.  Notice of Judgment and Execution Required by Rule 2973.3. Form.

   The notice required by Rule 2973.3 shall be substantially in the following form:

(Caption)

Notice under Rule 2973.3 of Judgment and
Execution Thereon
_________________

Notice of Defendant's Rights

To: _________________
Defendant(s)

   A judgment for possession of real property has been entered against you and in favor of the plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The court has issued and the sheriff has served a writ of possession which directs the sheriff to remove you from possession of the real property.

   You may have legal rights to defeat the judgment or to prevent your being removed from the property or to regain possession of the property if you have been removed, 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. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.

   If you have been removed from the property without notice or the opportunity for a hearing, 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 request for hearing which accompanies the writ of possession and deliver it to the Sheriff of ______ County at ______ .

   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

   Official Note: See Rule 2967 for the form of the Request for Hearing.

Rule 2975.  Application of Amendments to Pending Actions.

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

   Official Note: The amendments to Rules 2970 and 2971 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 possession shall apply to executions commenced after the effective date set forth in the Order of the Supreme Court.

   Official Note: The amendments to Rules 2973.1 through 2973.3 and 2974.1 through 2974.3 relate to execution upon a judgment entered by confession and relief from the judgment.

Rule 2976.  Suspension of Acts of Assembly. Abolition of Practice and Procedure Under Repealed Statutes.

   [After the effective date of these rules,

   (a)  All Acts or parts of Acts of Assembly inconsistent with these rules are suspended to the extent of such inconsistency; and

   (b) (1)  the] The practice and procedure provided in all former Acts of Assembly governing confession of judgment, which have been repealed [effective June 27, 1978 and June 27, 1979] by the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, No. 53, and which are now part of the common law of the Commonwealth by virtue of Section 3(b) of JARA, are hereby abolished and shall not continue as part of the common law of the Commonwealth[; and

   (2)  with respect to all Acts of Assembly relating to such practice and procedure, repeal of which will become effective June 27, 1980 as provided by Section 4(b) of JARA, this is a general rule within the meaning of Section 3(b) of JARA and the practice and procedure provided in those Acts of Assembly shall not continue as part of the common law of the Commonwealth].

CHAPTER 3000.  JUDGMENTS

Subchapter E.  ENFORCEMENT OF JUDGMENTS IN SPECIAL ACTIONS

Rule 3161.  Conformity to rules governing enforcement of judgments for payment of money.

   The procedure for the enforcement of a judgment for possession shall be in accordance with the rules governing the enforcement of judgments for the payment of money with respect to the following:

   (a)  Commencement and Issuance of Writ:--Rules [3103(a),] 3103(e) and 3105.

*      *      *      *      *

Rule 3161.1.  Commencement.

   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 2974.1 governing a judgment entered by confession, the praecipe shall be in the form prescribed by Rule 3254.

Rule 3254.  Praecipe for writ of possession.

   [The] Except as provided by Rule 2974.1 governing execution upon a judgment in ejectment entered by confession, the praecipe for a writ of possession shall be substantially in the following form:

*      *      *      *      *

Explanatory Comment

   The Supreme Court of Pennsylvania has promulgated two principal revisions to the rules of civil procedure governing confession of judgment for the possession of real property. First, the action has been redefined to abolish confession of judgment for the possession of real property in connection with a residential lease executed by a natural person. Second, the execution process has been revised by adding the requirement of a notice to be served upon the defendant prior to or with the writ of possession.

I.  Residential Leases Executed by Natural Persons

   Confession of judgment for the possession of real property in connection with a residential lease executed by a natural person has been abolished. The abolition has been effected by amending Rule 2970 defining the scope of the action to include a confession of judgment for possession of real property arising from ''an instrument, other than a residential lease executed by a natural person.'' Rule 2971 governing the commencement of the action has been revised by adding an averment to the complaint that judgment is not being entered against a natural person in connection with a residential lease.

   A note to Rule 2970 formerly advised that the ''United States District Courts in Pennsylvania have held the procedure governing confession of judgment in ejectment to be unconstitutional insofar as the procedure applies to residential leases.'' By abolishing the action as to such leases, the present amendment removes any uncertainty from the area and makes the practice uniform.

II.  Notice

   The revision of the rules governing confession of judgment for possession of real property to provide for a notice to the defendant prior to or with execution parallels a similar revision of the rules governing confession of judgment for money. The amendments are as follows.

   New Rule 2973.1 is an introductory rule which serves as a guide to execution on the confessed judgment. The rule prescribes a special form of praecipe for the writ of possession which is to be used in place of the usual form of praecipe prescribed by Execution Rule 3254. When no petition to open or strike the judgment has been filed, the rule imposes the requirement of notice to be served either prior to execution or with the writ of possession and cross-refers to the appropriate rules.

   1.  New Rule 2973.2 is virtually identical to its counterpart governing confession of judgment for money, Rule 2958.1. It provides for a notice to be served at least thirty days prior to the filing of the praecipe for a writ of possession. The form of notice is prescribed by new Rule 2974.2.

   2.  New Rule 2973.3 is also virtually identical to its counterpart governing confession of judgment for money, Rule 2958.3. The rule provides for a notice to be served with the writ of possession which advises the defendant 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 a prompt hearing which must be held within three business days after delivery of a hearing request to the sheriff. The form of the notice is prescribed by new Rule 2974.3. 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 voluntarily, intelligently and knowingly waived the right to notice and hearing prior to the entry of judgment''.

   Subdivision (a) of Rule 2973.4 provides that a plaintiff who has given notice pursuant to Rule 2973.2 may not proceed also under Rule 2973.3. However, once having given notice required under one of those rules, the plaintiff need not give notice again on a subsequent execution on the same judgment.

   A defendant served with a notice must file within thirty days of service of the notice a petition 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'' as provided by Rule 2959(a)(3).

III.  Conforming Amendments

   Execution Rule 3161(a) has been amended to delete the incorporation by reference of Rule 3101(a) governing commencement of execution proceedings. Rule 3101(a) has been revised so that the references to the forms of praecipe apply solely to an execution upon a money judgment. New Rule 3161.1 has been added to govern the commencement of execution upon a judgment for possession. The new rule contains appropriate references to the rules providing the forms of praecipe for the writ of possession.

   Execution Rule 3254 providing the form of the praecipe for a writ of possession has been amended to cross-refer to the praecipe to issue a writ of possession upon a confessed judgment prescribed by Rule 2974.1.

IV.  Application of Amendments to Pending Actions

   Former Rule 2973 governing the effective date of the rules has been rescinded and new Rule 2975 promulgated. Subdivision (a) of the new rule provides that the amendments prohibiting the entry of a confessed judgment arising from an instrument constituting a residential lease executed by a natural person 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 apply to execution proceedings commenced after the effective date.

By the Civil Procedural Rules Committee,

EDWIN L. KLETT,
Chairperson

[Pa.B. Doc. No. 96-622. Filed for public inspection April 19, 1996, 9:00 a.m.]

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