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246 Pa. Code Rule 409. Notice Accompanying Order of Execution.

Rule 409. Notice Accompanying Order of Execution.

 The copy of the order of execution given or made available to the defendant under Rule 405B shall contain the following notice:

NOTICE TO DEFENDANT

   (1)  This Order of Execution has been issued because there is a judgment against you which remains unpaid. It may cause your tangible personal property to be taken and sold to pay the judgment.

   (2)  The law provides that certain property cannot be taken on this order of execution. Your real estate cannot be taken on this execution, nor can perishable personal property or personal property which is intangible such as your bank accounts. There are some other types of property which are exempt from execution under State and Federal Law, such as wearing apparel, bibles, school books, sewing machines, military uniforms and equipment, most wages and unemployment compensation, social security benefits, certain retirement funds and accounts, certain veteran and armed forces benefits, certain insurance proceeds and such other exemptions as may be provided by law.

   (3)  In addition, there is a general monetary exemption of $300. However, this exemption may be reduced or extinguished by the value of property you own which could be taken on a writ of execution issued by a court of common pleas but which cannot be taken on this order of execution which is issued by a magisterial district judge. For example, the $300 exemption may be reduced or extinguished by the value of your equity in real estate or by money you have in a bank account, except money in your bank account which is itself generally exempt from execution, such as social security payments. Also, the $300 exemption does not apply to a judgment for support, a judgment against a debtor who is not an individual, a judgment obtained for board for four weeks or less or a judgment for $100 or less obtained for wages for manual labor.

   (4)  If you are entitled to all or part of the $300 exemption, you may claim it at any time before the execution sale by notifying the officer (constable or sheriff) executing this order of your claim. You should tell the officer whether you want this exemption to be taken out of the property levied upon or out of cash from the proceeds of the sale and, if the exemption is claimed in property, you should designate the property which you choose to retain as exempt. If you claim this exemption in property, the officer executing this order will set aside, from the property designated by you, property as appraised by the officer up to the value of your exemption. If you do not claim this exemption, the officer will choose, appraise and set aside property up to the value of your exemption for you. If the property cannot be so divided, the officer will set aside from the proceeds of the sale and pay to you in cash the amount of your exemption or whatever lesser amount is received as proceeds of the sale.

   (5)  You may appeal to the magisterial district judge who issued this order from any appraisal or designation of property made by the officer executing this order, provided the appeal is made within two days after the appraisal or designation. Also, at any time before the sale, you may file with the magisterial district judge who issued this order an objection to the levy on the ground that it is illegal or is excessive compared to the amount of the judgment, interest and probable costs. Upon such an appeal or objection, the magisterial district judge will notify you of the date and time of the hearing on the appeal or objection. You must be prepared at the hearing to present your side of the case. An appeal from an appraisal or designation of property made by the officer executing this order may simply state, ‘‘I appeal from the (appraisal) (designation) made by the officer executing the order of execution against me (name).’’ An objection to the levy on the ground that it is illegal or is excessive compared to the amount of the judgment, interest and probable costs may simply state, ‘‘I object to the levy against me (name) on the ground that it is (illegal) (excessive).’’ Appeals and objections should be made in writing.

   (6)  YOU MAY FEEL THAT YOU NEED THE ADVICE OF A LAWYER IN THIS MATTER. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP.
 


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   Official Note

   This rule requires that the defendant be given notice of certain rights and exemptions relative to orders of execution issued by magisterial district judges.
 Subdivision (2) of the rule first sets forth the limitations upon execution in these cases contained in Rule 406. It then gives some general information concerning State and Federal exemption. More specifically, these are as follows:

EXEMPTIONS UNDER PENNSYLVANIA LAW

   1. General $300 statutory exemption, Judicial Code, §  8123, 42 Pa.C.S. §  8123.

   2. Particular personal property exemption—wearing apparel, bibles and school books, sewing machines, military uniforms and equipment, Judicial Code, §  8124(a), 42 Pa.C.S. §  8124(a).

   3. Certain retirement funds and accounts, Judicial Code, §  8124(b), 42 Pa.C.S. §  8124(b):

     Public School Employees, 24 P. S. §  8533.

     State Employees, 71 P. S. §  5953.

     Police Pension Funds, 53 P. S. §  761.

     Philadelphia Pension Fund, 53 P. S. §  13431.

     Pittsburgh Pension Fund, 53 P. S. §  23561.

     Pennsylvania Municipal Employees, 53 P. S. §  881.101 et seq.

     Private employees’ pensions or annuity funds, Judicial Code, §  8124(b)(7), 42 Pa.C.S. §  8124(b)(1)(vii).

     Self-employed retirement or annuity funds, Judicial Code, §  8124(b)(8), 42 Pa.C.S. §  8124(b)(1)(viii).

   4. Certain insurance proceeds, Judicial Code, §  8124(c), 42 Pa.C.S. §  8124(c):

     Fraternal society benefits, Judicial Code, §  8124(c)(1), (8), 42 Pa.C.S. §  8124(c)(1), (8).

     Workmen’s Compensation, Judicial Code, §  8124(c)(2), 42 Pa.C.S. §  8124(c)(2).

     Group Insurance, Judicial Code, §  8124(c)(5), 42 Pa.C.S. §  8124(c)(5).

     Life insurance and annuities, Judicial Code, §  8124(c)(3), (4), (6), 42 Pa.C.S. §  8124(c)(3), (4), (6).

     Accident and disability, Judicial Code, §  8124(c)(7), 42 Pa.C.S. §  8124(c)(7).

     No-fault motor vehicle accident benefits, 40 P. S. §  1009.106(f).

   5. Personal earnings, subject to the exceptions for support, board, student loan obligations, Judicial Code, §  8127, 42 Pa.C.S. §  8127.

     Unemployment Compensation, 43 P. S. §  863.

   6. Tangible personal property on international exhibition, Judicial Code, §  8125, 42 Pa.C.S. §  8125.

   7. Common carrier, property in interstate transit, Judicial Code, §  8126, 42 Pa.C.S. §  8126.

   8. See also Judicial Code, Section 8121, 42 Pa.C.S. Section 8121.

EXEMPTIONS UNDER FEDERAL LAW

   1. Certain wages and compensation:
Longshoremen’s and harbor workers’ compensation, 33 U.S.C. §  916.
Merchant seamen’s wages, 46 U.S.C. §  601.
Injury or death resulting from war-risk hazard, 42 U.S.C. §  1717.

   2. Social Security benefits, 42 U.S.C. §  407.

   3. Certain retirement funds and accounts:
Civil Service, 5 U.S.C. §  8346(a).
Foreign Service, 22 U.S.C. §  1104.
Railroad Retirement, 45 U.S.C. § §  228L, 231m.
Judges’ annuities, 28 U.S.C. §  376(n).

   4. Certain veteran and armed forces benefits:
Laws administered by the Veterans Administration, 38 U.S.C. §  3101.
Armed Forces Survivor Benefit Plan, 10 U.S.C. §  1450(i).
Savings deposited with armed forces, 10 U.S.C. §  1035.
Medal of Honor Roll Special Pension, 38 U.S.C. §  562(c).

   5. Miscellaneous: Property of a foreign state, 28 U.S.C. § §  1609, 1611.
Homestead Land, 43 U.S.C. §  175.
Rail Fund, 45 U.S.C. §  822(e).

   Subdivision (3) deals with the reduction or extinguishment of the $300 general monetary exemption when the defendant owns property generally subject to execution but not subject thereto under the limitations applying to orders of execution issued by magisterial district judges. See the Judicial Code, §  8123(c), 42 Pa.C.S. §  8123(c). The subdivision then sets forth other statutory exclusions from the $300 general monetary exemption. See the Judicial Code, §  8123(b), 42 Pa.C.S. §  8123(b).

   Subdivision (4) informs the defendant of the procedures for claiming the $300 monetary exemption. See Rules 407 and 408A and B.

   Subdivision (5) informs the defendant of the right to appeal from appraisals or designations of property (see Rule 408C) and of the right to file an objection to the levy on the ground that it is illegal or excessive (see Rule 413). The defendant is also informed under subdivision (5) that he/she will be given a hearing on these matters (see Rules 420 and 421).

   Subdivision (6) contains advice as to obtaining the help of a lawyer.

Source

   The provisions of this Rule 409 amended through July 1, 1982, effective August 16, 1982, 12 Pa.B. 2264. Immediately preceding text appears at serial pages (43157) to (43158).


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