Watson, L. v. Friend, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LORETTA WATSON, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENEEN R. FRIEND,
Appellant No. 1794 EDA 2014
Appeal from the Order Entered May 7, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1608 MAY TERM, 1985
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 30, 2015
Appellant, Deneen R. Friend, appeals from the order entered on May 7,
2014. We affirm.
The factual and procedural background of this case is as follows. On
November 28, 1983, Appellant’s vehicle collided with a vehicle driven by
Loretta Watson (“Watson”). Watson was stopped at a traffic light on 69 th
Street Boulevard in Philadelphia, Pennsylvania at the time of the collision.
On May 14, 1985, Watson filed a complaint against, inter alia,
Appellant. On January 17, 1986, arbiters found in favor of Watson and
against Appellant. On March 3, 1987, Watson filed a praecipe to enter
judgment on the arbiters’ award. On March 10, 1987, judgment was
entered in favor of Watson and against Appellant in the amount of
$7,000.00. On April 11, 2014, Appellant filed a petition to strike the
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judgment. On May 7, 2014, the trial court denied the motion to strike. This
timely appeal followed.1
Appellant presents one issue for our review:
Did the trial court commit an error of law in denying
[Appellant]’s motion to strike the judgment or have the
judgment deemed satisfied when, at the time the judgment was
entered in 1987, the Appellant] did not own any real property
and more than [20] years has elapsed since the entry of the
judgment thereby bar[r]ing enforcement of the judgment
against personal property pursuant to 42 Pa.C.S.A. § 5529?
Appellant’s Brief at 4.
We review a trial court’s denial of a motion to strike a judgment for an
abuse of discretion. Guzman v. Cooper, 616 A.2d 705, 707 (Pa. Super.
1992) (citation omitted). Similarly, we review a trial court’s denial of a
motion to mark a judgment as satisfied for an abuse of discretion.
Gallagher v. Sheridan, 665 A.2d 485, 486 (Pa. Super. 1995) (citation
omitted). As this Court stated:
A petition to strike a judgment operates as a demurrer to the
record, and must be granted whenever some fatal defect
appears on the face of the record. When deciding if there are
fatal defects on the face of the record for the purposes of a
petition to strike a judgment, a court may only look at what was
in the record when the judgment was entered.
Oswald v. WB Pub. Square Assocs., LLC, 80 A.3d 790, 793–794 (Pa.
Super. 2013) (internal quotation marks and citations omitted).
1
On May 30, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On June 4, 2014, Appellant filed her concise statement.
On July 9, 2014, the trial court issued its Rule 1925(a) opinion. Appellant’s
lone issue raised on appeal was included in her concise statement.
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Appellant concedes that there is no statute of limitations for execution
against real property. She argues, however, that because she did not own
any real property in Philadelphia County (or elsewhere) at the time
judgment was entered in favor of Watson, no judgment lien exists against
her after-acquired real property. She further argues that because there is
no judgment lien against her after-acquired property, and the statute of
repose for execution against her personal property has expired, the
judgment is unenforceable and therefore should be stricken.
We first note that Appellant’s entire argument as to why the judgment
should be stricken is premised upon events, i.e., the passage of time, which
occurred decades after entry of the judgment at issue in the case. As noted
above, a court may only consider the record as it existed at the time
judgment was entered. Green Acres Rehab. & Nursing Ctr. v. Sullivan,
2015 WL 1612075, *3 (Pa. Super. Apr. 13, 2015); Oswald, 80 A.3d at 794(citation omitted); Keller v. Mey, 67 A.3d 1, 4 (Pa. Super. 2013) (citation
omitted); ANS Assocs., Inc. v. Gotham Ins. Co., 42 A.3d 1074, 1076 (Pa.
Super. 2012) (citation omitted); Wells Fargo Bank, N.A. v. Lupori, 8 A.3d
919, 920 (Pa. Super. 2010) (citation omitted); City of Phila. Water
Revenue Bureau v. Towanda Props., Inc., 976 A.2d 1244, 1247 (Pa.
Cmwlth. 2009). Appellant does not argue that the judgment was flawed at
the time it was entered. To the contrary, she concedes that it was a validly
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entered judgment in 1987. As such, the trial court properly denied
Appellant’s motion to strike.
Furthermore, even if we considered the record as it stands today, we
conclude that Appellant’s argument that her after-acquired real property
could not be the subject of a judgment lien is incorrect. Instead, if Watson
took the proper procedural steps, she could obtain a judgment lien against
any after-acquired real property, or interest therein, that Appellant came to
possess since 1987. Thus, even though 42 Pa.C.S.A. § 5529 prohibits
Watson from executing against Appellant’s personal property, the judgment
is still valid.
Appellant cites two cases for the proposition that “[i]t has long been
the law that [j]udgments in Pennsylvania are not liens upon after-acquired
lands nor after acquired interests in land.” Appellant’s Brief at 18 (internal
quotation marks and citations omitted). Significantly, the two cases cited by
Appellant, Gen. Casmir Pulaski Bldg. & Loan Ass'n v. Provident Trust
Co. of Phila., 12 A.2d 336 (Pa. 1940), and Meily v. Wood, 71 Pa. 488(1872), were decided prior to 1947. The law in Pennsylvania regarding
judgments and judgment liens changed drastically beginning with the
passage of the Judgment Lien Law of 1947. See 12 P.S. § 877 et seq.
(repealed).2
2
The Judgment Lien Law was repealed by Judiciary Act Repealer Act. See
42 P.S. § 20002(a)(1957).
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Our Supreme Court explained this change, stating that the Judgment
Lien Law “provide[d], inter alia, that in the case of after-acquired property,
the execution, when docketed and indexed, [s]hall become a lien upon such
real property. At common law, a pre-existing judgment was not a lien on
after-acquired real estate.” Phila. Nat’l Bank v. Taylor, 218 A.2d 246,
248 (Pa. 1966) (internal alterations and citation omitted). Notably, our
Supreme Court cited General Casmir when discussing the old common law
with respect to liens on after-acquired property, contrasting the common law
with the law as set forth in the Judgment Lien Law.
After the Judiciary Act Repealer Act repealed the Judgment Lien Law,
our Supreme Court adopted Pennsylvania Rule of Civil Procedure 3027. Rule
3027 incorporates the substance of section 4 of the Judgment Lien Law.
Compare Pa.R.C.P. 3027 with 12 P.S. § 880 (repealed). Rule 3027
provides, in relevant part, that:
(a) Upon issuance of the writ of revival or the filing of an
agreement to revive, the prothonotary shall enter it in the
judgment index against each defendant and terre-tenant named
therein.
(b) The writ or agreement, when entered in the judgment index,
shall
(1) continue the lien upon real property located in the county
which is subject to the lien of the judgment which is sought to be
revived,
(2) create a lien upon all other real property located in the
county, title to which at the time of entry in the judgment index
is recorded in the name of the defendant, [ ]
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Note: The lien attaches whether or not the real property
was owned by the defendant at the time the original
judgment was entered in the judgment index or the lien of
the judgment was previously revived and whether or not
the lien of the judgment had been lost as to the property.
Pa.R.C.P. 3027 (emphasis added).
Thus, under Rule 3027, if Watson were to revive the judgment it would
become a judgment lien against any real property owned by Appellant in
Philadelphia County – despite the fact Appellant did not own any land in
Philadelphia County (or elsewhere) at the time judgment was entered in
favor of Watson. Therefore, it is still possible for Watson to collect on the
judgment in this case and the judgment is still a valuable asset. As such,
even if we were to consider the record as it stands today, we would conclude
that the trial court properly denied Appellant’s petition to strike the
judgment.
Appellant also argues that the trial court erred by declining to mark
the judgment as satisfied. This issue is waived. “It is axiomatic that ‘issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.’” Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa.
Super. 2015), quoting Pa.R.A.P. 302(a) (internal quotation marks,
alteration, and other citation omitted). In her petition to strike and
memorandum of law in support thereof, Appellant only asked that the
judgment be struck. She did not seek that the judgment be marked as
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satisfied. Accordingly, Appellant’s contention that the judgment should have
been marked as satisfied is waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2015
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