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ROBERT D. MAYHUGH ET AL. v. EUGENE L. COON (01/27/75)

decided: January 27, 1975.

ROBERT D. MAYHUGH ET AL.
v.
EUGENE L. COON, SHERIFF OF ALLEGHENY COUNTY, PENNSYLVANIA, ET AL., APPELLEES. APPEAL OF ALBERT J. NIEDZIELSKI, AND PETER P. WOJCKOWSKI, INDIVIDUALLY AND AS MEMBERS AND REPRESENTATIVES OF THE CLASS, AND ALL OTHER MEMBERS OF THE CLASS



COUNSEL

R. Stanton Wettick, Jr., Peter D. Jacobson, Neighborhood Legal Services, Assn., Pittsburgh, for appellants.

James R. Fitzgerald, Reed J. Davis, Donald S. Mazzotta, Davis & Mazzotta, Norman Paul Wolken, Pittsburgh, for appellees.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case.

Author: Nix

[ 460 Pa. Page 130]

OPINION OF THE COURT

Robert D. Mayhugh and his wife, Sarah, instituted an action in equity on their behalf and on behalf of all others similarly situated seeking to enjoin the Prothonotary and Sheriff of Allegheny County from continuing certain practices regarding the waiver of exemption rights granted to a debtor under the Act of April 9, 1849, P.L. 533, § 1, 12 P.S. § 2161.*fn1 Subsequently Mellon National Bank and Trust Company, Western Pennsylvania National Bank, Associates Financial Services Company, Inc., Signal Finance Corporation and Plaza Rubber Corporation were permitted to intervene as defendants. Albert J. Niedzielski, Peter P. Wojckowski, appellants herein, in their individual capacity and as representatives of a class of persons similarly situated, and Maggie Graves were permitted to intervene as plaintiffs. The

[ 460 Pa. Page 131]

    decree nisi, after dismissal of the exceptions filed thereto, was made final. The Chancellor granted a permanent injunction, which restrained the Prothonotary and Sheriff of Allegheny County from issuing and executing writs of execution containing the notation that the rights afforded by the Act of April 9, 1849, supra, had been waived where the judgment debtor had not been apprised by the allegation in the complaint that such rights had been waived.

The debtors in the action below fell within two separate categories. The first group consisted of those persons who had judgments entered against them pursuant to complaints filed with the Prothonotary of the Court of Common Pleas or with the Justices of the Peace which did not contain an averment of waiver of exemption benefits. The second group were those debtors who had judgments entered against them pursuant to complaints that did aver the fact of waiver of exemption rights. The court below, after hearing, granted relief to the group where there had been no averment of waiver and denied injunctive relief in those cases where the complaints did contain an averment of waiver. The present appellants are members of the latter group.

The court below found that the exemption provided under the Act of April 9, 1849, supra, may be waived but granted relief to those debtors where there had been no averment in the complaint on the theory that such a procedure was not in compliance with due process. Appellants contend that they too are entitled to relief premising their claim on the theory that the Act of April 9, 1849, does not permit the protection provided to be waived. We agree that a debtor may not, either expressly or by implication, waive the right of exemption as provided for in the Act of April 9, 1849, and therefore sustain the appeal of the instant appellants.*fn2

[ 460 Pa. Page 132]

In Pennsylvania, it was held in Case v. Dunmore, 23 Pa. 93 (1854) and thereafter, by its progeny,*fn3 that such an exemption is a personal privilege, which the debtor may waive at pleasure. In Case v. Dunmore, supra, this Court reasoned:

"Notwithstanding the benevolent provisions of the statute in favor of unfortunate and thoughtless debtors, it was far from the intention of the legislature to deprive the free citizens of the state of the right, upon due deliberation, to make their own contracts in their own way, in regard to securing the payment of debts honestly due. Creditors are still recognized as having some rights; and it was not ...


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