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COMMONWEALTH PENNSYLVANIA v. RICHARD W. LIVINGOOD AND ROMAINE LIVINGOOD (01/07/76)

decided: January 7, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE
v.
RICHARD W. LIVINGOOD AND ROMAINE LIVINGOOD, A/K/A AMELDA ROMAINE LIVINGOOD, A/K/A ROMAINE WRIGHT, A/K/A AMELDA ROMAINE WRIGHT, HIS WIFE, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Washington County in case of Commonwealth of Pennsylvania, Department of Public Welfare v. Richard W. Livingood and Romaine Livingood, a/k/a Amelda Romaine Livingood, a/k/a Romaine Wright, a/k/a Amelda Romaine Wright, his wife, No. 449 May Term, 1973.

COUNSEL

Frank A. Conte, with him George J. Modrak, for appellants.

Robert S. Englesberg, Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 22 Pa. Commw. Page 531]

This is an appeal from an order of the Court of Common Pleas of Washington County, sitting en banc, which dismissed the exceptions of Romaine Wright and Richard W. Livingood (appellants) to an order of the Court making absolute a rule to show cause why the remainder of a fund resulting from the execution sale of their property should not be paid over to the Department of Public Welfare (DPW).

Appellants, who are now divorced, had received, while husband and wife, $7,299.70 in aid and assistance from DPW between 1971 and 1973. Before receiving aid, they entered into the standard reimbursement agreement with DPW authorizing by confession the entry of judgment in the amount of $2,000, the judgment to act as a lien upon the real and personal property of appellants. By the terms of that agreement, no execution can be made on the home of a judgment debtor during the debtor's liftime or

[ 22 Pa. Commw. Page 532]

    during the lifetimes of his or her spouse and their dependent children.

Other creditors, however, are not so forbearing, as appellants soon discovered. One of appellants' creditors, the Washington Consumer Discount Company, obtained a judgment on a note and execution was issued on that judgment. This resulted in the sale of appellants' residence by the sheriff on April 6, 1973. After payment of taxes and costs and after satisfaction of the amount due the execution creditor, the amount of $5,363.71 remained for distribution. The court below, on a rule to show cause, awarded the entire fund to DPW as partial reimbursement for the assistance payments made to appellants.*fn1 Appellants' exceptions to this award were dismissed by the court en banc; hence, this appeal.

Appellants contend first that the language in the reimbursement agreement preventing execution on the judgment debtor's home also exempts the fund remaining after an execution sale initiated by a third party. Secondly, they argue that, even if the fund is not exempt, the recovery of DPW is limited to the $2,000 already reduced to judgment and that, as to the balance, DPW must proceed by original process in an action in assumpsit, rather than by petition for a rule to show cause.

Appellants' first contention is without merit. Once execution has been obtained by a third party, the fund obtained from the sale is subject to DPW's lien just as if appellants had voluntarily sold their house.

However, we agree with appellants that the petition for a rule to show cause was not the proper procedure to obtain judgment on the claim in excess of the $2,000 authorized by the reimbursement agreement. Section 4 of The Support Law,*fn2 ...


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