Appeal from the Order of Court dated November 14, 1975, of the Court of Common Pleas of Greene County, Civil Division, at No. 244 February Term, 1974, Execution Docket No. 3, February Term, 1974. No. 312 April Term, 1976.
William M. Baily, Waynesburg, with him Thompson & Baily, Waynesburg, for appellants.
Russell J. Ober, Jr., Pittsburgh, with him William Peter Chapas, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone and Spaeth, JJ., concur in this result.
[ 247 Pa. Super. Page 165]
On May 26, 1969, appellant Wallace Hopkins pleaded guilty to voluntary manslaughter in the shooting death of John Patterson. Appellee Margaret Patterson, executrix of John Patterson's estate, filed survival and wrongful death actions against appellant, and, on April 10, 1973, judgment was entered on a verdict of $43,500.00 in her favor. Following the entry of judgment, appellee began execution proceedings against appellant. Between May 3, 1974, the date of filing of the first writ of execution, and November 17, 1975, the date of the order from which this appeal arises, appellee attempted to execute on an International dump truck, a covered wagon trailer, two boats, a boat trailer, a tarpaulin boat cover, a savings account with the First National Bank of Carmichaels, a checking account with the same bank, and a 1973 Mercedes Benz automobile.*fn1 Appellant opposed the attempts at execution on the ground, inter alia, that the properties were held in a tenancy by the entireties, and were therefore immune to creditors of the appellant alone. In the appealed order, the lower court held that the tenancy by the entireties could not protect the property from appellant's creditors.
[ 247 Pa. Super. Page 166]
Unfortunately, a detailed chronology of the events in this case is necessary to a clear appreciation of the issues. On July 2 and July 18, 1974, the Sheriff of Greene County levied on all of the above items except the bank accounts and the automobile. On August 1, 1974, Anna Hopkins, wife of the appellant, filed property claims for the levied property, alleging that it was immune from execution because held by the entireties. The next day, appellant filed a Petition to Set Aside Execution setting up the same defense. On December 18, 1974, a hearing was held to determine the true state of ownership of the property. For the hearing, appellant had been ordered to produce all of the documents of title for the levied property. However, in addition to the documents of title requested, appellant produced the title certificate for a Mercedes Benz automobile. The testimony also uncovered the existence of a checking account owned in the entireties by appellant and his wife. Therefore, at 3:10 p. m. on the same day, appellee filed a writ of execution for the checking account and for a savings account at the same bank.
On February 28, 1975, Anna Hopkins filed property claims for the bank accounts, alleging that they were entireties property, and on March 11, 1975, appellant filed a Petition to Set Aside Execution, again alleging the same defense. On April 1, 1975, the lower court issued its first order and opinion covering both of the July levies, the December levy on the bank accounts, and, inexplicably, the as yet unlevied upon Mercedes Benz automobile.*fn2 The court decided that the property was subject to execution by creditors because the transfer to the entireties had been in fraud of creditors.
On April 9, 1975, appellant filed exceptions to the lower court's order, raising four issues. Appellant contended that (1) the automobile was never levied upon and therefore was not subject to execution, (2) a hearing had never been held on the ownership of the bank accounts and therefore the
[ 247 Pa. Super. Page 167]
lower court had erred in including them in the order, (3) the property was not transferred in fraud of creditors, and (4) the property was held by the entireties and not subject to appellant's creditors.
On April 14, 1975, appellee filed a writ of execution for the Mercedes Benz. This writ was never served on appellant.*fn3 On November 17, 1975, the lower court filed an order and opinion disposing of appellant's exceptions and holding that all of the assets were subject to execution by appellee. As might be ...