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GORDON L. LINK v. HOUSE FULMER (12/29/78)

decided: December 29, 1978.

GORDON L. LINK, T/D/B/A ETTER'S FLOOR COVERING SHOP, APPELLANT,
v.
HOUSE OF FULMER, INC., DEFENDANT, JAMES R. FULMER, GARNISHEE, DONALD R. FULMER, GARNISHEE, BONITA L. FULMER, GARNISHEE, FULMER ENTERPRISES, GARNISHEE, REMLUF, INC., GARNISHEE, CHARLES T. RILEY, GARNISHEE, BINKELE, INC., GARNISHEE. FRANKLIN R. DEISLEY AND JUNE DEISLEY, APPELLANTS, V. HOUSE OF FULMER, INC., DEFENDANT, JAMES R. FULMER, GARNISHEE, DONALD R. FULMER, GARNISHEE, BONITA L. FULMER, GARNISHEE, FULMER ENTERPRISES, GARNISHEE, REMLUF, INC., GARNISHEE, CHARLES T. RILEY, GARNISHEE, BINKELE, INC., GARNISHEE



No. 2299 October Term 1977, No. 2300 October Term 1977, Appeal from Order of the Court of Common Pleas of Lancaster County to Execution - Civil Action, Law Docket No. 26 July Term, 1977 Docket No. 25 July Term, 1974

COUNSEL

Daniel H. Shertzer, Lancaster, for appellants at Nos. 2299 and 2300.

Lawrence E. Stengel, Lancaster, for appellee, Charles T. Riley, Garnishee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 262 Pa. Super. Page 276]

This is an appeal from an order granting appellee Charles T. Riley's two Petitions to Strike Off Judgment Against Garnishee for Failure to File Answers to Interrogatories, with leave to file answers to the two sets of interrogatories in question within twenty days. Riley was garnishee in two separate execution proceedings, but because the proceedings were similar, the lower court consolidated them.

Appellants Franklin B. Deisley and June Deisley entered judgment against House of Fulmer, Inc., on January 21, 1971, in the amount of $13,750. Appellant Gordon L. Link entered judgment against House of Fulmer on February 20, 1971, in the amount of $4,403.41. On May 20, 1974, and May 22, 1974, respectively, appellants issued execution against House of Fulmer and a number of garnishees, including appellee, and on May 29 the sheriff served the writs. On July 16 and September 6, respectively, appellants filed interrogatories addressed to all garnishees, including appellee, and on September 10 the sheriff served the interrogatories. Appellee failed to file answers to the interrogatories, and on September 24 appellants entered judgment by default against him in the full amount of the judgment against House of Fulmer, plus interest and costs. Appellee moved to strike the judgments, and the lower court issued the foregoing order. This appeal followed.

[ 262 Pa. Super. Page 277]

An examination of the record discloses, and appellants readily concede, that after making service, the sheriff did not return the writs of execution and the interrogatories to the prothonotary's office until April 7, 1977. Appellants' Briefs at 6, Supplementary Briefs at 3. On the back of each of the writs of execution is a notation that reads: "Thurs. April 7, 1977, Execution returned to Prothonotary pursuant to Rule § 3139 Pa. Rules of Court. Sheriff's costs $172.75, so answers Frederick B. Plowfield, Sheriff of Lancaster County." Appellants also concede that on September 21, 1976, when the default judgments were entered, neither the writs nor the returns of service were in the prothonotary's office. Supplementary Briefs at 3.

In its opinion the lower court stated that a court must decide whether a judgment was proper according to the record at the time the judgment was entered, and not according to the record as of some later date. Proceeding from this premise, the court struck the judgments because when they were entered, the prothonotary had no return of service, either of the writs of execution or of the interrogatories. Said the court: "Unless the record includes a return which establishes personal jurisdiction a garnishee is under no duty to answer. See Goodrich-Amram § 3139(b)-1." Slip opinion at 3.

Appellants argue that the sheriff's returns indicate that service of the writs and interrogatories properly occurred. Thus they focus on the fact of service, rather than on the record. They reason that if appellee in fact had notice of the writs and the interrogatories, he should have answered them, and since he did not, the judgments were properly entered. This argument, however, is not persuasive. Our Supreme Court has said that "[a] motion to strike a judgment, . . . will not be granted unless a fatal defect in the judgment appears on the face of the record," and moreover, that "a rule to strike off a judgment is in the nature of a demurrer directed to defects in the record. If the record is self sustaining, the judgment cannot be stricken." Malakoff v. Zambar, Inc., 446 Pa. 503, 506, 288 A.2d

[ 262 Pa. Super. Page 278819]

, 821 (1972) (citations omitted) (emphasis supplied). The Court has also said that "[t]he court below and this Court on review will only look at what was in the record when the judgment was entered in its search for defects." Linett v. Linett, 434 Pa. 441, 445, 446, 254 A.2d 7, 10 (1969); See also Jones v. Garrod, 419 Pa. 538, 541, 215 A.2d 902, 903 (1966). In Jones v. Garrod, supra, the lower court struck the judgment because upon reviewing the record it found that the sheriff's return stated the time and place of service of the writ of execution on the garnishees, and identified the persons on whom the writ was served, but was silent as to service of the interrogatories. The Supreme Court affirmed, noting that "[i]n entering judgment for the plaintiff the prothonotary proceeded upon a record which failed to show service of the interrogatories on the garnishees." (Emphasis added.) The Court specifically rejected the ...


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