Appeal from the Order of November 2, 1984, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5712 October Term, 1983.
Joseph Rappaport, Philadelphia, for appellant.
Horace D. Nalle, Jr., Philadelphia, for appellee.
Cavanaugh, Cirillo and Hester, JJ. Cavanaugh, J., concurs in the result.
[ 345 Pa. Super. Page 93]
Summary judgment was granted to a garnishee because the sheriff's return indicated service of the writ after the garnishee had made disbursements from a debtor's account, even though a pleading filed by the garnishee admitted receipt of the writ prior to disbursing the debtor's funds. The trial court held that the sheriff's return was conclusive as to the time of service. We vacate the order granting summary judgment. We believe there exists a genuine issue of material fact.
Appellant recovered a judgment of $53,300.00 against Data Basics East on April 9, 1984. In an effort to collect on this judgment, appellant issued a writ of execution naming the appellee, the Philadelphia Savings Fund Society [PSFS] as garnishee. Upon receipt of the writ, PSFS placed a hold on the judgment debtor's account.
PSFS' records revealed that the writ had been received on April 18, 1984, at 10:45 A.M. but that the hold was not placed on the account until noon on April 19, 1984. In the interim, PSFS paid out four checks drawn on the debtor's account totaling $11,047.92.
PSFS set forth this information in its answer to appellant's interrogatories in attachment,*fn1 and appellant sought summary judgment for the $12,728.79 in the debtor's account at the time PSFS admitted it had been served by the sheriff. Appellant asserted that it was no defense for PSFS to permit withdrawals of approximately $11,000.00 due to the fact that its computer failed to register the hold entry in a timely fashion.
[ 345 Pa. Super. Page 94]
After PSFS answered the interrogatories on the basis of its own records, the sheriff's return of service was filed. The sheriff's return showed that service was effected on April 19, 1984, at 1:25 P.M.
Both parties sought summary judgment. Appellant claimed that averments in a pleading render the facts indisputable as to the pleading party. PSFS, on the other hand, argued that a sheriff's return is conclusively presumed to be accurate as to facts within his personal knowledge, such as when the writ was served. The trial court ...