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DOMENIC A. MACIOCE v. PETER M. GLINATSIS (03/04/87)

filed: March 4, 1987.

DOMENIC A. MACIOCE, AND ANITA M. MACIOCE, APPELLANTS,
v.
PETER M. GLINATSIS, D/B/A MERCHANDISE DISTRIBUTORS, ALSO KNOWN AS MERCHANDISE DISTRIBUTORS OF LARGE, APPELLEES



Appeal from the Order entered February 13, 1985, Court of Common Pleas, Allegheny County, Civil Division at No. GD 84-20086.

COUNSEL

Michael I. Markowitz, Pittsburgh, for appellants.

Vincent R. Baginski, Pittsburgh, for appellees.

Brosky, Del Sole and Johnson, JJ.

Author: Johnson

[ 361 Pa. Super. Page 223]

We are asked to construe Pennsylvania Rule of Civil Procedure 2959(f) and determine whether a lien obtained by confession of judgment may be impaired, upon a stay of execution, by granting a judgment debtor access to certain garnisheed bank accounts without substitution of security. We think not, and reverse the order granting such access.

A complaint for confession of judgment was filed by Domenic A. Macioce and Anita M. Macioce (hereinafter the

[ 361 Pa. Super. Page 224]

Macioces) against Peter M. Glinatsis. Pursuant to the Macioces' complaint a confession of judgment was entered in the amount of $19,762.50. The Macioces filed a praecipe for a writ of execution upon the judgment and a writ was subsequently issued thereon naming Pittsburgh National Bank as garnishee. The writ was sent to the Sheriff of Westmoreland County who was directed to serve the writ and copies of interrogatories on the garnishee. The trial court thereafter issued a rule to show cause why the judgment entered by confession should not be opened. Pittsburgh National was served with the writ of execution and the interrogatories.

On February 8, 1985, the trial court issued an order granting a stay of execution on the judgment by confession and the sheriff's sale and granting Glinatsis access to his accounts at Pittsburgh National Bank. On that same date the trial court vacated its first order of February 8, 1985 to the extent that Glinatsis was granted access to his Pittsburgh National accounts. On February 13, 1986 an order was entered which vacated the last order of February 8, 1985 and reinstated the first order of February 8, 1985 which granted Glinatsis access to his Pittsburgh National accounts and stayed the execution of judgment and sheriff's sale. On February 21, 1985 Pittsburgh National filed its answers to the interrogatories and stated therein that it was not holding the Glinatsis accounts, pursuant to the order of February 13, 1985. Subsequently the Macioces filed a petition for reconsideration of the order of February 13, 1985 and a timely appeal from that February 13 order to this court. On May 5, 1986 the trial court entered an order making absolute the rule to show cause opening the judgment and admitting Glinatsis to a defense.

In light of the order of May 5, 1986 opening the judgment, we will initially consider whether this appeal is moot. The basis of appellant's argument is that the trial court improperly granted the appellee access to his bank accounts while the proceedings to open the judgment were pending. The fact that the judgment was subsequently

[ 361 Pa. Super. Page 225]

    opened appears to undermine any argument that the court's conduct during the pendency of those proceedings was improper. However, in Adams v. James L. Leeds Company, 189 Pa. 544, 42 A. 195 (1899) our Supreme Court did consider the question of whether the trial court erred in setting aside an execution and attachments on an appeal from an order opening judgment. In Leeds, supra, the court affirmed the order opening the judgment while reversing that part ...


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