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Deek Investment, L.P. v. Murray

Superior Court of Pennsylvania

March 3, 2017


         Appeal from the Order Entered February 22, 2016 In the Court of Common Pleas of Chester County Civil Division at No: 91-09071

          BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. [*]


          STABILE, J.

         Appellants, Francis W. Murray ("Francis") and Patricia A. Murray ("Patricia") (collectively "the Murrays"), appeal pro se from the order entered on February 22, 2016 in the Court of Common Pleas of Chester County, denying their motions to set aside a writ of execution against personal property. The trial court determined that the writ of execution of Appellee, DEEK Investment, L.P. ("DEEK"), was timely entered. Following review, we vacate the February 22, 2016 order and remand.

         In a prior appeal to this Court, [1] we summarized the factual background of this case as follows:

DEEK acquired a judgment against the Murrays in the amount of $267, 939.89 plus interest from and after September 26, 1991. DEEK acquired the judgment from CoreStates Bank. . . on January 24, 2000. The Murrays negotiated with DEEK on the settlement of the matter, and on May 22, 2002, the parties entered into a written forbearance agreement which set up a payment schedule whereby the Murrays would make a series of payments to DEEK beginning on June 3, 2002, and culminating on February 17, 2004. The agreement contained both monetary and non-monetary terms, and the Murrays complied strictly with all non-monetary terms.
As part of the monetary terms of the agreement, the Murrays agreed to pay DEEK $352, 000.00 by February 16, 2004, to satisfy the judgment. The payments were to be made monthly in the amount of $1, 000.00 with larger principal payments to be made over time. The Murrays were late on three of the $1, 000.00 payments, and were unable to make a timely payment of $95, 000.00 on February 17, 2005. The parties agreed to split the larger payment into two manageable payments, one for $40, 000.00 and one for $55, 000.00. The Murrays paid the $40, 000.00 sum, due May 13, 2003, in a timely manner, but were thirty days late in making the $55, 000.00[] payment, originally due August 15, 2003.
The final payment under the agreement was scheduled to be paid on February 17, 2004, in the amount of $39, 000.00. On February 13, 2004, however, four days before the final payment was due, DEEK declared the Murrays in default because of the late payments made through the term of the agreement and three missed $1, 000.00 payments. The Murrays notified DEEK that $42, 000.00 was available to DEEK through their law firm's escrow account, which equaled the $39, 000.00 final payment plus the $3, 000.00 payment for the last three months. DEEK would not accept the payment, and on April 2, 2004, DEEK filed a motion to compel the Murrays' asset deposition.
* * *
The trial court granted the [Murrays' April 22, 2004 petition to enforce the settlement agreement] and entered an order dated April 22, 2005, which permitted the Murrays to pay the remaining sums, and included an additional amount to compensate DEEK for costs in pursuing the late payments.

DEEK Investment, L.P. v. Murray, No. 1431 EDA 2005, unpublished memorandum at 1-3 (Pa. Super. filed October 13, 2006).

         Following this Court's October 13, 2006 ruling, interactions between the parties continued without resolution of their dispute. The docket reflects DEEK's filing and service of a writ of revival in April 2009 and the Murrays' filing of an answer to the writ in May 2009. DEEK also filed a motion to compel the deposition of Francis, resulting in the issuance of a June 24, 2009 order granting DEEK's motion to compel. The docket does not reflect any further activity until February 13, 2012, when DEEK filed a praecipe for writ of execution against the Murrays' personal property. On March 12, 2013, DEEK served a notice of sheriff's sale pursuant to the writ. The Murrays filed motions to set aside the writ of execution in 2014 and again in 2015.

         By order entered February 22, 2016, the trial court denied the Murrays' motions to set aside the February 2012 writ of execution against the Murrays' personal property. This timely appeal followed. By order entered April 6, 2016, the trial court directed the Murrays to file a Rule 1925(b) statement of errors complained of on appeal. On April 26, Appellants filed a 1925(b) statement signed by Patricia only, contending the writ of execution should be set aside on legal grounds, citing the statute of limitations and, in particular, 42 Pa.C.S.A. § 5529(a).[2] On May 26, 2016, the trial court issued its Rule 1925(a) opinion, finding that Francis failed to preserve any issues on appeal and that the writ of execution was not filed beyond the expiration of the statute of limitations.

         On appeal, the Murrays ask this Court to consider three issues, which we have reordered for ease of discussion.

A. Whether the trial court abused its discretion or committed an error of law, finding [Francis], individually, has not preserved his issues for appeal?
B. Whether the trial court committed an error of law and/or abused its discretion in denying [the Murrays'] set aside relief (sic) from the Writ of Execution against their personal property dated February 13, 2012, such relief having been requested pursuant to Pa. ...

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