Dollar Bank v. Hawkins, C.

• Court: Superior Court of Pennsylvania
• Decided: November 15, 2016
• Docket: 1064 WDA 2015
• Status: Unpublished

Opinion

J-A13024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOLLAR BANK, FEDERAL SAVINGS BANK IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CHARLES T. HAWKINS AND JANE M. HAWKINS

Appellants No. 1064 WDA 2015

Appeal from the Order June 17, 2015 In the Court of Common Pleas of Allegheny County Civil Division at No: GD-09-6271

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2016

Appellants, Charles T. Hawkins and Jane M. Hawkins (together

“Appellants”), appeal from the June 17, 2015 order of the Court of Common

Pleas of Allegheny County (“trial court”) granting Appellee’s, Dollar Bank,

Federal Savings Bank (“Bank”), motion for judgment on the pleadings. Upon

review, we affirm.

“Between 2002 and 2008, [the Bank], made a total of four loans to

[Appellants], totally approximately $1,605,786.14. The loans were secured

with the [Hawkineses’] real property and business assets as well as the

property of other guarantors.” Trial Court Opinion, 7/22/15, at 1. The

instant action began on March 30, 2009, when the Bank filed a complaint in

confession of judgment. On April 15, 2009, Appellants filed a petition to

open the confession of judgment. On April 17, 2009, the Bank filed a return J-A13024-16

of service of the notice of confession of judgment pursuant to Pa.R.C.P. No

2958.1. On April 29, 2009, the Appellants filed a petition for a rule to show

cause why confessed judgment should not be opened and sought to stay

execution proceedings. On May 5, 2009, the Bank filed a second return of

service of the notice of confession of judgment.

The Bank filed a response to Appellants’ petition for rule to show cause

on June 1, 2009. On June 24, 2009, the trial court issued a rule to show

cause and directed the parties to schedule argument by praecipe. On

October 14, 2009, Appellants filed a praecipe to withdraw, with prejudice,

the petition for rule to show cause. After the parties submitted a consent

motion to vacate the trial court’s order, the rule to show cause was vacated

on October 16, 2009.

On March 21, 2014, the Bank filed a praecipe for writ of revival. On

June 27, 2014, the Bank filed an affidavit of service of writ of revival and

filed an amended affidavit on July 1, 2014. On July 16, 2014, Appellants

filed an answer and new matter to the writ of revival. The Bank filed a reply

on August 5, 2014. The Bank filed a motion for judgment on the pleadings

on the writ of revival on March 20, 2015, which the trial court granted on

June 17, 2015. Appellants filed a timely appeal on July 15, 2015. The trial

court filed an opinion on July 22, 2015, in lieu of ordering Appellants to file a

concise statement of matters complained of on appeal.

Appellants raise a sole issue on appeal. “Was it proper for the [trial]

court to grant the [Bank’s] motion for judgment on the pleadings without

-2- J-A13024-16

making any factual determinations, based solely upon the [trial court’s]

summary consideration of such pleadings?” Appellants’ Brief at 4.

This Court’s standard of review of an order granting judgment on the

pleadings is well established.

Appellate review of an order granting judgment on the pleadings is plenary and we apply the same standard employed by the trial court. Our review is confined to the pleadings and relevant documents. We must accept as true all well pleaded statements of facts, admissions, and any documents properly attached to the pleadings presented by the party against whom the motions is filed, considering only those facts that were specifically admitted.

Southwestern Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185

(Pa. Super. 2013)(citation omitted). “The grant of a motion for judgment on

the pleadings will be affirmed by an appellate court only when the moving

party’s right to succeed is certain and the case is so free from doubt that a

trial would clearly be a fruitless exercise.” Swift v. Milner, 538 A.2d 28, 31

(Pa. Super. 1988) (citation omitted).

It is likewise well established that there are only three cognizable

defenses to a writ of revival of judgment proceeding. PNC Bank, National

Association v. Balsamo, 634 A.2d 645, 649 (Pa. Super. 1993). These

defenses are that the judgment does not exist, the judgment has been paid,

or the judgment has been discharged. Id.

In the matter sub judice, Appellants have not raised any of these

defenses. Appellants are instead asserting that the Bank failed to

-3- J-A13024-16

consolidate the action with another judgment, failed to provide notice to

Appellants’ attorney in the related matter, and the sale price was woefully

inadequate. See Appellants’ Brief at 9. These challenges are not proper in

a challenge to a writ of revival and are instead attempts to challenge the

underlying judgment, which is impermissible. See Balsamo, 634 A.2d at

649 (citing Triangle Building Supplies and Lumber Co. v. Zerman, 363

A.2d 1287, 1289 (Pa. Super. 1976) (reiterating the well-established law that

in a proceeding to revive a judgment, the courts will not entertain any

inquiry into the merits of the original judgment.”)). As these challenges are

not appropriate to a writ of revival of judgment, the Bank’s right to succeed

was certain and the trial court did not err in granting judgment on the

pleadings.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/15/2016

-4-