JOHNSON, Judge:
This is an appeal from the order entered on October 19, 1990, purporting to vacate the order entered on September 11, 1990, which directed the entry of judgment in favor of John R. Orie, Jr. and against additional garnishee, Pittsburgh National Bank, in the amount of $10,769.66 held in the account captioned “Estate of Nicholas Rade Stone, Deceased, Nicholas Rade Stone, Jr., Executor.” We reverse.
This garnishment proceeding commenced when John R. Orie obtained a complaint for confession of judgment against Nicholas Rade Stone, Jr. in the amount of $17,920. Upon praecipe, the Prothonotary prepared a writ of execution against Nicholas Rade Stone, Jr., defendant, naming Allegheny Valley Bank as garnishee. On February 17, 1987, Orie directed the Prothonotary to re-issue the writ of execution against the Estate of Nicholas Rade Stone, naming Nicholas Rade Stone, Jr., the beneficiary and Executor of the Estate, as additional garnishee. At the time of issuance of the writ, Orie also filed and served interrogatories directed to Stone, Jr., Executor.
Stone, Jr., Executor, as garnishee, accepted service on February 20, 1987 but failed to respond to Orie’s interrogatories as contemplated by Pa.R.C.P. 3145. On March 24, 1987, Orie notified Stone, Jr. of his intention to enter default judgment against him pursuant to Pa.R.C.P. 3146. On April 2, 1987, upon praecipe, the Prothonotary entered judgment, unliquidated in amount, in favor of Orie and against Stone, Jr., Executor, garnishee. Orie then notified Stone, Jr. pursuant to Rule 3146 that the court would assess the amount of the judgment at a hearing to be held on April 27,1987. Stone, Jr. failed to appear at the hearing. [484]*484On April 27, 1987, judgment by default was taken against Stone, Jr., Executor, garnishee, in the amount of $17,920 for failure to answer interrogatories pursuant to Pa.R.C.P. 3146(a).
On June 23,1987, Orie filed a praecipe to re-issue the writ of execution naming Pittsburgh National Bank [hereinafter “PNB”] as additional garnishee. At the time of the judgment, the Estate account maintained at PNB, contained only a nominal balance. No further action was taken until August, 1990, when PNB filed Supplemental Answers to Interrogatories, and New Matter in accord with Pa.R.C.P. 3145(b)(3), wherein PNB revealed that it had in its possession the sum of $10,769.66, following deduction for attorneys fee and service charge, held in the account captioned “Estate of Nicholas Rade Stone, Deceased, Nicholas Rade Stone, Jr., Executor.”
At the suggestion of PNB, Orie presented a “Motion to Compel Payment” directed to PNB. On September 11, 1990, the Court issued an order directing the entry of judgment in favor of Orie and against additional garnishee, PNB, in the amount of $10,769.66, held in the Estate account. No appeal was ever taken from the trial court’s September 11,1990, order. Instead, on September 27, 1990, Stone, Jr. presented a motion to vacate the September 11, 1990, Order of the court alleging inter alia that he did not receive notice of presentation of the Motion to Compel Payment to Garnishee.
On October 19, 1990, thirty-eight days after judgment was entered, the Honorable Robert P. Horgos entered an Order in which he vacated the September 11, 1990 Order and directed the release of the funds from Orie’s garnishment action. Upon a Motion for Reconsideration and/or Clarification presented by PNB, Judge Horgos entered an Order on November 1, 1990 in which it directed PNB to pay the funds at issue into a court supervised account until final resolution of the controversy. On appeal from the Order of October 19, 1990, Orie argues that the trial court erred in vacating its September 11, 1990 order. Because we find [485]*485that the trial court was without power to vacate its September 11, 1990 order, we are constrained to agree with Orie.
“Unlike a judgment entered by confession or by default, which remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed after [it has become final].” Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 243-244, 504 A.2d 335, 337 (1986) (citations omitted). A judgment entered in an adverse proceeding becomes final if no appeal therefrom is filed within thirty days. 42 Pa. C.S.A. § 5505. Thereafter, the judgment cannot normally be modified, rescinded or vacated. Simpson, supra, 350 Pa.Superior Ct. at 244, 504 A.2d at 337.
In this Court’s decision in Simpson, we stated that:
Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgments is very limited. Generally, judgments regularly entered on adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstance “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court. ”
Simpson, supra, 350 Pa.Superior Ct. at 245, 504 A.2d at 337. (citations omitted) (emphasis ours).
In the instant case, the judgment entered on September 11, 1990 in favor of Orie and against garnishee, PNB, was not entered by confession, nor was it entered by default upon praecipe. Instead, it was entered by the trial court, upon Orie’s Motion to Compel Payment, after both Orie and PNB had a full opportunity to present their positions by way of interrogatories and answers thereto.
The Rules of Civil Procedure for the Enforcement of Money Judgments do not provide for the filing of a “Motion to Compel Payment.” However, the Rules do provide that [486]*486the procedure between plaintiff and the garnishee “shall, as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action.” Pa.R.C.P. 3145(a); see Johnson v. Johnson, 357 Pa.Super. 248, 251, 515 A.2d 960, 961 (1986) appeal denied 515 Pa. 581, 527 A.2d 541. In his “Motion to Compel Payment,” Orie sought to have the court decide, based upon the interrogatories and PNB’s answers thereto, that PNB was holding assets of Stone, Jr., defendant. Construing the interrogatories filed by Orie as a complaint and the answers to interrogatories filed by PNB as answers, we conclude that Orie’s Motion to Compel Payment was actually a Motion for Judgment on the Pleadings in accord with Pa.R.C.P. 3147. Id., 357 Pa.Superior Ct. at 251, 515 A.2d at 961.
Rule 3147 permits the trial court to enter judgment in favor of the plaintiff and against the garnishee upon the pleadings provided that “no money judgment entered against the garnishee shall exceed the amount of the judgment of the plaintiff against the defendant together with interest and costs.” In its September 11, 1990 Order the court specifically stated that “judgment is entered in favor of plaintiff, John R.
Free access — add to your briefcase to read the full text and ask questions with AI
JOHNSON, Judge:
This is an appeal from the order entered on October 19, 1990, purporting to vacate the order entered on September 11, 1990, which directed the entry of judgment in favor of John R. Orie, Jr. and against additional garnishee, Pittsburgh National Bank, in the amount of $10,769.66 held in the account captioned “Estate of Nicholas Rade Stone, Deceased, Nicholas Rade Stone, Jr., Executor.” We reverse.
This garnishment proceeding commenced when John R. Orie obtained a complaint for confession of judgment against Nicholas Rade Stone, Jr. in the amount of $17,920. Upon praecipe, the Prothonotary prepared a writ of execution against Nicholas Rade Stone, Jr., defendant, naming Allegheny Valley Bank as garnishee. On February 17, 1987, Orie directed the Prothonotary to re-issue the writ of execution against the Estate of Nicholas Rade Stone, naming Nicholas Rade Stone, Jr., the beneficiary and Executor of the Estate, as additional garnishee. At the time of issuance of the writ, Orie also filed and served interrogatories directed to Stone, Jr., Executor.
Stone, Jr., Executor, as garnishee, accepted service on February 20, 1987 but failed to respond to Orie’s interrogatories as contemplated by Pa.R.C.P. 3145. On March 24, 1987, Orie notified Stone, Jr. of his intention to enter default judgment against him pursuant to Pa.R.C.P. 3146. On April 2, 1987, upon praecipe, the Prothonotary entered judgment, unliquidated in amount, in favor of Orie and against Stone, Jr., Executor, garnishee. Orie then notified Stone, Jr. pursuant to Rule 3146 that the court would assess the amount of the judgment at a hearing to be held on April 27,1987. Stone, Jr. failed to appear at the hearing. [484]*484On April 27, 1987, judgment by default was taken against Stone, Jr., Executor, garnishee, in the amount of $17,920 for failure to answer interrogatories pursuant to Pa.R.C.P. 3146(a).
On June 23,1987, Orie filed a praecipe to re-issue the writ of execution naming Pittsburgh National Bank [hereinafter “PNB”] as additional garnishee. At the time of the judgment, the Estate account maintained at PNB, contained only a nominal balance. No further action was taken until August, 1990, when PNB filed Supplemental Answers to Interrogatories, and New Matter in accord with Pa.R.C.P. 3145(b)(3), wherein PNB revealed that it had in its possession the sum of $10,769.66, following deduction for attorneys fee and service charge, held in the account captioned “Estate of Nicholas Rade Stone, Deceased, Nicholas Rade Stone, Jr., Executor.”
At the suggestion of PNB, Orie presented a “Motion to Compel Payment” directed to PNB. On September 11, 1990, the Court issued an order directing the entry of judgment in favor of Orie and against additional garnishee, PNB, in the amount of $10,769.66, held in the Estate account. No appeal was ever taken from the trial court’s September 11,1990, order. Instead, on September 27, 1990, Stone, Jr. presented a motion to vacate the September 11, 1990, Order of the court alleging inter alia that he did not receive notice of presentation of the Motion to Compel Payment to Garnishee.
On October 19, 1990, thirty-eight days after judgment was entered, the Honorable Robert P. Horgos entered an Order in which he vacated the September 11, 1990 Order and directed the release of the funds from Orie’s garnishment action. Upon a Motion for Reconsideration and/or Clarification presented by PNB, Judge Horgos entered an Order on November 1, 1990 in which it directed PNB to pay the funds at issue into a court supervised account until final resolution of the controversy. On appeal from the Order of October 19, 1990, Orie argues that the trial court erred in vacating its September 11, 1990 order. Because we find [485]*485that the trial court was without power to vacate its September 11, 1990 order, we are constrained to agree with Orie.
“Unlike a judgment entered by confession or by default, which remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed after [it has become final].” Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 243-244, 504 A.2d 335, 337 (1986) (citations omitted). A judgment entered in an adverse proceeding becomes final if no appeal therefrom is filed within thirty days. 42 Pa. C.S.A. § 5505. Thereafter, the judgment cannot normally be modified, rescinded or vacated. Simpson, supra, 350 Pa.Superior Ct. at 244, 504 A.2d at 337.
In this Court’s decision in Simpson, we stated that:
Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgments is very limited. Generally, judgments regularly entered on adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstance “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court. ”
Simpson, supra, 350 Pa.Superior Ct. at 245, 504 A.2d at 337. (citations omitted) (emphasis ours).
In the instant case, the judgment entered on September 11, 1990 in favor of Orie and against garnishee, PNB, was not entered by confession, nor was it entered by default upon praecipe. Instead, it was entered by the trial court, upon Orie’s Motion to Compel Payment, after both Orie and PNB had a full opportunity to present their positions by way of interrogatories and answers thereto.
The Rules of Civil Procedure for the Enforcement of Money Judgments do not provide for the filing of a “Motion to Compel Payment.” However, the Rules do provide that [486]*486the procedure between plaintiff and the garnishee “shall, as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action.” Pa.R.C.P. 3145(a); see Johnson v. Johnson, 357 Pa.Super. 248, 251, 515 A.2d 960, 961 (1986) appeal denied 515 Pa. 581, 527 A.2d 541. In his “Motion to Compel Payment,” Orie sought to have the court decide, based upon the interrogatories and PNB’s answers thereto, that PNB was holding assets of Stone, Jr., defendant. Construing the interrogatories filed by Orie as a complaint and the answers to interrogatories filed by PNB as answers, we conclude that Orie’s Motion to Compel Payment was actually a Motion for Judgment on the Pleadings in accord with Pa.R.C.P. 3147. Id., 357 Pa.Superior Ct. at 251, 515 A.2d at 961.
Rule 3147 permits the trial court to enter judgment in favor of the plaintiff and against the garnishee upon the pleadings provided that “no money judgment entered against the garnishee shall exceed the amount of the judgment of the plaintiff against the defendant together with interest and costs.” In its September 11, 1990 Order the court specifically stated that “judgment is entered in favor of plaintiff, John R. Orie, Jr., and against garnishee, Pittsburgh National Bank, in the amount of $10,769.66 held in the account captioned ‘Estate of Nicholas Rade Stone, Deceased, Nicholas Rade Stone, Jr., Executor.’ ” Thus, the requirements of Rule 3147, that judgment be entered, that it be for property in the garnishee’s possession, and that it not be in an amount exceeding the amount of the judgment of plaintiff against defendant (here, $17,920) have been satisfied. We, therefore, hold that the judgment entered by the court on September 11, 1990 was a judgment against garnishee, PNB, on the pleadings in accord with Pa.R.C.P. 3147. Johnson, supra, 357 Pa.Superior Ct. at 252, 515 A.2d at 962.
A judgment on the pleadings under Pa.R.C.P. 3147 is a final and appealable order because it has the effect of terminating the litigation and putting the party against whom the judgment is entered permanently out of court. [487]*487Id., 357 Pa.Superior Ct. at 252, 515 A.2d at 962. In the instant case, when judgment was entered against PNB on September 11, 1990, PNB was out of court and Orie could have executed on the judgment. Any appeal therefrom had to be filed within thirty days. Pa.R.A.P. 903(a).
Although Stone, Jr.’s petition to vacate the order was presented on September 27, 1990, well within the 30-day appeal period permitted by Pa.R.A.P. 903, no appeal was ever taken from the judgment. Consequently, at the end of the 30-day appeal period, the judgment became final. Simpson, supra 350 Pa.Super. at 245, 504 A.2d at 338. Our inquiry, thus, turns to whether there was a showing of fraud or other ‘extraordinary cause,’ that would have justified a subsequent intervention by the trial court. See Simpson, supra, 350 Pa.Superior Ct. at 245, 504 A.2d at 337.
Our review of the record in this case reveals no ‘extraordinary cause’ that would have justified intervention by the court. In his petition to vacate the September 11, 1990 order, Stone, Jr. alleged, for the first time, that the funds possessed by PNB in the Estate account did not belong to Stone, Jr., but rather they belonged to the Estate of Nicholas Rade Stone, Deceased. Further, Stone, Jr. complained that he did not receive notice of the Motion to Compel Payment directed to garnishee, PNB, and that without notice, Stone, Jr. was unable to appear and inform the court as to the true nature of the funds in PNB’s possession.
We are unable to conclude that Stone, Jr.’s lack of notice of the “Motion to Compel Payment” in the garnishment action between Orie and PNB, constituted an ‘extraordinary cause’ justifying the intervention of the trial court, especially in light of Stone, Jr.’s failure, as Executor, to respond to Orie’s interrogatories, and further in light of Stone, Jr.’s failure to act on his own behalf, as Executor, prior to his filing of a Motion to Vacate. The record reveals that Stone, Jr., Executor, was afforded notice at each step of the garnishment proceedings.
[488]*488This court stated in Luckenbaugh v. Shearer, 362 Pa.Super. 9, 14, 523 A.2d 399, 401 (1987) appeal denied 518 Pa. 626, 541 A.2d 1138, that:
The extraordinary cause referred to in Simpson and other cases is generally an oversight or action on the part of the court or the judicial process which operates to deny the losing party knowledge of the entry of final judgment so that the commencement of the running of the appeal time is not known to the losing party.
(Emphasis ours).
In Luckenbaugh, the trial court entered an order on March 20, 1985 dismissing the plaintiffs’ case for failure to answer interrogatories. On April 1, 1985, Plaintiff filed a petition to strike the dismissal. Following the expiration of the thirty-day appeal period, no appeal having been taken, the judgment became final. However, on August 8, 1985, the trial court entered an order striking the dismissal and opening the judgment that it had previously entered. 362 Pa.Superior Ct. at 12, 523 A.2d at 400.
When the trial court entered its order and opinion, it referred to ‘extraordinary cause’ and stated that the same existed by finding that there was a possibility of a ‘postal mishap’ in that the answers to interrogatories were mailed by plaintiffs’ counsel to defense counsel but were not delivered. Id., 362 Pa.Superior Ct. at 14, 523 A.2d at 401. On appeal from the August 8, 1985 order, this court held that while the ‘postal oversight’ may have been a sufficient reason to act to open the judgment within thirty days from its entry, this type of failure does not rise to the level of ‘extraordinary cause’ contemplated by the cases which permit a trial court to act once the judgment has become final and the appeal time has expired. Id., 362 Pa.Superior Ct. at 14, 523 A.2d at 401.
In that case, we held that plaintiffs were aware of the entry of judgment on March 20, 1985 well within the time prescribed for filing an appeal since on April 1, 1985 they filed their petition to strike the dismissal and open the judgment. Finding no ‘extraordinary cause’ which operated to deny plaintiffs knowledge of the entry of final judgment, [489]*489we vacated the order of the trial court opening the judgment and striking the order of dismissal and reinstated the order of March 20 dismissing the case. Id., 362 Pa.Superior Ct. at 15, 523 A.2d at 402.
Similarly, in the instant case, we are unable to find ‘extraordinary cause’ which operated to deny Stone, Jr. knowledge of the entry of final judgment on September 11, 1990. 362 Pa.Superior Ct. at 14, 523 A.2d at 401. It is obvious that Stone, Jr. was aware of the entry of judgment on September 11, 1990, since on September 27, 1990, well within the appeal period, he presented the Petition to Vacate the September 11, 1990 order. Absent a showing of ‘extraordinary cause,’ the trial court lacked the authority to issue the October 19, 1990 order. Therefore, we must conclude that the trial court’s attempt to vacate the September 11, 1990 order entering judgment against PNB in favor of Orie was a nullity. Since we find the order of October 19, 1990 to have been a nullity, we need not consider whether Stone, Jr. had standing to challenge the entry of the order of September 11, 1990. Moreover, we are unable to consider the appealability of the October 19, 1990 order since its entry beyond the authority of the trial court renders that purported order a nullity.
For the foregoing reasons, we reverse the order of October 19, 1990, and we reinstate the order of September 11, 1990 entering judgment in favor of Orie. Jurisdiction is relinquished.
FORD ELLIOTT, J., filed a dissenting opinion.