Susquehanna Bank v. Bleacher, B.

• Court: Superior Court of Pennsylvania
• Decided: May 6, 2015
• Docket: 1338 MDA 2014
• Status: Unpublished

Opinion

J-A08033-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

SUSQUEHANNA BANK, F/K/A FARMERS : IN THE SUPERIOR COURT OF FIRST BANK, : PENNSYLVANIA : Appellee : : v. : : BONNY BLEACHER, : : No. 1338 MDA 2014 Appellant

Appeal from the Order Entered July 8, 2014 in the Court of Common Pleas of York County, Civil Division, at No(s): 2014-SU-605-86

BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MAY 06, 2015

Bonny Bleacher (Bleacher) appeals from the July 8, 2014 order which

granted the motion for judgment on the pleadings filed by Susquehanna

Bank (the Bank), f/k/a Farmers First Bank, in this action for revival of a lien

of judgment. We affirm.

The underlying facts are not in dispute. In September 2003, the Bank

obtained a deficiency judgment of $7,424.50 against Bleacher based upon a

car loan it had made to her. The judgment was transferred to the Court of

Common Pleas of York County and revived in September 2009. The Bank

filed a second writ of revival in February 2014. Bleacher filed an answer

raising a statute of limitations defense. The parties filed cross-motions for

judgment on the pleadings. On July 8, 2014, the trial court entered an order

*Retired Senior Judge assigned to the Superior Court. J-A08033-15

denying Bleacher’s motion and granting the Bank’s motion. Bleacher timely

filed a notice of appeal to this Court.

Bleacher states two questions for our consideration:

I. Did the [trial] court err in entering judgment on a writ of revival where the writ of revival was filed more than five years after the initial revival, in violation of the statute of limitations?

II. Did the [trial] court err in holding that a judgment may be revived after the five year period expires but merely loses its priority, in direct contravention of the statute of limitations?

Bleacher’s Brief at 3 (suggested answers and unnecessary capitalization

omitted).

We consider Bleacher’s interrelated questions mindful of the following

standard of review.

Appellate review of an order granting a motion for judgment on the pleadings is plenary. The appellate court will apply the same standard employed by the trial court. A trial court must confine its consideration to the pleadings and relevant documents. The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.

We will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise.

Cubler v. TruMark Financial Credit Union, 83 A.3d 235, 239 (Pa. Super.

2013) (quoting Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa.

Super. 2012)).

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“Any judgment or other order of a court of common pleas for the

payment of money shall be a lien upon real property….” 42 Pa.C.S.

§ 4303(a). The judgment “continues as a lien against real property for five

years and then expires unless revived.” Mid-State Bank and Trust Co. v.

Globalnet Intern., Inc., 710 A.2d 1187, 1190 (Pa. Super. 1998).

Pursuant to 42 Pa.C.S. § 5526(1), an “action for revival of a judgment

lien on real property” is one which “must be commenced within five years.”

Bleacher’s argument is that the plain language of this statute precludes

revival of a judgment when, as in the instant case, the action is not filed

within five years. Bleacher’s Brief at 8-9.

Bleacher ignores precedent which states the opposite: “The judgment

lien may nonetheless be revived after the five-year statute of limitations

period for revival, however its priority against intervening liens, if any, is

lost.” Shearer v. Naftzinger, 747 A.2d 859, 860 n.1 (Pa. 2000) (noting

that the statute of limitations was no impediment to revival where seven

years passed between writs). See also Mid-State Bank, 710 A.2d at 1190

(“Although a judgment may be revived after the five year period, its priority

against intervening liens is lost.”). Bleacher’s attempts to distinguish these

cases are unpersuasive.

We also find no merit in her second claim: that the legislature, by

amending the statute of limitations in 2006 without altering the language

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regarding revival of judgments, indicated its “intent to continue the

requirement that liens be revived within five years in order to constitute a

lien against real property.” Bleacher’s Brief at 11. To the contrary, the

legislature’s failure to modify the language of the statute in the face of the

Mid-State Bank and Shearer decisions, if anything, indicates its

agreement with the Courts’ construction. See, e.g., Birth Center v. St.

Paul Companies, Inc., 787 A.2d 376, 387 (Pa. 2001) (“In enacting a

statute, the legislature is presumed to have been familiar with the law, as it

then existed and the judicial decisions construing it.” (internal quotation

marks and citation omitted)).

Finally, “[o]ur Courts have recognized that the only cognizable

defenses in a proceeding to revive a judgment lien are that the judgment

does not exist, has been paid or has been discharged.” Shipley Fuels

Marketing, LLC v. Medrow, 37 A.3d 1215, 1218 (Pa. Super. 2012)

(citation and internal quotation marks omitted). The statute of limitations is

not one of those defenses. Rather, as our Supreme Court explained long

ago:

While it is true that a judgment, as far as defendant is concerned, continues beyond the five year limitation (although its lien does not, unless revived within that period), yet if plaintiff deems it advisable to revive his judgment against defendant, he may do so, and the fact that the judgment is or is not a lien against any real property is not a legal defense to such revival.

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Cusano v. Rubolino, 39 A.2d 906, 908 (Pa. 1944) (citations omitted). See

also Shearer, 747 A.2d at 861 (Zappala, J., concurring) (“A money

judgment acts as a lien against real property, but only for five years. The

lien must be continued (or revived) to maintain (or obtain a new) place of

priority. However, properly speaking, it is the lien that is revived, not the

judgment. There is no outer time limit to executing against real property

to satisfy a judgment, but the proceeds of such a sale must be distributed

according to the priority of liens.” (emphasis in original)).

Accordingly, the trial court properly determined that that the Bank had

the right to revive its lien after more than five years, but lost its prior

priority status.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/6/2015

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