Shearer v. Naftzinger

ZAPPALA, Justice,

concurring.

I join in the majority opinion. I agree that we “need not go through” the complex analysis employed by the Superior Court to decide this case. However, because that analysis, contained in a published opinion, suggests a confusion regarding the basic concepts that are necessary to the decision, I believe a somewhat more thorough explanation is in order.

*639In affirming the grant of summary judgment in favor of the Shearers, the Superior Court analyzed the writ of scire facias, the predecessor of the writ of revival. The court focused particularly on whether, for purposes of calculating the limitations period, execution following judgment on the sci. fa. was on the new judgment or on the original judgment. The court essentially concluded that a new limitations period began with each revived judgment, therefore in this case the twenty year limitation period for the Shearers to execute on personal property of the Naftzingers had not expired.

This analysis confuses a judgment with the lien against real property established by a judgment, and misapprehends what it is that is revived. 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. Thus the Shearers can revive the judgment lien as often as they wish and execute against any real property the Naftzingers might come to own in the future.1

Different rules apply with respect to personal property. A judgment continues to exist, and can be executed on by having the sheriff sell personal property, whether or not a writ of revival is ever filed. Again, it is the lien against real property that is revived, not the judgment. Section 5529 simply places an outer limit of 20 years on executing against personal property to satisfy a judgment. Thus, in this ease, the Shearers are no longer able to execute against personal property to satisfy the $9,600 judgment they obtained in 1974.

The fact that the Shearers can no longer execute against personal property to satisfy the judgment, however, is irrele*640vant to whether they can continue or revive the lien against real property. In terms of the particular question presented in this case, 42 Pa.C.S. § 5529 is not a defense to their proceeding to revive and continue the lien of judgment. Accordingly, the grant of summary judgment in favor of the Shearers is properly affirmed.

Justices CAPPY and CASTILLE join this Concurring Opinion.

. Perhaps a more common scenario would be that if the Naftzingers attempted to obtain a mortgage loan to purchase real property, the lender would require as a condition of approval that the Shearers’ judgment be satisfied, because otherwise the Shearers’ lien might have priority over ihe lender's.