Rules Promulgated for Attachment of Tenant’s Wages
by Douglas K. Marsico, Esq.
The Supreme Court of Pennsylvania has promulgated the long awaited rules that govern the attachment of a tenant’s wages to satisfy judgments awarded to residential landlords. The rules went into effect on January 21, 2006.
The law providing for the attachment of a tenant’s wages as a means to satisfy judgments arising out of a residential lease was passed in 1996. At that time, wage attachment was limited to judgments awarded for physical damages to the rented property. In 2002, the law was amended to allow landlords to use the wage attachment process to recover any judgment arising out of a residential lease, including those for unpaid rent.
Surprisingly, despite the passage of a wage attachment law, landlords were unable to actually attach a tenant’s wages. There were no state rules to provide procedures for implementation and courts across the state refused to act upon a request for the wage attachment.
In response to requests from its members, the Pennsylvania Association of REALTORS® approached the Pennsylvania State Rules Committee asking them to consider adopting statewide rules. The rules committee thereafter forwarded proposed rules to the Pennsylvania Supreme Court for approval.
Landlords should first understand that the wage attachment is only available after entry of judgment in the Court of Common Pleas. A landlord cannot simply attach the wages of a tenant who owes rent; rather, the landlord must successfully obtain a judgment against the tenant and, after the appropriate appeal period, record the judgment in the Court of Common Pleas.
The procedure for the wage attachment is initiated by filing a Praecipe with the Prothonotary of the county in which the judgment has been recorded. A form is prescribed by the rules. The form provides for the deduction of any security deposit from the attachment. On the form, the landlord must certify the status of the security deposit.
Once the form is filed, the Prothonotary must issue a Notice of Intent to Attach Wages. The Prothonotary is also required to attach a notice of the income guidelines issued by the Federal Department of Health and Human Services. Both the Notice and the guidelines are then served upon the tenant, with some exceptions, by the Sheriff.
The rules provide the tenant with the opportunity to object to the attachment by filing a claim for exemption. The tenant must file a claim of exemption within 30 days of receipt of the Notice of Intent to Attach Wages. The tenant may file the claim for exemption where his or her net monthly income is below the poverty income guidelines or if the amount of wages to be attached would place his or her net income below the poverty income guidelines.
If the tenant files a claim for exemption, the landlord may dispute the claim by filing a motion with the court. The motion must include sufficient facts to establish that the landlord is entitled to attach the wages. The Court would then schedule a hearing to resolve any factual disputes. In the event that the wage attachment is issued, the Judicial Code limits the amount of the attachment to no more than 10 percent of the net wages per pay period of the tenant or a sum not to place the tenants income below the poverty income guidelines, whichever is less.
In an effort to protect a tenant’s due process rights, a wage attachment is not available unless the tenant was personally served with the original complaint, or entered a defense by the filing of papers or appearing at the hearing before the Magisterial District Judgment. Thus, the wage attachment is not available where the judgment was obtained after the tenant failed to appear, did not make any filings with the court, and the method of service of the complaint was via posting on the subject property. Accordingly, landlords should be cognizant of the method of service for complaints for recovery of possession.
Through the efforts of the Pennsylvania Association of REALTORS®, landlords and property managers in the Commonwealth now have a valuable tool to enforce judgments against residential tenants. Because of the procedural aspects in the Court of Common Pleas, the use of legal counsel is advised.
Douglas Marsico is an attorney with Caldwell & Kearns. Caldwell & Kearns serves as legal counsel to PAR. Caldwell & Kearns also represents and defends real estate agents and brokers in all types of civil suits and licensing claims across the Commonwealth.