Appeal from order of County Court of Philadelphia, March T., 1962, No. 9021-A, in case of Hilton Credit Corporation v. Francis T. Williamson et al.
Lee B. Sacks, with him Samuel I. Sacks, for appellant.
Edward W. Silver, with him Silver and Silver, for appellees.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.
[ 204 Pa. Super. Page 250]
Plaintiff, having obtained judgment against Francis T. Williamson and his wife, levied upon household goods in the house where they resided. After the sheriff advertised the sale of the goods, Francis W. Williamson and his wife, the parents of Francis T. Williamson, filed a property claim averring that they are occupants of the premises and owners of the goods levied upon. A sheriff's rule for interpleader was served upon the claimants on February 26, 1963. They filed no answer to the rule. In accordance with Philadelphia Rule 2320(c) claimants' failure to file an answer to the rule constituted an abandonment of their claim. The plaintiff filed a copy of the docket entries showing that no answer had been filed on or before the return day and, in accordance with Rule 2320(c), the sheriff again advertised the sale. A second property claim was then filed by the same claimants. The plaintiff obtained a rule to show cause why this claim should not be stricken as res judicata. After answer and argument, it was ordered that the rule to strike the claim be made absolute, but upon rehearing this order was vacated and the rule to strike was discharged. The present appeal was taken from the latter order.
The county court's opinion gives the following reasons for its actions:
(1) There is no basis for the judgment against the wife-defendant; and
(2) Service of the rule for interpleader was made upon the claimants by handing a copy to the defendant-husband, the son of the claimants, who, as averred in the answer to the petition to strike, "either deliberately or inadvertently" failed to inform the claimants of the service.
In their brief, the appellees add an additional reason to justify the court's refusal to strike the claim:
(3) Rule 2320(c) is inconsistent with § 1 of the Sheriff's Interpleader Act of June 22, 1931, P. L. 883,
[ 204 Pa. Super. Page 251]
§ 1 et seq. (12 PS § 2358 et seq.), and is therefore invalid under § 10 of ...