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WHEATCROFT v. SMITH ET AL. (03/29/76)

decided: March 29, 1976.

WHEATCROFT, APPELLANT,
v.
SMITH ET AL.



Appeal from order of Court of Common Pleas of Montgomery County, No. 70-5266, in case of R. Wheatcroft v. Morris Smith, Mary Smith, Steven Smith, a/k/a Bud Smith, a/k/a Morris Smith, Gloria Smith, a/k/a Betty Smith, a/k/a Mary Smith, defendants, v. Rose Decio, Acting Director, Tax Claim Bureau, Marywayne Glimore, Treasurer and Lawrence Flick, Controller, all of Montgomery County, Pennsylvania, garnishees.

COUNSEL

Maurice M. Green, for appellant.

Bernard J. McLafferty, with him Horace A. Davenport, and James A. Cassel, for appellees.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Hoffman, Van der Voort, and Spaeth, JJ., concur in the result. Dissenting Opinion by Price, J.

Author: Cercone

[ 239 Pa. Super. Page 29]

The instant appeal arises from the order of the lower court sustaining the garnishees' preliminary objections and quashing plaintiff's writ of execution. The garnishees (the Tax Claim Bureau, the Treasurer and the Controller of Montgomery County) successfully raised the doctrine of Custodia Legis in the lower court. We find that doctrine to have been misapplied and will reverse. The facts are as follows.

Plaintiff (appellant herein) purchased defendants' land at a tax sale in 1969. Defendants subsequently brought suit to challenge the validity of the sale and refused to vacate the premises or pay the taxes as they accrued during the four years of ensuing litigation. Ultimately the sale was upheld on appeal in our

[ 239 Pa. Super. Page 30]

Supreme Court, whereupon plaintiff brought an action to quiet title and for possession, which culminated in the defendant's eviction and the entry of a money judgment in favor of plaintiff in the amount of $15,050.00.

The amount realized in the tax sale of defendants' property was more than sufficient to pay the delinquent taxes, and left a surplus of $4,058.35 refundable to the defendants.*fn1 Therefore, pursuant to his money judgment, plaintiff obtained a writ of execution naming the aforementioned public officials as garnishees. The Tax Claim Bureau had technical possession of the money to be refunded, and the Treasurer and Controller would issue a draft for the money at the direction of the Bureau. When the garnishees interposed their preliminary objections, and they were sustained by the lower court, plaintiff appealed.*fn2

Execution upon a judgment against garnishees may be effectual if the garnishees owe the judgment debtor a debt. For this purpose the debt is treated as though it were the "property" of the judgment debtor, and therefore amenable to execution by the judgment creditor. D. Dobbs, Remedies § 1.3 at p. 11 (1973). See also Pa. R. C. P. 3101 (b) (1), 19 P.S. Appendix (1964). Generally, however, funds in the hands of the Commonwealth or its political subdivisions, owing to individuals, are not attachable since public policy holds that the government should be free from the annoyance and uncertainty arising out of disputes between the individuals to whom the money is owed and those claiming a right therein by garnishment. Commonwealth v. Mooney, 172 Pa. Superior Ct. 30 (1952). This policy has early roots in the law of this Commonwealth, and once

[ 239 Pa. Super. Page 31]

    admitted no exception. Bulkley v. Eckert, 3 Pa. 368 (1846). The unfairness of the rule was manifest when, in point of fact, there would be little if any of the "inconvenience . . . . delay, embarrassment and trouble" to which the court in Bulkley alluded in support ...


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