The opinion of the court was delivered by: KNOX
Plaintiff brought this suit as a class action against the Sheriff of Erie County Pennsylvania claiming that he had consistently been charging excessive amounts for poundage or commissions in connection with sheriff sales of real property conducted by him. The action is a civil rights action specifically brought under 42 U.S.C. § 1983. The court has jurisdiction under 28 U.S.C. § 1343(3). The case was tried and argued to the court upon and agreed upon stipulation of facts and is now before the court for decision. The court makes the following
(1) Plaintiff, The Pennsylvania Bank and Trust Company is a Pennsylvania banking corporation with its principal place of business in the Western District of Pennsylvania.
(2) Defendant, Andrew J. Hanisek, is the duly elected, qualified and acting sheriff of Erie County Pennsylvania and a resident of the Western District of Pennsylvania, and has been since prior to March 26, 1969.
(3) This case has been certified as a class action and is brought by plaintiff on behalf of itself and numerous other banks, finance corporations, savings and loan associations and other individual and corporate lenders who have found it necessary to cause real property of their debtors to be sold by the Sheriff of Erie County, Pennsylvania at sheriff's sales during the period from March 26, 1969 to March 26, 1975 the date of filing this suit.
(4) During this six year period of time defendant was at all times Sheriff of Erie County Pennsylvania conducting sheriff's sales of real property by virtue of his office and pursuant to provisions of Pennsylvania law.
(5) Various other banks, savings and loan associations, finance companies and individuals have opted out in accordance with the report of the class action manager filed December 16, 1976 and are no longer considered as plaintiffs in this case.
(6) The court incorporates by reference in these findings of fact paragraphs 1-30, inclusive of the stipulation of facts filed in this case on August 3, 1976.
(7) In assessing poundage or commission for his services in connection with the sale of real estate the sheriff is governed by the provisions of Pennsylvania law, 16 P.S. 11301(b) (Act of May 9, 1949 P.L. 927 as last amended (Act October 17, 1974 P.L. 72) regulating the fees and commissions of sheriffs in counties other than counties of the first class. Erie County, Pennsylvania is a county of the third class and the fees of the defendant are regulated by said statute.
(8) The defendant, the Sheriff of Erie County, for a period of six years prior to March 26, 1975, charged poundage or commissions based on the amount of the judgment debt (which includes the debt and interest) or the highest bid price at the time of sale whichever was greater.
(9) That all poundage collected by the defendant at each and every Sheriff sale of real estate has been transferred to the Treasurer of Erie County for inclusion in the general fund of the budget of Erie County.
(10) That there were no exceptions filed to the distribution of the proceeds in any of the foregoing sheriff sales or in any of the sheriff sales conducted at all times material hereto objecting to the sheriff's collection of poundage and his computation of poundage as set forth in Stipulation of Fact No. 32.
The instant case is an illustration of the expansion of litigation under the Civil Rights Act, 42 U.S.C. § 1983
to bring within the purview of the federal courts matters which no one would have considered appropriate for their consideration a few years ago. The court, however, has determined that under the peculiar circumstances of this case and the lack of any apparent remedy afforded plaintiffs under Pennsylvania law this court must assume jurisdiction and determine the question presented here as to whether excessive poundage has been collected by a Pennsylvania sheriff in connection with the sales of real estate.
Preliminarily, it will be noted that originally the sheriff had brought in the County of Erie as a third party defendant claiming that he had paid all monies collected by way of poundage on real estate sales over to the county treasurer and that if he, the sheriff, was required to reimburse plaintiff for monies improperly collected the county in turn should indemnify him against such liability.
The county upon being joined originally presented a motion to dismiss which was denied, the court holding that it had pendent jurisdiction of this claim by the sheriff under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). On June 24, 1976, however the United States Supreme Court handed down its decision in Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276, holding that a federal court in a civil rights case did not have pendent or ancillary jurisdiction of a claim against a party not within its statutory jurisdiction under the Civil Rights such as a county. This court thereupon dismissed the third party claim against the County of Erie without prejudice to the right of the defendant sheriff to present his claims for indemnity, if any, in the appropriate state court.
In connection with the plaintiff's request for a class action the court did on December 2, 1975, enter an order pursuant to stipulation certifying this as a class action under Rule 23(b)(2) and (b)(3), the class being described as "all plaintiffs both corporate and individual or otherwise who have been execution creditors in sales of real property ...