No. 751 April Term, 1977, Appeal from Denial of Petition and Order of Court in the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, dated May 3, 1977, at No. GD75-23717.
Michael E. Davis, Pittsburgh, for appellant.
No appearance entered nor brief submitted for appellees.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 158]
This is an appeal from the denial of a petition and order of court in the Court of Common Pleas of Allegheny County, Civil Division at No. GD75-23717. The procedural history and facts relevant to the appeal are as follows:
Appellant, on May 7, 1975, instituted an action in assumpsit against appellees William Jessup and Frank Archer, individually and trading and doing business as Allegheny
[ 260 Pa. Super. Page 159]
Truck and Auto Sales in the amount of $285.34 plus interest from July 31, 1974 in the court of Magistrate John E. Watkins. A default judgment was entered and appellant recorded a transcript of said judgment in the Court of Common Pleas of Allegheny County on July 8, 1975. On July 15, 1975, appellant praeciped for a writ of execution at Ex. No. GD75-23717 and reissued said writ on December 2, 1975. Appellee Eugene L. Coon, Sheriff of Allegheny County was given this writ on December 3, 1975 to levy upon and sell appellees Jessup and Archers' personal property at 511 Washington Avenue, Dravosburg, Allegheny County, Pennsylvania. The levy was made on January 14, 1976 and the sheriff's sale scheduled for January 26, 1976, but it was subsequently postponed to and held on June 15, 1976. Appellant's attorney was the only bidder at said sale, bidding the amount of its court costs. Appellant was required, however, to pay its own court costs of $113.25 plus an additional $85.25, which represented court costs of another action, being Hiller Trading Corporation v. Frank Archer and William Jessup, trading as Allegheny Truck and Body Repair at No. 3809 of 1976. In that action, the writ of execution was delivered to the sheriff of Allegheny County on May 14, 1976. Levy was made on May 18, 1976, but no sale was ever held under that writ. Appellant recovered nothing as the result of the sale held on June 15, 1976.
On May 3, 1977, appellant petitioned the lower court to order appellee Eugene L. Coon, Sheriff, to refund to appellant all costs paid as court costs on writ of execution No. 3809 of 1976, the Hiller Trading case. Said petition was denied May 3, 1977. This appeal followed. Appellant contends that appellee Eugene L. Coon, as sheriff, may not require an executing plaintiff to pay at the sheriff's sale being conducted by said executing plaintiff, the court costs of another party who subsequently executes against the same property of the defendant.
P.R.C.P. 3138(a) entitled, "Sheriff's Expenses and Fees, Recovery of Costs, Abandonment of Writ for Non-Payment," provides:
[ 260 Pa. Super. Page 160]
"The plaintiff shall pay to the sheriff all costs, charges and expenses incident to the execution, the maintenance of the lien of the execution and the preservation of the property. These items shall be deemed taxable costs for refund to the plaintiff from the proceeds of any sale, except that the plaintiff shall not be entitled to recover the ...