No. 2319 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, No. 80-1260.
Steven Harvey Lupin, Lansdale, for appellants.
C. Stephens Vondercrone, Jr., Lansdale, for appellee.
Wickersham, McEwen and Lipez, JJ. McEwen, J., files a dissenting opinion.
[ 315 Pa. Super. Page 38]
This appeal is taken by William L. and Virginia C. Walker from an order which dismissed their petition to set aside a sheriff's sale because they had failed to comply with the lower court's order that they post a $117,000.00 bond before their case would be considered. The Walkers argue that the court was without authority to require that such a bond be posted and therefore that the dismissal of their petition was erroneous. We agree.
[ 315 Pa. Super. Page 39]
In its opinion, the lower court relies upon Montgomery County Civil Rule 3121(c)(3) as authority for requiring a bond in this case. Rule 3121(c)(3) provides:
In cases where safe-keeping of property under levy will involve expense, the defendant shall give such security for safe-keeping and maintenance of the same to the end of the stay of the proceedings as the court shall require.
The court reasoned that because plaintiffs, appellees here, would lose equity in the property with delay, a bond to protect plaintiff's interests was appropriate. The rule, however, provides for a bond only where the safe-keeping and maintenance of the property impose an expense. A decline in plaintiff's equity in the property is not such an expense and may not be the basis for requiring security under the rule.
Appellees' brief also argues that authority for requiring that a bond be posted can be found in Pennsylvania Rule of Civil Procedure 3132, which provides:
Rule 3132. Setting Aside Sale
Upon petition of any party in interest before delivery of the . . . sheriff's deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order ...