No. 618 Philadelphia, 1982, Appeal for the Order of the Court of Common Pleas of Delaware County, Civil, No. 1666-79.
Michael J. Ehling, Assistant County Solicitor, Media, for Com., appellant.
Nathaniel C. Nichols, Chester, for appellee.
Cercone, President Judge, and McEwen and Hoffman, JJ.
[ 317 Pa. Super. Page 185]
This appeal has been taken from the denial of the right of the County of Delaware to attach or withhold a portion of the salary of an employee of the County when the County has obtained a judgment against the employee as a result of a transaction that did not arise from the employer-employee relationship.
Appellee was not an employee of the County of Delaware when, in July 1977, he signed as surety on an appearance bail bond on behalf of a defendant in a criminal case. When the defendant failed to appear, a bench warrant was issued for the arrest of the defendant and the bail bond upon
[ 317 Pa. Super. Page 186]
which appellee was surety was forfeited. Appellee subsequently became an employee of the County of Delaware.
The County entered a confession of judgment against appellee for the amount for which he had been surety on the bail bond, namely, two thousand five hundred dollars ($2,500.00), initiated execution proceedings and attached thereunder the regular pay check that appellee received from the County in the amount of fifty dollars ($50.00) per check. Appellee sued to halt the attachment and the Common Pleas Court directed the County of Delaware to halt the attachment and to return to appellee such sums as had been withheld under the attachment. We affirm.
Appellant in its able brief quite candidly acknowledges that it asserts a minority position and concedes that the prevailing view of the majority holds that a plea in setoff or counterclaim cannot be advanced as a defense in an action to recover exempt property. Appellant relies, however, upon a careful analysis of the Wage Payment and Collection Law, 43 P.S. § 260.1 et seq., to urge that we provide for Pennsylvania to join the ranks of the minority view described in 20 Am.Jur.2d Counterclaim, Recoupment and Setoff, § 33 (1965):
In some states the right of setoff is not subordinate to the right of exemption from execution, and a defendant may interpose as a counterclaim or setoff a debt owing to him by the claimant in an action to recover exempt property. The reason assigned for this view is that exemption statutes provide for ...