Appeal from the Order of the Court of Common Pleas of Cambria County, in the case of Ashbridge Oil Co., Inc., v. Esther W. Irons, No. 1987-2038.
Michael A. Sossong, Smorto, Persio, Zadzilko, Sibert & Webb, for appellant.
J. Phillips Saylor, Spence, Custer, Saylor, Wolfe & Rose, for appellee.
Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.
[ 123 Pa. Commw. Page 630]
Jay Roberts, Sheriff of Cambria County (Sheriff) appeals from an order of the Court of Common Pleas of Cambria County granting the exceptions of Esther W. Irons to the Sheriff's bill of costs and prohibiting the Sheriff from collecting poundage.*fn1 We reverse.
The facts in this case are not in dispute. On October 19, 1987 a judgment in mortgage foreclosure was entered against Irons in the trial court by Ashbridge Oil Co., Inc. The Sheriff received from the prothonotary of the trial court the requisite papers for a sale of Irons' residence to satisfy this judgment. The Sheriff served the writs of execution and notified all parties in interest of the service and that the sheriff's sale was scheduled for March 11, 1988.
Irons cured the mortgage default on March 10, 1988. Ashbridge immediately notified the Sheriff that the sheriff's sale of Irons' residential real estate would not be necessary. The Sheriff, in connection with the aborted sale, filed a bill of costs with the prothonotary that included an assessment against Irons of $521.76 for poundage pursuant to sections 4(b) and 7 of the Sheriff Fee Act, Act of July 6, 1984, P.L. 614, 42 P.S. §§ 21104(b) and 21107.*fn2
[ 123 Pa. Commw. Page 631]
Irons filed exceptions to the assessment of poundage on the Sheriff's bill of costs, contending that: (1) section 404 of the Act of January 30, 1974, P.L. 13, 41 P.S. § 404*fn3 does not permit recovery of poundage when default is cured prior to sale; and (2) section 7 of the Sheriff Fee Act "provides for the payment of poundage when execution has not been concluded only for writs relating to personal property." The trial court concluded that the Sheriff Fee Act distinguished between real and personal property and permitted recovery of poundage in real property executions only where a sale was conducted. On appeal to this court, the Sheriff contends that the trial court committed an error of law in concluding the Sheriff Fee Act did not permit recovery of poundage when a writ relating to real property was not executed.
Whether section 7 of the Sheriff Fee Act should be interpreted as providing for the recovery of poundage only when an unexecuted writ concerns personal property is an issue of first impression. For the reasons which follow, we conclude that the Sheriff Fee Act does not distinguish between real and personal property with respect
[ 123 Pa. Commw. Page 632]
to the assessment of poundage when a writ ...