Miller v. Feldstein
Miller v. Feldstein
Opinion of the Court
Opinion by
We are here concerned with an appeal by the plaintiff in an action of replevin without bond from an order of the Court of Common Pleas of Allegheny County sustaining defendants’ preliminary objections, and dismissing the complaint. It will be necessary to briefly set forth the factual and procedural situation.
The instant appeal is controlled by our recent decision in Hilton Credit Corporation v. Williamson, 204 Pa. Superior Ct. 248, 203 A. 2d 389, which will be discussed in the next paragraph. While one of the purposes of the sheriff’s interpleader act is to protect the sheriff, the statute is also concerned with the question of title to the goods under levy. A sheriff’s interpleader proceeding is the means of determining the title or ownership of the goods upon which levy has been made: Voytek v. Schugard, 196 Pa. Superior Ct. 216, 173 A. 2d 654. The words “belong to”, “ownership”, and “title”, as used in the statute, have their usual and ordinary meaning, and relate to the absolute ownership or proprietorship of the goods and chattels in controversy: Atlantic Finance Corp. v. Kester, 156 Pa. Superior Ct. 128, 39 A. 2d 740.
' In the Hilton Credit Corporation case, the plaintiff levied upon household goods in the dwelling of the de
Similarly, this appellant failed to comply with the requirement in Section 11 of the statute (12 P.S. 2368) that the claimant must file a bond and statement of title within two weeks after the rule for an issue is made absolute. The section further provides: “If the claimant shall fail to comply with this section, then the sheriff, on being furnished with a certificate, from the prothonotary or clerk, that a bond and statement has not been so filed, shall proceed with the execution or process as if no claim had been filed”. This language clearly implies that failure on the part of the claimant to file a bond and statement of title constitutes an abandonment of the claim, thus permitting the sheriff to proceed with the execution. The case of Summit Hosiery Co. v. Gottschall, 292 Pa. 464, 141 A. 298, relied upon by appellant, is readily distinguished. The pivotal difference is that the case arose in 1925, and the statute then in effect did not contain the sanction clause above quoted.
To summarize, if appellant had not filed a property claim, thereby setting in motion the interpleader proceeding, she might well have pursued her common law remedy. However, appellant chose to avail herself of the more expeditious procedure set forth in the sheriff’s interpleader act. She may not now avoid the consequences of her abandonment of that proceeding by a second attempt to show title.
Order affirmed.
Such a clause first appeared in the Act of April 7, 1927, P. L. 174, which provided: “If, after the said rule is made absolute, the claimant shall fail to give his bond in accordance with
Case-law data current through December 31, 2025. Source: CourtListener bulk data.