Union National Bank & Trust Co. v. Walker

LIPEZ, Judge:

This appeal is taken by William L. and Virginia C. Walker from an order which dismissed their petition to set aside a sheriffs 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.

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 plaintiffs 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 plaintiffs 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 which may be just and proper under the circumstances.

While this provision does give the trial court discretion in fashioning a remedy after consideration of a petition to set aside a sale, we do not agree that it can be read to authorize the court to require security as a condition of consideration of the petition. In interpreting the Rules of Civil Procedure, we are to consider the prior practice in the area governed by the rule in question. Pa.R.C.P. 127(c)(5). While it has been a frequent practice to require the posting of a bond in connection with an order setting aside a sale and granting resale, see Commonwealth Trust Co. v. Har-kins, 312 Pa. 402, 411, 167 A. 278, 282 (1933), appellees have cited no case in which a bond has been required as a condition of hearing the petition, and our research has revealed none. Accordingly, we decline to interpret the language of Rule 3132 to allow the court here to impose such a requirement. As the bond was improperly required, the lower court’s dismissal of appellant’s petition for failure to post that bond was erroneous.

Order vacated, petition reinstated, and case remanded for further proceedings. Jurisdiction is relinquished.

McEWEN, J., files a dissenting opinion.