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HomeMy WebLinkAbout98-4145 EQUITYBOROUGH OF CARLISLE, PLAINTIFF V. ROBERT H. BARRETT, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-4145 EQUITY TERM IN RE: DEFENDANT'S "EXCEPTIONS TO COSTS" OPINION AND ORDER OF COURT Bayley, J., November 15, 2001 :-- Plaintiff, the Borough of Carlisle, obtained two judgments against defendant Robert H. Barrett. The first was entered on January 14, 2000, for $12,302.48. The second was entered on May 2, 2001, for $12,528.08. On June 5, 2001, a writ of execution was issued on both judgments for which the real debt totaled $24,830.56. A levy was made against eleven properties of defendant. On September 5, 2001, just before a sheriff sale scheduled that day, defendant paid the judgments, interest and costs, which totaled $31,956.20. On September 18, 2001, defendant filed exceptions "to the additional costs levied by Plaintiff, the Borough of Carlisle." He petitions: [t]he Court strike off the additional costs in the amount of $7,125.64 levied by Plaintiff, the Borough of Carlisle, (1) for failure to notify Defendant, Robert H. Barrett, of the additional costs, (2) for attempting to prevent Barrett from obtaining a mortgage to pay the monetary judgments, and (3) for attempting to sell excessive properties to satisfy the monetary judgments. 98-4145 EQUITY TERM In the event, the Court does not strike off the additional costs in their entirety, it is requested the Court strike off costs for (1) interest, (2) duplicate advertising, (3) advertising in the Law Journal, and (4) unexplained charges for Levy, Surcharge, and Poundage as unnecessary and oppressive. The Borough of Carlisle shall be ordered to repay Barrett in the amount struck off by the Court plus interest. A Rule to show cause was issued which the Borough of Carlisle answered. Briefs were filed. The facts necessary to resolve the exceptions are not in dispute. Defendant has briefed three "General Exceptions" and two "Specific Exceptions" in his claim for relief. I. Defendant seeks an order striking all of the costs upon a claim that he did not receive adequate notice of the costs in violation of his right to due process under the United States Constitution. Those costs are: Prothonotary Costs: $123.101 Sheriff's Costs: Docketing: $30.00 Posting Bills: $165.00 Advertising: $165.00 Law Library: $0.50 Prothonotary: $1.00 Mileage: $19.35 Certified Mail: $1.74 Levy: $165.00 Surcharge: $120.00 Law Journal: $2,581.10 Patriot News: $1,719.60 1 These costs include the filing fee ($45.50); complaint service fee ($27.10); entry of two monetary default judgments at $9.00 each ($18.00); writ of execution filing fee ($15.00); and additional writ entry fee ($2.50). The costs actually total $108.10, not $123.10, because the writ of execution filing fee of $15.00 was docketed twice. -2- 98-4145 EQUITY TERM Share of Bills: Poundage: $25.72 $496.61 The fact that defendant averted the sale of his properties by paying the judgments, with interest and costs, which shows that he had notice of the costs, renders his claim moot. Notwithstanding, his argument on the merits is clearly erroneous. The writ of execution was for the real debt at $24,830.56, plus interest of $1,132.48 through June 5, 2001, the date of the issuance of the writ of execution, plus interest thereafter at the rate of $4.08 a day. The writ did not list the sheriff's costs because there were none at the time it was issued. Pa. Rule of Civil Procedure 3129.2(a) only requires that the notice of the sale of the real property shall be provided to all [owners]. That notice was served on defendant by certified mail on June 13, 2001. Costs are probable until they are incurred. See Pa. Rules of Civil Procedure 3119 and 3124. Thus, the sheriff keeps a running total of the costs as they are incurred. Defendant could have paid the judgments, interest, and accumulated costs, at any time. The quicker he would make payment, the less costs would be incurred. If a sale had actually taken place, there would have been more costs. The law does not require the sheriff to send periodic notices to defendant every time costs are incurred in preparation for a sale. Defendant could learn the amount of the accumulated costs from the sheriff at any time in order to determine how much is necessary to pay the judgment, interest and costs to remove his properties from sale. That is exactly what -3- 98-4145 EQUITY TERM happened when he paid $31,956.20 on September 5, 2001. violation of his right to due process. There has been no II. In his petition, defendant maintains the Borough "attempted to dissuade [his] mortgage broker from approving [his] mortgage application in a blatant attempt to prevent [him] from paying the monetary judgments, thereby forcing a sheriff's sale of his properties." In its answer, the Borough acknowledged that through its solicitor, it "did advise Defendant's mortgage broker, both verbally and by letter, that Defendant's properties were subject to the Amended Final Decree, that Plaintiff considered the Amended Final decree to enjoy superior lien status over any proposed financing, and that the properties secured by the proposed financing were subject to valid orders of condemnation.": On August 29, 2001, defendant filed a petition for an injunction to prevent the sheriff from selling his properties. A Rule to show cause was issued returnable at a hearing on the morning of September 5, 2001, the date set for the sheriff's sale. At that hearing, defendant stated that he had obtained financing. He had an escrow check from a settlement company for the full amount of the judgments, : Our amended final decree in equity was affirmed by the Commonwealth Court of Pennsylvania on August 23, 2000. On August 8, 2001, the Supreme Court of Pennsylvania denied a petition of defendant for an allowance of appeal. On August 16, 2001, the Supreme Court of the United States denied a petition by defendant for a writ of certiorari. The judgments for which these "Exceptions to Costs" are at issue where for the plaintiff's attorney fees and costs in this protracted litigation. -4- 98-4145 EQUITY TERM interest and costs. That rendered his petition for an injunction moot because the satisfaction of the judgments, and the payment of the interest and costs, removed his properties from sale. Defendant's claim for relief from payment of the costs based on any contact the Borough may have had with his mortgage broker could not have merit as defendant secured the financing he needed. III. In his petition seeking relief from all costs, defendant avers that "the Borough directed the sale of eleven (11 ) separate properties with assessed valuation of $514,070 to satisfy judgments totaling $24,830.56, or less than six (6) percent of the value of the properties." In his brief, defendant argues "[t]hat the Borough knew the total valuation of the properties levied, that the Borough's objective was to sell all of Barrett's properties, and that simple reimbursement for attorneys' fees and costs was secondary to removing all properties from Barrett's ownership." Defendant has not stated any claim for relief. The extent of real property to be levied upon, and the manner in which such property is to be sold is under the control of the execution creditor. Pa. Rule of Civil Procedure 3107 provides: Order of Levy and Attachment. Real or personal property of the defendant may be levied upon or attached in any order or simultaneously, as the plaintiff may direct. (Emphasis added.) Rule 3124 provides: Order of Sale. -5- 98-4145 EQUITY TERM Real or personal property sufficient in an amount to satisfy the judgment, interest and probable costs, may be sold in any order or simultaneously as the plaintiff may direct. (Emphasis added.) If defendant had believed that the Borough levied on properties the value of which was in excess of the amount necessary to pay the judgments, interest and probable costs, he could have sought relief under Rule 3119, which provides: Release of property from levy. Upon cause show, on petition of any person or party in interest, the court may (2) release part of the property, if the value of the property levied upon is excessive compared to the amount of the judgment, interest, and probable costs. At a hearing pursuant to Rule 3119, the debtor has the burden of proving that the value of the levied property exceeds the judgment. Commonwealth Bank v. Iorio, 679 A.2d 820 (1996). If it does, the court can order the removal from sale of some of the levied property. Id. By not filing a petition pursuant to Rule 3119, defendant waived his right to challenge the scope of the Borough's levy. He may not sit back while additional costs are incurred and then seek relief, after the fact, on a claim that the scope of the levy was excessive. IV. Defendant maintains that the sheriff's levy of $165, a surcharge of $120, poundage of $496.61, and advertising of $165, are not authorized by the law. The $165 levy on eleven tracts at $15 per tract is authorized in the Sheriff Fee Act, 42 P.S. Section 21104(a)(3). The total $120 surcharge, for one defendant at $10, and for -6- 98-4145 EQUITY TERM eleven tracts at $10 a tract, is authorized in the Deputy Sheriffs' Education and Training Act, 71 P.S. Section 2108(b)(3). The poundage of $496.61 calculated at two percent of real debt of $24,830.52, is authorized in the Sheriff Fee Act, 42 P.S. Section 21104(b). The advertising of $165 for eleven tracts at $15 per tract, is authorized in the Sheriff Fee Act, 42 P.S. Section 21104(a)(6). Defendant maintains that the cost for advertising in both the Cumberland County Law Journal, $2,581.10, and the Patriot News, $1,719.60, was duplicative and unnecessary. He may well be right.3 However, advertising in the Law Journal and the newspaper of general circulation is authorized in the Sheriff Fee Act, 42 P.S. Section 21119, and by Pa. Rule of Civil Procedure 3129.2(d).4 V. Defendant maintains that the interest on the first judgment of $12,302.48 should not have started to run until this court, on March 28, 2001, vacated a stay that was in effect during his appeal. The interest was calculated from the date of the entry of the judgment on January 24, 2000. Interest on a judgment is calculated pursuant to the Judicial Code at 42 Pa.C.S. Section 8101, which provides: Except as otherwise provided by another Statute, a judgment for a specific sum of money should bear interest at the lawful rate from the date 3 On June 12, 2001, the House of Representatives adopted House Resolution 110. The resolution directs the House Judiciary Committee to study all issues regarding the publication of legal notices in the Commonwealth. 4 The Cumberland County Law Journal is designated for publication of notices. Cumberland County Rule of Court 355. -7- 98-4145 EQUITY TERM of the verdict or award, or from the date of the judgment, if the judgment is not entered upon a verdict or award. The stay precluded plaintiff from enforcing a judgment during the pendency of his appeal. An appeal does not suspend the accrual of interest. Printed Terry Finishing Co., Inc. v. City of Lebanon, 264 Pa. Super. 192 (1979). Notwithstanding, the interest which was collected of $1,511.92 should have been $1,445.26, or $66.66 less. Interest is calculated at six percent per annum. 41 Pa.C.S. Section 202. The correct calculation is: Interest of $12,302.48 from 1/24/00 (date of entry) to 5/2/01 at 6%: $2.02/day x 463 days = $935.26 Interest on $24,830.56 from 5/2/01 (date of entry of second judgment of $12,528.08) to 6/4/01 (date calculated on writ filing) at 6%: $4.08/day x 32 days = $130.56 Interest on $24,830.56 from 6/4/01 to 9/5/01 (payment date) at 6%: $4.08/day x 93 days = $379.44 Total interest collected Total interest due Difference CONCLUSION $1,445.26 $1,511.92 -$1,445.26 $66.66 For the foregoing reasons, defendant's "Exceptions to Costs" are without merit except that he is entitled to a refund of $15.00 for the duplication of the writ of execution fee, and $66.66 for the miscalculation of the interest due, totaling $81.66, with six percent interest from September 5, 2001. -8- 98-4145 EQUITY TERM AND NOW, this ORDER OF COURT day of November, 2001, defendant's "Exceptions to Costs," ARE DISMISSED, except that he shall be reimbursed for $81.66, with six percent interest from September 5, 2001. By the Court, Edward L. Schorpp, Esquire Solicitor for the Borough of Carlisle Robert H. Barrett, Pro se 35 South Bedford Street Carlisle, PA 17013 :saa Edgar B. Bayley, J. -9-