FIRST NATIONAL BANK OF NORTHEAST, Aрpellee, v. Walter D. GOOSLIN, Robert C. Efford and Flyin’ Goose Corp., Appeal of Norman J. WILCKE, Claimant.
Superior Court of Pennsylvania.
October 9, 1990.
Reargument Denied Dec. 20, 1990.
582 A.2d 1054
Argued June 12, 1990.
James H. Thomas, Lancaster, for appellee.
Before WIEAND, DEL SOLE and MONTEMURO, JJ.
MONTEMURO, Judge:
The appellant, Norman J. Wilcke (“Wilcke“), has appealed from the December 13, 1989 Order of the Court of Common Pleas of Lаncaster County, denying his petition for special damages and counsel fees.
The record reveals that in 1983, Walter D. Gooslin, Robert Efford and the Flyin’ Goose Corporation, pledged a dredge as collateral for a loan issued to them by the First National Bank of Northeast (“Bank“), appellee herein. The debtors subsequently defaulted on the loan, and the Bank entered judgment against the debtors in the Court of Common Pleas of Chester County. Bаsed upon this judgment, the Sheriff of Lancaster County levied upon the dredge, known as “Rhonda Crystal“, which was located within Lancaster County. After the levy was issued, Wilcke filed a property claim pursuant to
(a) A claim to tangible рersonal property levied upon pursuant to a writ of execution shall be in writing and substantially in the form provided by Rule 3258 and shall be filed with the sheriff prior to any execution sale of the property claimed.
(b) The claim shаll be signed by the claimant or some one on his behalf, and shall set forth.
- a list of the property claimed sufficient to identify it;
- an estimate of the value of the property;
- a statement of the source of the claimant‘s ownership of the property.
See
The Sheriff of Lancaster County subsequently determined that Wilcke was the owner of the Rhonda Crystal. The Bank objected to the Sheriff‘s findings, thus commencing an action in interpleader. Evidentiary hearings were held in May and in June of 1987. On July 1, 1988, Wilcke filed a petition, requesting that the court order the Bank to pay the storage and maintenance costs associated with the Rhonda Crystal. R.R. at 3a. Thereafter, on January 30, 1989, the trial court upheld the Sheriff‘s determination that Wilcke was the owner of the Rhonda Crystal. In so doing, the court rejеcted various theories offered by the Bank to support the position that Walter Gooslin was the owner of the Rhonda Crystal, i.e., abandonment by Wilcke and the existence of a lease-purchase agreemеnt between Wilcke and Gooslin. The January 30, 1989, Order by its terms does not award to Wilcke any monies for storage and maintenance costs. The trial court never ruled upon Wilcke‘s July 1, 1988, petition seeking storage and maintenanсe costs. Neither the Bank nor Wilcke appealed from the January 30, 1989, Order.
Over three months after the entry of the Order confirming title to the Rhonda Crystal in Wilcke, Wilcke filed a petition again seeking payment for the cоsts of storing and maintaining the Rhonda Crystal during the above-described proceedings. Wilcke also sought, for the first time, counsel fees pursuant to
Turning to Wilcke‘s claim for counsel feеs, we note that Wilcke did not request such fees until over three months after the entry of the January 30, 1989, Order. It is settled law that counsel fees cannot be sued for separately from the principal claim. “Separate suits constitute an impermissible splitting of but one cause of action.” Goldberg v. Goldberg, 306 Pa.Super. 504, 506, 452 A.2d 838, 839 (1982) (citation omitted). See also Kessler v. Old Guard Mutual Insurance Co., 391 Pa.Super. 175, 570 A.2d 569 (1990) (claim for prejudgment interest on prior judgment was waived where insureds made no attempt to amend the judgment, which had been entered by the trial court and affirmed on appeal, to include prejudgment interest); Mantell v. Mantell, 384 Pa.Super. 475, 559 A.2d 535 (1989) (separate action to recover counsel fees, where recoverable, is part of principal action and must be asserted therein). Wilcke‘s сontention that he had an absolute right to recover counsel fees pursuant to
Based upon the foregoing, we affirm.
DEL SOLE, J., files a dissenting opinion.
DEL SOLE, Judge, dissenting:
In this case we are asked to decide whether a claim for special damages and attorney‘s fees in an interpleader action may be raised by a petition filed more than thirty days after the order establishing ownership of the disputed property has been entered, if there was no award of special damages or counsel fees at the time of the order, and no appeal from the оrder was taken.
The disputed property was a dredge named “Rhonda Crystal“, which was levied upon by the Sheriff of Lancaster County pursuant to a judgment obtained by First National Bank of Northeast [First National] against Walter D. Gooslin, Robert L. Efford and Flyin’ Goose Corporation. After the levy was issued, a property claim was filed by Norman J. Wilcke, Claimant. The Sheriff determined that Mr. Wilcke was the true owner of the dredge, (See, Rules 3202, 3204,
On January 30, 1989, over a year and a half after the evidentiary hearings were held, the Court of Common Pleas of Lancaster County overruled First National‘s objection, and held that upon cоnsideration of the parties briefs and the testimony given in 1987, the Sheriff‘s finding in favor of Mr. Wilcke should stand. This order was docketed the same day, but no judgment was entered, and no mention was made of either counsel fees or special damages, such as storage and maintenance charges. Neither the plaintiff nor the claimant filed an appeal from this order within thirty days.
On May 10, 1989, over three months from the entry of the order in question, Mr. Wilcke filed an Application for Award of Special Damages and Counsel Fees to be payable by First National. The storage fees were calculated to be $5,829.00, and the attorney‘s fees were calculated to be apрroximately $45,000.00. The trial court “declined to entertain claimant‘s present application,” (Trial Court Opinion at 4, December 12, 1989), on the basis that, “any special damages or counsel fees to which the claimant is еntitled shall be included in the judgment,” and “the Order of January 30, 1989 contained no provision for an award of either special damages or counsel fees, and no post-trial motions were filed with respect to it.” (Trial Court Opinion аt 4, December 12, 1989).
The trial court relied on the language of Rule 3213,
Judgment
The judgment in the interpleader proceedings shall determine the title to the claimed property as among the parties to the interpleader, provide for the disposition of
the proceeds of sale thereof, fix the amount of special damages sustained by the claimant if he has sustained his claim or the amount of any liability of the claimant if property has been delivered to him as to which he has not sustаined his claim, and shall include such counsel fees as may be awarded by the court as part of the costs.
In all issues framed under this act [concerning interpleader proceedings], all the costs of the procеeding shall follow the judgment and be paid by the losing party as in other cases.
Appellant cites
Right of participants to receive counsel fees
The following participants shall be entitled to a reasonable counsel fee as pаrt of the taxable costs of the matter:
(5) The prevailing party in an interpleader proceeding in connection with execution upon judgment.
I do not think the resolution of the problem concerning when a prevailing party must make application for attorneys fees and special damages is self-evident from the statutes cited. Nor do I find, after reading the cases cited in the briefs, and examining the case law in this area, that Pеnnsylvania case law provides sufficient guidance on this issue.
Accordingly, I would vacate the order denying Appellant‘s application, and remand for determination of special damages and counsel fees. I believe that to deny the Appellant opportunity to present his claim under these circumstances is unfair. However, in order to guide practitioners in the future, I would hold that a claim for special damages and counsel fees must be filed prior to the court‘s
Furthermore, the court‘s decision should track the relief mandated by Rule 3213,