Section 408. Setting Aside Exempt Property

A. Upon receipt of a claim for exemption in kind, the officer executing the order shall set aside from the designated property enough thereof as appraised by him to equal the value of the exemption unless the property is incapable of division. In the event of failure of the defendant to claim his statutory exemption, the executing officer shall similarly choose, appraise and set aside property in kind.

B. If the executing officer cannot set aside property in kind because the property in his hands is not capable of appropriate division, he shall set aside from the proceeds of the sale and pay to the defendant in cash the amount of his statutory exemption.

C. The defendant, or any party in interest, may appeal to the magisterial district judge who issued the order of execution from any appraisal or designation of property made by the executing officer, provided the appeal is made within two (2) days after the appraisal or designation; but the plaintiff may appeal at any time before the sale from a setting aside of property by the executing officer on the ground that it is excessive or illegal.

Official Note

Compare Pa. R.C.P. No. 3123(b), (c), (d). The provision for the plaintiff seems necessary because of the limited nature of the levy under Rule 406 and because he may not be aware, within two days, of a setting aside similar to the right of the defendant, under Rule 420A(2), to contest a levy claimed to be excessive or illegal.