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 order 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, Pa.R.C.P., 42 Pa.C.S.). First National filed an objec*501tion to the Sheriff’s finding, thus commencing an action in interpleader. Evidentiary hearings were held on May 21, 1987 and June 16, 1987, and on July 1, 1988, Mr. Wilcke petitioned the court to order First National to pay storage and maintenance charges. No ruling was made by the court on the July 1, 1988 petition for storage fees.
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 consideration 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 approximately $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 entitled 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 at 4, December 12, 1989).
The trial court relied on the language of Rule 3213, Pa.R.C.P., 42 Pa.C.S., and the unsuspended language of 12 P.S. 2371, to support its findings. Rule 3213 states:
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 *502the 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 sustained his claim, and shall include such counsel fees as may be awarded by the court as part of the costs. 12 P.S. § 2371 states:
In all issues framed under this act [concerning interpleader proceedings], all the costs of the proceeding shall follow the judgment and be paid by the losing party as in other cases.
Appellant cites 42 Pa.C.S. § 2503 to support his contention that because counsel fees are a cost taxable to the losing party in an interpleader action, application for such fees may be made after the court has determined title to the claimed property.
42 Pa.C.S. § 2503 states in pertinent part:
Right of participants to receive counsel fees The following participants shall be entitled to a reasonable counsel fee as part 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 Pennsylvania 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 *503judgment determining ownership of the claimed property in an interpleader action. Failure to file such claims prior to the determination of ownership should result in waiver of the prevailing party’s right to claim such damages and fees. Following the court’s determination of ownership, a hearing, if necessary, should be held to determine the amount of special damages or counsel fees.
Furthermore, the court’s decision should track the relief mandated by Rule 3213, Pa.R.C.P., 42 Pa.C.S. Therefore, it should not only include a determination of the title, it should provide for the disposition of the proceeds of sale, if applicable; fix the amount of special damages sustained by the prevailing claimant, or the amount of any liability of the claimant if property has been delivered to which it has not sustained its claim, and determine the amount of the award of counsel fees. See, Rule 3213, Pa.R.C.P., 42 Pa.C.S. Therefore, I dissent.