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COMMONWEALTH v. TWO FORD TRUCKS (ET AL. (01/21/58)

January 21, 1958

COMMONWEALTH
v.
TWO FORD TRUCKS (ET AL., APPELLANT).



Appeal, No. 180, April T., 1957, from orders of Court of Quarter Sessions of the Peace of Erie County, Nov. T., 1955, No. 157, in case of Commonwealth of Pennsylvania v. Two Ford Trucks and Thomas McDivatt. Orders reversed.

COUNSEL

Clair V. Duff, with him Lawrence P. Nelson, W. Louis Schlesinger, and Duff & Doyle, for appellant.

Roger M. Brown, with him Wendell R. Good, Frederick F. Jones, Herbert J. Johnson, Jr., Gifford, Graham, MacDonald & Illig, and Evans, Johnson, Scarpitti & Bernard, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 185 Pa. Super. Page 293]

OPINION BY ERVIN, J.

On November 23, 1954 and July 6, 1955 Harris Ford, Inc., (as bailment-lessor) entered into two separate written bailment lease agreements for two Ford trucks with Thomas McDivitt*fn1 (as bailment-lessee). On November 30, 1954 and July 9, 1955, respectively, Harris assigned said bailment leases to appellant, Universal C.I.T. Credit Corporation (hereinafter referred to as U.C.I.T.), for value. On September 16, 1955 McDivitt was operating these trucks while they

[ 185 Pa. Super. Page 294]

    were overloaded near the City of Corry, Erie County, Pennsylvania, as a result of which he was arrested and was given a hearing before an alderman. McDivitt was convicted and fined $1,020.00 under the terms of The Vehicle Code, as amended by the Act of June 30, 1955, P.L. 225, § 5, 75 PS § 453. McDivitt failed to pay the fine and the alderman notified the sheriff of Erie County, who seized the trucks and caused them to be impounded at the M. V. Irwin Moving and Storage Company in Erie, Pennsylvania. At the time of the illegal use, of which U.C.I.T. had no knowledge, McDivitt was in default in payment of rentals due under the leases. On September 13, 1955 McDivitt was in the office of U.C.I.T. and said he would pay the past due installments on September 19, 1955. He was told that if he did not pay on September 19, U.C.I.T. would repossess the trucks. On September 17, 1955 McDivitt told U.C.I.T. Manager James E. Weaver that the trucks had been seized by the sheriff. This was the first time that U.C.I.T. had knowledge of the violation of September 16, 1955. At all times the certificates of title issued for said trucks by the Bureau of Motor Vehicles of the Commonwealth of Pennsylvania named Thomas McDivitt as the owner. The only encumbrance noted on the certificates of title were in favor of U.C.I.T. in the total amounts of the bailmentlease rentals. On November 18, 1955 the sheriff informed U.C.I.T. that the trucks were to be sold on November 28, 1955. U.C.I.T. filed a petition in the court below praying for an order to stop the sale and for delivery of the trucks to U.C.I.T. In its petition U.C.I.T. averred: "3. That your petitioners hold legal title to the aforementioned trucks, there being due and owing to your petitioners the amount of $3,413.18 on truck bearing serial number F60Z5B10249, said balance due resulting from a bailment lease contract

[ 185 Pa. Super. Page 295]

    dated the 23rd of November, 1954, under which contract your petitioners obtained legal title, and, there also being due and owing to your petitioners the amount of $2,901.47 on truck bearing serial number F60Z5B16361, said balance due resulting from a bailment lease contract dated the 6th of July, 1955, under which contract your petitioners obtained legal title.

"4. That Thomas McDivatt, lessee of said trucks is not the lawful owner thereof but that your petitioners are now the lawful owners, said Thomas McDivatt having failed to comply with the terms of said bailment lease contract."

In the prayer of the petition U.C.I.T. requested that the trucks be delivered to it "in accordance with the provisions contained in PL263 of July 3, 1941 (75 PS Sec. 1291.5 (6)) which same is controlling." On December 2, 1955 the court below entered an order directing that the trucks be returned to U.C.I.T. On December 3, 1955 the court below entered a new order vacating the previous order and scheduling a second hearing. At the second hearing held on December 6, 1955, the sheriff, on behalf of M. V. Irwin Moving and Storage Company, claimed storage charges of $20.00 per day, or a total sum of $2,940.00 for both vehicles. On December 9, 1955 Parlette & Davis filed a petition to intervene in which they alleged that they were the owners of four tires on one of the trucks under a lease agreement; that the lessee was in default and that the rental balance due them was $292.93. No encumbrance in favor of Parlette & Davis was recorded on the certificate of title for either truck. On January 30, 1956 the court ...


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