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COUNTY CONSTRUCTION COMPANY v. LIVENGOOD CONSTRUCTION CORPORATION (05/26/58)

May 26, 1958

COUNTY CONSTRUCTION COMPANY
v.
LIVENGOOD CONSTRUCTION CORPORATION, APPELLANT.



Appeals, Nos. 122 and 123, Jan. T., 1958, from order of Court of Common Pleas of Berks County, Feb. T., 1957, No. 145, in case of County Construction Company v. Livengood Construction Corporation et al. Order affirmed.

COUNSEL

Edwin P. Rome, with him Morris L. Weisberg, W. Richard Eshelman, Blank, Rudenko & Klaus and Stevens & Lee, for appellants.

Walter T. McGough, with him J. Tomlinson Fort, Daniel H. Huyett, 3rd, Samuel B. Russell, and Reed, Smith, Shaw & McClay, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.

Author: Cohen

[ 393 Pa. Page 40]

OPINION BY MR. JUSTICE COHEN

On February 1, 1957, the plaintiff, County Construction Company, instituted an action of replevin without bond in the Court of Common Pleas of Berks County against Livengood Construction Corporation, Livengood, Inc., and Mahlon Livengood*fn1 to establish its right to possession of certain machinery, to recover its value or to compel the return of this equipment together with damages for its wrongful detention. The

[ 393 Pa. Page 41]

    defendants filed preliminary objections alleging that the venue of the action in Berks County was improper and that a contrary determination would constitute an unauthorized enlargement of the court's jurisdiction.

From the plaintiff's complaint and the deposition taken in support thereof, the following facts appear: Livengood Construction Corporation was awarded a contract for the construction of a state highway in Berks County, Pennsylvania. Plaintiff agreed to provide the funds to enable Livengood Construction to perform its contract. As collateral security for the repayment of the loan, Livengood Construction created a security interest in favor of the plaintiff in certain roadbuilding equipment used in the performance of the job. Defendant Livengood, Inc., and the individual defendant, Mahlon Livengood, executed a guarantee of the undertakings of Livengood Construction under the security contract. Thereafter, the equipment to which plaintiff's secured interest attached was moved on to the job site in Berks County.

On September 13, 1956, the Commonwealth of Pennsylvania terminated Livengood Construction's contract because of late and unsatisfactory performance. The plaintiff then notified Livengood Construction that it had violated several provisions of the loan agreement and was therefore in default. Following this declaration of default the equipment remained on the job site in Berks County until January 27, 1957, when one of the defendants, without the plaintiff's permission, came into Berks County and removed the machinery to Northampton County.

Upon these facts the lower court held that venue was proper in Berks County and accordingly dismissed the preliminary objections. These appeals followed.

Defendants first suggest that the action of replevin without bond, as provided by Pennsylvania Rules of Civil Procedure ...


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