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SHEPPARD v. FIRST PENNSYLVANIA BANKING & TRUST COMPANY. (09/13/62)

September 13, 1962

SHEPPARD, APPELLANT,
v.
FIRST PENNSYLVANIA BANKING & TRUST COMPANY.



Appeal, No. 143, Oct. T., 1962, from order of County Court of Philadelphia, June T., 1957, No. 339, in case of Olivia Sheppard v. First Pennsylvania Banking & Trust Company. Order affirmed.

COUNSEL

David Freeman. for appellant.

Ralph S. Croskey, with him Leo Francis Doyle, for appellee.

Before Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 199 Pa. Super. Page 191]

OPINION BY ERVIN, J.

Plaintiff, Olivia Sheppard, sued the defendant, First Pennsylvania Banking and Trust Company, in an action in assumpsit. The complaint averred that an automobile had been purchased by plaintiff under a bailment lease contract; that it had been repossessed by the defendant upon failure to make the payments which were provided for under the bailment lease; that defendant had given the 15-day notice for redemption to the plaintiff as provided for under § 25 of the Act of 1947, P.L. 1110, 69 PS § 625; that a demand had been made upon the defendant but it failed to produce the said automobile. Plaintiff claimed for the value of the automobile and certain articles of personalty which were contained in the automobile when it was repossessed. The defendant filed an answer which denied that demand had ever been made upon the defendant for the return of the automobile.

At the trial the defendant offered to prove that the storage lot where the automobile was placed after repossession was a safe one and that the defendant was not negligent. Plaintiff objected to this evidence and was sustained. A verdict was rendered in favor of the plaintiff, which the court below molded so that the amount of the verdict represented the plaintiff's equity in the automobile. The jury refused to allow the plaintiff any damages for the articles of personalty alleged to have been in the car at the time of repossession. The defendant filed a motion for judgment n.o.v. The

[ 199 Pa. Super. Page 192]

    court below refused this motion but granted a new trial, stating: "We are of the opinion that the issues were not fully presented to the jury and in the interest of justice, a new trial was granted by this court."

In its opinion the court below also stated: "The Motor Vehicle Sales Finance Act, 69 PS Sec. 601 et seq., provides for repossession of an automobile after default, Section 23; for redemption after repossession, Section 25, and for sale of the automobile if it is not redeemed, Section 26. But the Act does not specifically determine the status or the risk of loss during the period between repossession and redemption.

"We do not believe that the lender who repossesses the automobile after default is an insurer. He is merely a lawful bailee subject to the obligations of a bailee. Hence we believe the trial judge should have permitted the defendant to offer evidence of the due care exercised under the circumstances."

Plaintiff filed this appeal and argues that the court below should not have granted a new trial to adjudicate ...


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