Appeal, No. 58, Oct. T., 1964, from order of County Court of Philadelphia, March T., 1963, No. 10454-D, in case of Jack A. Gantman v. Stanley Paul et al. Order affirmed; reargument refused May 1, 1964.
Marvin Allanoff, for appellant.
Howard Saul Marcu, with him Daniel Marcu, and Marcu, Marcu & Marcu, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 203 Pa. Super. Page 159]
We are here concerned with an appeal by Stanley Paul, one of two defendants in a replevin action instituted by Jack A. Gantman, from an order of the County Court of Philadelphia granting Gantman's motion for judgment on the pleadings against Paul, fixing the money value of the goods at $2,500.00, and directing that damages be assessed at a trial limited to that issue. The other defendant, Martin Industries, Inc., has averred "that it has no interest in and to the said goods in its own right and is merely storing the same for the account of Stanley Paul".
The goods replevied consisted of three upholstered chairs, two game sets (each consisting of a table and four chairs), and one area rug. The accompanying affidavit
[ 203 Pa. Super. Page 160]
set forth that the value of the goods was $2,500.00, and a replevin bond was filed in double that amount. After the goods were taken in custody by the sheriff, Paul filed a counter bond and the goods were returned to his possession. The first count of the ensuing complaint averred that Gantman was the owner of the goods, that they had been purchased from Paul, and that Paul had wrongfully removed them from Gantman's home. Attached to the complaint were invoices issued by Paul to Gantman showing dates of purchase, prices charged, and payments made on account. In the second count of the complaint Gantman sought to recover expenses, counsel fee, and damages for unlawful detention. Following the filing of Paul's answer, Gantman moved for judgment against Paul on the pleadings. The court below treated this motion as a preliminary objection, sustained it as such, and granted Paul leave "to file an amended answer within 20 days from date hereof which shall state fully the facts upon which his conclusion that the plaintiff did not have title to the goods is based". Paul's amended answer denied that Gantman was the owner of the goods, and averred that the goods had been placed in Gantman's home "on an approval basis only ... [and] were never finally approved". Gantman again moved for judgment against Paul on the pleadings, and it is from the order granting this motion that the instant appeal has been taken.
The rationale of the opinion below is that, in view of Paul's admission that he had issued the invoices and had delivered the articles listed therein, his mere assertion that the delivery was on an approval basis was insufficient to prevent judgment. It should be noted that Paul's answer did not deny any of the payments indicated on the invoices, but merely averred that they were credited to a general account and were not payments for the specific items replevided. We are all of
[ 203 Pa. Super. Page 161]
the opinion that the court below properly concluded that title had passed to Gantman. As stated by Judge BURCH: "In the light of these admitted facts, the general undocumented averment that the goods were sold on approval and that the goods which are the subject matter of this proceeding were never approved by the plaintiff is completely untenable. The period of time that the goods were in the ...