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LINWOOD HARVESTORE v. CANNON (11/14/67)

decided: November 14, 1967.

LINWOOD HARVESTORE, INC., APPELLANT,
v.
CANNON



Appeals from judgments of Court of Common Pleas of Mercer County, March T., 1967, Nos. 59 and 60, in cases of Linwood Harvestore, Inc. v. Harold Cannon; and Same v. Robert Jones.

COUNSEL

William C. Kuhn, with him Philip E. Brockway, and Brockway, Brockway & Kuhn, for appellants.

David Goodwin, with him T. A. Sampson, Jr., and Fruit, Dill and Goodwin, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones, Mr. Justice Eagen and Mr. Justice Roberts concur in the result.

Author: O'brien

[ 427 Pa. Page 435]

The instant appeals arise out of two separate actions of replevin brought by the plaintiff, Linwood Harvestore, Inc., against defendants, Harold Cannon and Robert Jones, in the Court of Common Pleas of Mercer County. Since the material facts are the same in each action, the motions for summary judgment in each case were considered together by the court below and have been again considered together on these appeals.

The litigation is the result of the conversion of three Harvestores and accompanying equipment, their subsequent sale to the defendant-appellees, and the efforts of the plaintiff-appellants to secure relief. Harvestore is a trade name for a silo that is disassembled and may be assembled by a purchaser. At various times during 1965, the appellant became the owner of Harvestores and accompanying equipment. Subsequent to those dates, the appellant contracted with one George G. McConnell of New Wilmington, Pennsylvania, to

[ 427 Pa. Page 436]

    transport the Harvestores by motor truck from the appellant's place of business in Illinois to various farms in New York State. McConnell, a motor freight carrier, but also himself a dealer in Harvestores, did not deliver the Harvestores, but rather converted them. Although the pleadings leave some doubt as to whether the defendant-appellee farmers bought the Harvestores directly from McConnell, or indirectly through Mobile Leasing Corporation, which financed the appellees' purchases, it is clear that appellees did purchase the Harvestores.

Plaintiff here waived the tort and brought suit in assumpsit against the converter, McConnell. In that suit plaintiff obtained a default judgment, rendered uncollectible by virtue of McConnell's insolvency.

Defendants in the instant cases moved for summary judgment on two grounds. The first was that the pleadings show that the Harvestores were realty and replevin is the wrong form of action to recover realty. The second was that the suit in assumpsit affirms the sales by McConnell and ratifies the defendants' titles. The motions were granted by the court below on the latter ground. These appeals followed.

Pennsylvania Rule of Civil Procedure 1035(b) sets forth the criteria for the granting of a motion for summary judgment: ". . . The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . ." As we read the record, it cannot be said that there is no genuine issue as to a material fact. Defendants in the new matter in their answers aver that they and their spouses "had no ...


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