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KEMP v. MAJESTIC AMUSEMENT CO. (11/14/67)

decided: November 14, 1967.

KEMP
v.
MAJESTIC AMUSEMENT CO., APPELLANT



Appeal from decree of Court of Common Pleas of Allegheny County, April T., 1964, No. 3396, in case of Edward L. Kemp, doing business as Edward L. Kemp Co. v. Majestic Amusement Co., William M. Speney, individually and trading as Palisades Amusement Company, and Peoples Union Bank and Trust Co.

COUNSEL

James R. Orr, with him Elder W. Marshall, and Reed, Smith, Shaw & McClay, for appellant.

Louis Vaira, with him Albert G. Brown, for appellee.

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

Author: O'brien

[ 427 Pa. Page 430]

Plaintiff, Edward L. Kemp, who had installed heating and air conditioning in a commercial building, filed a complaint in equity against the owner of the building (Majestic Amusement Company -- appellant), the tenant of the building (William M. Speney), and a bank (Peoples Union Bank and Trust Company of McKeesport). The complaint against Majestic, based on an unjust enrichment theory, sought an injunction prohibiting Majestic from encumbering or transferring the real estate and from selling any of the personal property located thereon, an order directing Majestic to pay plaintiff $20,400 with interest from July 29, 1960, and an order impressing an equitable lien for that sum on the real estate. The action against the bank charged the bank with making an improper levy and sale of the air conditioning equipment, and requested that the sale be set aside as invalid. Speney was eventually dropped from the case.

After preliminary objections to an amended complaint were dismissed, the case was tried before the chancellor. His decree nisi granted relief substantially as plaintiff had requested it. He ordered Majestic to pay plaintiff $20,400 with interest, impressed an equitable lien on the real estate pending payment of such sum, and enjoined Majestic from transferring any of its stock owned by Speney or his wife until such sum was paid. The execution sale of the air conditioning was set aside and the bank enjoined from removing any of the said units from Majestic's premises. Exceptions were dismissed and the decree nisi entered as a final decree. The bank did not appeal.

Majestic Amusement Company, a corporation, has been the owner of a two-story commercial building known as the Palisades in McKeesport, Pennsylvania, since 1907. The property has been managed since 1940

[ 427 Pa. Page 431]

    by A. M. Simon. William M. Speney had been the sole tenant under long-term leases for over twenty years at the time of trial. On May 5, 1960, plaintiff contracted with Speney to install heating and air conditioning equipment in the second floor auditorium of the building for $20,400. The contract was made on the sole credit of the tenant without Simon's knowledge, and the installation was completed on July 29, 1960. Simon did not learn of it until the fall of 1960. Subsequent to the installation, the Pennsylvania Department of Labor and Industry ordered Speney to correct an aisle violation caused by the location of two free-standing units in the balcony of the auditorium. The condition was not corrected, all of the units were dismantled, the piping was removed, and the equipment was stored. Speney refused to pay for the system.

Plaintiff sued Speney on the contract and obtained a verdict for $24,186 on December 10, 1963, which was reduced to judgment and is still uncollected. On December 12, 1963, the bank confessed judgment for $27,825 on a note signed by Speney and his wife and issued execution on the judgment, purchasing among other items, the four air conditioners and two compressors installed by Kemp.

On May 18, 1964, Speney acquired control of Majestic, which he transferred to his wife.

The present complaint was filed in March of 1964. The bank has been sued on the theory that the equipment was part of the realty and hence the execution sale was void. Majestic has been sued on the contention that it has been unjustly enriched by ...


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