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BRUNSWICK CORPORATION v. KEY ENTERPRISES (08/06/68)

decided: August 6, 1968.

BRUNSWICK CORPORATION
v.
KEY ENTERPRISES, INC., APPELLANT



Appeal from judgment of Court of Common Pleas of Delaware County, No. 1859 of 1964, in case of Brunswick Corporation v. Key Enterprises, Inc., Community Laboratories, Inc., Key Realty Co., Inc. et al.

COUNSEL

Robert H. Malis, with him John P. Trevaskis, Jr., and Malis & Feldman, and Trevaskis & Doyle, for appellants.

Jerome E. Furman, with him Garland D. Cherry, and Rappaport, Furman & Gianopoulos, and Kassab, Cherry, Curran & Archbold, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Musmanno took no part in the consideration or decision of this case.

Author: Cohen

[ 431 Pa. Page 16]

This action of trespass was commenced in the Court of Common Pleas of Delaware County by appellee, Brunswick Corporation, against ten defendants. A compulsory non-suit was entered as to six of the seven individual defendants, and a directed verdict was entered in favor of two of the three corporate defendants. The jury returned a verdict against appellants, Key Enterprises and Benjamin J. Levin, in the amount of $19,596.64. Appellants filed motions for a new trial, which motions were denied. This appeal followed.

The following facts appear of record: On December 22, 1961, appellee, a vendor of laboratory equipment, entered into a deferred payment sale agreement with Community Laboratories, Inc., to sell laboratory equipment for $13,128.21. The sum of $1,049.97 was paid pursuant to that agreement, but no additional payments were made to appellee by Community.

On March 1, 1962, Community leased a store from appellant, Key Enterprises. The lease was for a term of three years and provided for the payment of rent at monthly intervals. Appellant Benjamin Levin, an officer and minority stockholder of Community (lessee) was also president of the corporate landlord.

On September 14, 1962, in furtherance of a distraint warrant obtained by the landlord, a constable levied upon the goods on the laboratory premises posting a notice of sale. Among the goods distrained upon

[ 431 Pa. Page 17]

    by the landlord was the equipment delivered by appellee to Community. Since there were no other bidders at the constable's sale on September 25, 1962, Key Realty Co., a subsidiary of Key Enterprises, obtained the equipment. The sum of $1,445 was paid to the constable by check of Key Realty Co. signed by Benjamin Levin, representing payment for the equipment distrained upon. After payment of the constable's costs, the proceeds were paid over to Key Enterprises. The property still remains upon the premises of the landlord.

The jury found that this action on the part of the landlord constituted an illegal distraint under § 313 of The Landlord and Tenant Act of 1951 (Act of April 6, 1951, P. L. 69, § 313, 68 P.S. § 250.313) because no rent was due at the time that the landlord distrained upon the property. The jury based its verdict on testimony which indicated that Benjamin Levin, acting in his capacity as principal officer of the corporate landlord, orally agreed to postpone the payment of rent until Community became a going concern and since that event never occurred no rent was due and owing.

Appellants contend that the testimony concerning the existence of an oral agreement to postpone the payment of rent until Community became a going concern was erroneously admitted by the court below since (1) this testimony was taken by depositions and counsel for appellants was not notified of the taking of the depositions, and (2) the contents of the depositions violated the ...


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