Appeal from order of Court of Common Pleas of Butler County, June T., 1968, No. A. D. 72, in case of Luther Robinson, t/a/d/b as Robinson Enterprises and Oil & Air Pollution Controls, Inc.
William W. Milnes, and Brandt, Riester, Brandt & Malone, for appellants.
Leonard L. Stewart, and Reding, Blackstone, Rea & Sell, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Dissenting Opinion by Montgomery, J. Jacobs and Cercone, JJ., join in this dissenting opinion.
[ 216 Pa. Super. Page 260]
Luther Robinson and Oil & Air Pollution Controls, Inc., appellants, appeal from the order of the Court of Common Pleas of Butler County, sustaining preliminary objections of Tool-O-Matic, Inc., defendant-appellee, to their joint replevin petition, entering judgment against Robinson, and dismissing Oil & Air Pollution as party plaintiff.
In March 1968 certain chattels, consisting of machinery, materials, and equipment owned by appellant Robinson were in the possession of appellee. Those chattels were sold by Robinson to Oil & Air Pollution. The terms and conditions of the contract of sale do not appear of record. Appellee refused to release the goods to Oil & Air Pollution, and Robinson instituted replevin proceedings. His complaint, filed in May 1968, joined Oil & Air Pollution as a party plaintiff and demanded delivery of the goods to Oil & Air Pollution.
Appellee filed preliminary objections to the joint action. It argued that Robinson could not bring an action in replevin, since he failed to show a possessory right to the goods in himself, and that he could not properly join Oil & Air Pollution.
To sustain a cause of action in replevin, the plaintiff must establish his exclusive right to immediate possession of the goods in question. Blossom Products Corporation v. National Underwear Company, 325 Pa. 383, 191 Atl. 40 (1937); International Electronics Co. v. N.S.T. Metal Products Co., Inc., 370 Pa. 213, 88 A.2d 40 (1952). Exclusive right means a right that excludes the defendant; a better right to possess the goods than he has. McKee v. Ward, 289 Pa. 414, 137 Atl. 599 (1927).
[ 216 Pa. Super. Page 261]
The fact that a third party has a better right to the goods than that of the plaintiff does not in itself aid the defendant. In general, a defendant may plead such a third party right, 77 C.J.S. Replevin § 80 (1952), but two exceptions to that rule govern the instant case.*fn1 This Court has held that a defendant who claims no possessory right in himself may not assert a third party's right. Brown v. Judge, 80 Pa. Superior Ct. 570 (1923). When such a third party has consented to the plaintiff's replevin action his rights are not available to the defendant. Ferguson v. Rafferty, 128 Pa. 337, 18 Atl. 484 (1889).
In the instant case, appellants neither allege nor argue that Robinson has a possessory right to the chattels. They argue only that the appellee cannot avail itself of the superiority of Oil & Air Pollution's rights because appellee claims no possessory right in itself, and because Oil & Air Pollution consented to Robinson's replevin action. These arguments merely dispose of the effect of third party rights upon those of Robinson; they do not create a claim of Robinson's rights.
Since Robinson failed to state a cause of action in himself, the court below did not err in entering judgment against him. The question remains whether it was proper to do so without granting leave to amend. The court must grant leave to amend when the claim as stated does not exclude the possibility of recovery under a better ...