Appeals from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1963, No. 818, in case of Brandywine Lanes, Inc. v. Pittsburgh National Bank.
Edgar J. Cooke, with him Joseph N. Mack, for plaintiff.
James M. Arensberg, with him Everett K. Dilworth, and Tucker, Arensberg & Ferguson, for defendant.
Wright, P. J. Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.
[ 220 Pa. Super. Page 364]
This action in replevin without bond involves a complicated factual situation which has already resulted in one appellate decision. Brandywine Lanes, Inc. v. Pittsburgh National Bank, 437 Pa. 499, 264 A.2d 377 (1970).*fn1 The relevant history of this case dates back to 1955. In that year one Bernard J. Tolan (Tolan) signed a ten-year lease with the defendant Pittsburgh National Bank's (Bank) predecessor for the use of a certain building. Intending to operate a restaurant-bowling alley, Tolan purchased, subject to various security interests, twenty-six bowling lanes and a quantity of bar and restaurant equipment. He then began business operations.
In 1961 the business ran into financial difficulties and Tolan was unable to pay the rent and defaulted on his installment payments on both the bowling alleys and the bar and restaurant equipment. As a result, each of the equipment vendors obtained judgments for possession of the equipment in which they had security interests.
In the midst of this financial crisis, two men, John R. Dean (Dean) and R. D. Schulz (Schulz) entered
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the picture. In order to alleviate the financial crisis, they caused the plaintiff corporation, Brandywine Lanes, Inc. (Brandywine), to be incorporated with Dean, Schulz and Tolan each owning a one-third interest in it. The corporation and the newcomers borrowed funds and settled the claims which the vendors had in the alleys and restaurant and bar supplies.*fn2 Brandywine then entered into a "memorandum of understanding" with the Bank, whereby Brandywine would rent the building for two years, still subject to Tolan's original lease. The corporation thereupon began operating the business.
Friction soon developed between Tolan and the two other owners of Brandywine. Arrangements to buy out Tolan (the "escrow agreement") were unsuccessful. Meanwhile, the corporation was in financial difficulty. It closed down operations and relinquished possession of the premises. Tolan, however, remained in possession and ran the restaurant. The Bank attempted to oust him under the 1955 lease for nonpayment of rent, but Tolan's possession under that lease was continued by various court orders.
When Dean, Schulz and an employee of the Bank made a physical inventory of the leased premises, pursuant to the escrow agreement, which subsequently fell through, certain items of personalty were found to be missing. The locks of the building were changed by the real estate manager of the bank. Then, as the lower court found "[a] key to the premises was tendered to Messrs. Dean and Schulz and this tender was refused. At this time the [Bank] was in at least a de ...