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BARRACLOUGH v. ATLANTIC REFINING COMPANY (09/23/74)

decided: September 23, 1974.

BARRACLOUGH, ET UX.,
v.
THE ATLANTIC REFINING COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of Centre County, Oct. T., 1972, No. 127, in case of Lionel N. Barraclough and Signe E. Barraclough, His Wife, v. The Atlantic Refining Company.

COUNSEL

M. David Halpern, with him Jubelirer, Carothers & Krier, for appellant.

Stephen W. Beik, with him Miller, Kistler, Campbell & Mitinger, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Hoffman, J., did not participate in the decision of this case.

Author: Van Der Voort

[ 230 Pa. Super. Page 277]

The instant appeal arises following a judgment for the plaintiffs-appellees in an ejectment proceeding in Centre County. The plaintiffs in this action were and are the lessors of a property in Port Matilda, Pennsylvania, which has been leased to the defendant-appellant for some sixteen years.

The genesis of the relationship between the parties, which ultimately led to the instant dispute, was in 1956. At that time the appellee Mr. Barraclough was desirous of becoming a service station operator. A deal was struck with the appellant (hereinafter referred

[ 230 Pa. Super. Page 278]

    to as Atlantic) whereby the Barracloughs made a ten thousand ($10,000) dollar down payment on a property already having a service station erected thereon. Contemporaneously, Atlantic made arrangements for the Barracloughs to obtain a mortgage from a bank for twenty thousand ($20,000) dollars to cover the remaining balance on the thirty thousand ($30,000) dollar purchase price. The parties also signed a lease for the service station premises whereby Atlantic undertook to pay one hundred sixty-eight ($168.00) dollars per month in rental payments, for a period of fifteen years, which were assigned to the bank by the Barracloughs until such time as the mortgage loan, including accumulated interest would be paid. The parties consummated the transaction on November 17, 1956.*fn1

The lease between the Barracloughs and Atlantic had an original term of fifteen years from January 28, 1957, with a rental of one hundred sixty-eight ($168.00) dollars per month. It provided for the automatic renewal of two terms of five years each with a rental of one hundred twenty ($120.00) dollars per month unless Atlantic should give ninety (90) days prior written notice of termination before any renewal term.

Atlantic's rental payment of November 1971, operated to complete the payments on the Barracloughs' mortgage debt. After receipt of the final payment, the bank on December 9, 1971, sent Atlantic a letter saying that the mortgage was paid and that all future checks should be sent to the Barracloughs. It also sent a Power of Attorney to the Recorder of Deeds of Centre County authorizing that official to mark the mortgage satisfied.

[ 230 Pa. Super. Page 279]

Atlantic, nevertheless continued to send payments for December 1971, and January 1972, to the bank instead of ...


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