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ANTHONY B. DESILVIO v. WILLIAM J. RESTAUIRE (03/28/79)

decided: March 28, 1979.

ANTHONY B. DESILVIO
v.
WILLIAM J. RESTAUIRE, AND FORD MOTOR CREDIT CORPORATION V. DWAYNE KEMP T/D/B/A CANONSBURG AUTO MART. APPEAL OF FORD MOTOR CREDIT CORPORATION



No. 768 April Term, 1977, Appeal from the Order of Court of April 19, 1977, entered by the Common Pleas Court of Allegheny County, Civil Division, at GD76-2962.

COUNSEL

Reed J. Davis of Davis & Mazzotta, Pittsburgh, for appellant.

Joseph I. Lewis of Lewis & Stockey, Pittsburgh, for appellee DeSilvio.

Gary Kalmeyer, Pittsburgh, for appellee Restauire.

Cercone, Wieand and Hoffman, JJ.

Author: Hoffman

[ 264 Pa. Super. Page 530]

This is a case in equity involving several conversions of a 1974 Mark IV Lincoln automobile which was titled in defendant Ford Motor Credit Corporation and which eventually came into the possession of plaintiff Anthony B. DeSilvio. The case comes to us on a appeal by Ford Motor Credit from an order vesting title to the automobile in DeSilvio. Ford Motor Credit contends that it should retain title because it never ratified the transactions by which DeSilvio came into possession of the car. We agree and reverse the order of the court below for the reasons which follow.

On July 31, 1974, defendant William J. Restauire leased a 1974 Mark IV Lincoln automobile from Key Lincoln Mercury, a Ford dealer in New Kensington, Pennsylvania. The lease was for a fixed term of 27 months beginning September 1974 at a monthly rental of $245.54 due on the fifth day of each month. Restauire as lessee had no option rights to purchase the vehicle at the end of the term. Key Lincoln assigned the reversion to Ford Motor Credit, retaining an option to repurchase the reversion at the end of the term for $4100. Restauire made regular timely payments as they came due on the lease until August 5, 1975, after which his rental payments ceased.

Sometime after October 1974, Restauire placed an advertisement in a local newspaper offering the automobile for sale. Additional defendant Dwayne Kemp, the proprietor of Canonsburg Auto Mart, in Canonsburg, Pennsylvania, contacted Restauire and offered to sell the car for Restauire at his used car lot. On December 3, 1974, they signed a written

[ 264 Pa. Super. Page 531]

    consignment agreement, empowering Kemp to sell the car for $8100. Kemp later disposed of the car, as detailed below, but never paid anything to Restauire.

On December 23, 1974, plaintiff Anthony B. DeSilvio, from Washington, D. C., was visiting relatives in Pennsylvania for the holidays when his car was involved in an accident. He decided to purchase another car rather than repair his own, and, upon a recommendation from his brother-in-law, Louis Ramey, DeSilvio visited Kemp's lot with Ramey. There Kemp had the Lincoln on display for sale. After a few visits, DeSilvio decided to purchase the Lincoln. He traded in his own car to Kemp and tendered part of the balance of the purchase price of $8,995, and at a later time sent Kemp a check for the remaining balance. In January 1975, when Kemp began to make excuses for delays in transferring title to him, DeSilvio began to suspect that something was wrong, and, no longer being in town, asked Ramey to pursue the problem for him. Ramey discovered that the car was titled to Ford Motor Credit and leased to Restauire.

On August 14, 1975 (nine days after Restauire's last payment on his lease) DeSilvio called Robert T. Dolmayer, Accounts Representative of Ford Motor Credit, and requested his assistance in transferring title from Ford Motor Credit to Kemp. DeSilvio recounted to Dolmayer the events by which he "bought" the car from Kemp. Dolmayer told DeSilvio that ...


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