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DONEGAL MUTUAL INSURANCE COMPANY v. RONALD R. MILLER AND MARGUERITE MILLER (04/25/80)

filed: April 25, 1980.

DONEGAL MUTUAL INSURANCE COMPANY
v.
RONALD R. MILLER AND MARGUERITE MILLER, APPELLANTS



No. 481 April Term, 1979, No. 609 April Term, 1979, Appeal from Orders entered November 1, 1978 and April 30, 1979 of the Court of Common Pleas of Somerset County, Civil Division, at No. 29 Civil, 1978.

COUNSEL

Neal R. Cramer, Pittsburgh, for appellants.

David H. Patterson, Pittsburgh, for appellee.

Hester, Montgomery and Lipez, JJ.

Author: Montgomery

[ 277 Pa. Super. Page 188]

Plaintiff (Donegal) filed an action in Replevin to recover two automobiles, a Buick and a Chevrolet, in defendants' possession to which it claimed title and the legal right to immediate possession. The prior owners of both automobiles had been insured by plaintiff which paid claims to said owners for damages to the vehicles caused by the Johnstown flood of 1977. Thereafter, a new certificate of title had been issued to plaintiff for one of the vehicles and a Certificate of Junk for the other. The defendants had secured possession of the vehicles from George Rigo, who had towed the cars from the Johnstown area to his automobile salvage yard in Stoystown. Defendant Miller saw the cars there, and arranged to purchase them from Rigo, who told Miller that he did not have title to the cars yet, but that he eventually would. Defendant Miller paid Rigo $1,000 for the Buick and $500 for the Chevrolet. The Buick is stored at the residence of Miller's mother, the co-defendant herein, and the Chevrolet is at Miller's residence in Pittsburgh.

Representatives of the plaintiff visited Rigo's salvage yard in search of missing vehicles, but the two cars were not on Rigo's list. Defendant-Miller made substantial repairs to the two vehicles,*fn1 and thereafter discovered that the plaintiff, in fact, had title to the cars. Miller then contacted the company and attempted to purchase the vehicles. The plaintiff refused and demanded possession. Miller refused to return the cars arguing that he should be compensated for the repairs which he made.

Following the filing of a complaint in replevin by plaintiff, the defendants filed an answer in which they alleged that the vehicles had been abandoned by plaintiff after they had been recovered from the flood area. Under a new matter, they alleged further that they were the owners of

[ 277 Pa. Super. Page 189]

    same by reason of a purchase, from George Rigo, trading as George Rigo Auto Wrecking, made in good faith and for a consideration.

In addition to alleging ownership of the automobiles, by way of counterclaim, appellants also claimed $5253.20 for work and materials in restoring them to operable condition. They alleged that plaintiff knew this work was being done and took no steps to recover the vehicles or to prevent appellants from repairing them. They argue that under these circumstances, plaintiff should not be unjustly enriched by receiving the benefits of this work. Plaintiff denied the allegations of the counterclaim.

The matter proceeded before arbitrators on these pleadings and resulted in an award of possession of the two automobiles to plaintiff, and an award of $2000.00 to the defendants on the counterclaim. Plaintiff appealed and the case was listed for trial in Common Pleas Court in September 1978. However, on August 24, 1978, prior to trial, the court granted plaintiff's motion for judgment on the pleadings regarding the counterclaim. The defendants immediately appealed to this court (481). The case then proceeded to trial on November 20, 1978 on the sole issue of the ownership of the automobiles. Judgment was entered in plaintiff's favor and defendants again appealed (609).

Defendants' first argument relates to the motion for judgment on the counterclaim which they argue should not have been granted since the case was on appeal from arbitration and listed for trial which was delayed because of the motion for judgment; and further, because no objection to the counterclaim had been ...


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