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March 5, 1981

LURIA BROTHERS & CO., INC., a corporation, Plaintiff,
Thomas R. ALLEN, Jr. and Morton J. Greene, trading as Economy Industrial Properties, a partnership, Defendants

The opinion of the court was delivered by: TEITELBAUM

In February of 1977, the plaintiff filed the instant action alleging that the distraint of the plaintiff's property by the defendants illegally deprived the plaintiff of its goods. Jurisdiction was said to exist both on the basis of diversity and federal civil rights legislation. The defendants denied the material allegations of the plaintiff and filed a counterclaim contending that the distraint was proper and seeking judicial authorization for the sale of the distrained property. The plaintiff denied the substance of that counterclaim.

 Out of consideration for judicial economy and convenience of the parties, the trial of the merits of this complex litigation was severed into three stages. The first stage, the plaintiff's allegations, was tried before the Court without a jury. On May 11, 1978 this Court found the defendants were liable to the plaintiff. *fn1"

 Thereafter, a jury considered the amount of damages, if any, to be awarded the plaintiff. *fn2" The jury was asked in deliberating to consider and answer special interrogatories. From the answers provided by the jury, the Court then framed a judgment awarding the plaintiff $ 26,858.52 as compensatory damages, $ 15,000.00 as punitive damages and $ 2,336.81 as interest, as well as costs.

 As originally contemplated, the third stage of this litigation was to be a consideration by the Court of the defendants' counterclaim. The time for a decision on the counterclaim has now arrived. In addition, the Court has been presented with the plaintiff's motion for an award of attorney fees and the defendants' motions for judgment n. o. v. and/or a new trial. The resolution of these motions is also ripe for determination.

 Having reviewed the procedural posture of this litigation, a review of the facts seems to be appropriate. The earlier findings of this Court provide the most convenient statement.

On a continuing basis prior to December of 1976, Luria (Bros.) stored certain steel plate in a building located in Ambridge, Pennsylvania. In mid-December of 1976, Luria received word through Ogden Metals, Inc. ("Ogden Metals"), its parent corporation, that the steel plate had been distrained upon by Economy, owner of the building. Upon further inquiry, Luria determined that all access gates through which the steel plate could be removed had been locked.
The building in question located in Ambridge was leased by Economy to Bollinger (Corporation) under a lease dated June 13, 1975. Thereafter, a portion of the building, approximately one-half, was leased by Bollinger to Ogden Metals under a sublease dated July 7, 1975.
Although there was some discussion about the advisability of making Luria the sublessee under the sublease, Ogden Metals remained on the sublease as sublessee at the time the sublease was executed by the parties in July and August of 1975.
At the time the sublease was executed by Allen on behalf of Bollinger, Allen was both a partner in Economy and the President of Bollinger. At that time he was also a member of the Board of Directors of Bollinger. Greene at the time was an officer of Bollinger and a member of its Board of Directors. Various members of the Greene family owned a substantial number of the shares of Bollinger and Greene himself is a trustee of the Morton J. Greene Company Pension Trust which holds in excess of 200,000 Bollinger shares.
By December of 1976, Luria, acting through Ogden Steel (a division of Luria Bros.), had placed 407 tons of steel plate on the subleased premises with the consent and permission of Ogden Metals.
As security for rent, LESSEE grants, bargains and sells to LESSOR all property of every kind on or to be brought on the DEMISED PREMISES, and whenever rent, or anything reserved as rent, is unpaid, LESSOR may seize or distrain said property, on or off the premises, and sell the same on due legal notice for all rent or other payment due as rent, expenses, etc., and for all rent not due hold the same as security.
On March 31, 1976, Bollinger filed a petition for an arrangement under Chapter XI of the Bankruptcy Act in the United States District Court for the Western District of Pennsylvania at No. 76-282. At the time the Petition was filed, an order was entered by the Bankruptcy Judge staying any and all proceedings relating to Bollinger. Carl L. Bigler was appointed Receiver for Bollinger by the court and through him the Chapter XI proceedings were conducted until March 14, 1977 when Bollinger was adjudicated a bankrupt. ...

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