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PETITION ALLSTATE INSURANCE COMPANY (07/31/81)

filed: July 31, 1981.

IN RE PETITION OF ALLSTATE INSURANCE COMPANY, SUBROGEE OF ROBERT S. DUNLAP, FOR THE RETURN OF A MOTOR VEHICLE WITH A FALSIFIED SERIAL IDENTIFICATION NUMBER. APPEAL OF ALLSTATE INSURANCE COMPANY


No. 491 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Beaver County, Civil Division, at No. 1882 of 1979.

COUNSEL

John M. Silvestri, Pittsburgh, for appellant.

Bernard J. Rabik, Beaver, for participating party.

Cavanaugh, Watkins and Hoffman, JJ.

Author: Hoffman

[ 289 Pa. Super. Page 330]

Appellant contends, inter alia, that the lower court erred in requiring it to prove by clear and convincing evidence that it was entitled to the return of an impounded vehicle with allegedly falsified identification numbers. We agree and, accordingly, reverse the order of the court below and remand for proceedings consistent with this opinion.

On October 3, 1979, appellant, Allstate Insurance Company filed a petition pursuant to section 7105 of the Motor Vehicle Code*fn1 for the return of a motor vehicle with a

[ 289 Pa. Super. Page 331]

    falsified identification number, alleging that it was entitled to possession as the holder of an Indiana certificate of title. Appellee, James J. Contenta, Jr., subsequently intervened, claiming that the vehicle should be returned to him because he was a bona fide purchaser for value holding a Pennsylvania certificate of title for the impounded vehicle. Following a hearing, the lower court concluded that appellant had not proved that it was entitled to possession of the truck and, accordingly, ordered that the truck be returned to appellee. This appeal followed.

The evidence introduced at the hearing may be summarized as follows. On January 6, 1978, appellant's insured, Robert S. Dunlap, reported that his 1977 Ford F-150 four-wheel-drive truck, vehicle identification number F14HCZ08211, had been stolen. He then filed a claim with appellant pursuant to his comprehensive insurance coverage. Upon receiving payment for the value of the truck, Dunlap assigned his title to appellant, which subsequently received an Indiana certificate of title for it. On May 14, 1979, the Indiana State Police requested that the Pennsylvania State Police inspect a similar truck, vehicle identification number F15GLY76001, then purportedly in the possession of Peter V. Fabanich, an innocent purchaser. Upon discovering that Fabanich had sold the truck, Trooper James Fedisin obtained

[ 289 Pa. Super. Page 332]

    permission from appellee, its current title holder, to inspect the truck. Trooper Fedisin subsequently determined that the factory-installed identification numbers appeared to have been removed and that the current identification number had been affixed in an irregular location. Additionally the inspection uncovered an invoice bearing the same identification number as that of the stolen truck hidden behind the seat of the truck. On that basis, appellee agreed to impoundment of the truck pending the outcome of the investigation. Other witnesses for appellant testified that the optional features of the stolen truck matched those of the impounded truck and that the identification number on the impounded truck did not correspond to the scheme used by the factory to designate four-wheel-drive models. Appellee introduced ...


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