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JOHN BONCZEK AND MARY BONCZEK DOING BUSINESS AS A PARTNERSHIP SILVER CREEK FARM v. PASCOE EQUIPMENT COMPANY (09/03/82)

filed: September 3, 1982.

JOHN BONCZEK AND MARY BONCZEK DOING BUSINESS AS A PARTNERSHIP SILVER CREEK FARM
v.
PASCOE EQUIPMENT COMPANY, APPELLANT



No. 199 PITTSBURGH, 1980, Appeal from the judgment of the Court of Common Pleas, Civil Division-Equity, of Allegheny County, No. GD 77-22160.

COUNSEL

Samuel W. Braver, Pittsburgh, for appellant.

Robert B. Truel, Pittsburgh, for appellees.

Hester, Brosky and Van der Voort, JJ.

Author: Hester

[ 304 Pa. Super. Page 13]

This appeal from the Allegheny County Court of Common Pleas, Civil Division, involves a tractor leased by appellees Mary and John Bonczek, owners of the Silver Creek Farm, from the Pascoe Equipment Company, appellant.

The principal business of appellees was the production of hay for sale to area farms and stables. Having enjoyed some degree of success in the early days of their venture, the appellees decided to expand their capacity to grow, harvest and sell hay. To accomplish this expansion, the appellees leased a tractor from the appellant who was in the business of selling and leasing farm machinery. The tractor

[ 304 Pa. Super. Page 14]

    was leased in the name of appellee Mary Bonczek rather than in the name of her brother John due to the fact that John had exhausted his line of credit. The appellees were partners in the Silver Creek Farm and maintained a partnership checking account. However, the expenses for the tractor were paid from the personal account of appellee Mary Bonczek.

The terms of the tractor lease called for appellees to make one year's pre-payment of $2,800 to be followed by 3 additional annual payments of $2,800. Additionally, appellees were responsible for insurance payments for the tractor. At the end of four years, appellees had the option of purchasing the tractor for $2,800.

At the end of the first year, appellees were unable to pay the second year's rental on its due date. When appellant asked appellee John Bonczek for the payment, Bonczek explained that inclement weather had delayed the second hay cutting and he did not have the money at the moment but expected to have the total amount due before the end of haying season. Appellant's (Mr. Pace) allegedly responded, "get me what you can" (R. at 151a). Thirty days later, appellee tendered $1,000 to appellant's vice-president and general manager, Mr. Pace, and also paid the insurance premium which was due on the policy covering the tractor. Thirteen days later, appellees paid appellant an additional $700 on the balance owed on the lease. This second check, like the first, was cashed by the appellant. Thirty-four days later, on August 28, 1977, at the height of the haying season, appellant, without notifying appellee of its intentions, repossessed the tractor from the appellees' farm. Immediately, appellee John Bonczek called appellant's vice-president Mr. Pace, who allegedly said if Bonczek paid him the balance owed that day, he could regain possession of the tractor. However, when Bonczek delivered the balance (which he had borrowed from friends) to Pace, Pace refused to accept it and Bonczek did not regain possession of the tractor.

Appellees then instituted this equity action alleging the lease agreement had been modified by a subsequent oral

[ 304 Pa. Super. Page 15]

    understanding between the parties and that they sustained severe losses as the result of appellant's ...


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