No. 169 Pittsburgh 1980, No. 170 Pittsburgh 1980, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Division, Nos. 3747 and 3748 of 1978.
Reed J. Davis, Pittsburgh, for appellants.
Richard E. Myers, Greensburg, submitted a brief on behalf of appellees.
Price, Cavanaugh and Hoffman, JJ. Price, J., did not participate in the consideration or decision of this case.
[ 312 Pa. Super. Page 252]
Appellant contends that the lower court erred in admitting evidence that appellee debtors had tendered payments to redeem a repossessed bus, and in valuing the bus. Because the existence of redemption payments is central to appellant's cause of action, and because appellant's remaining contentions lack merit, we affirm.
On May 3, 1978, appellant, a creditor, filed complaints in replevin against appellees, debtors, to regain possession of several vehicles, including the bus that is the subject of this appeal. On May 24, after appellant had established the probable validity of its claim at a hearing and posted a $75,000 bond, the court issued a writ of seizure. Acting under the writ, the sheriff seized the bus from appellees. On May 30, appellees answered the complaints. Within fifteen days of the sheriff's seizing the bus, appellees tendered to appellants a sum sufficient to redeem the bus under the terms of the contract, but appellants refused the payment. Appellants sold the bus before trial. After the non-jury trial on April 16, 1979, the lower court held appellees were entitled to possession of the bus. Because appellant had already sold the bus, however, the court awarded appellees the estimated value of the bus, $10,000, less the sum appellees owed appellant and less appellant's costs of retaking, storing, and repairing the bus for resale, a net award of $7,815.88. The lower court en banc denied appellant's exceptions, prompting this appeal.
[ 312 Pa. Super. Page 253]
Appellant contends the lower court erred in admitting evidence that appellees had tendered the redemption payment within fifteen days of appellant's sending notice of repossession. Appellant argues that this evidence was inadmissible because (1) appellees had not pled the fact of the redemption payment in new matter, and (2) the alleged redemption occurred after the date of appellant's complaint in replevin, and was thus irrelevant to the action. We find the evidence properly admitted. The central questions at trial in a replevin action are whether the contract, deed, or other source of right relied upon grants the plaintiff a right to continued possession of the chattels, and, if so, whether the value of the plaintiff's interest is greater or lesser than the value of the chattels so that the court may properly calculate reimbursement. See Brandywine Lanes v. Pittsburgh National Bank, 437 Pa. 499, 264 A.2d 377 (1970); Whiteman v. Degnan Chevrolet, Inc., 217 Pa. Superior 424, 272 A.2d 244 (1970); Gaspero v. Gentile, 160 Pa. Superior Ct. 276, 50 A.2d 754 (1947). Appellant, a creditor, asserted a right to possession under a contract on grounds that appellees had not made required "payments." Complaints para. 7. Appellees answered that they had made sufficient payments to entitle them to retain possession. Answers para. 7. The parties' contract, in addition to specifying installment payments, defining default, and affording appellant a right to repossess the bus upon appellees' default, also afforded appellees a right to redeem the bus, even after appellant's repossessing it, by paying or tendering a specified amount within fifteen days of appellant's notifying appellees' of the repossession.*fn1 To sustain its cause of action for continued possession of the bus under the contract, appellant was thus required to prove that fifteen days after repossession had lapsed without appellees tendering the required payment. The complaint itself, through the terms of the contract, placed this issue before the court. Even though appellees tendered payment after the filing of
[ 312 Pa. Super. Page 254]
appellant's complaints, as would necessarily be the case under replevin procedure, see Pa.R.Civ.P. 1071-1075, evidence that they had done so was relevant and properly before the court.*fn2
Appellant contends also that the lower court incorrectly valued the bus. The record, however, supports the lower court's findings of fact. A bus dealer, who had originally sold the bus in question, testified as to the current value of a bus of that make, age, and model -- a 1975 International Harvester 72-passenger bus -- in good condition. Appellant submitted a document showing the total cost of retaking, storing, and repairing the bus for resale was $96. The court could thus infer the bus ...