No. 2669 Philadelphia, 1981, No. 2997 Philadelphia, 1981, Appeals from the Order of September 14, 1981, Court of Common Pleas, Schuylkill County, Civil No. S-1317 1980.
William R. Mosolino, Orwigsburg, for appellants.
Frank A. Baker, III, Allentown, for appellee.
Hester, Johnson and Popovich, JJ. Popovich, J., concurs in the result.
[ 315 Pa. Super. Page 439]
This is an appeal from an order granting summary judgment in favor of appellee, Genesis Leasing Co., Inc. (Genesis), against appellants, Philip L. Minchoff and Violet Minchoff (Minchoffs), owners of Minchoff's Sanitation.*fn1 We reverse.
On May 31, 1978 and June 26, 1978, Genesis and the Minchoffs entered into leases whereby the Minchoffs secured the use of two sanitation trucks for their business. The leases on each truck provided that the Minchoffs would make regular monthly payments of $1,053.40 and taxes, and $1,035.00 and taxes. Neither lease specified a lease period, rather they provided that either Genesis or the Minchoffs could terminate the leases upon appropriate written notice. The leases stated that the title to both trucks remained with Genesis, not the Minchoffs. They further provided that the Minchoffs bore all costs of maintenance, repair and insurance. The leases also provided that upon termination, for any reason, that the trucks were to be sold and the proceeds of sale to be added to the Minchoff's reserve on the vehicles. If the reserve exceeded the original cost of the vehicle to Genesis, then the Minchoffs were entitled to a refund of the excess. If there was a deficiency, the Minchoffs had to make up the deficiency.
On September 26, 1980, Genesis filed a complaint in assumpsit alleging that the Minchoffs had ceased making
[ 315 Pa. Super. Page 440]
the payments required by the leases. Genesis sought $80,888.18 in damages plus interest.
The Minchoffs filed an answer admitting that they had executed the leases with Genesis. However, they denied any liability to Genesis. In their answer, they incorporated by reference, a second complaint they had filed against Merkin Body and Hoist Co. (Merkin). This second complaint alleged that the Minchoffs had purchased the sanitation trucks from Merkin, and that the trucks were not merchantable or fit for the particular purpose for which they were purchased. Additional averments in this second complaint asserted that Genesis financed the purchases with two leases. In New Matter, the Minchoffs averred that they had purchased the trucks from Merkin, and again incorporated by reference the second complaint.
In its reply to New Matter, Genesis denied that the Minchoffs purchased the trucks from Merkin, and averred that it had purchased the trucks from Merkin and leased them to the Minchoffs.
On February 6, 1981, Genesis filed a motion for summary judgment, supported by affidavit as to the damages due. The Minchoffs answered the motion expressly raising the Motor Vehicle Sales Finance Act*fn2 (MVSFA) as a defense. The trial judge, without discussion, found the MVSFA to be inapplicable. By order dated September 14, ...