Appeal from the Judgment of the Court of Common Pleas of Butler County, Civil, at No. C.P. 85-1055, Book 188 Page 360.
Lee C. McCandless, Butler, for appellant.
Thomas W. King, III, Butler, for appellee.
Del Sole, Montemuro and Popovich, JJ.
[ 356 Pa. Super. Page 270]
This is an appeal from an Order granting appellee's motion for summary judgment.
Woodline, the catalyst in this action, was the lessee of certain premises owned by appellant, Fuellgraf/Nonco, and of certain machinery, to wit a forklift, owned by appellee. The equipment was used and maintained on appellant's property, and was seized by appellant under the provisions of the Landlord and Tenant Act, 68 Pa. C.S.A. § 250.302, et seq.*fn1 (hereinafter the Act), after Woodline defaulted on the ground rent. Seeking return of the forklift, appellee commenced a replevin action to which appellant counterclaimed.
[ 356 Pa. Super. Page 271]
Appellee then successfully moved for summary judgment on the basis that the statute under which appellant had distrained on the forklift was unconstitutional, having been adjudicated violative of the Fourteenth Amendment.
On appeal this court vacated the judgment and remanded so that the Attorney General might be apprised of the constitutional claim as required by Pa.R.C.P. 235(a).*fn2 The Commonwealth declined to intervene in defense of the statute and the lower court renewed its previous Order grounding its judgment on the conclusion that under the Uniform Commercial Code Woodline had no secured interest in the equipment which could be subject to the landlord's distraint for rent. This appeal followed.
Appellant's claim is that Woodline did in fact possess a sufficient interest under the terms of the Act to validate distraint. Specifically it is argued that because appellee did not give notice under § 250.403*fn3 to the effect that ownership of the machine was vested in Allegheny Clarklift
[ 356 Pa. Super. Page 272]
rather than in Woodline, the property automatically became available as compensation ...