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FRANCES AUSTIN v. BOROUGH LIGONIER (12/16/88)

decided: December 16, 1988.

FRANCES AUSTIN, APPELLANT
v.
THE BOROUGH OF LIGONIER, A MUNICIPAL CORPORATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County, in the case of The Borough of Ligonier, a municipal corporation v. Frances Austin, No. 8641 of 1986.

COUNSEL

William J. Ober, for appellant.

Anthony P. Picadio, Sherman & Picadio, with him, George V. Welty, Flickinger & Welty, for appellee.

Judges Colins and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 122 Pa. Commw. Page 162]

Appellant, Frances Austin, appeals an order of the Court of Common Pleas of Westmoreland County, wherein the court decided in favor of the appellee Borough of Ligonier (Borough), in a replevin action. We affirm.*fn1

In its complaint, the Borough alleges that a painting by Ogden Pleissner was given by Austin's late husband to the Borough when Clarence B. Ruff was elected Mayor in 1969. It hung in the Mayor's office in Town Hall until September of 1986 when Austin had the painting removed.

The Borough contends that it was the recipient of an inter vivos gift from Austin's late husband. Austin contends that the painting was joint property belonging to both Austin and her husband, and not owned by him alone. She asserts that the record does not support a finding by the trial court of a gift inter vivos to the Borough, but rather that of a loan.

Possession of a chattel raises a presumption of ownership. Once the plaintiff makes out a prima facie case, the use of this presumption imposes on the opposing party the burden of going forward with the evidence to rebut or meet this presumption. If evidence is introduced, the presumption has served its purpose and has no effect whatsoever. The fact finder could then find

[ 122 Pa. Commw. Page 163]

    from the evidence the existence or non-existence of the presumed fact. Justice v. Fabey, 541 F. Supp. 1019 (E.D. Pa. 1982); Rule 301, Federal Rules of Evidence.

In a replevin action, the sole issue is one of title and the right of possession, and the plaintiff must recover on the strength of his title or right. International Electronics Co. v. N.S.T. Metal Products Co., Inc., 370 Pa. 213, 88 A.2d 40 (1952). Thus, the Borough's possession for about seventeen years prior to Austin's taking of the painting created the presumption of entitlement in favor of the Borough.

The burden of going forward with evidence to rebut this presumption then shifted to Austin. She introduced much evidence concerning the circumstances of how the Borough came into possession of the painting. Evidence was offered to demonstrate the intent of her husband in transferring possession to the Borough. Because Austin and her husband possessed the painting by the ...


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