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11/14/97 F. P. PEPKA BEER BARREL v. JAMES H. SCHANG

November 14, 1997

F. P. PEPKA; BEER BARREL, INC., ICE BARREL, INC., APPELLANT
v.
JAMES H. SCHANG; ROBERT NICHOLSON; MARGARET SOLTIS; NATIONAL GRANGE MUTUAL INSURANCE COMPANY



Appeal from the Order Dated November 19, 1996, in the Court of Common Pleas of Washington County, Civil Division, at No. 89-3769. Before GILMORE, J.

Before: Del Sole, Eakin & Hester, JJ. Opinion BY Hester, J.

The opinion of the court was delivered by: Hester

OPINION BY HESTER, J.:

FILED November 14, 1997

F. P. Pepka, Beer Barrel, Inc., and Ice Barrel, Inc., appeal the November 15, 1996 order disposing of this action. At issue is whether the trial court properly determined that the liability of appellee, National Grange Mutual Insurance Company, was limited to the amount of $1,000. As we concur with the trial court's Conclusion, we affirm.

Appellants instituted this action on August 16, 1989, against James H. Schang, Robert Nicholson, Margaret Soltis, and National Grange Mutual Insurance Company ("National Grange"). Nicholson and Soltis were named defendants based solely upon their conduct as constables. National Grange is the surety company that issued Nicholson's constable bond.

The complaint contains the following allegations. Schang owns commercial real estate at 914 Main Street, Bentleyville, Washington County. Pepka and Schang entered a lease that had a term from May 15, 1979, to May 15, 1982, and Pepka was permitted to operate a beer distributorship on the premises. On January 10, 1983, the parties entered an addendum to the lease, which provided for a monthly rental of $400 and for a lease term renewal of month to month. On June 16, 1988, the parties entered a second addendum for an additional part of the building, for a term from May 1, 1988, to December 31, 1989. However, the additional section of the leased premises was occupied by Ice Barrel, Inc., which has the same address as Beer Barrel, Inc.

Pepka became in arrears in rent, and a judgment was entered against him in the amount of $3,762 on July 10, 1989, in favor of Schang for the rental arrearages plus costs. On July 24, 1989, Pepka went to the office of the district Justice where the judgment had been entered in order to pay off the debt. An employee of the Justice would not mark the judgment satisfied but told Pepka to contact Schang to make payment. On that same day, Pepka, acting on behalf of all the appellants, offered to pay the full amount of the judgment and an additional two months rent. Schang refused to accept that offer.

On July 25, 1989, Pepka was contacted by an attorney for Schang, and Pepka again offered to pay the full amount of judgment. The offer was refused. Several additional times the week of July 25, 1989, Pepka offered to pay Schang the judgment in full, but the offers were refused.

On either August 4, 1989, or August 7, 1989, Pepka informed Schang that the full amount of the judgment was in escrow at the office of appellants' attorney. Schang refused to accept the money.

Schang obtained an order for possession of 914 Main Street, and the order was issued to Constable Nicholson. On August 10, 1989, Constable Soltis, acting on behalf of Nicholson, appeared at 914 Main Street to take possession. On that day, Pepka tendered to Soltis and to Schang the full amount of the judgment, but the tender was refused.

Linda Zywan was on the premises after Schang and Soltis arrived, and was told by them that the law allowed them to seize and sell the contents of the premises even though no proceedings had been instituted to execute on the judgment. In the complaint, appellants then alleged:

Defendants, JAMES H. SCHANG and MARGARET SOLTIS, seized personal property in and about the premises of 914 Main Street, and either sold or removed all personal property on the premises without any lawful right to do so knowing that some of the property so seized and sold by Defendants was property of others and further knowing that all such property was under Sheriff's lien.

Complaint at P 29. Appellants further alleged the following sale deprived them of due process of law at it was conduced in violation of the rules regarding execution of judgments, and Schang previously ...


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