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Home My WebLink About94-04980 " ' " " Ii , , " "i1 c: ~ ?' "I " " -7 " , I c 'J s cO , , ;,. 'I j J ~ g:j I I a; ~r: . i' j' .-';~ IJf, , <::> .. ~. '1' -:r '1,,', .' , ., .-..l ... .... = ,0 HJU Alii HI'1t1 Itt MllllWII"l '0 'lll .. WMlrll!l fll't""'j'" ) ,II! I'" 1'1';111 '" Illtll't t 0'11 N~ y I ~Il) t\ /I'" Ill.. '" '" 'I YI( r InHI:rH Oil A JUfP,'.11I1 ~.., HI t"." III 0 Illi"I~"r 'OIJ '" , , , , I, " " . [-J''')!), ,11\' {J' ,I-,I"d A'; . 1',. JIJ ',I H'; . ''''.I WI IlIJ III '<I I). (Ill I" Y flur r,if ...llhlH I', ^ '" II .....,J \..,UIJI '.1 "'l!'1 'l~ Ill, Il~III,1l11 I II r ') HI IIW, /llll';1't ", A'IHII'IY 3. On or about August 5, 1993, the Plaintiff purchased a L Series ~ubota Tractor with a BF110 front end loader from Peterman Power Equipment, 1nc" of Carlisle, Pennsylvania, A copy of the purchase invoice, and a copy of the check for payment of the $24,000 net purchase price are attached hereto as Exhibit "A" and incorporated herein by reference, 4. Shortly after the purchase of the tractor, Plaintiff transferred possession of the tractor to the Defendant so that the Defendant could use the tractor to care for and maintain Plaintiff's farm, a portion of which farm on which Defendant resided, 5, The tractor is currently located at 260 willow Mill Park Road, Silver Spring Township, Cumberland county, Pennsylvania, 17055, in a building currently under the control of the Defendant, 6, On or about June 7, 1994, Plaintiff, through a third party, Rick Albright, asked the Defendant to return the tractor to the Plaintiff in that Mr, Albright had need to use the tractor to perform work on behalf of the Plaintiff, but Defendant refused to return the tractor and persists in that refusal, Additionally, in August 1994, Defendant refused to return the tractor to Plaintiff after requested to do so by the silver Spring Township Police, 2 EllhIbII A 't' J.. , 'J "~, f!~ !~X1 -... i~ C\I "'" v. .. ~ ':) '"" ~ I'\l ::r {') , '"' " t"'I :,.. ~ ;t ~ :i g 12 " ~ ;; ... >c ~ ~ ~ el !;! I!! ... :I l:l ~ ~ 12 ~ ...' ~, :f , I" '- :. -: ..... .., .~ . - ---.-- ~ it 121 ... 0 u w U ., il: . ... irJ ... u - ~ 0 Z ... . Jiit - ... - ~' ~ .... ffi ~ Jll~ ~ ~~'.. ljll ;:) OS'" 0... ... .... i5 ~ c-= Q ... IIH ....:l N ~ t.:) ~ 0.. ... 0 '1"1 ~ ! ~ jll f ~3 ~ jilt -< 0 ~ .. i~jH c-= := .... 0 ti:i .. A. ~ rt21 N . 1 I '. . ldl I , ANDREAS J. BENDZIN UC, 18 010 221 0>48 BL.IoCKL.Io TCH L.IoNE C~MP HILL, p~ .7011 " S -5"" ..; 111I 9~ ,~ I, 613~ J ' . ^ ' ~3 21?(r;.".C'O , D~";'.. ' ,. DiII,Ift, NA t.:","", ' ",,"""'" ' .:i!f'., \1~1:::...'., Ira!- ':OBB2H8': OO~ 00230'1 -- . . I! AG '93 09 6 X 0lI1~,.... ";'Q..,, "I' '\"1'" II"~ \.. I' \.. I~I... ,. ..1. I . 'M .,. """'J It..... "'11 i." .t.:.. ,.t I ~ " .- Q en ,.. I:: 1';') '" ::~"" .:J <( F~RMc7" ",:usr ':'~ ," ~E tr.....'::: ~. 7-l4J. :~~.I~. :- ~~. .~.r'''' -0' .. t; , a )>"'-n .. ::> - N~ \J'" 'Nr' ~ _ -:', ::! 'tf: .~N_tD"'O . c.,:,-""" 0 .. , '~. " ; C') 0"" .... ~! r")~ 0 ': C? co.;:;' ... ": "'a'" ';:~Q(9"C . . ::> ..' r' : CD". .~_ .= ,. " < . ,. I@ AG '93 09 @ PROCESSED (Q Co> .~ \\ ':;~ ~(,:~u).::::Fl~:}. .? r.,:::,: " E.xhibit "A" p,..2 of'). VIlRIJ'ICATION I, ANDRIlAS BENDZIN, hereby acknowledge that I have read the foregoing COMPLAINT, and that the statements made therein are true and correct to the best of my information, knowledge and belief, :r; understand that false statements herein are made subject to the penalties of 18 Pa,C,S. 4904, relating to unsworn falsification to authorities, I . ...) //.. (/c.. ,. ~I ji l.~,. c {:. ANDREAS BENDZIN DATE: '\;1 ?~\ \ \'VN ExhIbIl A Ii 3. On or about August 5, 1993, the Plaintiff purchased a L Series Kubota Tractor with a BF110 front end loader from Peterman Power Equipment, Inc" of Carlisle, Pennsylvania, A copy of the purchase invoice, and a copy of the check for payment of the $24,000 net purchase price are attached hereto as Exhibit "A" and incorporated herein by reference, 4, Shortly after the purchase of the tractor, Plaintiff transferred possession of the tractor to the Defendant so that the Defendant could use the tractor to care for and maintain Plaintiff's farm. a portion of which farm on which Defendant resided, 5, The tractor is currently located at 260 Willow Mill Park Road, Silver Spring Township, Cumberland County, Pennsylvania, 17055, in a building currently under the control of the Defendant. 6. On or about June 7, 1994, Plaintiff, through a third party, Rick Albright, asked the Defendant to return the tractor to the Plaintiff in that Mr, Albright had need to use the tractor to perform work on behalf of the Plaintiff, but Defendant refused to return the tractor and persists in that refusal, Additionally, in August 1994, Defendant refused to return the tractor to Plaintiff after requested to do so by the Silver Spring Township Police, 2 '" J.. , 'J "~' f!~ !~X '} Q > ~2 if iel ... 0 v III ... -. V . ~ ~ i:: I.J - ... i it~"J ... Z .. ~ 0 - - ~ ""' Iii{ ll~ I Jn~ 5 ~. ill} o ... 8::: l/J ~ .... II:ll: : l/J 3 !::. IiH ~ ~ Cl .. ... ~ ~ C 1J J 1 ~.. iff 1 < c ~ ~ is! .. Jill II:ll: .. l/J · f~tH .... ~ f]' l/J III ' ~ a. .. ~ .... .. " . .iH~: ". _~ .--...1 ~ a uh ~ .1, . , OCT Z\ i IU 30 :111 '9~ II d" ,.',', II.h) i\ \ I' Ii \ ~ " I I , ,'I I' p i i'" ANDRBAS BENDZIN, Plaintiff V I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - REPLEVIN I I NO. 94-4980 I DONALD VERNI!:T, Defendant IN REI PLAINTIFF'S WRIT OF SEIZURE ~EFORE SHEELY. P.J. QflllION AND ORDER OF COURT The present action is a replevin case in which plaintiff seeks to recover possession of one Kubota tractor presently in the possession of defendant. A hearing was held before this court on September 29, 1994, from which we made the following findings of fact. FINDINGS OF FACT 1) Plaintiff, Andreas Bendzin, is an adult individual residing at 348 Blacklatch Lane, Camp Hill, Cumberland County, Pennsylvania. 2) Defendant, Donald Vernet is an adult individual residing at 260 Willow Mill Park Road, Silver Spring Township, Cumberland County, Pennsylvania. 3) Plaintiff is the owner of a farm in Silver Spring Township, a portion of which is resided upon by defendant. 4) Plaintiff inherited this farn" known as the Warden Farm, from his grandmother, Mrs. Hedwick Warden. 5) Defendant lived on the Wardvn Farm while Mrs. Warden was still alive and acted as caretaker of the property. Defendant continued in this capacity after plaintiff became owner of the farm. NO. 94-4980 CIVIl, ACTION 6) On AUgU8t 31, 1989, defendant purcha8ed a Ma88ey-Fergu8on tractor from Peterman Farm Equipment, Inc. for $5,400.00 (Defendant's Exhibit No.2). 7) Mrs. Warden reimbursed defendant for one-half the price of the MallSey-~'ergu8on, or $2,700.00. 8) On August 5, 1993, plaintiff purcha8ed a Kubota tractor from Peterman Farm Equipment, Inc. for $24,000.00 (Plaintiff'8 Exhibit No.1). 9) The total 8ale price of the Kubota tractor was $34,215.50. The Masoey-Ferguson was traded in at the time of this purchase and assigned a value of $10,215.50. (Plaintiff's Exhibit No.1). 10) The Kubota tractor was used by defendant in the upkeep of the Warden Farm and remains in defendant's possession. 11) Plaintiff has sought tho return of the tractor on several occasions, but defendant has refused to relinquish possession thereof. 12) Plaintiff filed a complaint in this action on September 6, 1994, and filed written notice of a hearing on that same date. DISCUSSION In this replevin action, plaintiff is seeking the return of a Kubota tractor. In order to be successful, "plaintiff must show not only title, but also the exclusive right of immediate possession of the property in question," Ford Motor Credit Co, v. Caiazzo, 387 Pa.Super 561, 566, 564 A.2d 931, 933 (1989). The 2 '. . ~ ~ --- .--- ~. i* ~ CJ r- _n. M ~t \:i ~ .. ... >C a ~ Cl ~ ~ l!l ~ ~ I c ~ l!! ~ 0 ~ ~ - I . - I ~ ..J n lei < z I i3 D! " I 0 I OIl ir,J I ... . - lilt - ~ u ... J z ,:, I - - 0 /I , ... !lj~ ... - - - z !Z ~ Cf ~ i ri hf ~11 5 8 ~ ~ i ti o "';:s::: "'" ~ 0- ~ln 2! 0 ~ ClC ~ ~ 0 1"\ >4.. ... dl t YO Z ~ 0 ''111 >C( c 2! 2 .t h. ClC .. l~Hl "'" ~ ... "'" iH~~ \ Q. OIl ... ... " HLl _.__.--..-~- ---- -.--- --- J,.AW U".II.'.. GOl,PBEJiO, KATZMAN & SHIPMAN, RC, MON"\.D ~ It"TI~"N H",H'" . GOLDa,HO , LJlIHI"~"N "'''ULJ UI'O'ITU NIII. HINU.''',HOT .J ,J"" l!OO..... THO~"lIl 1"'IIIPlIJft 0"'__10 C ~ILLI" ,J,,~r' M IIHUIl,l'N ~ICH"'\." 'IN10 .JOI PlI" 111",1.'" ""'''H. I, II'M"IIII) IIUT"" QU" H IIMOO'" .JH~[MIIO".J ''''Ifl'~''N "MNO~tl. 1I0lJ"'" .J[M"".J 111)1180 1I""'PlI HV(HTrNI'''Il.'' MICH"n J ('MOC'''''I UYO MARk.IT 5TIIBaT ST.Awn_MRY f!jIJUAfta p, o. ltu)C. IYO" HA"ttIHUUHU, PItNNesYLVANIA '7&o6~'''08 TaLI!PHONIt (717) yn.....llu PAX (7&7) l,m...tSuou ",n,..",.. L I,)OLO.J~I,) , 0' COUNar,- "1'0"'" O"ICk 118 a;. ........,,IT aunT "1'0"", "....17...01 (717' .....".781' ICOfUIISIIOND TO H"'"~IS.U"G O"lell October 3, 1994 VIA FAX The Honorable Harold E, Sheely President Judge of the Cumberland county Court of Common Pleas Cumberland County Courthouse One Courthouse Square carlisle, PA 17013-3387 Re: Bendzin v, Vernet No, 94-4980 civil - In Replevin Dear Judge Sheely: I am in receipt of Bill Douglas' Brief of September 30, 1994, in opposition to the Plaintiff's Writ of Seizure, The only comment I would have is that there is absolutely no evidence in the record that establishes that the Kubota tractor is owned or was ever intended to be owned jointly by the parties in question, In fact, , the testimony of Mr, Vernet is that he thought that the tractor that was traded in was to be used as some type of a down-payment on real estate he wanted to purchase from the Plaintiff, Although the Plaintiff denies this was the case, the fact remains clear that there is no evidence that the parties ever intended that the tractor would be owned jointly by the parties, It is possible that Mr, Vernet might have some type of action for restitution for his interest in the tractor that was used as a trade-in, but that certainly does not establish that he has any ownerShip interest in the Kubota tractor, That he has no ownership interest in the Kubota tractor is evidenced by the invoice and the owner's registration card which were admitted into evidence, Furthermore, Mr, Vernet was at Peterman Farm Equipment at the time the tractor was purchased and did not object to the tractor being invoiced to and placed in the name of Mr, Bendzin, . The Honorable Harald E. Sheely October 3, 1994 Page 2 Far these reasons, Plaintiff respectfully requests that the Court enter the Writ of Seizure for the Plaintiff with appropriate bond, Very truly yours, c,':e'~:J.'!n~t"'- J. Ja~ cdoper JJC/ksd cc: William P. Douglas, Esquire (via fax) , I <( T (13 ":1.1 10' 11f~'1 (,,1 .' ,.',' r','.. ", ; t".... "AW ~,...."c.~, C,;OLtlD":RO. KATlOCAtf Be SUlPHA!', PoC. "O"'LU lit, II.".""'" ".~.. .QU~~'J~ , "'U...Il...... "\ll</,u,u,,"n ~I'l.IlIPflIL,....n' tl "It" (nll'CII '..0....' a: ,,,,H"'" n,..,IID t ...."'..... .......,.. ".a:t".... ..,e"'"l.. ""'10 .01l".,1".'1ot1l ....,...1. ,,".10',11101'.. cu. .. ..QO'" .u,rrt...;.... tl 'UIU""." '~"Otl) n 1111~.'" "I""" ~,II',,,&O ..IlC" 'luc.."",nrllor.,. ""1(11,10.',,, tl l:ttOU"" nllu "A....,. ~T'"U1' lI'tJIIAWIUU".'" tU,)U".. p, u. nU)llnuu U.t."MIGDU.O, ".Ul"Wl'lI'tJ..V"l'IlA U'.UU"UUU:I 'l'al,arauwa (m) .,lot....~l rAJC. (".,) "tI4~II!UIlCIU "."11I1" ~ (!:,tu.t",. 0,("",,"0'" ,.t,)"~ Q~fl",". II. It, ...........ro. ""tI~., '~"II,"'" I,"UI (1"10""""1' ICIJ"'''~IU'Q''O 'IJ "A,,"'I""'.'" "",,,-';1 Ol.:toloer 3, 1!l94 Y-tA-I.AX 'rhe Honortlblo Harold 1:;, Sheely pr.~ld.nt Judge of the I Cumberland county Court of COl1lmon PlnO,s cumberland county CourthouGQ One courthouse Square carli~le. PA 1101J-1JB7 Rn: aend~in v, V~rnGt No, 94-4980 CiviL - In R~plevin pear Judge Sheely: ! 6m in receipt of Bil! DouglaG' Urie! of September 30, 1994, in opposition to tho plaintiff's Writ af sai~ur~, ~he only comment I would have is t.hat th(~rc is abllolllt.ely no evidence in tho record thl\t QstablishllS that the Kubota tractor is owned or wall ever intended to be owned jointly by the part.\es in qUllmticm, In fact, the testimony of Mr, Vllrnot i~ that he thought that the tractor that was traded in wa~ to bo uaed as ~oml1 type ot II down-payment on retll elltate he \',1nted to purchase from tho Plaintiff, 1\H.hollgh t.he Plaintiff denien this waf~ the ca~'e, the fact remcd.m.l clei.u' that there is no evidencl'! that the partif!s evex. j ntondll~c1 that. the tractor would pe owned jointly by the parties, It is pos~iblo that Mr. V~rnp.t might have ~omo type of action for restit.ution tor hi!: interelSt in the trac:t.or that was used as u t.rade-in, b~lt that cert:C\inly does not cut,1bl ish that he hau any ownership intern,'t in th<'! Kubota tractcJI". Tho.t ht' hafl no ownerahip int.erest in the Kubota tractor i~ ev iden',ed by tho invoice and the owner's regit:tration card which were admitted into ~1Vldal\(':c, ~'\Irthermorn, Mt'. Vernet WOG at. l'nterman Farm Equipment at the t im~l tho tractor wall purchased and did not ohi ect to the t..rQ"tor bel nq invoiced to and pluccd in the name of Mr, Oond~in, II. STATIMINT or THI CAS! On August 5, 1993, the Plaintiff purohased a L Series Kubota Tractor with a BF110 front end loader from Peterman Powor Equipment company, Inc. (hereinafter "Peterman"), of Carlisle, pennsylvania. plaintiff paid the $24,000 net purchase price after allowance for a trade-in to Peterman and obtained an invoioe from Peterman for . I "I I I, ,i I, ~ the purchase, since titles are not issued for tractors, Plaintiff's evidence of ownership is the invoice and the owner's registration card issued to him by Kubota. Plaintiff submits that the purchase invoice along with the check evidencing payment by the Plaintiff and the registration of the tractor with the Kubota company sufficiently establishes his ownership of that tractor, subsequent to purchase, the tractor was placed into the possession of the Defendant who at the time was leasing a portion of Plaintiff's farm in silver spring Township known as the Warden farm, Plaintiff gave possession of the tractor to Defendant to perform various services on that farm which Plaintiff had arranged with Defendant to perform, Plaintiff has terminated that Lease, although Defendant still refuses to vacate the property, and has requested that the tractor in question be returned to him since he has use for it at the farm, Defendant refuses to return the tractor, Several requests have been made for the turnover of the tractor, yet Defendant continues to refuse to return it, result, the instance proceeding was commenced. As a 2 III, LIGAL DISCUSSION According to the Court in Hamilton Bank y, Seiqer, 22 D.& C, 3d 534, 537 (C,P, Berks 1982): Initially, it should be noted that II [t)he principle requirement for issuance of the writ [of seizure] and the ~ issue at the hearing [for the writ pursuant to Pa, R.C,P, 1075,1) is whether plaintiff proves his 'probable right' to possession of the property, not the final merits of the case, II 3 Goodrich Amram 2nd, section 1075,1:1 (1976) at p. 105. (Emphasis supplied,) Additionally, according to the Court in JQDnson y. staples, 135 Pa. super, Ct, 274, 280, 5 A,2d 433 (1939): Proof of title by the owner in an action of replevin makes out a prima facie case, and the burden is shifted to defendant to prove property, genera 1 or special, vesting it with the right to retain possession, (Citation omitted), In the instant case, it is submitted that Plaintiff's ownership of the tractor in question is established by the evidence relating to the purchase of that equipment from Peterman, , Furthermore, Plaintiff will testify that while Defendant was given the use of that equipment to perform various ta~ks on Plaintiff's farm, Plaintiff no longer desires Defendant to perform those tasks and hence has asked for the return of the equipment which Defendant refuses to do, Plaintiff submits that Defendant has no property rights in the equipment such that would establish any title thereto and that Defendant cannot establish any right of possession superior to Plaintiff's right of possession arising from his 3 II, STATBMENT OF THE CASE On August 5, 1993, the Plaintiff purchased a L Series Kubota Tractor with a BF110 front end loader from Peterman Power Equipment company, Inc, (hereinafter "Peterman"), of Carlisle, Pennsylvania, Plaintiff paid the $24,000 net purchase price after allowance for a trade-in to Peterman and obtained an invoice from Peterman for the purchase, since titles are not issued for tractors, Plaintiff's evidence of ownership is the invoice and the owner's registration card issued to him by Kubota, Plaintiff submits that the purchase invoice along with the check evidencing payment by the Plaintiff and the registration of the tractor with the Kubota company sufficiently establishes his ownership of that tractor, subsequent to purchase, the tractor was placed into the possession of the Defendant who at the time was leasing a portion of Plaintiff's farm in silver spring Township known as the Warden farm. Plaintiff gave possession of the tractor to Defendant to perform various services on that farm which Plaintiff h~d arranged with Defendant to perform, Plaintiff has terminated that Lease, although Defendant still refuses to vacate the property, and has requested that the tractor in question be returned to him since he has use for it at the farm, Defendant refuses to return the tractor, Several requests have been made for the turnover of the tractor, yet Defendant continues to refuse to return it, As a result, the instance proceeding was commenced, 2 __~ ~. rp-R~~- L tv A,} -, I3-fq CK: &..--~ 4-. (.11 c. L.. I (.J v-.~ "\l c:--,. (...:::~.- (1-)-" ) I ~ ~ --/9'''('( {J.<..+. - '(-;......,.. <l-....v ,~' -T-"""'\--- -r-...... 'II .1 rv I~- VI c-,-. ~ 0 Po ~ - , . " , r -- \.ra, C'-'r K F I~"':> - lk I".v . '-......;\ )',,""',........ 'C- t"l't' J - I-P- .J2. ~ c:M- c../, - r~ ~- ~~,A~--~ _1--~M-1"~- - ~J >- p~ ~..,.... ~H.-...- -- ..;. - - J '-') /-....""-....... v..... 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Jay Cooper, lequire - I,D, 131720 Attorneye for Plaintiff 320 Merket Street Strawberry Square P,O, 80x 1268 Harriebur9, PA 17108-1268 1717) 234-4161 ANDREAS BENDZIN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 94-4980 CIVIL DONALD VERNET, Defendant CIVIL ACTION - IN REPLEVIN RePLY TO New MATTeR AND NOW, comes the Plaintiff, Andreas Bendzin, who files the following Reply to Defendant's New Matter: 9, Plaintiff's allegations in the Complaint, paragraph 1 - 8, are hereby incorporated by reference as fully as if set forth herein, 10. said allegation constitutes a conclusion of law to which no response is required, 11, Said allegation constitutes a conclusion of law to which no response is required,