Fedders Fin. Corp. v. Chiarelli Bros., Inc.

289 A.2d 169, 221 Pa. Super. 224, 10 U.C.C. Rep. Serv. (West) 880, 1972 Pa. Super. LEXIS 1505
CourtSuperior Court of Pennsylvania
DecidedMarch 24, 1972
DocketAppeal, 1506
StatusPublished
Cited by5 cases

This text of 289 A.2d 169 (Fedders Fin. Corp. v. Chiarelli Bros., Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fedders Fin. Corp. v. Chiarelli Bros., Inc., 289 A.2d 169, 221 Pa. Super. 224, 10 U.C.C. Rep. Serv. (West) 880, 1972 Pa. Super. LEXIS 1505 (Pa. Ct. App. 1972).

Opinions

Opinion by

Hoffman, J.,

This is an appeal from the order of the court be]ow denying appellant’s petitions to open and strike a default judgment.

On March 17, 1969, appellee Fedders Financial Corporation (Fedders) initiated an action in replevin for twenty-six specific air conditioners by filing a praecipe for a writ of replevin without bond. The air conditioners, formerly a portion of the inventory of Chiarelli Bros., Inc. (Chiarelli), an appliance dealer, were being held by appellant American Bank and Trust Co. of Pa. [226]*226(Bank) as mortgagee in possession of the real estate occupied by Chiarelli as tenant.

Fedders filed a complaint in replevin against the Bank on April 15, 1969, endorsed with notice to plead within twenty days from the date of service. The complaint was served upon the Bank’s attorney on April 16, 1969. A praecipe to reissue the writ of replevin with bond added was filed by Fedders on April 21, 1969, and the reissued writ was served upon the Bank’s attorney on April 22. The Bank filed a counter-bond on April 24, 1969.

On May 8, 1969, twenty-two days after the filing of the complaint and sixteen days after the service of the reissued writ of replevin with bond, Fedders took a judgment for want of an answer. On May 13, 1969, the Bank filed petitions to open and strike off the judgment. Fedders filed a demurrer to both petitions for the reason that they “did not set forth a meritorious defense to Fedders’ complaint.”

After argument, the Bank was given leave to file an amended petition to open the judgment, the petition to strike having been previously denied. Fedders filed preliminary objections to the Bank’s amended petition to open judgment, but these Avere dismissed and Fedders was given leave to file an answer to the Bank’s amended petition.

An answer to the amended petition together with new matter was subsequently filed by Fedders, and the Bank filed an answer to Fedders’ new matter. On June 9, 1970, a rule was entered against the Bank to proceed to take depositions or argue the matter. Thereafter, counsel for the parties prepared and submitted to each other a stipulation of facts in lieu of depositions.

The matter was then argued before the court below, which filed an opinion on August 6, 1971, denying the Bank’s petitions to strike and open the default judgment taken against it.

[227]*227We agree with the lower court that the judgment entered against appellant was regular on its face and cannot be stricken.

As to the petition to open judgment, three requirements must be met: (1) the petitioner must have an explanation or excuse for having permitted the default to occur; (2) the petition to open must be filed promptly, and (3) petitioner must show that it has a meritorious defense to the action. Kramer v. Philadelphia, 425 Pa. 472, 229 A. 2d 875 (1967).

The lower court found that appellant had met the first two requirements. The only question which merits discussion in this appeal is whether or not appellant has a meritorious defense to the action in replevin.

Appellant contends that the lower court erred in determining that its perfected security interest did not have priority over the security interest of appellee for the following reasons: (1) the money loaned to Chiarelli by appellee was not an advance within the meaning of 12A P.S. §9-107(b); (2) the money loaned to Chiarelli by appellee was not in fact used to purchase the air conditioners in which appellee claims a purchase money security interest; (3) the purchase money security interest claimed by appellee did not have priority because appellee did not satisfy the notification requirements of 12A P.S. §9-312(3) (b) and (c); (4) appellee did not send a separate notification each time that it expected to acquire a security interest in Chiarelli’s inventory, and (5) appellant did not receive notice in compliance with the law as it existed at the time of the perfection of appellant’s security interest. We will consider each of appellant’s claims separately.

I

Appellant’s first contention is that in order for the appellee to obtain a valid purchase money security in[228]*228terest, appellee must have made an. advance to Chiarelli within the meaning of 12A P.S. §9-107(b). §9-107 provides in relevant part as follows: “[a] security interest is a ‘purchase money security interest’ to the extent that it is ... (b) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.”1

Appellant argues that “making advances” means to pay before there is a legal obligation to do so and that the record does not disclose that an advance of this type was made. It is apparent from the stipulated facts, however, that the appellee provided new money as distinguished from a pre-existing claim or antecedent debt, the latter being excluded by the language of §9-107(b).2

We would therefore hold that the stipulation of facts sufficiently indicates that appellee provided advances to Chiarelli within the meaning of §9-107(b).

II

Appellant’s next contention is related to the same Code provision discussed above. §9-107(b) provides that a party will have a purchase money security interest only to the extent that advances made to enable the debtor to acquire rights in the collateral are “in fact so used”. Appellant contends that the record does [229]*229not show that the advances made by appellee were in fact used to purchase the air conditioners in question.

A review of the record discloses that the advances made by the appellee to Chiarelli were used for the purchase of the air conditioners. The security agreement between appellee and Chiarelli, which is part of the record, states: “[t]he loans made and to be made are for the purpose of supplying funds for the acquisition by [Chiarelli] of merchandise of the nature hereinafter described, particularly merchandise manufactured and/or sold by Fedders Corporation, and which [Chiarelli] from time to time will purchase from a distributor of such merchandise.” In the stipulation of facts submitted by the parties, they agree “[t]hat on or about January 16, 1967 and thereafter at divers times, [appellee] loaned sums of money to [Chiarelli] to finance the purchase by [Chiarelli] from [a distributor] of certain air conditioning equipment manufactured by Fedders Corporation, fcwenty-six (26) in number, a complete schedule of which is attached to and . . . made part hereof.”

This chain is completed by a trust receipt from the distributor to Chiarelli which is addressed to appellee, Fedders Financial Corporation. This receipt, which lists all the air conditioners involved by serial number, has been stipulated to by counsel. Therefore, the money advanced to Chiarelli by appellee was in fact used for the purchase of the air conditioners, and this is apparent from the record.

Ill

Appellant’s third argument is that he was not provided with proper notice under §9-312(3) (b) and (c).3 [230]*230Section 9-312 concerns priorities among conflicting security interests in the same collateral. If appellant was not given proper notice, its security interest would prevail over appellee’s purchase money security interest.

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289 A.2d 169, 221 Pa. Super. 224, 10 U.C.C. Rep. Serv. (West) 880, 1972 Pa. Super. LEXIS 1505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fedders-fin-corp-v-chiarelli-bros-inc-pasuperct-1972.