O'Donnell v. Schneeweis

73 Pa. D. & C.2d 400, 1975 Pa. Dist. & Cnty. Dec. LEXIS 284
CourtPennsylvania Court of Common Pleas, Chester County
DecidedApril 11, 1975
Docketno. 88
StatusPublished

This text of 73 Pa. D. & C.2d 400 (O'Donnell v. Schneeweis) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Donnell v. Schneeweis, 73 Pa. D. & C.2d 400, 1975 Pa. Dist. & Cnty. Dec. LEXIS 284 (Pa. Super. Ct. 1975).

Opinion

SUGERMAN, J.,

Plaintiffs filed a complaint in two counts against defendants, the first count, in assumpsit, alleging that plaintiffs and defendants entered into a written agreement of sale whereby plaintiffs agreed to purchase certain real property and improvements thereon from defendants and which agreement provided further that all fixtures attached to the property were to remain thereon.

Plaintiffs further allege that notwithstanding such provision, and in violation thereof, defendants, following execution of the agreement, removed certain specified fixtures from the property, thereby damaging the premises.

By the second count of the complaint, in trespass, plaintiffs seek the value of the fixtures so removed, alleging defendants converted the same to their own use, in derogation of plaintiffs’ title thereto.

Defendants, by answer, deny the material allegations of the complaint although admitting the removal of some items, and aver, inter aha, that the items so removed were the personal property of defendants, not intended to pass to the ownership of plaintiffs. Defendants further assert that one of the items was removed prior to the execution of the agreement, and another such item was not removed by defendants at all. With the issues so drawn, the matter was tried and argued before the court sitting without a jury.

The parties agree that the following articles were removed from the premises by defendants subsequent to execution of the agreement of sale: (1) wall-to-wall carpeting in place in three rooms of the building; (2) a full length mirror affixed to a door in the said building; (3) a wall mirror and glass or spectacle cases; (4) cafe doors; and (5) a wall rack. [402]*402Plaintiffs assert that such articles were either “fixtures” included within an unnumbered paragraph in the agreement of sale, or “permanent improvements to the realty,” title to which passed to plaintiffs along with title to the realty.

A vendor and purchaser may, of course, specifically agree that chattels affixed to the realty are to be treated as fixtures passing with the realty or, conversely, they may agree that such fixtures are to be detached and treated as personalty: Wick v. Bredin, 189 Pa. 83, 42 Atl. 17 (1899); In re Rodgers & Hite, 143 Fed. 594 (1906); 16 P. L. E., Fixtures §6. The paragraph in the agreement of sale at bar upon which plaintiffs rely to sustain their position follows:

“The gas and electric fixtures, heaters, ranges, etc., annexed to the said building are included in the sale, as also any water pipe laid on any street bounding said lot, except for refrigerators located on 2nd and 3rd floor.”

Notwithstanding the inartful use of the word “etc.” in the clause, it appears evident that the parties intended only gas and electric fixtures, heaters, ranges, water pipes in any street abutting the premises, and chattels of a similar nature, to be the items included within the clause. Hence, the question of whether the disputed items are fixtures, title to which was intended to pass with the realty, must be resolved within the framework of the well-established principles relating to fixtures.

A “fixture” is an article of personal property which, by reason of physical annexation to a building, becomes in legal contemplation a part of the real estate: Morris’s Appeal, 88 Pa. 368 (1879); 16 P. L. E. Fixtures §1.

[403]*403Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture as distinguished from improvements, and not particularly fitted to the property with which they are used; such chattels always remain personalty: Clayton v. Lienhard, 312 Pa. 433, 167 Atl. 321 (1933); Jarechi v. Philharmonic Society, 79 Pa. 403 (1876). The second class consists of those chattels so annexed to the property that they cannot be removed without material injury to the real estate or to the chattels themselves; such chattels are realty, even in the face of an expressed intention that they should be considered personalty: National Bank of Catasauqua v. North, 160 Pa. 303, 28 Atl. 694 (1894); Clayton v. Lienhard, supra. The third class includes those chattels which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; such chattels become part of the realty or remain personalty, depending upon the intention of the parties at the time of annexation: American Laundry Mach. Co. v. Miners Trust Co., 307 Pa. 395, 161 Atl. 306 (1932); Clayton v. Lienhard, supra; Royal Store Fixture Co. v. Patten, 183 Pa. Superior Ct. 249, 130 A. 2d 271 (1957).

Lastly, we note that as between a vendor and a purchaser, the question of whether an article is to be regarded as a fixture, title to which passes to the purchaser, is to be construed most strongly against the vendor: Batcheler v. Lally, 66 D. & C. 25, 28 (1948). We turn then, to an examination of each article in dispute.

Wall-to-Wall Cai~peting

Our research fails to reveal and counsel cite no authority bearing specifically on the question of [404]*404whether wall-to-wall carpeting is a fixture. We believe, however, on this record, that such carpeting falls within the third class of chattels enumerated above, and in so deciding, we must determine the intention of defendants at the time of installation.

To be sure, wall-to-wall carpeting, although generally cut to fit specific floor areas, may be re-cut and thus re-used. Further, plaintiffs’ exhibits 1, 3, 4 and 6 reveal a linoleum or tile floor upon which the carpet was laid in the three rooms in question, leading us to conclude that such rooms were usable with the carpet removed.

Nonetheless, the same exhibits reveal the care and painstaking effort with which the carpet was fitted to the precise dimensions and contours of the floors by the use of woodstripping and nails. We conclude, therefore, that the carpet was specially fitted to the rooms in question and thus adapted to the permanent use and enjoyment of defendants at the time of annexation. Hence, the wall-to-wall carpet became and remains a fixture.

Mirrors

Two mirrors are in issue, one a full-length mirror affixed to a door in the building upon the premises, and the other affixed to a wall therein. There is some appellate guidance to which we may turn in connection with mirrors.

In Waltman v. Mayer, 97 Pa. Superior Ct. 236 (1929), the question was the same: Whether a mirror was a fixture, passing with the real estate, or personalty, properly removed and retained by the vendor. At trial, the purchaser testified that molding was attached to the frame of the mirrors and, in turn, nailed directly to a wall. The seller testified to the contrary that the mirrors she took lifted off [405]*405hooks and when so removed, left merely wallpaper exposed, without damage.

The Superior Court, assuming for the purpose of argument that the mirror was nailed to the wall by its molding nevertheless held it to be personalty and said, quoting with approval Hill v. Sewald, 53 Pa. 271 (1867):

“‘the question of fixture or not depends on the nature and character of the act by which the structure is put in place, the policy of the law connected with its purpose, and the intentions of those'concerned in the act.”’: 97 Pa. Superior Ct., at page 239; and further:

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Related

Royal Store Fixture Co. v. Patten
130 A.2d 271 (Superior Court of Pennsylvania, 1957)
Clayton v. Lienhard
167 A. 321 (Supreme Court of Pennsylvania, 1933)
American Laundry MacHinery Co. v. Miners Trust Co.
161 A. 306 (Supreme Court of Pennsylvania, 1932)
Waltman v. Mayer
97 Pa. Super. 236 (Superior Court of Pennsylvania, 1929)
Vaughen v. Haldeman
33 Pa. 522 (Supreme Court of Pennsylvania, 1859)
Hill v. Sewald
53 Pa. 271 (Supreme Court of Pennsylvania, 1867)
Jarechi v. Philharmonic Society
79 Pa. 403 (Supreme Court of Pennsylvania, 1875)
Morris's Appeal
88 Pa. 368 (Supreme Court of Pennsylvania, 1879)
National Bank v. North
28 A. 694 (Supreme Court of Pennsylvania, 1894)
Wick v. Bredin
42 A. 17 (Supreme Court of Pennsylvania, 1899)
In re Rodgers & Hite, Inc.
143 F. 594 (E.D. Pennsylvania, 1906)

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Bluebook (online)
73 Pa. D. & C.2d 400, 1975 Pa. Dist. & Cnty. Dec. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odonnell-v-schneeweis-pactcomplcheste-1975.