Pepka v. Schang

704 A.2d 127, 1997 Pa. Super. LEXIS 3628
CourtSuperior Court of Pennsylvania
DecidedNovember 14, 1997
DocketNo. 2388
StatusPublished
Cited by1 cases

This text of 704 A.2d 127 (Pepka v. Schang) 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
Pepka v. Schang, 704 A.2d 127, 1997 Pa. Super. LEXIS 3628 (Pa. Ct. App. 1997).

Opinion

HESTER, Judge:

F.P. Pepka, Beer Barrel, Inc., and lee 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. [129]*129On 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 ¶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 had told Pepka that he intended to take these actions.

The property allegedly seized on August 10, 1989, included $1,410.16 in beer, a cash register under levy with a value in excess of $3,292.88, other personal property under levy and scheduled for sale on September 6,1989, ice making equipment under lease with a value in excess of $20,000, ice sales equipment and merchandisers also under levy with a value in excess of $25,000 and a pick-up truck. In the complaint, appellants pled causes of action in abuse of process and for the wrongful taking and injuring of personal property.

Schang and appellants then entered a stipulation and agreement, which provided as follows. Schang would restore appellants possession of 914 Main Street, restore the utilities to the premises, return various items taken from the premises, and extend the term of the lease until December 31, 1989. Further, Schang granted appellants an option to buy the property. Appellants agreed to pay $2,000 to Schang when the items were restored and an additional amount of $1,762 within two months. Appellants also agreed to settle and discontinue the case as to Schang. On August 29, 1989, the case was settled and discontinued as to Schang.

In the ensuing years, the following occurred. Appellants filed a notice of intent to take default judgment against the remaining three defendants based on their failure to answer the allegations of the complaint. However, default judgment was entered solely against Soltis. Soltis later petitioned to have the judgment opened. Nicholson and National Grange filed an answer and new matter. Appellants responded to the new matter.

Nicholson and National Grange then attempted to join Schang as an additional defendant. In response, Schang moved for both judgment on the pleadings and summary judgment. He alleged that the joinder was improper as the statute of limitations had expired on the underlying action against him at the time of his joinder and that join-der was improper because had been released from liability in the action by the appellants.

On February 27, 1995, Nicholson and National Grange moved to place the case on the trial list. Six months later, Nicholson moved for summary judgment. On November 6, 1995, the court entered a briefing schedule for resolution of all pending motions. Briefs were filed, and then Soltis petitioned to join the motions for summary judgment filed by Nicholson and National Grange.

On May 1, 1996, the court disposed of those motions. It opened the default judgment taken against Soltis and permitted her to join in the summary judgment motions filed by Nicholson and National Grange. It then denied the motions for summary judgment, which were premised upon immunity, filed by Soltis, Nicholson, and National [130]*130Grange. However, it expressly limited National Grange’s liability in the action to the face amount of its bond, $1,000. The court also denied Schang’s motion for summary judgment and allowed him to be joined as an additional defendant by the remaining three defendants.

National Grange then tendered a check in the amount of $1,000 to the Prothonotary of Washington County and asked to be released from the action. Further, counsel for National Grange, who had been representing Nicholson, petitioned to withdraw his appearance on behalf of Nicholson.

After proceeding relating to discovery and trial preparation, the parties entered a stipulation, settlement and release. That document reads in pertinent part:

There are two aspects to the resolution. The first is a cash payment from the defendants as follows: A payment of $24,700 from James Schang; a payment of $1,000 from Margaret Soltis; a payment of $1,000 from Constable Robert Nicholson.

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Cite This Page — Counsel Stack

Bluebook (online)
704 A.2d 127, 1997 Pa. Super. LEXIS 3628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pepka-v-schang-pasuperct-1997.