*1 However, line cross their lands. a power have building, refineries, ship includes oil to be served area na- vital other industries steel production, The . and national defense . . peacetime economy tion’s con- and the manner decided upon, location finally considerations were dictated by which, struction, justifi- management judgment, the Commission’s func- our performed controlling. Having found ably discretion, find no abuse of we appeal, tion on finding, of evidence to support or lack error law, and order Commission”. determination is affirmed. order the Commission Appellant, Bank Millville, First National v. Horwatt. *2 1960. Before J., March

Argued P. Rhodes, Watkins, Montgomery, Ervin, Woodside, Wright, absent). J., JJ. (Gunther, $. Eugene him Keene Jr., E. Mitchell, Eves, Griffith, and Smith Eves, Bedford, Waller, appellant. Darling & Mitchell, appellee. William J. Davis, *3 June 1960: 15, by J., Opinion Woodside, appeal Court an from order of the This is the judgment opening County Pleas of Luzerne Common against by National Bank of Millville entered the First George grows double out of the Horwatt. The case by of a an dealer. vehicle automobile problem in- but not the

The immediate, ultimate, emerge con- in case will from the facts volved buyer purchased vehicle densed as follows: A a motor by executing an con- from dealer installment sales assigned and an attached note the tract which were National Bank of The First Millville the dealer. buyer judgment and the bank entered the defaulted, open buyer alleging judgment moved to note. The the the that fraud the neither because dealer, nor the certificate of the vehicle title His thereto. depositions indicate that several obtain- months after ing possession of the he took it back vehicle, repairs garage for dealer’s while it and, the there, Wyoming National Bank of Wilkes-Barre it, seized right claiming floor-plan to it the under a the application for buyer an that claims The dealer. showing an him and to he issued of title certificate bank was exe- Millville of the in favor encumbrance forwarding among put dealer’s mail cuted and ap- but unmailed Vehicles, Motor the Bureau of bank plication Wilkes-Barre was found compartment automobile taken glove another payment buyer note tendered dealer. The give him bank would the Millville condition bank vehicle, of title to a certificate could not do. judgment. opened is with- order Such court will of the court below discretion the sound except Phila. abuse of discretion. for a clear

be reversed Superior Heating 181 Pa. Ct. Sanders, v. Gas Co. opening (1956). Three reasons 2d 435 A. Judge opinion forth in an were set adopt ap- following as from which we Brominski, plicable facts: to the above 15(G) Fi- (1) Motor Vehicle Sales “Sec. P. L. [of nance Act June 28, 1947, 1110], provides §615(G), as follows: require or sale contract shall No installment ‘G. or the execution of note series of notes entail separately buyex*, negotiated, cut will which when right parties any action defense off as to third original buyer have seller.’ plaintiff argues due it is a holder “The *4 precludes negotiable instrument this course of a and against introducing his defense the defendant against (assignor). may have had the seller he which argument an defeat lend credence such would To 15(G) purpose very of Sec. and would afford purchaser remedy of a motor vehicle no whatsoever against any may seller defense which have particularly, as in the case where here, and, note is attached to motor installment sale vehicle being contract. contract, The note attached to sales gives assignee any transac- notice to that the itself, subject 15(G) Vehicle tion Sec. of the Motor necessary Sales Finance Act. de- So that it is not negotiable cide whether this note is in that as- signee subject has notice that the entire transaction is to the Motor Vehicle Sales Finance Act course, and, 15(G) Sec. thereof.

(2) “In which addition, sales contract to physically note is attached recites that . as- ‘. . the signee rights subject shall have all and be to all ob- ligations [Emphasis the seller hereunder.’ separately court below]. Are we now to treat the note from the negotiable sales contract and consider it assignee [a] holder in due ‘ob- course? The words ligation pur- any seller’ connotes defense the chaser have the seller. To come to other contrary conclusion reasoning, would be to sound particularly when the note was entered of record, part parcel the sales contract was For thereof. this reason as well as the first, should defendant permitted be to introduce his defense of failure of con- sideration and fraud.

(3) “There is also judg- why third reason opened. ment should The facts July are that on plaintiff defendant assignee tendered to money order for the full amount due on said sales contract requested the certificate of title to the motor ve- plaintiff hicle produce. did not and could §30 See of the Motor Vehicle Sales Finance Act, provides §630, that: payment ‘B. When the final on an installment sale contract is made in money equivalent cash, order or buyer, tender or his representative, authorized designated at licensed office of the cer- holder, *5 encum- showing of this tificate satisfaction of title, tender at the time of such brance, shall be delivered delivery payment, buyer, by otherwise if demanded person by may or mail as be made at a later date arranged buyer other all be between holder, buyer instruments shall or mailed to the be delivered ” (15) payment.’ days fifteen of final within of the date appellant Vehicle Motor that “the contends part by repealed large Sales Finance Act is in a April 3,L.P. Commercial 1953, Uniform Code,” respect particularly seq., §1-101 12A P.S. et with rights assignee sales to the an installment accompanying contract note. specifi- among

The Finance Act is not those acts repealed cally addi- the Commercial Code, which, pro- specific repealers, tion to the contains the usual parts vision that “all acts or of acts inconsistent repealed.” hereby this Act are 1953 P. L. 181. including particulars, relate In certain those which subject to this the two acts deal with the case, same they pari and when matter, statutes are materia possible. concurrently should be considered whenever they together, If can made be to stand effect should given possible. Kelly Philadelphia, to both as far as v. (1955) Nyce 382 Pa. 115 A. 2d 238 v. 459, 473, ; Com (1935); 319 Pa. 179 A. 584 missioners, 353, 358, 359, Statutory L. Construction Act of P. 28, §562. 46 P.S. 1019, §62, determining prior repealed

In whether act is question implication, legisla- exclusively one of Repeals implication tive intent. favored are not implied not be will unless there is an irreconcila- embracing ble conflict between statutes sub- same ject matter. The fact that the Uniform Commercial subsequent specific provisions Code was enacted in the Finance Act of 1947 and that general there is a repealing necessarily conclu- clause in the Code is not Kelly legislative sive on Phila- the issue of intent. v. *6 delphia, supra, p. (1955). relating

Article 9 Code, Uniform Commercial provides §9-201 noth- Secured that Transactions, ing charge practice any in that article “validates or illegal governing regulation under rule of law or . . . retail §9-203 installment a . . .” and in that sales, subject although transaction also to the article must comply with the Motor Vehicle 12A Sales Finance Act. §9-201 §9-203. legislature repeal

The Motor did not intend to Vehicle passage Sales Finance Act of the Uni- form Commercial Code. appellant argues §3-302 Code under

it is a holder of the note in under due course and that §3-305it is be insulated from the defenses which could against made dealer-payee. Pressing argument appellant under the Uniform Commercial Code further, argues subject that even if it were defenses buyer original has a seller in attempts repossess case where it vehi- the financed cle or to through collect levy the debt a that ve- subject it is hicle, to the defenses here, when, general it judgment enters a against the maker quotes paragraph note. It 2 Com- the Uniform mercial §9-206 Code Comments of lieu as follows: “In type preceding of cut-off clause discussed in the paragraph, negotiable a frequently note is executed purchase connection with a conditional sale contract or money mortgage. chattel This section allows the note operation except to have its normal when secured goods. consumer goods Where consumer are involved, (1) subsection makes even a holder in due course of subject the note to defenses if he seeks to enforce agreement security goods. or levies on the Thus on the but note, entitled to holder may partial subject or defense to a total become goods.” subsequent levy making gives §9-206 further, the comment to If read we appellant. install- “Some retail less comfort to the comparable legislation now selling and other acts ment negotiable consumer prohibit *7 following: vehicle “But in motor the contain Code prevent a note does not the execution of such sales, subsequent against asserting holders from the debtor against Mo- the seller. have defenses whatever of tor Sales Finance Act §15G, Vehicle §615G.” appellant the

If were a holder in due course of separate knowledge origi- note without that the note nated in connection the motor of a ve- hicle its contention that it is from the sale, insulated might defenses raised here have merit. were If this provisions the the of the Uniform Commercial case, might alone Code the Motor Sales control, Vehicle impose Finance Act no would do more than criminal liability upon requiring buyer the dealer for negotiated separately note could which in violation §15(G) of of the Act.1 that is not case. But, §3-103(2) But of see the Uniform Commercial Code provides provisions subject provi that the of Article 3 are to the provides provision sions of Article 9 which in §9-203 of that the subject provisions Article 9 are Vehicle Sales the Motor Act. Finance separately negotiated. It here was not

The note part con- installment to and a sales connected pointed plaintiff the court The below knew, tract. §15(G), supra, the transfer that virtue out, right to it could cut as to the not off, it, dealer against origi- buyer has action or defense the the nal seller. pro- mere fact that the Act contains criminal for its

visions violation does as contended mean, legislature appellant, that the those intended buyer to be the sole remedies of a motor vehicle. supra. Statutory §59 of the See Construction Act, On basis set defend- above, facts forth plaintiff’s good has a ant defense claim. appellant the contention of de- that Therefore, prima fendant has not shown a meri- facie case for a defense is torious not sound. the thumbnail forth sketch of the facts set

However, oversimplification is an above our of this case, ruling on the limited issue now before us is not neces- sarily determinant of the ultimate issue. We used abridged legal statement the facts as a basis for the conclusions we have made above and to demonstrate open- court below should not be reversed for ing judgment. A more detailed recital of facts suggests the trial of the case defendant may not be able to establish a meritorious defense to *8 the satisfaction of the fact-finder.

George defendant-buyer Horwatt, in this case, dealing length was not at arm’s Wesley Motor Company, Inc., dealer. Horwatt was sales man- ager corporation. depositions of the dealer show company that he knew the difficulty. was in financial procedure He was familiar with the to be followed transfer titles and the of motor vehi- personally cles. He went to the First National Bank install- January with the Millville about 30, 1958, “signed he said was note contract and which ment sales gave bank myself,” Wesley and Mr. in blank necessary fill them to information officials the to he delivered At the same the blanks. time, another contract on another installment sales bank person furnished another executed vehicle necessary to fill information bank with made bank from the received the checks He blanks. corporation Mr. payable delivered to he to corporation. president until Wesley, Not the note he executed and delivered a month after attempt a certifi- did he to secure received the check attempt to He made no of title to the vehicle. cate op- but continued to vehicle, secure a license for Auto Com- erate it on the dealer’s licenses pay- allege pany, Inc. He did not he made any person, on the and he testified ments note that the note in default until he did not know 1958. a letter from the received bank dated might under- From this it be inferred that Horwatt payments that the made or stood were intended by Wesley Company, Auto made and not Inc., raising a doubt whether bona fide transfer him, ownership of the vehicle to him intended. was ever pos- apparently regain made no He effort retain or of the vehicle from the session Wilkes-Barre al- bank, buyer planner though the title of a floor Superior Weisel v. Pa. clear. See Ct. is McBride, (1959). 156 A. 2d sketchy plan concerning The evidence the floor happened Wilkes-Barre bank and what and its how the title, vehicle Wilkes-Barre bank appli- title and what that bank did obtained with the says title Horwatt cation envelope was in a sealed mailing ready for Motor Bureau of Vehicles. *9 de- insurer of

The Millville bank was not an purchaser protect the fendant’s vehicle. It need not illegal seizure as a result of loss the vehicle by under than one other On the other hand, dealer. supra, Mill- the Motor Vehicle Sales Finance Act, payment duty, note, a ville bank had to free and deliver the certificate title to maker clear of its encumbrance. It been, or should have was, requirement familiar with this Act the Finance it should have seen that received the certificate of title with its encumbrance thereon Bu- noted from the neglect reau Motor Vehicles. Its a to do over period of months enabled the bank to Wilkes-Barre get possession presumably of the untitled vehicle, thereby to obtain a certificate of title for it.

The Motor Vehicle Sales Finance Act intended was protect purchasers installment of motor vehicles; was not intended to agents establish a medium for participate employes of dealers immunity a with dealer’s scheme double finance vehicles. apparent pre-

As a result the dealer’s fraud and insolvency, people sumed one of three with whom question dealt in connection vehicle in must It properly loss. cannot be suffer determined one should suffer the opening judg- loss without ascertaining all the applying ment, facts and then law.

Order affirmed. Dissenting Opinion J.: Montgomery, Appellant’s judgment against appellee opened court on alleged the lower the basis that the facts open supported petition to testimony depositions showed taken against plaintiff’s good defense claim. I fail to see Appellee’s petition presence such defense. *10 proposition open appears entirely to based the appellee deprived of a to that was certificate of title pre- Wesley, the motor vehicle involved because C. D. Wesley sumably Company, Inc., the owner of the Auto ap- envelope containing an removed the mail his plication for his certificate as well to as his check Although alleges petition the fee for same. the cover Wesley Company, Auto that the de- further never Inc., possession of the automobile to him or in- livered ever allegation contrary do this to the facts tended to so, posses- depositions, by which that show established appellee the automobile was delivered to sion of for several car months. that he used Therefore, question only that in the case is which relates procurement of of certificate title. appear alleged Appellee, as an facts follows: Company, (sales manager)

employee Wesley of Auto bought (hereinafter Wesley), new to as referred a Inc. wagon employer pay- Mercury from his station and in purchase agree- executed an installment ment thereof judgment note a both of attached, ment January January 1958, 1958; on 28, 30, dated were appellant (hereinafter assigned they referred were Millville) purchase money advanced appellee possession Wesley; paid of same to took immediately it for several used automobile Wesley returning April, it to for the 1958, months, repaired; Wesley’s having it purpose while it was in purpose, by Wyoming it was seized Na- hands on Wilkes-Barre Bank under tional arrangement floor-plan that had at existed appellee purchase; ap- had made his the time application sign pellee an for a certificate did purchased the did time he automobile but at title February on month later, one 21, 1958; about so application Department Form of Revenue made on No. RVT-1 in favor and showed the encumbrance application for some Millville; reason, however, placed although it was never had been mailed, envelope Ve- addressed the Bureau of Motor sealed Wyo- representative hicles; was found ming Bank in another automobile seized from appellee’s automo- the bank at same time that operated his vehicle bile was seized had it; plates Wesley until he the dealer returned it April repairs; payments he made no on account purchase agreement no and he note; made inquiry about his after title; however, the vehicle *11 judgment had and after the on been seized the note against been entered which occurred on him, 29, July money he tendered on order 1958, 14, 1958, for the full amount of de- Millville its his of the return of certificate free manded title of having but not Millville, received encumbrance, of could not return it him con- title, certificate appellee payment; sequently his tender withdrew of appellee Wesley any on has demand made no at time of his vehicle which it left for the return had with repairs. for responsible for the con

The one situation which Wesley Company, is the Auto fronts us which Inc., Wyoming the amount remit to of claim failed to its floor-plan arrangement vehicle on the regardless knowledge appellee. of However, his sold appellee pur Wyoming’s if were a bona of fide claim, inventory bought this motor vehicle from who chaser regular of course his title to same business, in the any Wyoming. good claim of Sec and free would 1953, Commercial the Uniform Code of tion 9-307 (12A §9-307) April was P. L. 3 section 6, by v. fully Weisel 191 Court McBride, discussed 594 Superior

Pa. Ct. 156 A. 2d 613. It con- 411, is not Wyoming’s tended that lien reattached to vehicle repairs way Wesley after its return to for and I no see that such a contention could be time sustained. At the repairs, good returned his car for title he had thereto since it was not returned and, for resale inventory purposes Wyo- or to reestablish it under floor-plan ming’s appellee’s good arrangement, title would be unaffected his return of the vehicle purposes repairs, Wyoming’s itof seizure was unlawful. This is not a between as situation, Wyoming appellee, whereby permits one an- who personal possession other property to retain appearance ownership responsible is held as party possessor an innocent who deals wih the though dealings Wyoming he were All owner. prior connection with this car were re- repairs. Wyoming turn of same to prejudiced or misled in fashion return Wesley. the car to to a motor

Good title without vehicle be had the certificate issued the Bureau of Vehicles. Motor Speck Inc. v. Cadillac-Olds, 373 Pa. Goodman, 83, Corporation Banking Draper, A. Automobile 2d 191; v. Superior Weigelt Pa. A. Ct. 441; v. Fac Superior Corp., tors Credit 174 Pa. 2d Ct. 101 A. *12 deprived per one cannot 404. And be of his title to property by illegal sonal the act of another. The mere possession legally loss of whether il vehicle, good appellant’s legally, not would be defense to possession judgment. something The loss of was assignment agree the of occurred after the installment appellant; regardless to ment and note whether of and, subject equities existing instruments the to it holds be parties assignment at the time of the the of same tween question (which answered), not need be it would not

595 equities no subject arising after them be between to Philips assignment maker. the tice of the was had McCloskey, Ertel Pa. v. 394; v. Bank Lewistown, of Appellee Superior in 74 A. 652. 2d Pa. Ct. 120, assignment, notice of the since this case had immediate arrangements. participated the possession title and are Since the matter of appellee in this we must available as defenses matter, question original the of or not return to the whether Wesley Company, D. alleged Auto or C. act of Inc., application removing for title from appellant depriving mail sufficient reason for appellee. now holds At application it must noted that this for cer- outset, tificate of title was not made until one month after assigned installment contract and the note had been if there Millville. was fraud or ille- Therefore, representatives, gal part Wesley act on and its assignment something that it was occurred after the responsible and Millville not be held would for it. Fur- appellee asserting relies on sec- defense, ther, the Motor Vehicle Sales tion 30 of Finance June Act of (69 §630) requires P. L. 28, 1947, showing inter return certificate of of, alia, title, payment encumbrance satisfaction full July He asserts that on same. he tendered 14, money payment order the full Millville, judgment and demanded the return of certificate papers relating of title other and that their the automobile return was This refused. gesture and an a futile insufficient reason for judgment. opening In place, the first that no certificate of title had ever knew been issued application his had never and that been He mailed. at about of this Wyoming advised time was possession took his on or vehicle, about 8, 1958, *13 representative Duffy, Wyoming, Mr. showed who envelope containing him the RVT-1 form he signed. nothing, did either Nevertheless, securing mailing previous- that form which he had ly signed by preparing or RVT-1 form for trans- new Although mittal been Bureau. it not have power possession original within his to secure Duffy, power certainly it Mr. within was his complete registra- secure a new RVT-1 form and tion of his motor vehicle. In addition to knew he this, purchased for at least one month after he had ve- applied hicle that he had not he for title and that operated plates. had at all times on the dealer’s complain It is too late to now about failure Millville’s through to return title neglect when it was his or procured. inaction that it was not I think unneces- it sary mailing, responsibility discuss matter of for Wesley’s duty because it whether was or to mail it appellee delegated Wesley agent whether mail his previously hap- it is As immaterial. this all stated, pened rights after the of Millville arose therefore responsibility neglect should not bear for or misdeed in connection therewith. good appel- why there is another

However, reason lee’s demand for return of the title certificate good opening judgment. not a reason of this Although pay- he claims to have been unaware that his ments to Millville his were he is default, bound provided agreement pay- monthly note, commencing February ments 1958. The 28, pay- until not entered was when his delinquent. months ments were four If he was unaware payments thought they that he to make by Wesley, major partici- made he to be then is a were perpetrated pant that was in the fraud on Millville regardless, Wyoming. However, defense as- *14 present judgment serts entered. was not wlien payment At tendered that time no or had been made justified judgment. entry and his default judgment appellee Although seeks to have the opened, really the defense that he asserts is one judg payment. Payment or of a tender satisfaction pro opening ment not sufficient reason for The is it. payment cedure to is tendered and refused follow when Pro petition pay money is to the court judgment thonotary satisfied of the court and have the if much an issue to determine how have awarded anything Pa. is due. Anderson v. still Best, Superior Olekszyk Ct. 92 Pa. 35 A. v. 194; Walelko, Superior Pa. 285. Brader v. Ct. 565; Alinikoff, presented here does not call for The situation judgment opening circumstances but under awarding of an issue as aforesaid. On at most for the tendering point further stated this be recognized appellee validity payment has legality entry judgment its as to the and as both entered. of its amount when the correctness foregoing has discussion been based purchaser regular in premise awas good regular ventory course of business and in the collusion he was not and was faith. If of either car the detriment double-finance Wyoming then the should not or Millville, person party opened reason. When a that further requires found. that he be left where the law to fraud, party equity lend its aid to relieve a will not A court Ap consequences his own fraud. Kunkle’s from the Supe Brady Laskowsky, 90 Pa. v. peals, 368; Pa. 370. rior Ct. foregoing I dissent from ma- reasons,

For the and would reverse lower opinion case in this jority judgment. opening the order court’s notes the use repealed by the provision not be should field. Such stat- without Furthermore of this Article. enactment utory law indications in the case aid there are question holder-in-due- beginning are courts companies regularly banks finance course status of paper.” The discounting consumer chattel a dealer’s §9-206 Pennsylvania Bar Association notes