*1 lower parties court the record and establish clarify the exact status of the case.

Quashed.

378 A.2d 943 WORLD, INC., Wolfe, Appellees, HIS James and John

v. M., INC., Montemurro, Montemurro, Joseph Shy CLETO Nick

Margolis and Edward Oach. J. M., Appeal Joseph of CLETO INC. and Montemurro. Superior Pennsylvania. Court of 11,

Argued Nov. 1976.

Decided Oct. 1977.

Peter J. King, Pittsburgh, for appellants. Somerton, Somerton,

Robert H. with him Zupancic & Pittsburgh, for appellees. *3 JACOBS, WATKINS, Judge,

Before President and HOFFMAN, CERCONE, PRICE, VAN der and VOORT SPAETH, JJ. VOORT,Judge:

VAN der trespass in an action of judgment from a This is an appeal a distraint wrongful an alleged from arising for damages for against appellants been entered has landlord. Judgment awarding appellees verdict of a jury on the basis $5,000 in punitive and $45,000 in compensatory Monte- Joseph landlord appellant The denied damages. James against appellee a counterclaim recovery murro a In the lease. of the term of the balance rental for for Gregg a judgment have been denied hearings, appellants post-trial remittitur of any requested a v., trial and n. o. a new $10,000. of in excess judgment entered Montemurro 1970, Joseph 1, appellant July

On Gregg James appellee lease with into a three year Morningside Street known as 1801 were divided leased premises Pittsburgh. district of into front and back with a separate rooms outside entrance to each. Appellees Wolfe, Gregg operating James John in Inc., of World, name His a Pennsylvania corporation which owned, maintained a salon in men’s hair front room where wigs. sold men’s hair pieces maintained women’s Operating partnership, rear known as Coiffures in the room of beauty shop the premises.

At approximately October, end first week in 1971, ceased doing business at the leased premises on Yancey Street and closed and locked the with- out notice or explanation Joseph Montemurro, the land- lord. operated James who women’s Gregg, parlor on the with of premises, arranged such his women clients as willing to do so transfer their patronage him at a Marcello on beauty parlor operated by Gregory North district Craig Pittsburgh. Oakland Marcello’s known as beauty parlor was Gregory’s October, 1971, month of During the succeeded Gregg forty his women transferring approximately percent clients to where served them as a Gregg to his new beautician. Additional clients followed location in succeeding weeks.

In October, the latter part there came to Monte- murro’s attention two ads in the “East Liberty Gazette”. One read as follows:

“Mr. *4 Heights Stanton One of Pittsburgh’s Finest Hairstylists Would Like to Invite All His Customers

and Friends to His New Location

Gregory’s Coiffures Craig North 214 Street —Phone: 682-1191” The other ad read: Kopf

“Russell Hair Fashions Staff, including Announces that the the manicurist from Heights Morningside of Stanton & working are at the Shop Penn Ave. in the Penn Plaza Penn Circle —5704 Penn Ave. 661-3550” rented There was on the front window of the posted also World, reached at a premises a notice that His Inc. could be number room in the or at a Bigelow Apartments telephone stated the notice. abandoned the

Montemurro concluded that his tenant had approx- on the premises property Street. He visited latter during times in business hours the imately twenty November, 1971, early days of October and part and no one on on each locked premises occasion found to him given No property. explanation during was closed and locked as to anyone why property business hours.

Paragraph of the lease provided: “If closed, time lessor premises be deserted or enter may force without or liability prosecution action therefore re-let distrain for rent and also may the premises as of the tenant for agent any unexpired portion of the term and receive the rent therefore and it apply on this lease.”

Proceeding on the the leasehold had been premise deserted, closed and Montemurro levied a landlord’s distraint on the personal property premises within leased 3, 1971, November and constable’s sale of property 30, 1971, held on November at which time Montemurro bought property upon levied for $675. levied consisted almost property entirely The landlord

beauty parlor equipment. kept months in the place hope on the for several with him for Monte- negotiate repurchase. its murro then sold such of the as was salable for equipment $1,000 to a third who it to party open beauty parlor used at a new location.

Shy Margolis and Oách, Edward J. the constables involved sale, distraint and were named as defendants in the litigation which followed. Margolis was served with process but has left the jurisdiction; and a non-suit was entered as to Oach at the conclusion of the appellees’ case in the court below.

At the direction of one of constables, the landlord’s distraint was levied in the M., name of Cleto Inc. landlord, as this being a family holding company of Joseph Montemurro brother, his Nick Montemurro, with which the constable had had previous experience and erroneously assumed to be the landlord. While this was plainly erroneous, it has no relevance to the amount of damage suffered by the appel- lees. Nick Montemurro, the brother of the landlord, was joined aas party defendant because of his involvement as an officer M., Inc.; and shareholder of Cleto but a non-suit was granted as to him at the conclusion of the appellees’ case in the court below.

It is the position appellees that not they had abandoned the premises was, leased and that the distraint therefore, unlawful. Rent was not otherwise in arrears. It was the testimony appellees Gregg and Wolfe that their abandonment of operations of the premises leased was in- tended to be until temporary such time could sell their women’s trade to Gregory’s Coiffures and re- model the leased so that the front room would be suitable as a salon sale of men’s wigs and hair pieces and the rear room subdivided into small offices or cubicles as an aid to the of men’s wholesaling wigs and hair pieces. envisioned, Under the these plan offices or cubicles would be rented to different barbers who would sell or wigs hair pieces at retail to their them the clients bringing office to them at the leased where assigned premises, to the client hair or from the stock display pieces wigs and Wolfe would maintain on the If a premises. made, the hair whole- buy piece sale were the barber would sale from and Wolfe and sell it retail to his client. into this go leased The renovation the written consent of land- wholesale required lease; but Montemurro neither lord the terms *6 asked, Gregg resting his consent told of these nor was plans when an earlier altera- of Montemurro’s statement what did with he didn’t care tion had made that been also paid. Gregg’s plan rent was long so as the property clients to Gregory’s his women he transfer required that to be the $6,500 which was of payment for wholesaling into of the business to capital put of the including the alteration and hair pieces, men’s wigs possible. this business required make leased material- never Gregg’s beauty parlor sale This of ized. sale of the distraint and constable’s

Montemurro’s defense the tenant. is that were deserted and closed by the premises this was a situation appellees’ position temporary It is that them to start aup to enable alterations pending property has verdict determined jury’s new wholesale business. It also has the appellees. this fact in favor of the issue of 313 of of to Section subjecting appellants legal consequence 250.313, Act 68 of P.S. § the Landlord Tenants provides: which shall personal property

“In and sale of case distress person is due to the rent when no rent be made for name the distress has or to the whose distraining person shall, taken, then personal property the owner distrain- trespass brought against person action of so personal property double the value of the ing, recover sold, with costs suit.” together distrained in the circum The rationale for double lies to a bona stance that when Montemurro resold value, deprived Gregg opportu fide purchaser to recover the Brunswick nity replevin property: sue in Inc., 15, 19, 244 431 Pa. A.2d Corporation Key Enterprises, v. that he had no use for testified (1968). Actually Gregg have sold it in the this and would parlor equipment However, in his possession. market had it remained doubling of damages is mandatory by the terms of the statute.

Appellees Gregg and Wolfe also claimed in dam- ages because of their failure complete transfer of their beauty shop clientele to It is testimony an understanding existed with Greg- ory Marcello that he pay Gregg and Wolfe this sum after the transfer completed, although Marcello testi- fied that it was his understanding this would be re- duced to a written after it contract was determined how much Gregg’s trade be could No such transferred. writ- ten contract materialized.

The understanding contemplated that was to move over to Gregory’s Coiffures and care for his clients’ needs at that location for a month or more while his clients became with acquainted other operators Gregory’s. Contrary to *7 schedule, this time worked three a Gregg days week at Gregory’s Coiffures for a approximately year and received the normal beautician’s commissions for his efforts.

Marcello conceded that and held obtained of customers but patronage Gregg’s explained Gregg received commissions for work in lieu approximately year’s of no other We find be payment. convincing relationship $6,500 tween the fact that Marcello did not pay Gregg and on the at the leased beauty parlor property premis levy any property es. There is no claim that levied upon been Gregory’s Gregg was to have sold to testi had to continue to work at fied that he Coiffures himself; in order but this circumstance would support unrelated to the constable’s sale of the appear be If on the leased he had an parlor equipment premises. if with and honored the com agreement Gregory, Gregory clientele mitment, he could have taken for his and either any explanation given by worked elsewhere. Nor is at Gregg’s presence Gregory’s or Marcello as to Gregg why have of a few should Coiffures for instead months year through. to fall It would sale of the clientele caused the between the understanding parties appear concluded ultimately that it was carried out and never at working Grego- while commissions Gregg’s Marcello that for the transfer adequate compensation ry’s the sale event, no evidence that there is of his trade. In at Street. Yancey landlord’s distraint failed because of allowed to not have been should Consequently damages. computation in its include this claim based on claim a third make Appellees made in the retail have allegedly which would profits Wolfe and wigs men’s hair pieces sale of the distraint after that business carry been able at profit this lost estimated 1972. calendar through on an estimated $25,312.50,both based $21,500and Wolfe or wigs of men’s number of sales on an estimated unit profit the distraint evidence that However, there is no hair pieces. business. piece and hair wig out of the retail kept appellees in the front a retail business on such had carried They October, 1971, until storeroom of the remodeling appropriate it for a closed voluntarily when they and a wholesale front room to a retail about nothing unique There was room. business in the rear wide and 30 and 18 feet room, storerooms being either both distraint, landlord’s After the deep, respectively. 38 feet wholesale retail and a combined have opened could city. available in the fronts number of store business in any to the to devote themselves fact, chose In point business, supplemented piece and hair wig wholesale year throughout employment three a week day *8 making gross in succeeded They at Gregory’s was business which their wholesale from income in in 1971while they had earned than greater 50% a hair at earnings stylist Gregg’s retail business. fair to assume are not shown. It seems their time the remainder of Wolfe devoted Gregg and hair pieces in men’s wigs to the wholesale to do so than to for them profitable it was more because But whatever the with a retail business. divide their efforts it has no of the retail business reason for out staying discernible relationship to the landlord’s distraint on the Yancey property. jury should not have been permitted to base an award of on damages estimated profits in a business from which had October, withdrawn in 1971, and from which the appellants in no way precluded them from reentering.

Finally, charged they might award punitive if found that appellants acted vindictively or in bad faith. We find no evidence that appellants had so acted. Montemurro made twenty trips the leased property during business hours to confirm the fact had, fact, that the leasehold been closed and appar- abandoned and ently he waited a month nearly acting before upon that premise. His fears that the tenant had aban- doned property appeared to be confirmed from the ads in the “East Liberty Gazette” that his tenant was doing now business on and that Craig Street tenant’s employees had been rehired another beauty parlor. He authorized the postponement of the constable’s sale from November 15 to November 30 at the request of counsel for the appellees. After he purchased sale, at the constable’s he it on the two kept premises for months before it in reselling order to a chance to give appellees negotiate for its repur- chase.

This to be an litigation appear outgrowth poor communication rather than malice. Neither party made with the other from the time the effort to communicate October, 1971, proper- were closed in until the early party early levied was resold to a third ty months of 1972. Montemurro could have called him in at person Grego- or visited telephone anytime after the of his Coiffures on advertisement ry’s Craig Street He in the “East Gazette”. Liberty there presence appeared so, his own investi- relying upon repeated elected not to do confirmed property, as to the abandonment of gation employees. relocation of advertised he have might in touch with learned got Gregg, Had *9 reopen remodel and to Gregg’s plans premises. that appellees

It is unfortunate equally Montemurro in touch with no effort to get Wolfe made October, in locked the when closed and were otherwise totally which plans their they explained gone along well have might unknown to Montemurro Montemurro’s more because surprising with them. It is any remodeling written consent was to necessary their appellee explained plans Had either property. well have time of the distraint it could Montemurro at the off. How the constable’s sale called abandoned and been committed to ever, litigation that time was made to that no later effort so preferable negotiation misunderstanding. clear what to have been a up appears to award jury punitive We find no basis for permitting in the fact that the statutory view of damages, particularly is itself nature. damages punitive of double remedy permitted In should have summary, jury award based on double the value of the personal distrained, more. Witnesses for the nothing but on the an itemized valuation appellees placed and while this property, appellants challenged figure no testimony support cross examination offered value. entitled to Consequently, different dispositive valuation. This is of appel- accept appellees’ have been a com- granted lants’ should argument verdict. non-suit or a directed pulsory of a filing by appellees is affirmed judgment trial $22,252; over otherwise a new remittitur of the excess is granted.

PRICE, J., a dissenting opinion. files PRICE, dissenting: Judge,

I would affirm judgment it to be believing proper under law and the evidence. supported by