J-S44031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALFRED N. WHEELER AND NICOLE                     IN THE SUPERIOR COURT OF
WHEELER, HIS WIFE                                      PENNSYLVANIA

                            Appellee

                       v.

MON VALLEY SPEED BOAT CLUB, INC., A
PENNSYLVANIA BUSINESS
CORPORATION

                            Appellant                 No. 107 WDA 2015


              Appeal from the Order Entered December 18, 2014
              In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): AR-13-3504


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 30, 2015

       Mon Valley Speed Boat Club, Inc. (Boat Club/Club) appeals from the

trial court’s order entering judgment in the amount of $15,000 in favor of

Appellees, Alfred N. Wheeler and Nicole Wheeler (the Wheelers).           After

careful review, we affirm.

       From 2009 to 2012, the Wheelers docked their 28-foot boat at the

Boat Club’s marina, located on the Monongahela River in McKeesport.

When the Boat Club refused to return the Wheelers’ property,1 the Wheelers

filed the instant replevin action against the Boat Club seeking return of their
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1
  The contents of the boat (“property”), which according to the Wheelers
included a CD player, coolers, life jackets, a tool box, fishing poles and a
switch box, as well as the boat’s trailer, were also located at the Boat Club.
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property or, in the alternative, reimbursement for the value of their

unreturned property. In their complaint, the Wheelers averred that “[o]n or

before September 12, 2012, the[ir] boat was docked at the Marina . . . and

[they] paid the dockage fees [and that] on or before April 23, 2013, [the

Boat Club] took and unlawfully converted [their personal property] to its

own use and benefit.”          Wheeler Complaint, 8/13/13, at ¶¶ 11-12.     The

Wheelers’ complaint also sought punitive damages for the Boat Club’s “willful

and malicious acts.” Id. at ¶ 16.      The Wheelers attached a copy of the title

and purchase agreement for the boat to their complaint. See id. at Exhibits

“A” and “B.”

      On October 22, 2013, the Wheelers appeared before an arbitration

panel; the Boat Club failed to appear.         Ultimately, the panel entered an

award in favor of the Wheelers in the amount of $35,000. On November 13,

2013, the Boat Club appealed the arbitration award.

      On December         11, 2013, the       Boat Club filed an answer     and

counterclaim to the Wheelers’ complaint asserting that the Wheelers failed to

pay dockage fees from the summer of 2009 until 2013, that $9,369 in

unpaid fees were owed to the Boat Club, and that because of the

outstanding dockage fees, the Boat Club had a lien on the Wheelers’ boat

and   was      entitled   to    maintain   possession   of   it.    Boat   Club

Answer/Counterclaim, 12/11/13, at ¶ 7. On January 3, 2014, the Wheelers

filed preliminary objections stating that because the Boat Club failed to




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attach any boat dockage             contract,    pursuant to   Pa.R.C.P. 1019, its

counterclaim should be dismissed.

       On July 17, 2014, a non-jury trial was held in the matter. On July 18,

2014, the court entered a verdict, in the amount of $15,000, in favor of the

Wheelers and against the Boat Club on its counterclaim. The Boat Club filed

post-trial motions that were denied, after argument, by the trial court. This

timely appeal followed.2

       On appeal, the Boat Club presents the following issues for our

consideration:

       (1)    Whether or not the trial court erred in not granting a new
              trial on granting a money judgment when the plaintiff was
              asking [for] replevin.

       (2)    Whether or not the court erred in not permitting Defendant
              to cross examine Alfred Wheeler on Nicole Wheeler[s’]
              deposition testimony.

       (3)    Whether or not the trial court erred in not granting a new
              trial after post trial evidence showed that the Plaintiffs lied
              under oath.

       Historically,

       Replevin is an action undertaken to regain possession of goods
       and chattels and to recover damages for their caption and
       detention, by the illegal act of the defendant. In order to
       maintain replevin, the plaintiff must have a general or special
       property right in the thing taken or detained. The common law
       view was that replevin lay only for goods wrongfully distrained,
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2
    On February 19, 2015, judgment was entered on the verdict. See
Pa.R.A.P. 905 (a)(5) (notice of appeal filed after announcement of
determination but before entry of appealable order shall be treated as final
after such entry and on day thereof).



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     which, of course, presupposed a prior possession by plaintiff.
     The modern rule is, however, that one may maintain replevin if
     he has the right of possession irrespective of whether or not he
     has ever had actual possession. In order to sustain replevin, it is
     incumbent on the plaintiff to show not only that he has title, but
     that he has also the right of immediate possession.

International Electronics Co. v. N.S.T. Metal Products Co., 88 A.2d 40,

42-43 (Pa. 1952) (citations omitted).

     While an action of replevin is founded upon a wrongful taking and

detention of property and seeks to recover property in the possession of

another, value of the property may be recovered where delivery of the

specific property cannot be obtained.   Commonwealth ex rel. Anderson

v. Fid. & Deposit Co., 811 A.2d 1040, 1042 (Pa. Super. 2002), citing

Valley Gypsum v. Pennsylvania State Police, 581 A.2d 707, 710 (Pa.

Cmwlth. 1990).     Recovery of the value of the detained property is a

secondary remedy in a replevin action.    Id.   See also Pa.R.C.P. 3170(b)

(Judgment/Enforcement in Replevin Action) (“If judgment is entered for a

party not in possession, that party may obtain possession of the

property by a writ of possession, or in the alternative may obtain the

value of the property by execution on the judgment or by recovery

upon the bond.”) (emphasis added).

     Instantly, the Wheelers’ complaint in replevin alternatively sought the

value of their property with interest to the date of trial.     See Wheeler

Complaint, 8/1/13, at ¶ 18.b. The Wheelers estimated the market value of

their property at $11,117.50 based on the purchase agreement attached to

their complaint. Because the trial court found that the Wheelers’ property

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was technically unusable as a result of lack of maintenance (“winterizing”) in

inclement weather, it determined that monetary recovery was appropriate.

We agree.

       Here, the trial court was authorized to award the Wheelers a money

judgment for the value of their property where:        the Wheelers made a

demand for reimbursement of the market value of their converted property

in their complaint; Rule 3170 permits a money judgment in a replevin

action; and, most importantly, the Wheelers could not have practicably

recovered their property. Cf. Commonwealth ex rel. v. Fid. & Deposit

Co., 811 A.2d 1040 (Pa. Super. 2002) (where trial court awarded appellees

money judgment, a secondary remedy in replevin actions, case remanded to

trial court to determine if primary remedy of recovering subject property was

impracticable).

       In its next issue on appeal, the Boat Club claims that the trial court

erred when it did not permit counsel to cross-examine Alfred Wheeler on

statements made by his wife, Nicole, in her deposition.3 Specifically, counsel

attempted to cross-examine Alfred with regard to statements that Nicole




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3
  Although the Boat Club argues in its brief that the trial court erred when it
did not permit counsel to cross-examine the Wheelers regarding the
discrepancies in each other’s deposition testimony, we have confined our
review to the issue stated above which was preserved in post-trial motions.
See Pa.R.A.P. 302(a).



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made about whether the couple had a checking account during the relevant

time that their boat was docked at the Boat Club.

      It is well established that:

      The decision as to the proper scope of cross-examination rests
      within the trial court's sound discretionary power, and its failure
      to properly limit it is not ground for reversal in the absence of
      apparent injury as a result of the error. The second rule is that
      “cross-examination may embrace any matter germane to the
      direct examination, qualifying or destroying it, or tending to
      develop facts which have been improperly suppressed or ignored
      by the plaintiff. . . . Where testimony has been adduced
      relevant to a particular issue involved, cross-examination may
      embrace any circumstances pertaining thereto, though
      prejudicial to plaintiff’s case and reaching beyond the direct
      testimony.

De Rose v. Metropolitan Life Ins. Co., 200 A. 888, 891-92 (Pa. Super.

1938) (citation omitted).

      Here, counsel had the following exchange with Alfred Wheeler on

cross-examination:

      Q:    You were there when your wife testified, weren’t you?

      A:    Yes.

      Q:    And you say that you didn’t pay because you don’t have a
            checking account?

      A:    We didn’t have a checking account.

      Q:    But you[r] wife claims she did have a checking account in her
            deposition?

N.T. Non-Jury Trial, 7/17/14, at 118. At this point in the line of questioning,

the Wheelers’ attorney objected on the basis of improper cross-examination.

Id. at 119. The court sustained the objection. Counsel, however, continued


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to question Alfred regarding whether, at the relevant time, the couple had a

checking account and whether he knew if his wife had her own separate

checking account. Id.

     The Boat Club argues that pursuant to Pa.R.C.P. 4020, counsel should

have been permitted to cross-examine Alfred regarding his wife’s alleged

inconsistent deposition testimony. We disagree.

     Pursuant to Rule 4020, “[a]ny deposition may be used by any party for

the purpose of contradicting or impeaching the testimony of a deponent as a

witness, or as permitted by the Pennsylvania Rules of Evidence.” Pa.R.C.P.

4020. Thus, the rule provides that Nicole’s deposition could have been used

to impeach her own testimony at trial or that Alfred’s deposition could have

been used to impeach his testimony; it does not permit Alfred to be cross-

examined with Nicole’s deposition testimony. Moreover, we find no abuse of

discretion in the trial court sustaining the objection where the Boat Club

could have pursued that line of questioning in the parties’ depositions taken

prior to trial, where the Boat Club failed to produce any record evidence to

put the issue of payment of dockage fees from a checking account into play

at trial, and where counsel further examined Alfred regarding the existence

of a personal checking account. De Rose, supra.




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       Finally, the Boat Club argues that the trial court erred in not granting a

new trial4 when it produced post-trial evidence showing that the Wheelers

lied under oath.       Specifically, the Boat Club claims that a new trial is

warranted because the Wheelers offered into evidence MoneyGram order

stubs to show that they paid rent to the Boat Club, when in actuality those

money orders were purchased to pay rent for a home occupied by the

Wheelers in Elizabeth, PA, and rent for an apartment located in McKeesport.

          [A]fter-discovered evidence, to justify a new trial, must have
       been discovered after the trial, be such that it could not have
       been obtained at the trial by reasonable diligence, must not be
       cumulative or merely impeach credibility, and must be such
       as would likely compel a different result. A court should not
       grant a new trial based on after-discovered evidence unless the
       proponent can convincingly show that he was unable to obtain
       such testimony for the trial by use of reasonable diligence.

Claudio v. Dean Mach. Co., 831 A.2d 140, 146 (Pa. 2003) (citations

omitted).

       On the day of trial, the Wheelers introduced three MoneyGram order

stubs as proof of rental payments made to the Boat Club on July 12, 2011,

July 20, 2011, and December 7, 2012. Handwritten on those receipts were

the words “Boat Club.”         Alfred Wheeler testified that these money orders


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4
 Our standard of review of the grant or denial of a motion for a new trial is
whether the trial court clearly and palpably abused its discretion or
committed an error of law that controlled the outcome of the case.
Stevenson v. Gen. Motors Corp., 521 A.2d 413, 422 (Pa. 1987).




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were used to pay dockage fees for their boat at the Boat Club, N.T. Non-Jury

Trial, 7/17/14, at 28-32, and that the handwritten notations on the money

order receipts were made to distinguish the dockage payments from

payments they made for their mortgage and gas. Id. at 32. Post-trial, Boat

Club counsel investigated the origin of these money orders using their

tracking numbers.5 The investigation revealed that the money orders were

actually used to pay rent for real property, a house and an apartment, and

not for fees for the Wheelers’ boat docked at the Boat Club.

       Instantly, the Boat Club argues that it is entitled to a new trial because

the post-trial discovery that the money orders were not, in fact, used to pay

the dockage fees constitutes “a fraud on both this Honorable Court and the

defense . . . [where] the Court relied on the truthfulness of Mr. and Mrs.

Wheeler; but, in fact, they lied under oath and perjured themselves about

the origins and uses of these money orders.” Appellant’s Brief, at 12. In

essence, the Boat Club wants to use the after-discovered evidence to

impeach the Wheelers’ credibility, especially in light of the fact that the trial

court placed little to no weight on the defense witnesses’ testimony, finding

several of its witnesses not credible, unable to recall events, and, simply,

unconvincing. Because a new trial is not warranted where after-discovered




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5
    Tracking numbers 203350028596, 203887895431, and 20292801404.



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evidence is being used to solely impeach the credibility of a witness,

Claudio, supra, the Boat Club is not entitled to relief on this claim.6

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




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6
   Moreover, because there was evidence, presented by both the Wheelers
and the Boat Club, that the Wheelers did pay some dockage fees while their
boat was docked at the Boat Club, the after-discovered evidence would not
likely result in a new verdict if a new trial were granted. Padillas, supra.




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