Argued: June 19, 2018
Plaintiff Rudolph Falciani's Action for Replevin. DENIED.
Douglas A. Shachtman, Esquire, The Shachtman Law Firm,
Attorney for Plaintiff.
Elizabeth V. Zinszer, Sherree J. Bedell, Stephen Zinszer, pro
L. Scott, Jr., Judge
case presents the question of whether a replevin action may
be maintained when the personal property is destroyed prior
to the commencement of the replevin action and hearing.
facts before the Court were established in a Hearing held
June 19, 2018. An oral contract for the sale of real estate
was entered between Plaintiff and Defendant Elizabeth
Zinszer. The contract was for the sale of property located in
Sussex County at 34282 Central Avenue, Frankford, Delaware.
The complaint and other documents filed with this action
incorrectly state the address as 35282 Central Avenue.
Evidence proffered by Defendants and accepted by Plaintiff is
that the correct address is 34282 Central Avenue. Plaintiff
made an initial down payment of $120, 000 on June 14, 2016.
Plaintiff and Defendant Elizabeth signed a receipt for this
payment. The receipt included a description of the property
the incorrect address for the property, "As Is house on
5 or - acres," and total price for the sale as $375,
000. This receipt reflected an outstanding balance of $255,
000. A second payment drawn from Plaintiff's then
girlfriend, Nancy Hendrix, in the amount of $68, 000 was made
on July 26, 2016. A second receipt signed by both parties was
created for this payment as well. The signed second receipt
is identical to the first with the exception of the indicated
total price for the home as $275, 000 and an outstanding
balance of $187, 000. A corrected receipt for this
transaction is unsigned and reflects an update to correct the
address of the property. No closing date was initially set
for the completion of the sale.
time after the initial deposit, Plaintiff was granted
permission by Defendant Stephen Zinszer to store a lawn mower
in one half of the garage of the home. Plaintiff proceeded to
move several items from his home in Pennsylvania to the
Sussex County property. Several trips with a pickup truck and
utility trailer and a container style moving "pod"
were employed to move items from Pennsylvania to the Central
Avenue home. Plaintiff also made changes to the home
including new flooring in several of the rooms of the home.
Plaintiff's personal property was placed in the home as
well as in the entire garage.
the relationship between the parties soured in May 2017
Defendants wrote two letters to Plaintiff. The first letter
dated May 15, 2017, demanded Plaintiff contact with
Defendants within 7 days, and gave 30 days to complete the
sale. The letter further stated if no contact was made
Defendants would take steps to resell the home, and asked
Plaintiff not to access the home until the issues could be
resolved. The Certified Mail receipt shows Nancy Hendrix
signed for this letter on May 17, 2017. A telephone
conversation took place between Nancy Hendrix and Defendants
on May 20, 2017. In response to this conversation, the May
25th letter also states Defendants considered the sale of the
property to have failed and demanded Plaintiff remove his
personal property from the home on or before June 12, 2017.
The letter claimed any personal property still on the
premises as of June 13 would be considered personal property
of Defendant Elizabeth Zinszer. The Certified Mail receipt
shows this letter was signed for by Nancy Hendrix on June 12.
Sometime after June 13 Defendants disposed of all of
Plaintiff's personal property located throughout the
Sussex County home.
for replevin trace their roots to the English common law
foundation of our judicial system. Wooley's provides
"The action [of replevin] originally lay for the
recovery of chattels taken as a distress, but by reason of
its convenience as a remedy for the prompt return of chattels
unlawfully taken or detained and its usefulness as a remedy
by which to try the tittle to goods and chattels so
unlawfully taken or detained, it has acquired a much more
actions are In Rem actions used "for the
purpose of obtaining possession of the specific property,
rather than compensation in damages for its
loss." The action of replevin is available to
anyone who claims ownership, or the right to immediate
possession of a chattel. The statutory procedure for the
issuance of a writ of replevin instructs that summons served
in an action for replevin "shall both contain a
provision instructing the defendant not to intentionally
destroy, damage, sell or secrete the item in
question[.]" The statute, however, does not speak to
the procedure to be followed when the property to be
replevied no longer exists. The Court has looked outside this
jurisdiction for applicable precedent. In Gildas v.
Crosby the Michigan Supreme Court reasoned "If the
[property] had been destroyed by fire, or any other cause,
before demand was made or suit brought, replevin would not
have been the proper remedy[.]" Furthermore the Court
reasoned "[t]he ...