Appeal, No. 312, Oct. T., 1954, from judgment of Court of Common Pleas of Northumberland County, Feb. T., 1950, No. 155, in case of The Guarantee Trust and Safe Deposit Company of Shamokin, Pa., Trustee, estate of Samuel Fetterolf, dec'd., v. Home Mutual Fire Insurance Company of Broome County, New York. Judgment affirmed.
Carl Rice, with him Witmer & Rice, for appellant.
W. Irvine Wiest, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
This is an appeal by defendant insurance company from the entry of judgment on the pleadings in favor of the plaintiff, trustee of the estate of Samuel Fetterolf, deceased, mortgagee, in an action in assumpsit based on the mortgagee clause contained in two policies
of fire insurance. This action was brought to recover the amount due under the mortgage from the defendant insurance company which had paid the insured mortgagors in satisfaction of a judgment obtained by them as the result of a prior action against the defendant to recover for loss sustained under the policies.
The facts disclosed by the pleadings reveal that on September 14, 1936, Frank Varano and Catherine, his wife, owners of the western half of a two and one-half story frame dwelling located at 926 Scott Street in the Borough of Kulpmont, executed and delivered to the trustee of the estate of Samuel Fetterolf, deceased, a mortgage covering their house and lot to secure the payment of $1,300.00 with interest at the rate of six per centum per annum. The property was insured from loss by fire under two policies of fire insurance totaling $2,900.00 issued by the defendant insurance company to which were attached the standard form of mortgagee clause in favor of the Samuel Fetterolf Estate. The terms and provisions of the printed mortgagee clauses, attached thereto and made part of the policies by the defendant, provide, inter alia, as follows: "Loss or damage, if any, under this policy, shall be payable to Samuel Fetterolf Estate. Address, Mt. Carmel, Penna. as First mortgagee (or trustee) as interest may appear. ..." Each of these policies also contained the following provision: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless the claimant shall show compliance with all the requirements of this policy, nor unless commenced within twelve (12) months next after the fire." On March 6, 1942, while the fire insurance policies were in force and effect, the property of the insured was destroyed by fire. On March 1, 1943, the owners of the insured
premises instituted an action in assumpsit against the defendant on the two policies of fire insurance. A judgment was entered on November 18, 1947 in favor of the owners of the property and against the defendant in this action in the sum of $1,500.00 with interest from June 6, 1942, which judgment was affirmed by this Court on January 14, 1949 on appeal. (See 164 Pa. Superior Ct. 228, 63 A.2d 97) On March 31, 1949, the defendant paid the amount due on the judgment, together with interest, in the total sum of $2,107.50 to John L. Pipa, Jr., Esq., attorney for the insured. No part of this payment was ever received by the mortgagee, the plaintiff in this action. On the date of payment of the amount due on the judgment there remained due on the mortgage the sum of $1,213.50 with interest from October 13, 1944.
The trustee-mortgagee instituted this action in assumpsit by filing a complaint on January 9, 1950. In its answer, the defendant, under the heading of "New Matter" asserted the following defenses: (1) the action of the plaintiff is barred by the Statute of Limitations because it was commenced more than six years after the cause of action arose; (2) the action of the plaintiff is barred by the limitation contained in the policy which bars any action unless ...