Appeal, No. 51, Oct. T., 1960, from judgment of Municipal Court of Philadelphia County, Nov. T., 1958, No. 1438, in case of Benjamin E. Sattler v. Philadelphia Title Insurance Company. Judgment affirmed.
Wesley H. Caldwell, with him Roper & Caldwell, for appellant.
Herman H. Greenberg, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 192 Pa. Super. Page 338]
We are here concerned with an action in assumpsit for breach of a policy of title insurance. The case was tried before Honorable EMANUEL W. BELOFF without a jury. Plaintiff claimed damages in amount of $3,500.00, which was the policy limit. The trial judge found that there had been a breach of the policy, but assessed only nominal damages in amount of six cents. Plaintiff's motions for judgment n.o.v. and for a new trial were subsequently dismissed. This appeal followed. We then remitted the record for the entry of judgment.
On September 3, 1941, Florence Plawa Adams purchased from Hyman Hoffman premises situate at 825 North Marshall Street in the City of Philadelphia. On December 28, 1955, Florence Plawa Adams Zaronka and Alexander J. Zaronka, her then husband, conveyed the premises to Benjamin E. Sattler for the purchase price of $3,500.00 On January 11, 1956, the Philadelphia Title Insurance Company, hereinafter referred to as the Company, issued and delivered to Sattler its Title Insurance Policy No. 104985 in the sum of $3,500.00, which policy recited that, in consideration of the premium paid, the Company "does hereby insure... that the title of the Assured to the estate, mortgage or interest described in Schedule A hereto annexed, is good and marketable, and clear of all liens and encumbrances charging the same at the date of this Policy; saving such estates, defects, objections, liens, and encumbrances as may be set forth in Schedule B... and any loss shall be payable upon compliance by the Assured
[ 192 Pa. Super. Page 339]
with the conditions hereto attached and not otherwise". Policy conditions 2 and 9 are set forth in the footnote.*fn1
The record discloses that, on the date the policy was issued, there were two alleged encumbrances which were not excepted in Schedule B. One arose by virtue of a judgment entered on April 1, 1938, by William Lipshutz against Anthony Plawa, father of Florence Adams. This judgment was revived by a series of writs of scire facias issued against Plawa prior to his death on March 8, 1945. On December 19, 1946, a scire facias was issued wherein Florence Adams was named as a terre-tenant tenant, and judgment was entered thereon on January 24, 1947. This judgment was revived by a writ of scire facias issued January 21, 1952, again naming Florence Adams as terre tenant. On April 10, 1952, judgment was entered thereon. On April 10, 1956, damages were assessed on this judgment in the sum of $11,944.44. On the same date, a writ of fieri facias was issued by virtue of which the sheriff advertised the
[ 192 Pa. Super. Page 340]
premises at 825 North Marshall Street for sale. At the instance of the Company, this sale was stayed by order of court. It is unnecessary to detail the subsequent proceedings, including an abortive motion to strike,*fn2 other than to note that, on April 1, 1959, the purported lien ...