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PELLEGRINE v. HOME INSURANCE COMPANY (12/12/62)

December 12, 1962

PELLEGRINE
v.
HOME INSURANCE COMPANY, APPELLANT.



Appeal, No. 248, April T., 1962, from order of Court of Common Pleas of Washington County, May T., 1961, No. 214, in case of A. Dewey Pellegrine v. The Home Insurance Company. Order reversed.

COUNSEL

Charles C. Sweet, for appellant.

Sanford S. Finder, for appellee.

Before Rhodes, P. J., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).

Author: Ervin

[ 200 Pa. Super. Page 49]

OPINION BY ERVIN, J.

On May 19, 1961, the plaintiff, A. Dewey Pellegrine, filed a complaint against the defendant, The

[ 200 Pa. Super. Page 50]

Home Insurance Company, seeking to recover from the defendant its share of a fire loss which occurred to the motion picture theater building of the plaintiff in Roscoe, Pennsylvania, under a policy of fire insurance issued by the defendant to the plaintiff. In that complaint it is alleged that the fire loss occurred on June 18, 1960. On July 13, 1961 the defendant filed its answer in which the date of the fire loss was admitted, but disputed the amount of damage claimed.

On September 23, 1961, without leave of court or agreement of the plaintiff or his counsel, the defendant filed an amended answer, averring that the fire loss took place on May 18, 1960, instead of June 18th, as set forth in the plaintiff's complaint. In its amended answer the defendant also set up a defense that the plaintiff had failed to file his suit within the one-year limitation of the policy.

On October 26, 1961 plaintiff filed a motion to strike the amended answer. On November 3, 1961 defendant filed an application for leave to file an amended answer and new matter nunc pro tunc. Argument on both matters was heard January 30, 1962. On April 19, 1962 the court below filed an opinion and order granting plaintiff's motion to strike. No disposition was made of defendant's application to amend its answer and new matter nunc pro tunc. On April 24, 1962 a petition for reargument was presented by defendant, asking for disposition of its application for amendment nunc pro tunc. On July 11, 1962 the court below refused reargument and did not dispose of defendant's application for amendment nunc pro tunc. The defendant then appealed. The plaintiff, on November 5, 1962, filed a motion to quash the appeal on the ground that the orders appealed from were interlocutory. We will first dispose of this motion.

It is true that the appellate courts of this Commonwealth have said many times that ...


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