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POSTERNACK v. AMERICAN CASUALTY COMPANY READING (03/22/66)

decided: March 22, 1966.

POSTERNACK
v.
AMERICAN CASUALTY COMPANY OF READING, APPELLANT



Appeal from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1960, No. 4303, in case of Samuel Posternack v. American Casualty Company of Reading.

COUNSEL

Jan E. Du Bois, with him Joseph V. Pinto, and White & Williams, for appellant.

Gary Leedes, with him Harold E. Kohn, and Dilworth, Paxson, Kalish, Kohn & Dilks, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen concurs in the result.

Author: Eagen

[ 421 Pa. Page 22]

The plaintiff, in this assumpsit action, owned a building in which he operated a retail furniture store. On January 27, 1960, the premises were destroyed by fire. Plaintiff claimed to be insured against fire loss by four policies of insurance, two of which were allegedly issued on January 20, 1960, by the American Insurance Company of New Jersey (American), and

[ 421 Pa. Page 23]

    two issued on the same date by the defendant, American Casualty Company of Reading (Reading). When these loss claims were refused, suit was instituted against American in the Federal District Court for the Eastern District of Pennsylvania, and the instant separate action was brought against Reading in the Court of Common Pleas of Philadelphia.

Both American and Reading interposed similar defenses to the actions in their answers to the complaints. Both denied issuing the policies involved and alleged, inter alia, that they were written and countersigned by one Jack J. Perrin, as broker for James N. Lutz, a common agent for both insurance companies; that Perrin was not a licensed broker at the time, nor was he authorized to act or issue any policies on behalf of either company. It was also alleged that the policies were obtained by Perrin through fraudulent misrepresentations and were actually issued subsequent to the date of the fire.

The action against American came to trial first and resulted in a verdict and final judgment in favor of American. Subsequently, Reading filed a petition in the court below requesting leave to amend its answer to the complaint, pleading the verdict and judgment in the federal court case against American as res judicata, estoppel by judgment or collateral estoppel to the present action. When leave to so amend was denied, this appeal followed.

The plaintiff filed a motion to quash the appeal on the ground that the order appealed from is interlocutory. On this question, our language in the recent decision of Adcox v. Pa. Mfgrs.' Assn. Cas. Ins. Co., 419 Pa. 170, 213 A.2d 366 (1965) is apposite. See, also, Pellegrine v. Home Ins. Co., 200 Pa. Superior Ct. 48, 186 A.2d 662 (1962). The order is not interlocutory, and the motion to quash will be overruled. The new defense proposed is affirmative in nature and must be

[ 421 Pa. Page 24]

    pleaded, otherwise it is waived. See, Pa. R. C. P. 1030, 1032, and Lang v. Recht, 171 Pa. Superior Ct. 605, 91 A.2d 313 (1952). The order involved effectively precludes proof at trial of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order ...


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