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GRUBER PERSONNEL SERVICE v. INDEMNITY INSURANCE COMPANY NORTH AMERICA (03/21/68)

decided: March 21, 1968.

GRUBER PERSONNEL SERVICE, INC.
v.
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, APPELLANT



Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, June T., 1961, No. 4081, in case of Gruber Personnel Service, Inc. v. Indemnity Insurance Company of North America.

COUNSEL

Richard W. Hopkins, with him White and Williams, for appellant.

G. Fred DiBona, for appellee.

Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 212 Pa. Super. Page 121]

Plaintiff corporation-appellee sued on a policy of insurance issued by defendant-appellant covering loss "or damage to valuable papers and records" on plaintiff's premises. This is an appeal by the defendant insurance company from a judgment entered against it for $9,000 on a finding by the trial judge without a jury, following dismissal of exceptions by the court en banc.

The question raised before us is whether the loss came within the clause in the policy which excludes "loss due to any dishonest, fraudulent or criminal act by . . . an officer . . ." of insured. More particularly the question is whether Herbert Marcus was an "officer" or merely an employe of plaintiff corporation when he resigned and fraudulently removed 3,000 application cards belonging to plaintiff. The court below ruled Marcus, who admittedly held the title of "vice-president" at the time of the loss, was merely an "honorary" vice-president and as such not within the exclusionary clause of the policy. In so ruling the court held that Marcus' duties as vice-president were no different from those as general manager.

[ 212 Pa. Super. Page 122]

There is no substantial dispute as to the facts. Plaintiff corporation, an employment agency acting through David Bitzer, president and sole stockholder, hired Marcus as a trainee and placement manager in November of 1955. Later, on November 22, 1955 Marcus was promoted to general manager with broad duties. The unanimous corporate resolution designating Marcus as vice-president, on December 15, 1955, was introduced into evidence. When Marcus resigned from the plaintiff corporation August 15, 1956, he fraudulently took 3,000 application cards of plaintiff and formed his own employment agency. Soon after Marcus absconded with the application cards the plaintiff corporation sued in equity and obtained an injunction preventing Marcus from competing with plaintiff, and also an order for an accounting.

In the present case defendant offered in evidence the testimony of Bitzer in the equity suit wherein Bitzer, as president and principal witness for plaintiff, repeatedly stated that Marcus was vice-president of plaintiff when Marcus absconded. Also, plaintiff's counsel offered in evidence here the findings and conclusions of the chancellor in plaintiff's equity suit showing Marcus acted as "vice-president" and general manager of plaintiff. In a counter suit by Marcus against the plaintiff corporation Mr. Bitzer also referred to Marcus as "vice-president and general manager in complete charge of the operation of the business" of plaintiff. In the present suit against the insurance company Mr. Collins, counsel for plaintiff and a director, testified that Marcus, and others, were given the title of vice-president "purely as a status symbol". While the equity action is not res adjudicata of the present case, Bitzer's testimony therein was relevant here as showing Marcus was in fact acting as vice-president and an officer of the corporation when the loss occurred.

[ 212 Pa. Super. Page 123]

Defendant denied liability under the policy on the ground that at the time of the theft Marcus was in fact and in law an officer of the corporation. We think the record shows Marcus, as vice-president, was an officer of the corporation; that the exclusionary clause in the policy applied and precluded liability in this case.

An insurance policy will be construed strongly against the company who prepared it and, in case of doubt, in favor of the insured. Great American Insurance Company v. State Farm Mutual Automobile Insurance Company, 412 Pa. 538, 194 A.2d 903 (1963). However, where the language of the policy is clear and unambiguous, it cannot be construed to mean otherwise than what it says and must be given the plain and ordinary meaning of the terms used. Topkis v. Rosenzweig, 333 Pa. 529, 5 A.2d 100 (1939); David v. National Union Fire Insurance Company, 206 Pa. Superior Ct. 78, 211 A.2d 66 (1965). Words of common usage in an insurance policy ...


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