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EISENMAN v. HORNBERGER (ET AL. (04/22/70)

decided: April 22, 1970.

EISENMAN
v.
HORNBERGER (ET AL., APPELLANT)



Appeal from judgment of Court of Common Pleas of Lycoming County, Sept. T., 1966, No. 143, in case of Richard S. Eisenman et ux. v. Alton Raymond Hornberger et al.

COUNSEL

H. Clay McCormick, with him Furst, McCormick, Lynn, Reader & Nichols, for appellant.

John C. Youngman, Sr., with him Candor, Youngman, Gibson & Gault, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 438 Pa. Page 47]

This is an appeal from the judgment entered below on the pleadings in an attachment execution proceeding. The issue is one of first impression in Pennsylvania, although courts in several other jurisdictions have ruled on the question presented.

The material facts are not in dispute.

On the night of February 4, 1960, Alton Raymond Hornberger, then seventeen years of age, and Frank Scarfo broke into the home of Mr. and Mrs. Eisenman and stole a quantity of liquor. The owners were out of town at the time. To minimize possible detection, the felons lit matches to find their way around the house, rather than turn on the lights. As each match burned down, it was dropped or thrown to the floor. A head of one of the matches lodged in between the cushion and overstuffing of a chair. When the felons departed from the premises, there was no sign of fire, but the match head which landed in the chair, as before

[ 438 Pa. Page 48]

    related, ignited the material, which, after smoldering for hours, finally resulted in a fire which completely destroyed the house and personal property therein.

The Eisenmans instituted suit for damages against Hornberger, Scarfo, and three other juveniles who waited outside and served as lookouts during the burglary. A jury trial resulted in a verdict against all defendants and in favor of the plaintiffs in the amount of $70,375.99. Samuel Harrison, one of the defendants, was covered against liability by a homeowner's policy with a $25,000 policy limit. His insurer settled the claim against him for $24,000 and secured a release.

At the pertinent time, Alton Raymond Hornberger's father was also the named insured in a homeowner's policy issued by the Royal Insurance Company, LTD. (Royal). And it is undisputed that the son himself was equally an "insured" within the terms of the policy.*fn1

The Eisenmans issued a writ of execution against Hornberger, which was returned Nulla Bona. Attachment execution proceedings then followed against Royal, which ultimately ended with the entry of judgment on the pleadings against ...


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