Appeal from the judgment of the Court of Common Pleas of Allegheny County, at No. 40 July Term, 1969, in case of Morris Wolf and Mary Wolf, his wife, and Wolf's Shoe Store, Inc., a corporation v. County of Allegheny, a municipal corporation.
Loyal H. Gregg, with him Jones, Gregg, Creehan & Gerace, and Edward I. Goldberg, for appellants.
John J. Hickton, with him D. J. Greenberg, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by President Judge Bowman. Judge Crumlish concurs in result only. Judge Manderino dissents.
This is an appeal from the entry of a judgment n.o.v. in favor of defendant, Allegheny County, in an action in which a jury had returned a verdict in the amount of $25,000 in favor of plaintiff property owners.
Plaintiffs' action was founded upon the Act of May 31, 1841, P.L. 415, 16 P.S. § 11821, as extended to Allegheny County by the Act of March 20, 1849, P.L.
[ 3 Pa. Commw. Page 29184]
, 16 P.S. § 11825, which created a cause of action for damages to property as a result of riot.*fn1
In entering a judgment n.o.v. the lower court, speaking through Judge Wessel, concluded:
"In reviewing the law, we are compelled to conclude that the statute dealing with the County of Allegheny with respect to liability must be approached and construed strictly. Therefore, with such a construction, we find the county is not a wrongdoer within the meaning of that Act. Accordingly, we must conclude that the subrogation claim, and in fairness and justice and good conscience, should be placed upon the person who should bear it, that is to say, the wrongdoer who caused the damage and not the County of Allegheny.
"[T]he plaintiffs have been paid property damages by their own insurance companies, and . . . subrogation under the Pennsylvania Insurance Act, as amended by the Act of August 23, 1961, P.L. 1081, Subsection 3, makes inapplicable subrogation claims for damages as
a consequence of a riot; . . . under a strict construction of the Act of 1841, as amended, the County is not a 'wrongdoer'. . . ."
In a concurring opinion tracing the development of the doctrine of subrogation, President Judge Ellenbogen concluded:
"In the instant case, a number of insurance companies, on the basis of policies for which they collected premiums, have compensated plaintiffs for the damage they have suffered. The plaintiffs have been made whole and are themselves no longer entitled to a right of action according to the language of the Act of Assembly. The insurance companies now seek to stand in the shoes of the property owners against the County of Allegheny. In determining who should bear the loss as between the insurance companies and the people of ...