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LINE LEXINGTON LUMBER & MILLWORK CO. v. PENNSYLVANIA PUBLISHING CORP. (03/16/73)

decided: March 16, 1973.

LINE LEXINGTON LUMBER & MILLWORK CO., INC., APPELLANT,
v.
PENNSYLVANIA PUBLISHING CORP.



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971, No. 1499, in re Line Lexington Lumber & Millwork Co., Inc. v. Pennsylvania Publishing Corp. et al.

COUNSEL

Victor Wright, with him Fox, Rothschild, O'Brien & Frankel, for appellant.

Joseph Head and Stephen A. Cozen, with them Swartz, Campbell & Detweiler, and Orlofsky, Cozen and Begier, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Manderino concurs in the result.

Author: Nix

[ 451 Pa. Page 155]

This is an appeal from an order of the Court of Common Pleas of Philadelphia sustaining preliminary objections in the nature of a demurrer to the amended

[ 451 Pa. Page 156]

    complaint and dismissing the action against the appellees herein. Appellant contends that his amended complaint stated a cause of action for reformation of contract. We agree and reverse the order below.

Line Lexington and Millwork Company, Inc., appellant (hereinafter referred to as "Line"), filed a complaint in equity against Pennsylvania Publishing Corporation (hereinafter referred to as "Publishing") not a party to this appeal, Marsh & McLennan, Inc., appellee (hereinafter referred to as "Marsh"), and various insurance companies, appellees (hereinafter referred to as "Insurers"). Preliminary objections in the nature of a demurrer and also raising additional questions not pertinent to this appeal were filed. Appellant filed an amended complaint and, after the entry by the court below of an order dismissing the amended complaint, an appeal was taken to this court.*fn1

Line, by way of a written lease dated April 5, 1971, leased an Industrial building which it owned to Publishing. Inter alia, the lease required Publishing to pay as additional rent, all fire insurance premiums on the demised premises and/or the building of which the demised premises was a part. By an oral agreement between Line and Publishing, the latter undertook to obtain fire insurance in the amount of $70,000.00 in order to protect fully Line's ownership interest in the building.*fn2

Publishing contacted Marsh as broker and as agent for Insurers and secured fire insurance policies containing

[ 451 Pa. Page 157]

$70,000.00 coverage on the building.*fn3 In each of the several policies obtained, Publishing was listed as the insured party. A fire occurred on June 15, 1971, destroying the building in question, and the Insurers paid Publishing in ...


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