Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1968, No. 412, in case of Charles Wedner, doing business as Wedner Furs v. Fidelity Security Systems, Inc.
John E. Evans, Jr., with him Evans, Ivory & Evans, for appellant.
David H. Trushel, with him Wayman, Irvin, Trushel & McAuley, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Packel, J., absent). Opinion by Watkins, J., in Support of Affirmance. Jacobs and Spaulding, JJ., join in this opinion. Opinion by Cercone, J., in Support of Reversal. Wright, P. J., and Hoffman, J., join in this opinion.
[ 228 Pa. Super. Page 67]
The six judges who heard this appeal being equally divided, the judgment is affirmed.
[ 228 Pa. Super. Page 68]
Opinion by Watkins, J., in Support of Affirmance:
This is an appeal from the judgment of the Court of Common Pleas of Allegheny County entered after a non-jury trial on a burglar alarm system contract, in the amount of $312.00 in favor of Charles Wedner, doing business as Wedner Furs, the appellant, and against Fidelity Security Systems, Inc., the appellee.
This action involved a contract for a burglar alarm system. There was a burglary involving the loss of $46,180.00 in furs. It was first tried by Judge Silvestri without a jury and a non-suit resulted. The non-suit was removed and a new trial granted. It was then tried by Judge McLean without a jury and although he found the contract had been negligently breached, the appellant was only entitled to liquidated damages in the amount of $312.00 by the terms of the contract. Exceptions were filed and the Court En Banc by a majority vote dismissed the exceptions. This appeal followed.
The appellant suffered a loss of $46,180.00 due to the appellee's wrongful failure to perform under a burglary protection service contract, but because of a contract provision he was allowed recovery of only $312.00. The contract provided that the appellee, FEPS, was not to be liable for any loss or damages to the goods of the appellant and then continued: "If there shall, notwithstanding the above provisions, at any time arise any liability on the part of FEPS by virtue of this agreement, whether due to the negligence of FEPS or otherwise, such liability is and shall be limited to a sum equal in amount to the yearly service charge hereunder, which sum shall be paid and ...