Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, No. 489 of 1971, in case of Weldcraft Equipment Company v. Crum & Forster Insurance Companies.
James Victor Voss, with him Joseph T. Kosek, Jr., and Neely and Voss, for appellant.
John E. Hall, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J.
[ 225 Pa. Super. Page 421]
This is an action on a burglary insurance policy to recover for the loss of insured property. After a non-jury trial the court below entered a verdict, and after dismissing exceptions, a judgment, in favor of the carrier.
[ 225 Pa. Super. Page 422]
The policy defines "burglary" as "[t]he felonious abstraction of insured property (1) from within the premises by a person making felonious entry therein by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to the exterior of the premises at the place of such entry . . . ."
The evidence offered by appellant, the insured owner, consisted of testimony by its President, John E. Fitzgerald, and its Vice President and General Manager, Joseph P. Kaniecki. Fitzgerald testified on direct examination that he was the last to leave on October 9th; that he had locked all of the doors and could account for all of the keys; that when he returned the morning of October 10th he found a door "ajar" with "scratches" on the tongue and "little nicks" on the door; and that "[t]o the best of [his] knowledge" the nicks were not there when he had left the evening before. On cross-examination the following occurred: "Q. Mr. Fitzgerald, do you recall telling the investigator from the defendant that when I checked the door after finding it opened, the lock was still locked. In my opinion entry was gained by picking the lock. The door has been checked carefully, and there is no damage to the metal door or jam [ sic ]. Here in Court today you are saying that there were scratches on the right side of the door, is that right? A. On the tongue and then on the edge there was just marks. Q. When did you discover those scratches? A. That Saturday morning. Q. You didn't relate those scratches to our investigator when the statement was taken, is that right? A. Yes. I asked him what he meant by damage. He said there is obviously the door hasn't been pushed, pulled. The only thing I see are the scratches." Kaniecki testified that he had arrived on October 10th after Fitzgerald. His testimony continued: "Q. What did you observe when you examined the door? A. Outside
[ 225 Pa. Super. Page 423]
of the scratches on the door, I would say there was no damage or anything else done. Basically we were trying to find out how entry was made, and the door itself is a grey painted metal, sort of dirtied, and you could see that there were marks on the door. Q. Did you see them on that Monday? A. Yes, sir. Q. Prior to that time, had you ever observed any marks on the door? A. No, sir." It was stipulated that $1,400 worth of equipment was missing.
The evidence offered by the carrier was limited to the written statement that Fitzgerald had given the investigator and to testimony by an underwriter. The underwriter had never seen the premises; he testified that the policy at issue was "a standard form" and contained "a normal definition as far as I am aware of all burglary and theft policies."
In entering a verdict for the carrier, and in dismissing exceptions, the court below filed no findings of fact or conclusions of law. In the opinion filed in response to the ...