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DOUGLAS FISHEL v. YORKTOWNE MUTUAL INSURANCE CO. (04/13/78)

decided: April 13, 1978.

DOUGLAS FISHEL, APPELLANT,
v.
YORKTOWNE MUTUAL INSURANCE CO.



No. 146 March Term, 1977, Appeal from the Judgment of the Court of Common Pleas of Adams County, Dated May 11, 1976, at No. 3 February Term, 1975.

COUNSEL

Larry W. Wolf, Hanover, for appellant.

Nevin Stetler, York, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 254 Pa. Super. Page 138]

This is an appeal by Plaintiff from the decision rendered in a non-jury trial in an action of assumpsit on a fire insurance policy issued by defendant-appellee.

On October 14, 1970, appellant's residence in Adams County was damaged by fire. It was stipulated the damages amounted to $6,000.00. In addition, certain personal property in the residence was damaged in an unspecified amount; and appellant was required to seek shelter temporarily in a motel at an expense of $505.00 which amount was not disputed. The policy covered all three losses.

The lower court concluded that (1) the plaintiff had filed a timely proof of loss as to personal property which substantially conformed with policy requirements, but (2) he failed to file a timely proof of loss with respect to damage to his real estate and the loss of its use, and (3) he failed to prove the actual cash value of the personal property damaged or destroyed as of the date of the loss. Based on these conclusions, the lower court found for Plaintiff in the nominal sum of $1.00.

This appeal does not question the propriety of the award of nominal damages only for the personalty rather than its actual value since only the costs of same were offered as

[ 254 Pa. Super. Page 139]

    evidence rather than their depreciated values at the time of the fire. The only issues before this court are those relating to the refusal of the trial judge to award $6,000.00 the admitted damage to the residence and $508.80 for the additional living expense occasioned thereby.

As to the loss occasioned by damage to the residence, the lower court reasoned that the Plaintiff had not met its burden of proving notice to the defendant of the estimated loss thereto or of his expenses for living elsewhere as required by the policy; and further such proof had not been waived by defendant. The lower court conceded, however, that "It is true that the company was certainly aware that there was damage to the real estate." and "If estimates of the damage to the real estate were submitted to the company as contended by him, that might make a difference in our conclusion. However, the plaintiff has failed to prove that such estimates were submitted."

The policy provides that the insured shall within sixty days after the loss, unless such time is extended in writing by the company, render a proof of loss to the company stating, inter alia, the actual cash ...


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