No. 165 MARCH TERM, 1978, Appeal from the Decree dated September 21, 1978, of the Court of Common Pleas, Orphans. Court Division, of Allegheny County at No. 261 of 1972
Jack Palkovitz, Palkovitz & Palkovitz, McKeesport, for appellant.
Daniel J. Weis, Weis & Weis, Pittsburgh, for National Union Fire Ins. Co.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.
This is an appeal from a final decree entered by the court en banc, Orphans' Court Division, Allegheny County, dated September 21, 1978 and providing for the allowance of the claim of National Union Fire Insurance Company (National Union) against the estate of Robert Indyk, deceased, in the amount of one million, five hundred and eight thousand, six
hundred and eighty dollars and ninety-two cents ($1,508,680.92). Appellant instantly contends that the court erred by improperly accepting various exhibits offered to establish the claim and that the claimant failed to prove the claim against the estate by clear, direct, precise and convincing evidence. We find all of these arguments to be unimpressive and affirm for the reasons that follow.
The decedent during his lifetime was the secretary of the Indyk Brothers Construction Company (Construction Company) which engaged in road building and earth-moving activities for governmental and private entities. In the course of its business, the Construction Company would execute surety bonds to guarantee payment of materials, supplies and/or completion of the various projects. The instant claim arises from surety bonds furnished by National Union for the benefit of the Commonwealth of Pennsylvania regarding certain highway construction contracts which Construction Company had agreed to perform. The decedent executed an agreement, in his individual capacity, to indemnify National Union in the event of a breach.
The original construction, performance and material bonds were executed by National Union in the early 1960's. In 1965, the Construction Company defaulted on certain construction projects and National Union, as surety, elected to take over and complete the commitments, using Construction Company to perform the work. The total net loss to the surety resulting from the default was in excess of one million dollars ($1,000,000.00). In 1968, National Union was acquired by American International Group (Group) and the records of National Union as to this claim were transferred to New York, New York, then to San Francisco, California, then returned to New York City and eventually returned to Pittsburgh where they had been originally kept by National Union. As stated, National Union submitted a claim against the estate of the decedent, which had a balance for distribution of approximately twenty-five thousand dollars ($25,000.00). After hearing all of the evidence, the chancellor ordered that National Union should share in the balance for
distribution and the court en banc dismissed the exceptions and a final decree was entered. The executors of the estate appealed to this Court pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. ...