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LAWRENCE G. HOROWITZ v. AMERICAN CASUALTY COMPANY READING (04/03/80)

filed: April 3, 1980.

LAWRENCE G. HOROWITZ, T/A LAFAYETTE BUILDING ASSOCIATES, APPELLANT,
v.
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA



No. 487 October Term 1979, Appeal from Order of the Court of Common Pleas of Philadelphia County, Civil Action, Law at No. 5205, April Term, 1974.

COUNSEL

Kenneth S. Siegel, Harrisburg, for appellant.

David J. Griffith, Philadelphia, for appellee.

Spaeth, Hester and Cavanaugh, JJ. Hester, J., files a dissenting statement.

Author: Spaeth

[ 277 Pa. Super. Page 62]

This is an appeal from an order of the lower court granting summary judgment to the insurer, American Casualty Company, in an action in assumpsit initiated by the insured, Lafayette Building Associates. At issue is the extent of coverage for rental losses and expenses incurred to prevent such losses.

Lafayette owns an office building in Philadelphia. The building was insured for $5,500,000, under a policy issued by American Casualty effective as of May 8, 1972. On May 28, 1973, an electrical transformer in the building was damaged. To prevent the interruption of electrical power to its tenants, Lafayette spent $29,491.25 to acquire and install temporary and permanent transformers. When American Casualty refused to pay Lafayette more than $9,608, Lafayette brought the present action for the $29,491.25. Partial judgment was granted Lafayette to the extent of $9,608, and both sides moved for summary judgment as to the remainder. The lower court denied the motions but on reconsideration granted summary judgment for American Casualty, holding that the policy did not provide coverage for more than the $9,608.

Summary judgment should be granted only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show

[ 277 Pa. Super. Page 63]

    that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Pa.R.Civ.P., No. 1035. Summary judgment should not be granted unless the issue is clear and free from doubt. Just v. Sons of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976); Toth v. Philadelphia, 213 Pa. Super. 282, 247 A.2d 629 (1968), citing, Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967).

The policy in this case really seems to be not so much a single policy as a collection of five separate policies and an endorsement, joined together as one policy. The cover page of the policy lists the separate parts of the policy, including "Part I Damage to Property-Building-Contents," "Part II Business Income," and "Part VIII Boiler and Machinery."

It is undisputed that damage to the transformer is covered by Part VIII, which covers accidents to machinery including transformers, and that the $9,608 covers the ...


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