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MARIAN MCDIVITT AND HARRY MCDIVITT v. PYMATUNING MUTUAL FIRE INSURANCE COMPANY. APPEAL HARRY MCDIVITT (04/12/82)

submitted: April 12, 1982.

MARIAN MCDIVITT AND HARRY MCDIVITT
v.
PYMATUNING MUTUAL FIRE INSURANCE COMPANY. APPEAL OF HARRY MCDIVITT



No. 855 Pittsburgh, 1981, Appeal from the Order and judgment of the Court of Common Pleas of Mercer County, Pennsylvania At No. 509 C.D. 1978, Civil Division.

COUNSEL

Joseph J. Liotta, III, Franklin, for Harry McDivitt, appellant.

John D. Petruso, Meadville, for Marian McDivitt, appellee.

John W. McWilliams, Mercer, for Pymatuning, appellee.

Hester, Johnson and Popovich, JJ.

Author: Popovich

[ 303 Pa. Super. Page 131]

This is an appeal filed by the appellant, Harry McDivitt, from an Order of the Court of Common Pleas of Mercer County awarding appellee, Marian McDivitt, the proceeds due on a fire insurance policy payable on property held as tenants by the entirety. We affirm.

The facts, as garnered in part from the parties' submission of a statement of the case -- captioned "CASE STATED" -- with the Prothonotary of Mercer County on August 21, 1980, are as follows:

"* * *

4. Marian McDivitt and Harry McDivitt are wife and husband, but have lived separate and apart since November, 1971.

5. Marian McDivitt and Harry McDivitt are joint owners of real estate in French Creek Township, Venango County, Pennsylvania, as tenants by the entireties, said property having been purchased on May 5, 1966 . . . .

[ 303 Pa. Super. Page 1326]

. Since the separation of the parties in November, 1971, Marian McDivitt has resided on the jointly owned property in French Creek Township, Venango County, Pennsylvania, and Harry McDivitt has not contributed to the maintenance, expenses, taxes, etc. for the subject property.

8. On or about September 14, 1973, . . . after the separation of the parties, Marian McDivitt applied for and received fire insurance from the Pymatuning Mutual Fire Insurance Company, policy number 6091, for the dwelling and barn located on the jointly owned property in French Creek Township, Venango County, Pennsylvania . . . .

9. Marian McDivitt was the named insured on the fire insurance policy issued by Pymatuning ...


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