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FRANKLIN W. JUDGE v. CELINA MUTUAL INSURANCE COMPANY. FRANKLIN W. JUDGE V. CELINA MUTUAL INSURANCE COMPANY (08/13/82)

filed: August 13, 1982.

FRANKLIN W. JUDGE, APPELLANT,
v.
CELINA MUTUAL INSURANCE COMPANY. FRANKLIN W. JUDGE V. CELINA MUTUAL INSURANCE COMPANY, APPELLANT



No. 502 Philadelphia, 1981, No. 503 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Monroe County, Civil Division, at No. 1137 June Term, 1978

COUNSEL

Edwin Krawitz, East Stroudsburg, for Judge, appellant (at No. 502) and appellee (at No. 503).

Bernard M. Billick, Stroudsburg, for Celina, appellant (at No. 503) and appellee (at No. 502).

Brosky, Popovich and Montgomery, JJ. Montgomery, J., files concurring and dissenting opinion.

Author: Brosky

[ 303 Pa. Super. Page 223]

This appeal arises out of a suit filed by Franklin W. Judge against his insurance company, Celina Mutual Insurance Company (Insurance Company), concerning the Insurance Company's liability to Judge under an insurance policy purchased by Judge to protect himself from loss due to fire on property he owned in Stroudsburg, Pennsylvania. The lower court entered a verdict in favor of Judge in the amount of $23,500. Judge filed exceptions claiming that the damages awarded were too small. The trial court, sitting en banc, dismissed the exceptions. This appeal followed in which Judge complains that the damages awarded were inadequate. The Insurance Company has filed also an appeal in which it asserts that Judge should have been precluded from recovery because he failed to file a proof of loss form according to the policy's requirements, that he failed to adequately protect the damaged property, that Judge's expert witness was not qualified, and that the Insurance Company should have been permitted to offset damages through a defense of salvage value. We reverse and remand in the Judge's appeal and affirm in the Insurance Company's appeal.

Judge was a tenant in a building which was completely destroyed by fire on November 27, 1977. Judge owned a restaurant in the building where he sold pizza. The restaurant was operated by Ronald Joachim, Judge's brother-in-law, from whom Judge purchased the business and equipment in 1977 for $45,000. Judge was a full-time bus driver in New York City, New York at the time of the fire. Judge became aware of the fire shortly after it occurred. He notified the Insurance Company immediately thereafter.

[ 303 Pa. Super. Page 224]

The Insurance Company then engaged an adjuster, Claude Martin Company, to adjust the loss. Judge and Joachim contacted William Dagger, an employee of Claude Martin Company. Dagger eventually gave Judge an inventory form and requested him to prepare an inventory of the damages and to return the form to him. Dagger told Judge that he would not hold him to the 60-day limitation in the policy for filing a proof of loss form. Judge mailed the form to Dagger on February 7, 1978.*fn1

Dagger visited the burned-out building three days after the fire occurred and on eleven subsequent occasions. The trial court reviewed the evidence produced by the parties and determined that the insured property was a total loss. The Insurance Company never submitted any evidence about the salvage value, if any, of the property. Judge presented evidence as to the value of his lost property in the form of testimony of Ronald Joachim. Joachim was shown to be familiar with the pizza-selling business. He was shown to be shooled in the value of pizza making equipment. He was very familiar with this business, having formerly owned it and being the current operator.

The record indicates that the property was boarded up from the date of the fire until March or April of 1978. There is no evidence of any pilferage or vandalism occurring on the property. As we stated, Dagger was able to inspect the damage on twelve occasions. He never testified that the property was not secured properly.

The record reveals that the original cost of the equipment used in the business was $23,692.04. Judge testified that of the $45,000 purchase price that $25,000 was allocated to the ...


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