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filed: June 17, 1983.


No. 1578 Philadelphia, 1981, No. 1647 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, No. 6213 May Term, 1978.


Gregory S. Rubin, Philadelphia, for Teachers Protective Mutual Life Ins., appellant (at No. 1578) and appellee (at No. 1647).

Michael B.L. Hepps, Philadelphia, for Piccinini, appellant (at No. 1647) and appellee (at No. 1578).

Wickersham, Rowley and McEwen, JJ.

Author: Mcewen

[ 316 Pa. Super. Page 522]

This is a consolidated appeal from an order entered following a non-jury trial in favor of plaintiff Leo Piccinini, the insured under a health and accident policy issued by the defendant insurer, Teachers Protective Mutual Life Insurance Company (Teachers). Teachers has appealed the award of compensatory damages in favor of Piccinini in the amount of $27,783.40 plus interest and costs, asserting that it, the insurer, was entitled to avoid its obligations under the policy. Piccinini also appeals and asserts error in the failure of the trial court to award punitive damages. We decide that the uncontroverted evidence established, as a matter of law, that Piccinini had fraudulently obtained the insurance policy by misrepresenting his medical condition in the application for insurance and, accordingly, we reverse.

In October of 1976, Piccinini, a fifty-six year old cement finisher, filed an application for accident and health insurance with Teachers in which he made certain representations concerning the condition of his health. Piccinini, who was born in the United States and had an eighth grade education, completed the application with the assistance of his nephew who was an independent insurance broker. The nephew read each of the questions on the application in its entirety to Piccinini before eliciting any response from Piccinini. The application contains the signature of Piccinini and he concedes that his nephew accurately reported his responses to the questions on the application. That application form, as answered by Piccinini, appears in the record as follows:

[ 316 Pa. Super. Page 523]


After the application was forwarded to Teachers, and pursuant to company policy, Piccinini was called by an employee of Equifax, a company which investigated applicants on behalf of Teachers. When questioned at trial concerning his conversation with the investigator, Piccinini testified that he told the investigator that he was working and that he had back pains, and he further testified that he might have told the investigator about his hand tremors. Upon payment of a premium by Piccinini, Teachers issued a policy on October 25, 1976, which provided that in the event that Piccinini were to become disabled, Piccinini would

[ 316 Pa. Super. Page 524]

    receive disability payments for sixty months. Seven months after the policy became effective, the insured suffered a heart attack and was rendered disabled under the policy. Teachers commenced making payments, but when it, during a routine investigation, uncovered medical history of the insured which appeared to be in direct contradiction to answers given by the insured on his application, Teachers ceased the payments in January of 1978, and rescinded the policy on the grounds that the insured had made false representations on the application. Piccinini then commenced this action by means of a complaint in assumpsit and trespass seeking compensatory and punitive damages. Teachers filed a counterclaim for payments that it had made to the insured pursuant to the policy.*fn1 The trial judge found that the insured did not knowingly or in bad faith make any false statements and that, therefore, the insurer was not entitled to cancel the policy.

Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa. Super. 564, 567, 440 A.2d 609, 611 (1982); Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa. Super. 177, 180, 395 A.2d 1373, 1375 (1978). The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Eddystone Fire Co. No. 1 v. Continental ...

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