No. 48 Harrisburg, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Dauphin County, No. 3020-S-1978.
Richard C. Angino, Harrisburg, for appellants.
Duane C. Quaini, Harrisburg, for appellee.
[ 315 Pa. Super. Page 462]
Louis and Elizabeth Canulli have appealed from an order which granted a partial summary judgment in favor of Allstate Insurance Company in an action brought by the Canullis to recover a fire loss. The order appealed from does not terminate the litigation or prevent appellants from litigating their claim for moneys allegedly due under the terms of the insurance policy issued by Allstate. Such an order is not final but interlocutory. Therefore, this Court lacks jurisdiction, and the appeal must be quashed.
The policy issued by Allstate and providing coverage for appellants' dwelling house was a deluxe homeowners' policy and provided for payment of the "actual cash value" in the event of damage or destruction by fire or other enumerated peril. "Actual cash value" is the actual cost of repair or replacement less depreciation. See: Farber v. Perkiomen Mutual Insurance Company, 370 Pa. 480, 481-482, 88 A.2d 776, 777 (1952); Patriotic Order Sons of America Fire Hall Assn. v. Hartford Fire Insurance Co., 305 Pa. 107, 112,
[ 315 Pa. Super. Page 463157]
A. 259, 260 (1931); Anno., Depreciation as Factor in Determining Actual Cash Value For Partial Loss Under Insurance Policy, 8 A.L.R. 4th 533 (1981). Under certain circumstances the policy also obligated the insurer to pay "replacement costs." This is the actual cost of repair or replacement without deduction for depreciation. See: Reese v. Northern Insurance Company of New York, 207 Pa. Super. 19, 215 A.2d 266 (1965); Higgins v. Insurance Company of North America, 256 Or. 151, 163, 469 P.2d 766, 774 (1970); Anno., Construction and Effect of Provision of Property Insurance Policy Permitting Recovery of Replacement Cost of Property, In Excess of Actual Cash Value, 66 A.L.R.3d 885 (1975). Liability for replacement costs, however, could not exceed actual expenditures made in rebuilding and did not accrue "unless and until actual repair or replacement [was] completed."
On January 26, 1978, appellants' home was destroyed by fire. Proof of loss was submitted, and "actual cash value" of the dwelling was determined to be $45,000. This amount was paid by Allstate without prejudice to appellants' rights under the policy to claim additional sums in accordance with the "replacement cost" feature of the policy. Appellants made demand upon Allstate for the sum of $15,000 under the replacement cost coverage of their policy which Allstate refused to pay until appellants completed the repair or replacement of their home.
The Canullis commenced an action against Allstate to recover this additional sum, together with the cost of additional temporary housing.*fn1 The complaint contained averments that Allstate's practice of refusing to pay "replacement cost" until there had been actual repair or replacement was (1) contrary to the terms and conditions of the policy, (2) contrary to the laws of Pennsylvania, and/or (3)
[ 315 Pa. Super. Page 464]
based upon policy provisions which had not been disclosed or explained to the Canullis. By other averments of the complaint, the Canullis sought to represent a class consisting of all Pennsylvania residents insured under fire insurance policies written by Allstate who (1) had suffered compensable fire losses within six years of the filing of the complaint and (2) suffered compensable fire losses in the future. They requested that the court enjoin Allstate (1) from withholding payments of replacement costs more than 60 days after proofs of loss were submitted, (2) from depreciating losses resulting from fire, (3) from withholding payments for additional living expenses, ...