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BESSEMER STORES v. REED SHAW STENHOUSE (06/14/85)

filed: June 14, 1985.

BESSEMER STORES, INC., A PENNSYLVANIA CORPORATION, NELL A. MUSSANO, INDIVIDUALLY, AND NELL A. MUSSANO, AS EXECUTRIX OF THE ESTATE OF ALEX MUSSANO, DECEASED, APPELLANTS,
v.
REED SHAW STENHOUSE, INC., A/K/A REED SHAW-HOUSE, INC. OF PENNSYLVANIA A/K/A REED STENHOUSE, INC., A/K/A/ REED STENHOUSE, A PENNSYLVANIA CORPORATION, AND ALBERT F. DASCHBACH, AN INDIVIDUAL



Appeal from the Order of August 3, 1983, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD81-02556.

COUNSEL

John W. Murtagh, Jr., Pittsburgh, for appellants.

Alison G. Rena, Pittsburgh, for appellees.

Olszewski, Hester and Shiomos, JJ.*fn*

Author: Per Curiam

[ 344 Pa. Super. Page 221]

This is an appeal from judgment entered in favor of appellees after a jury trial on a complaint in trespass and assumpsit. Post-trial motions were timely filed and denied.

The trial court is charged with three errors in the proceedings below. Two counts of error concern evidentiary rulings, and one attacks the trial judge's charge to the jury. Prior to discussing these issues in detail, it is necessary to elaborate upon the factual background of this case.

Appellants, Nell and Alex Mussano, operated a small general store, Bessemer Stores, Inc., on the site of Republic Steel Corporation's # 2 Mine in Russelton, Pennsylvania.*fn1 The store was housed in a frame building leased by the Mussanos from Republic Steel Corporation for a small annual rental. In exchange for this agreement, the Mussanos were required to maintain the building and to acquire insurance coverage. To that end, the Mussanos consulted with Albert Daschbach, an agent of appellee Reed Stenhouse, Inc., (hereafter Reed Stenhouse) until his death in 1981. Through him, the Mussanos purchased numerous insurance policies, including two fire insurance policies each valued at $17,500 on the building itself. In March of 1979, while these policies were in effect, the building was destroyed by fire.

In a letter dated September 11, 1979, the insurance companies denied coverage on the basis that the Mussanos did not have an insurable interest in the property. In February of 1981, the Mussanos instituted the within action against the brokerage firm, Reed Stenhouse, alleging negligence in the procurement of coverage of appellants' interest.*fn2 Appellants'

[ 344 Pa. Super. Page 222]

    theory of their case was that no insurable interest existed and that appellee was negligent in providing the fire insurance coverage carried by appellants. At trial, appellee contended that appellants did possess an insurable interest, were properly insured through the efforts of appellee's agents, and that the insurance carriers wrongfully denied coverage. As stated above, a jury rendered a verdict in favor of appellee in December of 1982.

In appellants' first issue, they argue that the lower court erred by refusing to admit into evidence appellee's admission in its original answer that it did not insure appellant's leasehold interest. In addition, appellants allege error in the trial court's decision to similarly exclude an admission by one of appellee's agents that Reed Stenhouse did not and could not have insured appellants' interest by the policies which were issued.

Appellants sought to introduce these statements as admissions of fact to refute appellee's position at trial that it had properly insured the premises and that it was the carrier who wrongfully denied coverage. The trial court decided that the statements were conclusions of law representing the legal theory of the defense ...


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