Appeals from the Order of the Court of Common Pleas of Luzerne County, in case of Peter Paul Loeffler, Jr., and Shirley R. Loeffler, his wife v. The Mountaintop Area Joint Sanitary Authority, No. 4100-C, dated July 15, 1985.
Brian C. Corcoran, for appellant.
Anthony J. Lumbis, for appellees.
Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 101 Pa. Commw. Page 515]
These cross appeals arise from the second of two actions filed by Peter Loeffler, Jr. and Shirley Loeffler, his wife, in the Court of Common Pleas of Luzerne County regarding physical damage to their property*fn1 caused, in March and April of 1978, by a private contractor, Charles F. Smith & Son, Inc., which the Mountaintop Area Joint Sanitary Authority had hired to install a sewer line in and around the townships of Wright and Rice.
In the Loefflers' first action, against the contractor, the trial court, by order dated September 15, 1981, concluded that the contractor had entered an area of the Loefflers' property without permission and permanently destroyed a portion of the property. The court awarded the Loefflers $15,000, the difference between the land's value before and after the trespass.
[ 101 Pa. Commw. Page 516]
However, the Loefflers were unsuccessful in their attempt to execute upon the judgment because the contractor, who was self-insured up to $300,000, had filed for bankruptcy under Chapter 11 in 1978.
In that regard, the trial record establishes that counsel for the Loefflers received a letter dated October 2, 1981 from a claim supervisor representing ESIS, Inc., which stated:
In response to your letter, we regret to advise that you appear to be mistaken as to insurance coverage for Charles F. Smith & Sons and you were previously advised by Mr. Shadle that ESIS, Inc., is not an insurer. Mr. Shadle spoke to you on January 30, 1979, and advised that we are an investigation and adjusting service for self-insured clients, or clients with large self-insured retention limits which is tantamount to being self-insured. Further, you were told that our client filed for bankruptcy under Chapter 11 on July 12, 1978. . . .
In fact, at the time this case was tried there was an outstanding Federal Order staying all legal proceedings against Charles F. Smith & Sons. . . . We suggest your best course of action may simply be to submit your claim to the bankruptcy court.
On October 30, 1981,*fn2 the Loefflers filed this second action against the Mountaintop Area Joint Sanitary Authority. On May 14, 1982, the Loefflers filed an amended ...