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WEXLER KNITTING MILLS v. ATLANTIC MUTUAL INSURANCE CO. (02/09/89)

filed: February 9, 1989.

WEXLER KNITTING MILLS, APPELLANT,
v.
ATLANTIC MUTUAL INSURANCE CO., LEWIS P. SIEGEL & SONS, INC., APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 5814 February Term, 1983.

COUNSEL

Alan C. Milstein, Philadelphia, for appellant.

Francis T. McDevitt, Philadelphia, for appellees.

Cirillo, President Judge, and Wieand and McEwen, JJ.

Author: Wieand

[ 382 Pa. Super. Page 406]

In this appeal we are called upon to interpret an exclusion clause in an "all risks" policy of insurance to determine whether coverage was provided for losses sustained as a result of employee thefts. The trial court held that losses sustained by virtue of employee thefts were excluded from

[ 382 Pa. Super. Page 407]

    coverage under the policy and entered a compulsory non-suit in the employer's action brought to recover such losses. When the court thereafter refused to remove the non-suit on post-trial motion, the employer appealed.

Wexler Knitting Mills (Wexler) is a Philadelphia based sweater manufacturer employing 175 to 200 persons. In 1982, Wexler's officers began to suspect that employee thefts were occurring and hired a private detective to investigate. Their suspicions were confirmed. Empty sweater boxes were found in an abandoned stairwell, chicken wire which cordoned off an area in which finished sweaters were stored was found to have been cut, and significant quantities of sweaters and yarn were determined to be missing. Eventually, an employee was apprehended as he left the mill with goods having a value of $212.50. An inventory revealed that sweaters and yarn having a value of $214,836.00 were missing.

Wexler was insured under an "all risks" policy which had been issued by Atlantic Mutual Insurance Company (Atlantic Mutual) and which had a general liability limit of $1,040,000.00. The policy insured against all risks to personal property except those risks which were expressly excluded. Among the perils excluded were the following:

(f) Loss or damage due to shortage disclosed on taking inventory; or unexplained or mysterious disappearance (except property in the custody of bailees or carriers for hire);

(g) Loss or damage, except loss or damage by fire or explosion, caused by or arising out of infidelity or any dishonest act on the part of the Insured or other party of interest, his or their employees or agents or any person or persons to whom the property may be entrusted (carriers for hire excepted); or resulting from the Insured voluntarily parting with title or ...


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