Appeal from the Order of the Superior Court entered November 17, 1987 at Nos. 2604 PHL 1986, 1364 PHL 1987 and 1582 PHL 1987 quashing the appeals from the Orders of the Court of Common Pleas of Philadelphia County entered September 11, 1986, April 20, 1987 and June 3, 1987, respectively at No. 5744 June Term, 1984.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, J., concurs in the result.
In this matter relief is sought from the order of the Superior Court which quashed appeals filed from the orders of the Court of Common Pleas of Philadelphia County. Appellant, the firm of Sidkoff, Pincus & Green, P.C.,*fn1 filed a lawsuit seeking damages for an alleged breach of a comprehensive "Businessowners" policy issued by appellee, the Pennsylvania National Mutual Casualty Insurance Company ("National Mutual"). Appellee had refused to pay a portion of appellant's claim, which had been filed as a result of a fire at the firm's offices. The insurance carrier made partial payment on the claim, but declined that portion of the claim relating to the replacement of acoustical ceiling tiles found within the office. Appellee's position, as stated in its answer to the complaint, was that the cost of replacing the ceiling tiles was excluded from coverage under the policy.
Following discovery, appellant filed a motion for summary judgment on April 29, 1986, pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure. This motion asserted that the insurer was liable under two separate provisions of the policy and that the clear language required payment of the claim. National Mutual again denied liability based on the exclusion contained in the policy.
On June 25, 1986, the Honorable Alfred J. DiBona, Jr., denied appellant's motion for summary judgment. Additionally,
he stated that National Mutual was not liable under the policy:
AND NOW, this 25th day of JUNE, 1986, upon consideration of plaintiff's answer thereto, it is hereby ORDERED AND DECREED that plaintiff's motion is denied.
This Court having reviewed the pleadings, depositions, and exhibits finds as a matter of law that plaintiff and defendant agreed that no liability should rest upon defendant in accordance with section II, E4 of the parties [sic] insurance contract which provide [sic] for exclusions of liability for certain other contracts entered into by plaintiff as follows:
'. . . liability assumed by the insured under any contract of agreement accept [sic] a contract is [sic] defined in this policy; . . .'
'contract means any written contract or agreement wherein the named insured has expressly assumed liability for damages to which this policy applies . . .'
Accordingly, since plaintiff entered into a lease agreement with landlord Penn Mutual for the latter to install specific accoustical [sic] tiles, the nature of which were fixtures; this Court finds defendant is not liable for the resulting loss and/or damage.
Given the sophistication of plaintiff, a law firm and defendant, we will not rewrite the contract of insurance to impose liability where none was intended. Hionis v. Northern Mutual ...