On or about May 9, 1977, Joseph Alberiei entered an agreement to purchase a theatre property in Aston, Delaware County, for a price of $210,000.00. The named purchaser was Joseph Alberiei or his nominee. A down payment of $21,-000.00 was made by withdrawing funds from a savings account owned jointly by Joseph Alberiei and Theresa Alberiei, husband and wife. On August 6, 1977, prior to closing, the theatre was seriously damaged by fire. After the fire, Joseph and Theresa Alberiei mortgaged other real estate which they owned, and these proceeds were used to close on the theatre property. Title was taken in the name of La Casa Mia.
After signing the agreement to purchase the theatre, Alberici had purchased fire insurance as follows:
Property Insurer Amount Insured
building 1. Safeguard Mutual 100.000 Joseph Alberiei
contents 2. Safeguard Mutual 25.000 Joseph & Theresa Alberiei
building 3. General Accident 125.000 Joseph & Theresa Alberiei
building 4. Insurance Placement 100.000 Joseph Alberiei
building 5. Quaker State Mutual 62.500 Joseph & Theresa
contents 12.500 Alberiei
building 6. Home Mutual Ins. 62.500 Joseph & Theresa
contents. 12.000 Alberiei
Joseph Alberiei subsequently came under suspicion for arson, and he was ultimately convicted of mail fraud in connection with the submission of fire loss claims to the insurers. Because of this, summary judgment was entered in favor of the insurers in an action brought against them by Joseph and Theresa Alberiei. On appeal, the Superior Court affirmed the *356 judgment on Joseph’s claim, but determined that a possibility existed that Theresa could show an insurable interest entitling her to recover under fire policies issued to her. On remand and following a trial without jury, the trial court found that Theresa Alberiei did have an insurable interest in the real estate and, therefore, could recover under the terms of policies in which she was a named insured. 1 From this aspect of the case, both insurer and insured appealed.
The decision of a trial judge sitting without a jury must be accorded the same weight as a jury verdict; and a reviewing court will not disturb the trial judge’s findings of fact unless they are unsupported by competent evidence.
Ecksel v. Orleans Construction Co.,
*357
Before Theresa could recover on the policies in which she had been named as an insured, it had to be shown that she possessed an insurable interest in the property.
Van Cure v. Hartford Fire Ins. Co.,
A policy that insures against loss by fire is a contract for indemnity which protects the insured’s interest in the property, not the property itself.
Mutual Benefit Ins. Co. v. Goschenhoppen Mutual Ins. Co.,
*358 After reviewing the testimony and evidence, the trial court concluded that appellant had an insurable interest in the theatre property at 247 Concord Avenue from the date of the agreement of sale. Although the agreement did not specifically identify appellant as a purchaser, it designated the “buyer” as “Joseph Alberici or his nominee.” The trial court concluded that Joseph Alberici and Theresa Alberici, husband and wife, were intended nominees. The court observed that appellant and her husband had always purchased property together in the past, she had accompanied her husband to inspect the property prior to the purchase, and the monies to pay for the property had been taken from marital assets. Both appellant and her husband, the court concluded, had approached the purchase in a manner which indicated that they were purchasing it jointly. Because appellant was a purchaser of the property, she had an insurable interest therein. Her interest was in the value of the entire property and not merely her contribution toward the down payment. We find no basis for disturbing the trial court’s findings.
We must next determine whether the trial court correctly apportioned liability solely among the carriers who insured the interest of Joseph and Theresa Alberici. In Pennsylvania, the Insurance Company Law of 1921, P.L. 682, as amended, 40 RS. § 636, requires that every policy of fire insurance include a proration clause. A “pro rata clause” in an insurance policy allows the liability of one insurer to be measured by the proportion that its policy bears to the total insurance on the property. 6 Appleman, Insurance Law and Practice § 3905. Accord:
Vrabel v. Scholler,
In the case sub judice, each of the policies on the theatre property contained the following clause:
This Company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the *359 whole insurance covering the property against the peril involved, whether collectible or not.
In order for proration to apply, there must be two or more policies covering the same risk, the same subject matter and the same interest.
Mutual Benefit Co. v. Goschenhoppen Mutual Ins. Co., supra
at 368,
Two or more policies of insurance cover the same interest where there is a potential for the insured to experience a double recovery. “Since fire insurance is only a contract of indemnity and its object is not to permit a gain by the insured but only to compensate him [or her] for a loss, it is obvious that he [or she] cannot recover insurance in an amount greater than the loss which he [or she] sustained.”
Insurance Co. of No. Amer. v. Alberstadt,
*360
In a policy for fire insurance, the right of indemnity is provided to the insured according to the terms of the policy; it is not necessarily payable to all the owners of the property.
Maravich v. Aetna Life and Casualty Co.,
In the instant case, the buyer of the theatre named in the agreement of sale was Joseph Alberici or his nominee. The evidence is clear that it was Alberici who also purchased fire insurance to protect the interest of the purchaser. In two policies, which he purchased from Safeguard Mutual and Insurance Placement, he caused himself to be named as the insured. In four other policies which he purchased from Safeguard Mutual, General Accident, Quaker State Mutual and Home Mutual, the nominee which he named in the policies was himself and his wife. The trial court found that Theresa had acquired an interest in the real estate which was insurable and which would support the issuance of a policy of insurance to protect that interest. That interest, however, was the interest of a purchaser. Joseph’s interest in the real estate was also that of a purchaser. If both Joseph Alberici and his nominee were paid the full purchase price, there clearly would be a double recovery. Or to put it another way, there could be only one recovery for the fire loss by the purchaser. That purchaser was either Joseph Alberici or his nominee. There could not be a full recovery by both. Under these circumstances, it seems clear that all policies insured a single interest, i.e., the interest of the purchaser. Therefore, the trial court properly calculated the pro rata apportionment among all policies insuring the interest of the buyer or buyers under the terms of the sales agreement.
In an action arising under an insurance policy, a court may award to the insured punitive damages, attorneys’ fees and costs if the court finds that the insurer acted in bad *361 faith in refusing to pay the insured’s claim. 42 Pa.C.S. § 8371. Although this litigation has been protracted, it is clear that the issues were complex and that the denial of liability by the insurers was not done in bad faith. The trial court found that the actions of the insurers had not warranted an award of punitive damages, attorneys’ fees or costs, and our independent review of the record compels us to agree. Because there was no evidence of bad faith to support an award of punitive damages, the trial court properly denied this part of appellant’s claim.
The trial court did err, however, when it awarded interest only until the date of trial. In an action for breach of contract, the debtor is obligated to pay interest at the legal rate from the time payment has been withheld until the entry of a verdict.
Movie Distributors Liquidating Trust v. Reliance Ins. Co.,
The order of the trial court is remanded for the recomputation of interest. In all other respects, the order is affirmed.
Notes
. Pennsylvania Rule of Appellate Procedure 341, as it existed at the commencement of this litigation, allowed for an appeal as of right from any final order of the trial court. Pa.R.A.P. 341(a) (subsequently amended). An order was final if it put the litigant out of court on a cause of action against one of several defendants.
Foflygen v. Zemel,
Prior to trial, on June 17, 1993, the trial court granted summary judgment in favor of Safeguard and Insurance Placement because their policies on the building named Joseph Alberiei as the only insured. A final order to that effect was entered on June 24, 1993. No appeal from that order was taken within the thirty day period allowed by the rules. We are without jurisdiction to extend the period for appeal; and, therefore we will not review that order in the present appeal. See;
Shaffer
v.
Pennsylvania Assigned Claims Plan,