Summary
In Grange Mutual Casualty, the injured motorist filed a claim against the insurer covering the other automobile involved in the collision.
Summary of this case from Fireman's Ins. Co. of Newark, N. J. v. DuFresneOpinion
November 12, 1969.
March 25, 1970.
Appeals — Final or interlocutory order — Order dismissing preliminary objections raising question of jurisdiction — Act of March 5, 1925, P. L. 23. Practice — Judgments — Declaratory judgment — Arbitration clause in uninsured motorist coverage of insurance policy — Issue of fact.
A, insured by plaintiff under a liability insurance policy which contained uninsured motorist coverage, was involved in a collision with an automobile owned by B, who was insured by defendant, which vehicle was driven by C. Defendant disclaimed liability to A, contending that C did not have the permission of the named insured, B, to use the insured's automobile. A then filed a demand for arbitration of his claim, under the uninsured motorist provision of plaintiff's policy.
Plaintiff brought a declaratory judgment action to have the court declare that C, the operator of B's car, was covered by the policy of defendant, and, therefore, was not an "uninsured motorist" within the meaning of plaintiff's policy. Defendant filed preliminary objections raising the question of jurisdiction of the lower court to render a decision in this declaratory judgment proceeding. The lower court dismissed the preliminary objections and defendant appealed.
The order of the court below was reversed and the petition dismissed.
Mr. Chief Justice BELL filed an opinion, in which he delivered the judgment of the court, and stated the following:
1. The denial of a motion to dismiss a petition for a declaratory judgment on the ground of lack of jurisdiction in the lower court is appealable to the Supreme Court under the Act of March 5, 1925, P. L. 23. [97-8]
2. Whether the driver of a motor vehicle had the permission of the named insured owner of the vehicle and was, therefore, not an uninsured motorist within the meaning of a policy of insurance issued to the owner of the other vehicle involved in a collision presents issues which are matters for arbitration and not for a declaratory judgment proceeding. [96-8]
Mr. Justice COHEN and Mr. Justice POMEROY concurred in the result.
Mr. Justice JONES dissented.
Mr. Justice EAGEN and Mr. Justice ROBERTS would have quashed the appeal.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 404, Jan. T., 1969, from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1969, No. 618, in case of Grange Mutual Casualty Company v. Pennsylvania Manufacturers' Association Insurance Company. Order reversed.
Petition for declaratory judgment.
Preliminary objections by defendant to plaintiff's petition dismissed, opinion by BARBIERI, J. Defendant appealed.
Richard W. Hopkins, with him White and Williams, for appellant.
Harold B. Marcus, with him Detweiler Sherr Hughes, for appellee.
Oren E. Parker sustained injuries on July 11, 1967, in Canton, Ohio, when he became involved in a collision with an automobile owned by J. R. Van Aken, which was being driven by Freeman D. Whitt, Jr. The plaintiff, Grange Mutual Casualty Company (hereinafter referred to as "Grange"), had issued to Parker a policy of liability insurance containing an uninsured motorist coverage. The defendant, Pennsylvania Manufacturers' Association Insurance Company (hereinafter referred to as "P.M.A."), had issued a policy of liability insurance to Van Aken.
Parker made a demand upon P.M.A. for payment of damages for his injuries and losses. P.M.A. disclaimed liability to Parker, contending that Whitt did not have the permission of the named insured (Van Aken) to use his automobile. Parker then filed a demand with the American Arbitration Association to arbitrate his claim, under the uninsured motorist provision of the Grange policy.
It was alleged that Whitt got permission to use the automobile from Van Aken's son.
The arbitration proceedings are being held in abeyance pending adjudication of the petition for a declaratory judgment and this appeal.
Grange thereafter brought this declaratory judgment action to have the Court declare that Whitt, the operator of Van Aken's car, was covered by the policy of P.M.A., and, therefore, was not an "uninsured motorist" within the meaning of the Grange policy. P.M.A. filed preliminary objections raising the question of jurisdiction of the lower Court to give a decision in this declaratory judgment proceeding. The lower Court dismissed the preliminary objections and P.M.A. appealed.
Initially, we shall dispose of appellee's petition to quash the appeal to this Court based on the contention that the Order of the lower Court dismissing preliminary objections to the petition for a declaratory judgment was interlocutory. The appellant contends that the appeal is authorized by Section 1 of the Act of March 5, 1925, P. L. 23, 12 Pa.C.S.A. § 672, which permits an appeal to this Court from an interlocutory order when it involves the lower Court's jurisdiction of the cause of action.
This identical question was raised by a motion to quash in McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222. In McWilliams, we analyzed and thoroughly reviewed this question and held that the denial of a motion to dismiss a petition for a declaratory judgment on the ground of lack of jurisdiction in the lower Court was appealable to this Court under the Act of 1925. In dismissing the motion to quash, this Court said (page 650): "In the present case, the lower Court was expressly given the power to hear and determine in a declaratory judgment proceeding controversies of the general character or class here involved, and consequently it had jurisdiction of the subject matter. The fact that the lower Court might, or that on appeal we might determine that it should not or could not grant a judgment or decree sought by petitioner does not destroy that Court's power or nullify its jurisdiction. It follows that an Order of the lower Court exercising such power fn_ in response to a pleading which raises the issue is appealable under the provisions of the Act of 1925."
Italics in McWilliams v. McCabe Opinion.
Italics, ours.
Accordingly, the appellee's petition to quash this appeal must be denied.
The principal question raised by this appeal is whether the lower Court properly exercised jurisdiction in a declaratory judgment proceeding to decide a dispute arising under a policy with an uninsured motorist coverage (a) when there was an arbitration clause in the policy, and (b) when there was an issue of fact. We hold that these issues were matters for arbitration and not for a declaratory judgment proceeding in the lower Court and consequently the lower Court improperly assumed and exercised jurisdiction. Allstate Ins. Co. v. Taylor, 434 Pa. 21, 252 A.2d 618; National Grange Mutual Insurance Co. v. Kuhn, 42S Pa. 179, 236 A.2d 758; Mains v. Fulton, 423 Pa. 520, 224 A.2d 195; Carlsson v. Pa. General Ins. Co., 417 Pa. 356, 207 A.2d 759; Allstate Insurance Co. v. Seward, 407 Pa. 628, 182 A.2d 715.
Whether the operator of the P.M.A. vehicle (Whitt) had permission of the named insured to operate the vehicle so as to be an insured motorist thereunder.
Order reversed and petition dismissed. Costs to be paid by appellee.
Mr. Justice COHEN and Mr. Justice POMEROY concur in the result.
Mr. Justice JONES dissents.
Mr. Justice EAGEN and Mr. Justice ROBERTS would quash the appeal.