Appeal, No. 190, Jan. T., 1949, from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1946, No. 4227, in case of Philadelphia Manufacturers Mutual Fire Insurance Company v. Max Rose, trading as Northern Metal Company. Order set aside and record remitted.
George H. Detweiler, with him Robert A. Detweiler, for appellant.
Lemuel B. Schofield, with him Marvin Comisky and W. Bradley Ward, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE LINN
This proceeding was brought under the Uniform Declaratory Judgments Act*fn1 to ascertain the coverage or non-coverage of a fire insurance policy. The appellant-plaintiff, beginning in 1943, annually issued to defendant its policy insuring certain buildings, identified as numbers 18, 19 and 20, on defendant's land devoted to industrial uses. The policy specified the amount of insurance on building number 20 as $100,000. In August, 1946, a fire damaged part of a building on this land; defendant contended that the building damaged was part of number 20 and claimed a loss of $66,627.45. Plaintiff rejected the claim, contending that the damaged property was not part of building number 20 but was part of buildings numbered 21 and 22.
Those rival contentions resulted in plaintiff's petition asking the court to declare "the rights, status, and other legal relations between [plaintiff] and [defendant], for a decree that [defendant] carried no insurance with your petitioner... covering Buildings Nos. 21 and 22, more fully in this petition referred to." The defendant, after filing and withdrawing preliminary objections to the petition, answered on the merits, concluding his answer as follows: "Wherefore, the defendant prays... for a declaratory judgment under the Uniform Declaratory Judgment Act to the effect that... [plaintiff]... by its policy of insurance in effect at the time the building [number 20] hereinbefore described was destroyed by fire, did insure and protect said building by its policy of insurance which was in full
force and effect at the time thereof." Defendant stated, in paragraph 4 of his answer, that "defendant joins in the petitioner's request to have this Honorable Court determine the rights under the policy of fire insurance attached to the petition as Exhibit 'A'. It is admitted that this policy was an annual policy effective March 1, 1946. Defendant further admits and joins in the averment in the plaintiff's petition that 'The policy being in writing, its construction is for your Honorable Court, as a matter of law'. In fact it is the defendant's position that this -- a question of law -- is the only issue before this Court because the policy by its terms clearly covered and protected the building which was destroyed by fire...."
We recognize, of course, that jurisdiction cannot be conferred by the mere agreement of parties: Valley Railroad Co. v. Delaware, Lackawanna & Western R. Co., 346 Pa. 579, 582-3, 31 A.2d 276 (1943); but we refer to the 4th paragraph and to defendant's prayer in his answer as showing defendant's agreement with plaintiff that, to the extent that actual controversy between contending parties is essential, such controversy, within the meaning of the statute, exists.
The case went to trial. The judge who heard the evidence filed what he called an "adjudication," with "findings of fact" and "conclusions of law," and ending with a "decree nisi,"*fn2 sustaining plaintiff's position, declaring that "... it is ordered, adjudged and decreed as follows: 1. That ...