Appeals, Nos. 216, 217 and 218, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 3016, in case of Abe Baskind, Pearl Baskind and Sam A. Baskind v. National Surety Corporation. Judgment affirmed; reargument refused January 14, 1954.
Ernest C. Reif, with him J. Lawrence McBride and Dickie, McCamey, Chilcote, Reif & Robinson, for appellants.
Tom P. Monteverde, with him James J. Burns, Jr., for appellee.
Before Stern, C.j. Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The basic question presented by these appeals is whether or not a declaratory judgment is an appropriate
remedy where, before a document can be construed, it is necessary to reform the instrument.
The petition for declaratory judgment averred that Abe Baskind was insured by the National Surety Corporation for public liability on a 1950 Chevrolet sedan which, however, in fact, was not owned by him, but title thereto was in the name of his daughter, Pearl Baskind. The petition avers that by and with the consent of both the father and daughter, Sam Baskind, son of Abe, was driving the automobile and caused personal injury and property damage to third persons. The insurance company disclaimed liability for the reason that Abe Baskind did not own the automobile and Pearl Baskind was not insured by the company. A history of various automobiles owned by plaintiffs and the insurance thereon is recited in the petition, but it is unnecessary to narrate it again since the narrow issue is as above stated.
In its opinion refusing reargument and reaffirming its decree sustaining objections to the amended petition for declaratory judgment, the court below stated: "... plaintiffs have abandoned their original prayer for reformation..." of the insurance policy. In its opinion the court appropriately states: "... The plaintiffs are asking for extensive relief which would, if granted, make the policy issued to Abe Baskind a very different and more inclusive document...."
While in "Form" the plaintiffs disclaim the desire to reform the policy, yet "in substance", as stated by the court, this is precisely what they seek to do by way of a declaratory judgment.
Plaintiffs' prayer for declaratory judgment does not fall within the area of the law where a declaratory judgment may be granted. The amended petition, in effect, ...