Appeals, Nos. 78, 79, and 80, Jan. T., 1961, from order of Court of Common Pleas of Montgomery County, Sept. T., 1959, No. 248, in case of Keystone Insurance Company v. Warehousing and Equipment Corporation et al. Order reversed.
Thomas M. Garrity, with him Wisler, Pearlstine, Talone & Gerber, for appellants.
Glenn A. Troutman, with him Duffy, McTighe & McElhone, and McWilliams, Wagoner & Troutman, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiff presented a petition for a declaratory judgment in connection with an insurance policy. Defendants filed an answer raising questions of law. After a rule to show cause had been issued the lower Court entered an Order which dismissed defendants' objections, sustained the petition, and granted defendants leave to file an answer on the merits within 20 days from the decree. From this Order defendants took this appeal.
Keystone Insurance Company, the petitioner, issued an automobile liability insurance policy to the Warehousing and Equipment Corporation and this policy, by endorsements, included the other two defendants. Petitioner alleged that one of the defendants, through its duly authorized agent, was operating a Ford tractor to which was attached a Fruehauf trailer, that the
trailer collided with an automobile driven by Ervin L. Harbold, and as a result of the collision Harbold was killed.
Harbold's Administrator, Wilhide, instituted a suit for wrongful death in the United States District Court for the Middle District of Pennsylvania; the Insurance Company, although notified of the suit, refused to defend, claiming that it had no liability for the loss. A default judgment was subsequently entered against the defendants.
Petitioner, Keystone Insurance Company, sought a declaratory judgment under the Uniform Declaratory Judgments Act of June 18, 1923, 12 PS § 831, as amended and supplemented. There is no controversy as to the construction of the language or terms of the insurance policy in question - on the contrary, the sole question is a factual determination of whether adequate notice was given to the Insurance Company by the insured, to include the vehicle involved in the accident (the trailer) within the terms of the policy. The nonresident Administrator of Harbold, who had instituted a wrongful death action against the insured (the defendants) in the United States District Court, was not joined as a party in the present action, nor was he served in Pennsylvania, although he was sent a notice by mail to his residence in Maryland. It is conceded that this notice by mail is inadequate notice.
The two most important questions raised in this appeal are (1) whether the Court below abused its discretion in exercising jurisdiction in this proceeding, and (2) whether the non-resident Administrator was a necessary party to the proceeding and ...