The opinion of the court was delivered by: FOLLMER
This matter is presently before the Court on motion of defendant to dismiss for the following reasons:
1. Lack of jurisdiction over the subject matter.
2. Lack of jurisdiction over the person of the plaintiff.
3. Failure to state a claim upon which relief can be granted.
4. Failure to join Warehousing and Equipment Corporation, assured, as an indispensible party.
The plaintiff, George L. Wilhide, a citizen of the State of Maryland, is the Administrator d.b.n. of the Estate of Ervin L. Harbold, deceased, by grant of Letters of Administration by the Register of Wills of Adams County, Pennsylvania.
On December 18, 1958, plaintiff's decedent was killed when the automobile he was operating in Adams County, Pennsylvania, was struck by a Fruehauf tractor-trailer owned by and operated on behalf of Warehousing and Equipment Corporation, a Pennsylvania corporation. The serial number of the trailer involved was P117409. For said death plaintiff instituted suit against Warehousing in this Court and after trial, which Warehousing failed and refused to defend, judgment was entered in the total sum of $ 62,500. No appeal was taken from this judgment.
Plaintiff made demand on Keystone Insurance Company, defendant herein, for payment of the said judgment which he claimed Keystone was legally bound to pay be reason of a liability insurance policy it had issued to Warehousing, insuring against any liability for damages resulting from the use and operation of the said trailer. Defendant has at all times refused to pay on the basis that the trailer was not one of the vehicles listed in and covered by the said policy.
It appears that on or about June 1, 1958, Keystone through its duly authorized agent, one R. T. Knobler, issued its automobile liability policy to Warehousing, wherein a schedule of certain motor vehicles were listed to be covered by said insurance and that it was the intention and agreement of Warehousing and Keystone to provide liability insurance for all vehicles listed in said policy, as well as any additional vehicles which Keystone was thereafter informed were to be included.
It further appears that on August 15, 1958, Warehousing orally notified Knobler's office of its desire to have the Fruehauf trailer with Serial Number P117409 (the one involved in the accident causing Harbold's death) added as an additional vehicle for coverage under the said policy. Warehousing was advised that coverage was being provided and that written endorsement thereof would follow. However, when the written endorsement was received on or about September 10, 1958, Warehousing discovered that the said Fruehauf trailer was not included, but that a Strick trailer with Serial Number 2730 was included in said endorsement despite the fact that the latter trailer was already included in the policy as originally issued, and of which error Warehousing notified Keystone's agent on October 4, 1958. No additional endorsement had been received by Warehousing prior to December 18, 1958, the date of the accident.
The policy contains the following provision:
'Any person * * * who has secured such judgment * * * shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. * * *'
The questions involved may be briefly stated as follows:
1. Does the Court have jurisdiction of the subject matter and the person ...