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REESE v. TOMSIC. (12/05/61)

December 5, 1961

REESE, APPELLANT,
v.
TOMSIC.



Appeal, No. 228, March T., 1960, from order of Court of Common Pleas of Washington County, Nov. T., 1959, No. 95, in case of Gerald Allen Reese et al. v. William C. Tomsic et al. Order affirmed.

COUNSEL

John W. Edwards, Jr., with him Francis H. Patrono, and Patrono and Edwards, for appellants.

Stephen D. Marriner, with him McCreight, Marriner & McCreight, for The Fidelity and Casualty Company of New York, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Alpern

[ 405 Pa. Page 380]

OPINION BY JUSTICE ALPERN.

This case is before the court on appeal from a dismissal by the Court of Common Pleas of Washington County of a petition for declaratory judgment proceedings. The facts of this case stem from an automobile

[ 405 Pa. Page 381]

    accident which occurred on August 14, 1957, in the Borough of Cannonsburg in Washington County. Gerald Allen Reese was operating a motor vehicle on that date which collided with a bicycle operated by Dale H. Reynolds, Jr., a minor. As a result of this accident Dale H. Reynolds, Jr., a minor, by his parent and guardian, Dale H. Reynolds, Sr., and Dale H. Reynolds, Sr. in his own right, filed a summons in trespass against Reese, alleging that Dale H. Reynolds, Jr. was injured because of the negligence of Reese. Reese was driving the vehicle by permission of David Leichty, an employee of its owners, William and Frank Tomsic, doing business as B. & F. Motor Co., a partnership. Reese was the owner of an insurance policy issued by the Nationwide Mutual Insurance Company. This policy protected him against loss occasioned by legal liability for property damage and personal injuries to others caused during his operation of a motor vehicle. In addition, the Tomsics and B. & F. Motor Company were covered by a policy of the Fidelity and Casualty Company of New York. This policy protected any authorized driver of B. & F. Motor Company vehicles from liability for property damage and personal injuries to others.

Reese, the defendant in the suit in trespass, and the Nationwide Mutual Insurance Company which issued the policy he owned, filed a petition for declaratory judgment, on November 17, 1959, in the Court of Common Pleas in Washington County. See Uniform Declaratory Judgments Act, Act of June 18, 1923, P.L. 840, as amended by the Act of May 26, 1943, P.L. 645, 12 PS ยง 831 et seq. The defendants in this petition for declaratory judgment are William and Frank Tomsic, doing business as B. & F. Motor Company, a partnership, the Fidelity Casualty Company of New York, David Leichty, and the Reynolds who are the plaintiffs in the original trespass action.

[ 405 Pa. Page 382]

The plaintiffs in the declaratory judgment petition averred that certain adjudications should be declared by the lower court prior to trial. The plaintiffs requested the lower court to adjudicate the following:

1. That Reese was operating the motor vehicle which was involved in the accident, with the permission ...


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