Appeal, No. 316, Jan. T., 1961, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1960, No. 1802, in case of Insurance Company of the State of Pennsylvania v. Lumbermens Mutual Casualty Company. Order reversed.
Lynn L. Detweiler, with him Swartz, Campbell & Henry, for appellant.
James M. Marsh, with him LaBrum and Doak, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. CHIEF JUSTICE BELL.
This is an appeal from an order of the lower Court which dismissed defendant's preliminary objections to a petition for a Declaratory Judgment.
The pertinent facts, as set forth in the petition for a Declaratory Judgment and admitted by defendant's preliminary objections, are as follows: On February 1, 1960, the plaintiff issued its policy of insurance to James J. Dykes, covering a 1956 Plymouth station wagon. Its liability limits were $50,000 for personal injuries sustained by one person.
The policy pertinently provided that "Part I - Liability... Other Insurance: If the insured has other insurance against a loss covered by Part I of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance."
Dykes was also the owner of a 1959 Ford automobile and on October 19, 1959, the defendant issued its policy of insurance to Dykes which was a "Family Automobile
Policy." Its liability limits were $50,000 for injuries sustained by one person. The policy contained, inter alia, the ...