Appeal, No. 230, Jan. T., 1962, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1960, No. 2296, in case of State Farm Mutual Automobile Insurance Company v. Thomas Semple and Don P. Brown. Judgment vacated and petition dismissed.
Jack Brian, with him Stephen J. McEwen, for appellants.
George J. McConchie, with him John F. Cramp, and Cramp and D'Iorio, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE EAGEN
This is a declaratory proceeding wherein the court below entered judgment for the petitioner. It is our conclusion that the court abused its discretion in assuming jurisdiction of the proceeding and that a vacation of the judgment is required.
The salient facts necessary for the purposes of this opinion are as follows: The defendant-appellant, Brown, suffered serious injuries when struck by an automobile operated by the appellant-defendant, Semple. At the time, the title to the automobile involved was registered in the name of one Warren Witmer. A policy of automobile liability insurance issued to Witmer by the State Farm Mutual Automobile Insurance Company (hereinafter referred to as the insurance company) was then in full force and effect. Brown sued Semple for damages. The insurance company refused to defend the action or to participate in any negotiations to resolve a settlement. A jury trial resulted in a verdict in favor of Brown and against Semple in the amount of $22,260.
Subsequently, Semple sued the insurance company in the United States District Court for the Eastern District of Pennsylvania, alleging breach of its fiduciary
obligations in refusing in bad faith to defend the action. Recovery of the full amount of the verdict and necessary counsel fees was sought. Brown was permitted to intervene as a party-plaintiff.
While the above action was pending, the insurance company filed the present declaratory judgment action in the Court of Common Pleas of Delaware County. Therein the insurance company alleged that one and one-half hours previous to the accident, wherein Brown was injured, Witmer, their insured, had sold and delivered possession of the automobile involved to Semple; that the insurance coverage afforded Witmer was, in effect, legally automatically cancelled by the sale of the automobile and did not cover the new owner. Brown and Semple, the defendants in the action, contended that the sale and the transfer of the title had not been completely and legally effectuated until subsequent to the accident, and that the insurance coverage extended to the operator of the automobile, Semple.
The issue came on for trial. Upon the completion of the testimony, the trial judge directed a verdict for the insurance company. Motions for judgment n.o.v. or a new trial were refused. ...