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LEWYCKA v. SPRINGFIELD MUTUAL INSURANCE CO. (06/13/63)

June 13, 1963

LEWYCKA, APPELLANT,
v.
SPRINGFIELD MUTUAL INSURANCE CO.



Appeal, No. 43, Oct. T., 1963, from order of County Court of Philadelphia, March T., 1962, No. 1988-C, in case of Irene Lewycka v. Springfield Mutual Insurance Co. et al. Order reversed.

COUNSEL

Samuel C. Nissenbaum, with him Charles M. Golden, for appellant.

John T. Curtin, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 201 Pa. Super. Page 343]

OPINION BY WATKINS, J.

This is an appeal from the order of the County Court of Philadelphia granting the petition of the Insurance Commissioner of Pennsylvania to stay proceedings and dissolve an attachment.

The plaintiff appellant, Irene Lewycka, instituted an action in assumpsit on an automobile theft policy against the Springfield Mutual Insurance Co. to recover the value of her automobile which had been stolen. Service of the complaint was made on March 18, 1962. The defendant company did not file an answer and judgment by default was entered on April 11, 1962. On April 17, 1962, a writ of execution issued naming Industrial Valley Bank and Trust Company as garnishee. Interrogatories and answers were filed and on May 4, 1962, judgment was entered against the garnishee, in the sum of $1128.

On May 8, 1962, the defendant filed a petition for a rule to show cause why the default judgment should not be opened. Depositions were taken and the rule to open was discharged on September 21, 1962.

On June 28, 1962, the Insurance Commissioner of Pennsylvania suspended the business of the defendant company on the ground that it was insolvent. On September 4, 1962, the Court of Common Pleas of Dauphin County entered a rule upon the company to show cause why it should not be dissolved and the insurance commissioner appointed statutory liquidator.

On October 4, 1962, the insurance commissioner filed a rule to show cause why the proceedings in this case, including the attachment proceedings, should not be stayed. The respondent, the plaintiff-appellant, herein, filed an answer setting forth the contention that the judgment against the garnishee entered on March 4, 1962, was conclusive of the matter. On November 29, 1962, the County Court made the rule absolute. This appeal followed.

[ 201 Pa. Super. Page 344]

The pertinent parts of the Act of March 22, 1956, P.L. 1328, § 2, 40 PS § 202, provides, inter alia: "Whenever any domestic insurance company,... (a) is insolvent;... the Insurance Commissioner, after examination, shall suspend the entire business of any such domestic insurance company.... From the date of such suspension... no action at law or equity shall be commenced or prosecuted nor shall any judgment be entered against nor shall any ...


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