Appeal from decree of Court of Common Pleas No. 7 of Philadelphia County, June T., 1962, No. 3013, in case of Pennsylvania Life Insurance Company v. Pennsylvania National Life Insurance Company, Pennsylvania Threshermen & Farmers Fire Insurance Company and Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company.
Israel Packel, with him Nathan L. Posner, Franklin A. Wurman, and Fox, Rothschild, O'Brien and Frankel, for appellant.
Theodore S. Gutowicz, with him J. V. Wherry, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell Joins in this dissenting opinion.
This appeal arises from a decree of the Court of Common Pleas No. 7 of Philadelphia County dismissing a bill in equity. Pennsylvania Life Insurance Company [Pennsylvania Life], a domestic life insurance company organized under the laws of Pennsylvania, brought a bill in equity against the Pennsylvania National Life Insurance Company [Pennsylvania National], also a domestic life company organized under Pennsylvania law, and two other insurance companies (domestic fire and casualty companies), seeking to restrain and enjoin Pennsylvania National and its co-defendants from "engaging in the life insurance business under the name of Pennsylvania National Life Insurance Company or any other name deceptively similar to that of [Pennsylvania Life]."
Pennsylvania Life has been engaged in the business of selling life, as well as health and accident, insurance in Pennsylvania since 1954 and has five offices in the State with approximately fifty salesmen and millions of dollars of coverage in force. Prior to the incorporation of Pennsylvania National in 1962, objections were filed with the Insurance Department of Pennsylvania by Pennsylvania Life and the Penn Mutual Life Insurance Company claiming that the proposed name was deceptively similar to their own names. A formal hearing was held, on April 18, 1962, before a deputy insurance commissioner and testimony thereat was taken concerning the objections. Subsequently, on July 3, 1962, the insurance commissioner filed an adjudication declaring that the name did not closely resemble that of any existing company so as to confuse or mislead the public. Pennsylvania National was then incorporated and has been doing business ever since.
On July 26, 1962, the present equity action was filed and a final hearing held on December 12, 1962.
On October 9, 1963, the Court of Common Pleas No. 7 of Philadelphia County filed a decree dismissing the action and holding that the sole remedy was a statutory appeal provided by § 41 of the Administrative Agency Law (Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. § 1710.41). Pennsylvania Life filed exceptions and the court en banc, on March 2, 1964, found that there was evidence to support the allegation of confusion but affirmed the chancellor on the ground that the availability of a statutory remedy precluded the equity proceeding. It is from the decree dismissing the action that this appeal was taken.
Our initial inquiry is whether a court of equity can exercise its jurisdiction in the instant factual situation. Section 204 of the Insurance Company Law of 1921 (Act of May 17, 1921, P. L. 682, § 204, 40 P.S. § 384), provides, inter alia: "The Insurance Commissioner may prohibit the use of any name, when, in his judgment, it too closely resembles that of any existing company or is likely to confuse or mislead the public." Although not mandatory, a hearing was held in the case at bar, as we have stated, pursuant to the Administrative Agency Law (Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. § 1710.1-1710.51). Section 41 of the Administrative Agency Law, supra, provides, inter alia: "Appeals -- Within thirty days after the service of an adjudication . . . any person aggrieved thereby who has a direct interest in such adjudication shall have the right to appeal therefrom. Such appeal shall be taken to the court of Common Pleas of Dauphin County." The crucial question before us is whether Pennsylvania Life's failure to pursue this statutory appeal precludes this subsequent equitable action. We hold that it does.
The Act of March 21, 1806, P. L. 558, 4 Sm. L. 326, § 13 (46 P.S. § 156) provides: "In all cases where a remedy is provided, or ...