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LEVY ET AL. v. KEYSTONE INSURANCE COMPANY (11/17/66)

decided: November 17, 1966.

LEVY ET AL., APPELLANTS,
v.
KEYSTONE INSURANCE COMPANY



Appeals from judgments of Court of Common Pleas No. 6 of Philadelphia County, March T., 1966, Nos. 4732 and 2369, in cases of Alexander Levy et al. v. Keystone Insurance Company; and Bruce Pattani v. Same.

COUNSEL

Samuel Smith, with him Stanley A. Levine, and Tabas & Smith, for appellants.

Stephen M. Feldman, with him Joseph G. Feldman, and Feldman and Feldman, for appellant.

John S. Kokonos, for appellee.

Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Montgomery, J. Dissenting Opinion by Hoffman, J.

Author: Montgomery

[ 209 Pa. Super. Page 17]

These two cases, both involving the identical legal issue, were consolidated for purposes of argument and will be disposed of as one in this opinion. The almost identical fact situations are as follows:

Appellant Alexander Levy and his passenger-appellant Joseph Messina were involved in an automobile accident with Louis R. Silver in Philadelphia on December 3, 1964. Silver, at that time, was insured by the Palmyra General Insurance Company. Suit was instituted by appellants against Silver in the Court of Common Pleas No. 6 of Philadelphia County during its March Term, 1965. Palmyra entered an appearance on behalf of the defendant through its counsel, who represented the insured throughout all pretrial procedures. On February 18, 1966, Palmyra was dissolved by decree of the Court of Common Pleas of Dauphin County, whereupon its counsel withdrew from the case. Appellants then sought relief from appellee Keystone Insurance Company under the provision in appellant Levy's policy for protection against uninsured motorists. When appellants sought to compel Keystone to submit to arbitration it declined, claiming that Silver was not an uninsured motorist under the terms of the policy, and that Palmyra had not denied coverage. A rule to show cause why Keystone should not submit to arbitration was dismissed by the Honorable Theodore L. Reimel of Court of Common Pleas No. 6 of Philadelphia County. Appellants Levy and Messina appeal from this order.

[ 209 Pa. Super. Page 18]

In the companion case appellant Bruce Pattani was injured on January 3, 1965, in an accident involving his automobile and one driven by Miss Reversa Taylor. At the time of the accident Miss Taylor was insured under a policy issued by the Wissahickon Mutual Casualty Company. The appellant Pattani filed a suit in trespass in the County Court of Philadelphia as of March Term, 1965, against Taylor, whereupon Wissahickon caused an appearance to be entered on her behalf and its counsel represented her up to and during a compulsory arbitration of the case on February 21, 1966, which resulted in a finding for appellant in the amount of $719. No appeal was taken from this arbitration award and it became a final judgment.

On or about March 18, 1966, Wissahickon, no longer financially responsible, went into receivership. Appellant then availed himself of his uninsured motorist protection with Keystone and tried to compel it to arbitrate his loss. Appellant Pattani appeals from an order by the Honorable Joseph E. Gold dismissing his petition to compel arbitration.

Under the Act of August 14, 1963, P. L. 909, § 1, 40 P.S. § 2000, all insurance companies issuing automobile liability insurance policies within the Commonwealth are required to provide as part of their insurance package, coverage for the damage caused by uninsured owners and operators of motor vehicles. If this additional coverage is not desired it must be expressly rejected by all insureds in writing. This statute does not define uninsured motorists. The contracts under which both appellants were insured contained the identical uninsured motorist clause, whereby the carriers agree, "To pay all sums which the insured or his legal representative shall be ...


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