decided: June 29, 1967.
KEYSTONE INSURANCE COMPANY
Appeal from order of Superior Court, Oct. T., 1966, No. 560, affirming order of Court of Common Pleas No. 6 of Philadelphia County, March T., 1966, No. 4732, in case of Alexander Levy and Joseph Messina v. Keystone Insurance Company.
Samuel Smith, with him Stanley A. Levine, and Tabas & Smith, for appellants.
John S. Kokonos, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Musmanno and Mr. Justice Eagen join in this concurring opinion. Dissenting Opinion by Mr. Justice Jones. Mr. Chief Justice Bell joins in this dissenting opinion.
[ 426 Pa. Page 341]
Appellant, Levy, while operating his automobile, insured by appellee, Keystone Insurance Company, was injured in an automobile collision with an automobile driven by one Louis R. Silver. Appellant, Messina, was a passenger in the Levy automobile, and was also injured. Appellants instituted an action of trespass against Silver in the Court of Common Pleas of Philadelphia County.
Silver, at the time of the accident, carried liability insurance, written by Palmyra General Insurance Company. Palmyra's counsel entered an appearance on behalf of Silver and defended the suit through pretrial discovery. Thereafter, Palmyra became insolvent, and, on February 18, 1966, was ordered dissolved by the Court of Common Pleas of Dauphin County. Palmyra's policyholders were informed of the dissolution and advised that the responsibility of investigation, defense, settlement, and payment of any outstanding claims would fall upon them.
Silver then attempted to invoke the uninsured motorist provision of his insurance policy, written by appellee, and appellee refused to arbitrate. Appellants thereupon instituted an action to compel arbitration in the Court of Common Pleas of Philadelphia County. That Court refused to compel arbitration, and the Superior
[ 426 Pa. Page 342]
Court, on appeal, affirmed, with one Judge dissenting. Levy v. Keystone Ins. Co., 209 Pa. Superior Ct. 15, 223 A.2d 899 (1966). We granted allocatur.
The instant case is the second half of the two cases decided by the Superior Court in Levy. The other case, Pattani v. Keystone Ins. Co., 426 Pa. 332, 231 A.2d 402 (1967), was heard by us at an earlier term of Court, and was decided by us in an opinion filed simultaneously herewith. All of the issues presented in the instant case are decided in Pattani, and the rationale there expressed is equally applicable here.
The orders of the Superior Court and the Court of Common Pleas of Philadelphia County are reversed, and the case is remanded to the Court of Common Pleas for further proceedings consistent herewith.
Orders of Superior Court and of lower court reversed.
Concurring Opinion by Mr. Justice Roberts:
I join in the majority opinion, but I believe the result reached therein is mandated for the additional reason stated in my concurring opinion in Pattani v. Keystone Ins. Co., 426 Pa. 332, 339, 231 A.2d 402, 405 (1967).
Dissenting Opinion by Mr. Justice Jones:
I dissent from the views expressed in the majority opinion and would affirm the judgment on the basis of the majority opinion of the Superior Court (Levy v. Keystone Insurance Company, 209 Pa. Superior Ct. 15, 223 A.2d 899 (1966)).
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