Appeal from order of Court of Common Pleas of Crawford County, Feb. T., 1969, No. 32, in case of James C. Cameron et ux. v. The Great Atlantic & Pacific Tea Co., Inc. et al.
J. Perry Eckels, with him Eckels, Blystone, Fuller & Kinnunen, for appellant.
Robert E. Wayman, with him George J. Barco, and Barco & Barco, and Wayman, Irvin, Trushel & McAuley, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen.
This is an appeal from an order entered below "refusing" without evidentiary hearing a petition to strike or open a judgment.
The facts necessary to a decision are undisputed and may be summarized as follows:
On April 12, 1967, Laura M. Cameron was injured when a "pop" bottle manufactured by defendant Cott Corporation and distributed by Cott Bottling Company of Pittsburgh (for convenience these two defendants are hereinafter collectively referred to as Cott) exploded at the check-out counter of a supermarket of defendant The Great Atlantic & Pacific Tea Company (A. & P.) in Crawford County.*fn1 Mrs. Cameron lost an eye and suffered residual damage to the other eye as a result of the explosion and, thereafter, she and her husband sought damages from Cott and A. & P. in an action in assumpsit.
The firm of Wayman, Irvin, Trushel & McAuley entered an appearance on behalf of all defendants. However, in the course of its preparation of the case, the Wayman firm became aware of a potential conflict of interest between the A. & P. and Cott and it thereupon petitioned the court to withdraw its appearance on behalf of A. & P. Subsequently, the firm of Eckels, Blystone, Fuller & Kinnunen entered its appearance on behalf of A. & P. and petitioned the court to disqualify the Wayman firm from representing Cott, alleging a conflict of interest. This petition was denied by the court and the suit proceeded to trial on April 21, 1969. On the following day, after plaintiffs had completed their case except for medical testimony, all of the parties agreed to a settlement of the case, and prepared and signed the following Stipulation of Settlement:
"And Now, this 22nd day of April, 1969, after the Plaintiff has completed their case, except for the medical aspects thereof, counsel have agreed upon a settlement and have asked that the same be reduced to stipulation, to be transcribed by the Court Reporter and signed by counsel for Cott and A. & P.
"It is stipulated and agreed that the case be settled with the Plaintiffs for the amount of fifty-five thousand ($55,000.00) dollars, and that if the defendants, the Great Atlantic and Pacific Tea Company, shall produce a copy of the certificate of the American Mutual Liability Insurance Company of Boston, Massachusetts, granting general comprehensive product liability coverage, affording coverage to the Great Atlantic and Pacific Tea Company, including the claim of James C. Cameron and Laura M. Cameron against the Great Atlantic and Pacific Tea Company, Cott Corporation and Cott Bottling Company of Pittsburgh, Pennsylvania, Incorporated, arising out of an accident occurring April 12, 1967, the American Mutual Liability Insurance Company, Boston, Massachusetts, on behalf of the two Cott Corporation defendants, the said American Mutual Liability Insurance Company of Boston, Massachusetts, will pay the entire amount of the settlement, including costs and disbursements.
"In the event the Great Atlantic and Pacific Tea Company is either unable to produce a valid certificate of insurance or that coverage is not afforded under said certificate of insurance, then the Cott Corporation defendants will pay one-half of the said settlement and the defendant, the Great Atlantic ...