Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1963, No. 4857, in case of Robert J. Matthews v. Claire Malloy, Steven A. Toth and Francis J. Kushner and Allstate Insurance Company.
A. Arthur Hanamirian, with him McEldrew, Hanamirian, McWilliams, Quinn & Bradley, for appellant.
Stephen L. Hymowitz, with him Bernard M. Gross and Gross, Sklar & Lorry, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs. Montgomery and Hoffman, JJ., concur in the result.
[ 217 Pa. Super. Page 339]
On January 12, 1963, a collision occurred in Philadelphia between a vehicle driven by appellant, Francis J. Kushner, and one driven by Claire Malloy and owned by Steven Toth. Appellee, Robert J. Matthews, was a passenger in the Kushner car. Matthews and Kushner commenced this negligence action against Malloy and Toth. After defendants joined Kushner as an additional defendant, Kushner in his position as plaintiff discontinued his suit against defendant.
Toth's automobile was uninsured and prior to the trial of this case Matthews filed an uninsured motorist claim with Allstate Insurance Company, Kushner's insurer. The matter was submitted to arbitration*fn1 and Matthews received approximately $8,800 from Allstate.*fn2
About one year after the arbitration award, the jury returned a verdict in favor of Matthews against Malloy and Kushner in the amount of $6,000 in this action. Judgment was entered against Malloy and Kushner on
[ 217 Pa. Super. Page 340]
April 7, 1969. Seven days later, Matthews began attachment proceedings against Allstate by filing interrogatories and naming Allstate as garnishee. The interrogatories were answered by Allstate who raised on its own behalf the defense later raised by Kushner in his petition to satisfy the judgment. So far as the record shows, nothing more has been done in the attachment proceedings and no execution has been issued against Kushner.
On September 25, 1969, Kushner filed a petition to mark the verdict satisfied and/or to satisfy the judgment as to him on the ground that his policy with Allstate provided that any award made under the uninsured automobile portion of the policy should be applied in reduction of any amount recoverable by the same person under the bodily injury liability portion of the policy. The lower court denied Kushner's petition to satisfy, holding that his defense was an affirmative one which he had waived by failing to plead it. Both Kushner and Allstate have appealed.
The narrow issue in this case is the right of an additional defendant who participated in an adverse negligence trial to raise an affirmative defense which he failed to plead or raise prior to judgment in a motion to satisfy that judgment. On that narrow issue we affirm the lower court.
In his motion to satisfy, Kushner, the named insured, raised a defense which is set forth under the limits provisions of Section II of his policy with Allstate. Section II is entitled "Protection Against Bodily Injury by Uninsured Automobiles." The portion of the policy relied upon by Kushner reads as follows: "If claim is made under this Section II and claim is also made against any person who is an insured under Coverage A of the policy on account ...