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FRIESTAD v. TRAVELERS INDEMNITY COMPANY (09/15/72)

decided: September 15, 1972.

FRIESTAD, APPELLANT,
v.
TRAVELERS INDEMNITY COMPANY



Appeal from order of Court of Common Pleas of Mercer County, June T., 1971, No. 30, in case of Andreas Friestad, t/a Superior Heating Co. v. Travelers Indemnity Company.

COUNSEL

Henry Sewinsky, with him Anthony Perfilio, and Rodgers, Marks, Irwin & Perfilio, for appellant.

P. Raymond Bartholomew, with him Martin E. Cusick, and Cusick, Madden, Joyce & McKay, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J. Concurring Opinion by Packel, J.

Author: Spaulding

[ 222 Pa. Super. Page 559]

Appellant Andreas Friestad appeals from the dismissal of his declaratory judgment action by the Court of Common Pleas of Mercer County.

On August 19, 1957, Chauncey and Anne Thompson purchased a heating system from Sears, Roebuck and Company. Sears contracted with appellant to install the furnace. Subsequently, a fire occurred, destroying

[ 222 Pa. Super. Page 560]

    the Thompson home. The Thompsons brought suit against Sears*fn1 for defective manufacture and/or defective installation of the heating system. After a jury trial, they were awarded a verdict of $20,000.00, which Sears has paid.

Sears has filed suit against appellant seeking indemnification in the amount of $30,806.92, representing the verdict paid to the Thompsons and the costs and legal fees from their lawsuit. Appellant is insured by appellee and has demanded that appellee handle defense of the indemnity suit brought by Sears. Appellee has refused to do so, contending that its covenant to defend appellant is not applicable since the policy does not cover appellant for the type of loss involved here. Appellant filed a petition for declaratory judgment to determine whether there is coverage under the policy. Appellee filed an answer raising questions of law, pursuant to the Act of May 22, 1935, P. L. 228, § 5, 12 P.S. § 851, permitting such an answer. After a hearing, the court below dismissed the petition, stating:

" The Uniform Declaratory Judgments Act provided in part at 12 P.S. 836 that the Court may permit a declaratory judgment procedure even though other forms of relief are available, but the Supreme Court of Pennsylvania has persisted in ruling that a declaratory judgment should not be allowed if there is another available remedy.

"We believe that the cases from the Supreme Court are consistent and we must follow that ruling."

The lower court correctly decided this case in light of the present state of Pennsylvania law. Our Supreme Court has steadfastly ...


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