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FRIESTAD v. TRAVELERS INDEMNITY COMPANY (07/02/73)

decided: July 2, 1973.

FRIESTAD, APPELLANT,
v.
TRAVELERS INDEMNITY COMPANY



Appeal from order of the Superior Court, April T., 1971, No. 595, affirming the order of the Court of Common Pleas of Mercer County, June T., 1971, No. 30, in case of Andreas Friestad, t/a Superior Heating Company v. Travelers Indemnity Company.

COUNSEL

Henry E. 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.

Robert E. Jamison, with him Jamison & Jones, for intervenor.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen and Mr. Justice O'Brien dissent.

Author: Jones

[ 452 Pa. Page 418]

Chauncey and Anne Thompson purchased a heating system from Sears, Roebuck and Company ("Sears") in August 1957. Sears contracted with the Superior Heating Company ("Superior") to install the system. After installation, a fire destroyed the Thompson home.

[ 452 Pa. Page 419]

The Thompsons sued Sears and recovered $20,000. Sears paid the judgment and proceeded against Superior for the amount of the judgment plus costs and legal fees associated with its defense of the Thompson claim.*fn1 Superior is insured by the Travelers Indemnity Company ("Travelers"). Pursuant to its policy, Superior demanded that Travelers defend the Sears indemnity action, but Travelers denied coverage. On March 18, 1971, Superior filed a petition for a declaratory judgment under the provisions of the Uniform Declaratory Judgments Act, Act of June 18, 1923, P. L. 840, §§ 1-16, as amended, 12 P.S. §§ 831-846, and its supplementary provisions, Act of May 22, 1935, P. L. 228, §§ 1-7, as amended, 12 P.S. §§ 847-853. Superior, by its petition, asked that the lower court construe the Superior-Travelers policy of insurance to determine the extent of Travelers' obligation. The lower court dismissed the petition for declaratory judgment on August 13, 1971, on grounds that another available remedy existed, and the Superior Court affirmed the order of dismissal.*fn2 222 Pa. Superior Ct. 559, 295 A.2d 135 (1972). We granted allocatur and agreed to consolidate this appeal with Sears' petition to intervene.*fn3

In view of our decision here remanding this matter to the lower court, we need not pass upon the Sears petition to intervene at this time. Instead, Sears' intervention in these proceedings will be considered when and if the petition to intervene is presented in the court below.

Our primary concern in this appeal is the application of Section 6 of the Uniform Declaratory Judgments

[ 452 Pa. Page 420]

Act: "Relief by declaratory judgment or decree may be granted in all civil cases where (1) an actual controversy exists between contending parties, or (2) where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or (3) where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that either (i) there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein or (ii) that there is an uncertainty with respect to the effect of such asserted relation, status, right, or privilege upon the determination of any tax imposed or to be imposed by any taxing authority . . . and the court is satisfied also that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding. Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case where the other essentials to such relief are ...


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