Appeal from order of Superior Court, Oct. T., 1972, No. 810, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1969, No. 5523, in case of Liberty Mutual Insurance Company v. S. G. S. Company, Contract Packaging Co., Perfect Jacket Manufacturing Co., and Ralph B. Englander.
Jeffery Charles Hayes, Edward W. Madeira, Jr., and Pepper, Hamilton & Scheetz, for appellant.
Harry P. Beiger, Jr., for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Eagen and Mr. Justice O'Brien dissent. Concurring Opinion by Mr. Chief Justice Jones.
Appellant, Liberty Mutual Insurance Company ("Liberty Mutual"), is a foreign corporation registered to do business in this Commonwealth and on June 22, 1968, had undertaken a contract of liability insurance covering the property of S.G.S. Company ("S.G.S."), an appellee. On that date, a fire occurred upon the premises of S.G.S. causing water damage to the property of Contract Packaging Company ("Contract Packaging"), Perfect Jacket Manufacturing Company ("Perfect Jacket"), Pioneer Canvas Products ("Pioneer") and to the real estate owned by Ralph B. Englander ("Englander") where these businesses were housed, all appellees in the instant action.
Actions in Trespass were instituted by Contract Packaging, Perfect Jacket, Pioneer and Englander against S.G.S. Liberty Mutual instituted an action for a Declaratory Judgment of Non-Liability against
its insured, S.G.S., as well as all plaintiffs in the abovereferred to Trespass actions. The relief prayed for was a determination that there was no obligation on its part to defend the actions against S.G.S. arising out of the fire and that it had no obligation to pay any judgments that might be rendered against its insured as a result of the said lawsuits. Liberty Mutual predicated its lack of responsibility upon the alleged failure of the insured to provide written notice in accordance with the terms of the contract of insurance. An answer was filed by S.G.S. to the Petition for Declaratory Judgment placing in issue the failure to give notice as required under the terms of the contract. Appellees, Contract Packaging, Englander, Perfect Jacket and Pioneer filed a Motion to Dismiss on the basis that the Declaratory Judgment was not an appropriate action. The lower court sustained the Motion to Dismiss due to the existence of another available remedy and the presence of a dispute of fact. After affirmance of the order of the lower court by the Superior Court, 224 Pa. Superior Ct. 12, 302 A.2d 501 (1973), we granted allocatur and now reverse.
The court below determined that it lacked discretion to permit the declaratory action based in part upon our prior decisions in which we have held that a declaratory judgment action is not appropriate if another remedy is available.*fn1 These cases were specifically
disavowed, however, in an opinion by our Court entered subsequent to the Superior Court's decision in the instant appeal. In Friestad v. Travelers Indemnity Co., 452 Pa. 417, 306 A.2d 295 (1973), this Court interpreted the language of ...