No. 433 October Term 1978, Appeal from the Order and Judgment of the Court of Common Pleas of Phila. County as of October Term, 1977, No.2714.
Robert J. Murphy, Jr., Philadelphia, for appellants.
John J. Tinaglia, Philadelphia, for appellee Mellon.
No brief filed on behalf of appellee Buckeye Ins. Co.
Cercone, Spaeth and Lipez, JJ. Cercone, President Judge, dissents.
[ 267 Pa. Super. Page 194]
This is an appeal from an order confirming a common law arbitration award.
On March 6, 1974, Gerald Mellon and appellee Dianne Denney, his fiancee, were involved in an automobile accident with an uninsured motorist. Gerald Mellon died, and his mother, appellee Mary Mellon, was appointed administratrix of his estate. Several uninsured motorist claims were filed.
As administratrix of Gerald Mellon's estate, Mary Mellon filed three uninsured motorist claims: a claim against appellant Travelers Insurance Co. under a policy between it and Gerald Mellon; another claim against Travelers under a policy between it and herself as mother of Gerald Mellon; and a claim against appellant Charter Oak Fire Insurance Co. under a policy between it and James Mellon, Gerald Mellon's brother. The arbitrators entered awards on these claims, and these awards are not challenged.
Dianne Denney filed a claim against Travelers under the uninsured motorist provision of its policy with Gerald Mellon. The arbitrators entered an award on this claim, and it is not challenged. Appellee Denney also filed a claim against Buckeye Union Insurance Co. of Ohio under the uninsured motorist provision of its policy with her father; her theory was that she was a resident of her father's household in Ohio at the time of the accident. Appellee Denney did not at any time make a claim against Travelers for recovery under its policy with Mary Mellon, or against Charter Oak under its policy with James Mellon.
The evidence presented at arbitration indicated that at the time of the accident appellee Denney had been in Pennsylvania for nine weeks, having come from her home in Ohio to become better acquainted with her fiancee and his family. Upon arriving in Pennsylvania, she resided for a short time with the Mellon family, but then accepted employment and leased her own apartment. Throughout the arbitration,
[ 267 Pa. Super. Page 195]
appellee Denney consistently maintained that she was a resident of her father's household in Ohio when the accident took place, and thus entitled to recovery under his policy with Buckeye. She never contended that because of her brief stay at the Mellon residence, she was entitled to recovery under provisions covering ...