Appeal from the Order of the Court of Common Pleas of Somerset County in case of Rockwood Insurance Company v. Pennsylvania Automobile Insurance Plan and John R. Murphy, No. 464 Civil, 1978.
Roger C. Peterman, with him Alfred Sarowitz, for movant.
Paul Adams, Assistant Attorney General, with him James R. Farley, Chief Counsel and Edward G. Biester, Jr., Attorney General, for Pennsylvania Insurance Department, respondents.
John J. McClean and Melvin L. Moser, Jr., of Buchanan, Ingersoll, Rodewald, Kyle & Buerger, with him Martin J. Hertz, of Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, for Pennsylvania Automobile Insurance Plan and John R. Murphy, intervening respondents.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer and Rogers. Judges Blatt, DiSalle, Craig and MacPhail did not participate. Opinion by President Judge Bowman. Judge DiSalle did not participate in the decision in this case.
[ 50 Pa. Commw. Page 195]
Appellant Rockwood Insurance Company (Rockwood) has filed a motion to retransfer to the Court of Common Pleas of Somerset County its suit in equity against the Pennsylvania Automobile Insurance Plan (Plan),*fn1 into which the Pennsylvania Insurance Department (Department) has intervened as an additional defendant.*fn2 The trial court transferred the case here pursuant to Section 5103(a) of the Judicial Code, 42 Pa. C.S. § 5103(a), based upon its conclusion that the Department is an indispensable party to the litigation and that therefore exclusive original jurisdiction lies in this Court. The sole issue that confronts
[ 50 Pa. Commw. Page 196]
us presently is whether the Department is in fact an indispensable party. We find that it is, and therefore deny Rockwood's motion to retransfer.
In its complaint against the Plan, Rockwood challenges both the Plan's interpretation of certain provisions of the agreement governing the assignment to certain insurers of automobile insurance applications of persons who cannot obtain insurance through ordinary methods, and the Plan's authority to include the contested provisions in its agreement with insurers pursuant to Section 105(a)(3) of the Pennsylvania No-fault Motor Vehicle Insurance Act (Act), Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.105(a)(3). Arguing that a resolution of the issues raised could affect its policies and would necessitate a construction of the Act, the Department sought and was granted leave to intervene before the trial court as an additional defendant in Rockwood's suit.
The Department here argues that its involvement in the initial approval and ongoing supervision of the Plan, inasmuch as the Plan is the "plan" mandated by Section 105 of the Act, 40 P.S. § 105, compels the conclusion that it is an "indispensable party" to Rockwood's suit. We agree.
Section 105(a)(1) of the Act, 42 P.S. § 1009.105(a)(1) provides in pertinent part that the insurance commissioner shall
establish and implement or approve and supervise a plan assuring that any required no-fault benefits and tort liability coverages for motor vehicles will be conveniently and expeditiously available, subject only to payment or provisions for payment of the premium, to each individual who cannot conveniently obtain insurance through ordinary ...