No. 55 March Term, 1979, Appeal from Order of the Superior Court of Pennsylvania at No. 1088 April Term, 1978.
George A. Conti, Jr., Greensburg, for appellants.
Donald W. Bebenek, Arthur J. Murphy, Jr., Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Eagen, former C. J., did not participate in the decision of this case.
This appeal is from an order of the Superior Court quashing an appeal from a judgment of the Westmoreland County Court of Common Pleas.*fn1
Appellants, Arthur R. Stout and his wife and two children, were severely injured when an automobile owned by Hamilton Buick and Pontiac, Inc. ("Hamilton") and driven by one of its repair customers collided with their automobile. At issue below was whether Hamilton's motor vehicle liability insurance policy written by appellee, Universal Underwriters
Insurance Company ("Universal"), extended coverage to the customer-driver who had borrowed the car while his mother's vehicle was in Hamilton's shop for repairs.*fn2 The Court of Common Pleas found in favor of Universal, holding that the customer-driver was not an insured under Hamilton's policy.
On February 15, 1978, timely notice of appeal was filed with the prothonotary of the Court of Common Pleas pursuant to Pa.R.A.P. 902, 903(a), and 905.*fn3 On the same day, a copy of said notice was served by mail upon the trial judge and counsel for Universal. Appellants failed, however, to docket their appeal with the Superior Court pursuant to Pa.R.A.P. 907 as it then existed.*fn4 On July 6, 1978, without prior notice to appellants, Universal filed a motion to quash
the appeal pursuant to Pa.R.A.P. 1971 for failure to comply with Rule 907.*fn5 On the next day, July 7, 1978, appellants cured their oversight by filing a copy of the notice of appeal and proof of service with the prothonotary of the Superior Court. Despite appellants' prompt action, Universal's motion to quash was ...