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CLAIRE COHEN AND LIPMAN COHEN v. JENKINTOWN CAB COMPANY AND/OR JENKINTOWN TAXI COMPANY (04/23/82)

filed: April 23, 1982.

CLAIRE COHEN AND LIPMAN COHEN, APPELLANTS,
v.
JENKINTOWN CAB COMPANY AND/OR JENKINTOWN TAXI COMPANY



No. 1818 October Term, 1979, Appeal from the Orders dated August 21, 1979, of the Court of Common Pleas of Montgomery County, Civil Action, Law, No. 71-03592.

COUNSEL

Fred Lowenschuss, Philadelphia, submitted a brief on behalf of appellants.

James M. Marsh, Philadelphia, for appellee.

Herbert Somerson, Philadelphia, for participating parties.

Price, Wickersham and Lipez, JJ.

Author: Lipez

[ 300 Pa. Super. Page 530]

After the second trial*fn1 of this negligence action, plaintiffs obtained a judgment for $150,000 against the defendant cab companies. Defendants appealed that judgment, and this court affirmed per curiam. Cohen v. Jenkintown Cab Company, 282 Pa. Super.Ct. 625, 425 A.2d 850 (1980). While that appeal was pending, the court below entered five orders, all dated August 21, 1979. From these five orders, plaintiffs took this appeal. Plaintiffs have abandoned any challenge to three of the orders by failing to raise any issue concerning them in their brief.*fn2 We shall dismiss the appeal as to those three orders.

The two remaining orders granted petitions by the defendants' insurer, appellee National Indemnity Company. One was a petition to intervene, which the court below granted solely to allow National Indemnity to pursue the other petition, which was captioned as a "Petition for Leave to Pay Funds into Court." Besides the questions of whether these two petitions were properly granted, we must also decide National Indemnity's motion to quash this appeal, which this court en banc has referred to this panel by per curiam order, stating, "AND NOW, December 11, 1979, decision on the within Motion to Quash is hereby deferred until oral argument and review of the briefs and record on the appeal dismissal issue, along with other issues on the merits." We shall deny the motion to quash, affirm the order granting National Indemnity leave to intervene, and

[ 300 Pa. Super. Page 531]

    reverse the order granting the petition captioned "Petition for Leave to Pay Funds into Court."

The issues in this appeal have been obscured by bitter procedural wrangling. The only thing on which the briefs for National Indemnity and the plaintiffs seem to agree (and in this they are correct) is that the lower court's order is inconsistent with the opinion in support of that order. To decide both the motion to quash and the appeal itself, we must first understand precisely what the so-called "Petition for Leave to Pay Funds into Court" requested and the order granted. This in turn can only be understood in light of what led National Indemnity to file its petition in the first place -- our Supreme Court's decision in Incollingo v. Ewing, 474 Pa. 527, 379 A.2d 79 (1977).

Like this case, Incollingo involved the issue of an insurance company's liability for interest on a judgment against its insured when the amount of the judgment exceeds the policy limit. Like National Indemnity in this case, the two insurer appellees in Incollingo had $10,000 policy limits, vastly exceeded by the amount of the judgment against their insureds. One of the insurers, Firemen's, had relevant policy provisions very similar to National Indemnity's. Firemen's provisions were quoted in Incollingo as follows:

"With respect to such insurance as is afforded by this policy, the company shall:

(a) defend any suit against the insured alleging . . . injury and seeking damages on account thereof . . .

(b)(2) pay all expenses incurred by the Company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in the Court such part of such judgment as does not exceed the limit of the Company's liability thereon . . . and the amounts so incurred, except settlement of claims and suits, are payable

[ 300 Pa. Super. Page 532]

    by the Company in addition to the applicable limit of ...


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