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KURT RICE AND MARGARET RICE v. DR. DAVID SHUMAN (06/21/85)

filed: June 21, 1985.

KURT RICE AND MARGARET RICE, APPELLEES,
v.
DR. DAVID SHUMAN, DEFENDANT AND NATIONWIDE INSURANCE COMPANY, GARNISHEE. APPEAL OF NATIONWIDE INSURANCE COMPANY. ANNA RICKENBACH AND BERTOLET RICKENBACH, APPELLEES, V. KURT RICE AND DR. DAVID SHUMAN AND NATIONWIDE MUTUAL INSURANCE COMPANY. APPEAL OF NATIONWIDE MUTUAL INSURANCE COMPANY



Appeal from the Order entered on July 15, 1983, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5057 January Term, 1980.

COUNSEL

Michael Gallagher, Philadelphia, for appellant.

Eugene A. Spector, Philadelphia, for appellees.

Cavanaugh, Beck and Tamilia, JJ.

Author: Beck

[ 343 Pa. Super. Page 320]

These appeals are collateral to a tort action arising from a two-car accident. After a jury trial, a judgment was entered awarding appellees money damages against certain defendants including Dr. David Shuman. Exceptions were filed by defendant Shuman. He died before the exceptions were denied.

Appellant is defendant's insurer. It filed an appeal on defendant's behalf on the underlying tort action. Appellant did not file a supersedeas bond. Meanwhile, appellees brought a garnishment action against appellant, and pursuant to the garnishment action, judgment was entered in favor of appellees in the amount of defendant Shuman's policy coverage. Appellant petitioned the trial court to strike the judgment. The court's response was its order of July 15, 1983:

AND NOW, this 15th day of July, 1983, upon consideration of garnishee Nationwide Mutual Insurance Company's Petition to Strike the Judgment and for Stay of Proceedings and plaintiff's answer thereto, it is hereby ordered that garnishee's petition is denied.

Appellant appeals the above order.

Appellant's contention is that the judgment should have been stricken and the proceedings stayed pending the out-come of its appeal on the underlying tort action. Although no supersedeas security was filed, as required by Pa.R.A.P. 1731, appellant claims it falls under the "party acting in a representative capacity" exemption under Pa.R.A.P. 1736(a)(3). We do not agree that appellant's status as

[ 343 Pa. Super. Page 321]

    defendant's insurer constitutes a "representative capacity." Therefore, we affirm the order of the trial court.

Generally, a party appealing an order involving solely a monetary award may obtain an automatic supersedeas by filing appropriate security equaling 120% of the amount found due and ...


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