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EUGENE MCNALLY & KATHLEEN MCNALLY v. JAMES DAGNEY & LUCILLE CAVALLERO (TWO CASES) (04/14/86)

filed: April 14, 1986.

EUGENE MCNALLY & KATHLEEN MCNALLY, APPELLANTS,
v.
JAMES DAGNEY & LUCILLE CAVALLERO (TWO CASES)



Appeal from the Order entered January 15, 1985 in the Court of Common Pleas of Delaware County, Civil Division, at No. 83-1071. Appeal from the Judgment entered March 1, 1985 in the Court of Common Pleas of Delaware County, Civil Division, at No. 83-1071.

COUNSEL

Allen L. Feingold, Philadelphia, for appellants.

Edward J. Carney, Jr., Media, for appellees.

Cavanaugh, Wickersham and Hoffman, JJ.

Author: Hoffman

[ 353 Pa. Super. Page 403]

This is an appeal from the lower court's January 15, 1985 order, docketed on January 28, granting appellees' motion to dismiss appellants' action.*fn1 Appellants contend that (1)

[ 353 Pa. Super. Page 404]

    the trial court erred in effectively overruling the order of a judge of "coordinate jurisdiction," (2) the trial court improperly took judicial notice of the record of a proceeding not before it, and (3) they are entitled to recover in this third-party liability action because their damages are in excess of those recovered in a previous uninsured motorist arbitration proceeding.*fn2 For the following reasons, we reverse the lower court's order and remand for further proceedings consistent with this opinion.

On March 1, 1981, appellant Eugene McNally was a passenger in an automobile driven by appellee James Dagney and owned by Dagney's wife, appellee Lucille Cavallero. They were involved in an auto accident with an unknown car and driver. Appellant suffered various injuries and required periods of hospitalization in three different hospitals. Both appellant and appellee Cavallero have insurance policies with Nationwide Insurance Company. Appellee Dagney is listed on Cavallero's policy as a named insured and was driving the car with her permission on the day of the accident.

Appellant Eugene McNally brought an action under the uninsured motorist provision of his policy,*fn3 and the matter was heard by common law arbitration on April 23, 1984. The arbitrators determined that stacking of both appellant's and appellee Cavallero's policies was appropriate; each had a $15,000 policy. The panel of three arbitrators, with one arbitrator dissenting, awarded appellant $27,500 out of a possible recovery of $30,000. Appellant filed exceptions that were denied by Judge White on August 21, 1984, and

[ 353 Pa. Super. Page 405]

    this Court affirmed. McNally v. Nationwide Insurance Co., 348 Pa. Superior 637, 501 A.2d 295 (1985) (per curiam).

On January 26, 1983, while the uninsured motorist claim was pending, appellants brought this separate trespass action against appellees. Appellees filed a motion for summary judgment that Judge Jerome denied on July 2, 1984, and the case was listed for trial. Appellees thereupon filed a motion for continuance, a supplemental motion for continuance, and a motion to dismiss that was, in effect, another ...


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