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

SUPERIOR COURT OF PENNSYLVANIA


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 motion for summary judgment.*fn4 The lower court granted the motion to dismiss, and this appeal followed.

Appellants, citing Reifinger v. Holiday Inns, Inc., 315 Pa. Superior 147, 461 A.2d 839 (1983), first contend that the lower court improperly overruled Judge Jerome's order denying appellees' motion for summary judgment. They argue that appellees, at the hearing on their motion to dismiss, sought to bar appellants' recovery on the same ground as appellees relied upon in their motion for summary judgment, namely, this Court's decision in Rossi v. State Farm Automobile Insurance Co., 318 Pa. Superior 386, 465 A.2d 8 (1983), allocatur denied. We find no error in the trial court's ruling on appellees' motion to dismiss.

In Reifinger, we noted the general rule that, "[a]bsent some new evidence, it is improper for a trial judge to overrule an interlocutory order of another judge of the same court in the same case." Reifinger v. Holiday Inns, Inc., supra 315 Pa. Super. at 151, 461 A.2d at 842 (citing Commonwealth v. Griffin, 257 Pa. Superior 153, 157, 390 A.2d 758, 760 (1978)). Here, however, the record before the trial court was materially different from that before Judge Jerome. In their answer to appellees' motion for summary judgment, appellants argued that appellees' motion must fail for three reasons, one of which was that appellant Eugene McNally's exceptions to the arbitrators' award in

[ 353 Pa. Super. Page 406]

    the uninsured motorist arbitration proceeding were still pending. Accordingly, Judge Jerome may have denied appellees' motion for summary judgment simply because the arbitration award, the scope of which forms the basis of the parties' contentions in this case, was not yet final.

Appellants next contend that the trial court erred in relying on the record of the uninsured motorist arbitration proceeding in ruling on appellees' motion to dismiss.*fn5 This claim is meritless. At the hearing on appellees' motion, the following exchange occurred:

THE COURT: All right. May I consider then, that [the record of the arbitration proceeding] is part of the record if by no other way, by way of [appellees' motion to dismiss], and it may be considered by the Court?

[Appellants' counsel]: If it is necessary to consider it in your decision, Your Honor, we have no objection.

N.T. December 13, 1984 at 9. Indeed, we find it difficult to understand how appellants could have objected; they are not entitled to recover duplicate damages, and thus it was necessary for the lower court to review the record of the arbitration proceeding to determine if such recovery was being sought in the instant case.

Appellants last contend that they are entitled to recover damages in this action because their damages "are far in excess" of their recovery in the uninsured motorist arbitration proceeding. Appellees, on the other hand, argue that appellants are barred from recovery here either under the principle of collateral estoppel or this Court's decision in Rossi, supra.

In Rossi, we held that a recipient of insurance benefits, who is fully compensated for the injuries suffered,

[ 353 Pa. Super. Page 407]

    cannot seek to recover the loss a second time under a different provision of the same policy. Rossi v. State Farm Automobile Insurance Co., supra 318 Pa. Super. at 390, 465 A.2d at 10. The lower court, finding "no suggestion in [the] arbitration award . . . that it . . . was anything short of a total award fully compensating [appellants] for those damages found after the arbitration hearing," Lower Court Opinion at 4, held that appellants' instant trespass action was barred under Rossi. Appellants argue, however, that there is "no identity of damages" in the two actions because they limited their damage claims in the arbitration proceeding "to a specific period of time and [to] only part of the damages claimed by [appellant], Eugene McNally." Brief for Appellant at 17.*fn6

On the record before us,*fn7 we cannot determine whether appellants are seeking to recover identical damages here. Cf. Rossi v. State Farm Automobile Insurance Co., supra 318 Pa. Super. at 390-91, 465 A.2d at 10 (upon review of the record, this Court convinced that the plaintiff

[ 353 Pa. Super. Page 408]

    sought the same special and general damages in an uninsured motorist arbitration proceeding as she received in a settlement for which she released her claims under the liability provision of the insured's policy). To the extent that appellants are submitting the same claims, appellees may be correct in their assertion that appellants are collaterally estopped from relitigating the amount of damages awarded on those claims. See id., 318 Pa. Superior Ct. at 391, 465 A.2d at 10 (the only difference between the arbitrators' award and the settlement was a difference of opinion as to the value of the plaintiff's general damages). We believe, nonetheless, that appellants should be given the opportunity to submit proof of damages on claims not presented to the arbitrators.*fn8 Appellees may, of course, argue that appellants presented those same claims to the arbitration panel. Again, we emphasize that we cannot make that determination on the present record. Accordingly, we reverse the lower court's order granting appellees' motion to dismiss and remand for further proceedings consistent with this opinion.*fn9

Lower court's January 28, 1985 order in No. 308 PHL 85 is reversed and case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

Appeal at No. 707 PHL 85 is quashed.

Disposition

Lower court's January 28, 1985 order in No. 308 PHL 85 is reversed and case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

Appeal at No. 707 PHL 85 is quashed.


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