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THOMAS S. GINTER v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY. APPEAL ERIC H. LUKE AND ALLSTATE INSURANCE COMPANY (12/04/86)

filed: December 4, 1986.

THOMAS S. GINTER
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY. APPEAL OF ERIC H. LUKE AND ALLSTATE INSURANCE COMPANY, PETITIONERS FOR INTERVENTION AND APPELLANTS



Appeal from the Order of the Court of Common Pleas of Blair County, Civil Division, No. 642 C.P., 1984

COUNSEL

Bruce H. Hoffman, Hollidaysburg, for appellants.

Iliss A. Zimmerman, Altoona, for Ginter, appellee.

Karen Pfeffer, Hollidaysburg, for Nationwide, appellee.

Cirillo, President Judge, and Tamilia and Popovich, JJ. Popovich, J., dissents.

Author: Tamilia

[ 359 Pa. Super. Page 201]

On March 30, 1984, appellee, Thomas S. Ginter, brought this action against his insurance carrier, appellee/Nationwide Mutual Fire Insurance, for work loss and medical

[ 359 Pa. Super. Page 202]

    no-fault benefits based on an October 13, 1982 motor vehicle accident. (Although it does not appear to be part of the record, on December 19, 1983, appellee/Ginter instituted a tort claim against appellant/Eric M. Luke, an operator of one of the vehicles involved in the collision. Luke was insured by Allstate Insurance Company. The trial ran from October 7, 1985 to October 16, 1985, and a jury verdict of $10,750 was entered against appellant, Luke.) At the time of trial for the negligence action, the instant no-fault action was also pending before the same lower court judge, Brumbaugh, J. Due to the fact that a recovery against appellee/Nationwide, in the case sub judice, could result in a double recovery to appellee/Ginter, by agreement of counsel and pursuant to an Order of the trial judge, the portion of the jury's verdict representing past lost earnings was placed in an escrow account pending disposition of this no-fault action.

On October 21, 1985, appellants Luke and his carrier, Allstate Insurance, filed a petition to intervene in the instant action. Following a hearing, the trial court denied appellants' petition to intervene on October 29, 1985. The Order denying the petition briefly states that the petition does not comply with Pa.R.C.P. 2327, 2328 and 2329, and further, the granting of the petition would lead to undue delay. This appeal followed.

Appellants contend it is impossible to determine from the language of the Order denying the petition to intervene, upon what specific basis the lower court found the petition in noncompliance with the rules. The only indication of which sections of the various rules were being relied upon comes from a reading of the transcript of the hearing on the petition. We most certainly would be aided in our deliberations by an Opinion of the trial judge explaining his decision. If the record is incomplete, we can remand for completion of the record under the authority of Maginley v. Elliott, Inc., 345 Pa. Super. 582, 498 A.2d 977 (1985). In Maginley, an appeal from the denial of the motion to intervene was remanded where the Superior Court was

[ 359 Pa. Super. Page 203]

    unable to determine from the record whether the trial court abused its discretion. Upon review of the record in the instant action, we find it sufficiently complete to enable us ...


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