Appeal from the Judgment Entered May 27, 1986 in the Court of Common Pleas of Delaware County, Civil No. 85-8075.
Edward J. Carney, Jr., Media, for appellant.
W. Russell Carmichael, Media, for appellee.
Wieand, Olszewski and Cercone, JJ.
[ 360 Pa. Super. Page 320]
This is an appeal from a declaratory judgment filed by the Court of Common Pleas of Delaware County. Appellant, the Pennsylvania Insurance Guaranty Association ("PIGA"), sought a determination of the total amount of funds available to appellee under a contract of insurance issued by Amherst Insurance Company ("Amherst") to Richard Keenan, t/a Keenan's Tavern ("Keenan's Tavern"). Amherst Insurance Company is now insolvent and the PIGA is handling pending claims pursuant to applicable law. 40 Pa.Stat.Ann.Sec. 1701.101 et seq. Because the Amherst insured, an indispensable party, was not joined, we vacate the judgment and dismiss the action.
Appellee, Tammy Schreffler, executrix of the estate of Richard Schreffler, is a claimant against the Amherst insurance policy by virtue of a September 5, 1981 automobile accident in which appellee's decedent, the driver, was fatally injured. The accident also resulted in injuries to a passenger in the deceased's car, George Burns. Appellee and Burns each filed suit in the Court of Common Pleas of Delaware County against Richard Keenan and Jean Keenan, t/a Keenan's Tavern.*fn1 These cases involved claims against Keenan's Tavern for serving alcoholic beverages to appellee's decedent and Burns while the two were visibly intoxicated. According to appellant, at the time the two cases were called for trial, all parties agreed to the Honorable Charles Keeler's recommendation that the Burns case
[ 360 Pa. Super. Page 321]
be settled for the $25,000 coverage available, and that a declaratory judgment proceeding be brought to determine whether any coverage was still available under the Amherst insurance contract.*fn2 Complaint for declaratory relief, paragraph 11.
Appellant subsequently filed the instant action on June 20, 1985 seeking a declaration that no coverage was available for appellee Schreffler under the Amherst policy. The policy provided Keenan's Tavern with both premises liability coverage and liquor liability coverage. The premises liability coverage insured against bodily injury in the amount of $50,000 for each occurrence with a $50,000 aggregate limit. The liquor liability insurance provided maximum coverage of $25,000 for each common cause with a $50,000 aggregate limit. Appellant argued in the lower court that none of the premises coverage is available to appellee because exclusion H applies. Exclusion H excludes coverage for ". . . bodily injury or property damage for which the insured or his indemnitee may be liable (1) as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages . . ." Appellant also asserted that no liquor liability coverage is available by virtue of the $25,000 payment to the claimant Burns. Appellant argued below and contends on appeal that any injuries received by Burns and appellee's decedent resulted from the common cause of the serving of the decedent.*fn3 The liquor liability coverage provides that:
The limit of liability stated in the schedule as applicable to each "common cause" is the total liability of the company for all damages sustained by one or more persons
[ 360 Pa. Super. Page 322]
as the result of the selling, serving or giving of any alcoholic ...