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ALICE SCHARNITZKI v. HENRY BIENENFELD AND HARRY GANZMAN (12/10/87)

filed: December 10, 1987.

ALICE SCHARNITZKI
v.
HENRY BIENENFELD AND HARRY GANZMAN, ADDITIONAL DEFENDANT, HARTFORD ACCIDENT & INDEMNITY COMPANY, INTERVENING PARTY DEFENDANT. APPEAL OF HARTFORD ACCIDENT & INDEMNITY COMPANY



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 1578 December Term, 1985.

COUNSEL

John M. DeFeo, Philadelphia, for appellant.

David M. Barry, Philadelphia, for Ganzman, appellees.

Montemuro, Kelly and Cercone, JJ.

Author: Montemuro

[ 368 Pa. Super. Page 611]

Hartford Accident & Indemnity Company ("Hartford") challenges the October 1, 1986 order of the Philadelphia Court of Common Pleas denying its petition to intervene. Because Hartford appeals from an interlocutory order, we quash this appeal.

The Pennsylvania Supreme Court has stated that

     as a rule, an appeal will not lie from an order refusing leave to intervene, because such an order is not a final one[. However], cases may arise where a denial of a petition to intervene would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way; and in such cases the refusal to permit an intervention is a final order or decree as to the petitioner.

Frey's Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912) (citations omitted). Accord Maginley v. Robert J. Elliot, Inc., 345 Pa. Super. 582, 584, 498 A.2d 977, 979 (1985); M. London, Inc. v. Fedders Corp., 306 Pa. Super. 103, 106, 452 A.2d 236, 237 (1982); Inryco Inc. v. Helmark Steel, Inc., 305 Pa. Super. 239, 243-44, 451 A.2d 511, 512-13 (1982) (quoting Frey's Estate); Boise Cascade Corporation v. East Stroudsburg Savings Assn., 300 Pa. Super. 279, 281,

[ 368 Pa. Super. Page 612446]

A.2d 614, 615 (1982) (quoting Frey's Estate); Marion Power Shovel Co. v. Fort Pitt Steel Casting Co., 285 Pa. Super. 45, 48 n. 2, 426 A.2d 696, 696-97 n. 2 (1981) (quoting Frey's Estate). Therefore, before deciding whether we may entertain this appeal as a challenge from a final order, we must determine whether Hartford has, in all practicality, been denied the relief to which it is entitled.

Hartford's petition to intervene arose as a result of the following events. On October 3, 1985, a fire occurred at the Benton Court Apartments. As a result of the fire, Alice Scharnitzki, a resident of the apartment building, filed a civil action for personal injuries against Henry Bienenfeld, the owner of the apartment building. Ms. Scharnitzki's complaint stated that "Defendant negligently, carelessly and/or willfully and wantonly created the condition . . . which caused the injury to Plaintiff . . ." Complaint, para. 5. Mr. Bienenfeld then filed a complaint against additional defendant, Harry Ganzman, also a resident of the Benton Court Apartments. In the complaint, Mr. Bienenfeld alleged that, if Ms. Scharnitzki had suffered any injury, "said injuries were caused by and/or contributed to by the negligence and careless[ness] of additional defendant." Complaint para. 7.

Mr. Ganzman had insurance under a homeowner's policy provided by Hartford. The policy was in effect at the time of the fire and obligated Hartford to indemnify Mr. Ganzman for any loss he might sustain, up to the policy's limit of $25,000, because of judgments entered against him "for damages because of bodily injury or property damage to which . . . coverage applies." Homeowner's Policy, Section II, Liability Coverages, Coverage E, p. ...


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