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FRANK G. RICHARDS AND ELEANOR B. RICHARDS v. THOMAS A. TRIMBUR (05/18/88)

filed: May 18, 1988.

FRANK G. RICHARDS AND ELEANOR B. RICHARDS, HUSBAND AND WIFE
v.
THOMAS A. TRIMBUR, AN INDIVIDUAL, PAUL J. TRIMBUR INC., A CORPORATION AND CNA INSURANCE COMPANY, A STOCK INSURANCE COMPANY. APPEAL OF JOHN A. SIPPOS



Appeal from the order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD86-5474.

COUNSEL

Michael I. Markowitz, Pittsburgh, for appellant.

Rowley, Tamilia and Popovich, JJ.

Author: Rowley

[ 374 Pa. Super. Page 355]

This appeal of John A. Sippos, an incompetent, by his guardian, Irene Sippos, is from the trial court's order of January 23, 1987, denying appellant's petition to intervene

[ 374 Pa. Super. Page 356]

    as a plaintiff in this declaratory judgment action brought by Frank and Eleanor Richards against Thomas A. Trimbur, Paul J. Trimbur, Inc., and CNA Insurance Company.*fn1 The action has since been discontinued at the request of the Richards. Appellant contends that 1) he is an indispensable party in this declaratory judgment action instituted by the Richards, and, therefore, the trial court erred in denying his petition to intervene; and 2) despite the discontinuance of the Richards' action, his appeal is not moot. He asks that we strike off the discontinuance, reverse the trial court's order, and remand the case so that he can, after a reasonable time, proceed to trial. We conclude that appellant's appeal must be dismissed as moot.

The facts of the case are as follows: On June 11, 1984, appellant was seriously injured when the motorcycle that he was operating collided with an automobile operated by Eleanor Richards. Alleging that Richards' negligence was solely or partially responsible for the accident, appellant, by his guardian, commenced an action for damages against Richards at No. GD86-478 on January 9, 1986. On March 26, 1986, Frank and Eleanor Richards instituted this declaratory judgment action at No. GD86-5474 against Thomas A. Trimbur, an insurance agent, Paul J. Trimbur, Inc., an insurance agency, and the CNA Insurance Company. The Richards had maintained a basic automobile liability insurance policy with Allstate Insurance Company (who was not a party to their lawsuit) in the amounts of $100,000 per person and $300,000 per occurrence. They believed that such "100/300 coverage" was the required minimum coverage that allowed them to qualify for excess liability insurance of up to $1,000,000 under a separate "personal umbrella

[ 374 Pa. Super. Page 357]

    excess policy" issued to them by CNA. In fact, the minimum basic coverage required by CNA was, or at some point became, $250,000 per person and $500,000 per occurrence. The Richards feared that if the suit filed against Eleanor Richards by appellant resulted in a judgment against her, she could be personally liable for the difference between the maximum coverage per person under the basic Allstate policy and the minimum coverage per person under the CNA umbrella policy. The Richards sought a declaration that the appellees were jointly and severally liable for the difference between the $100,000 and the $250,000 and that CNA was required to provide excess liability insurance protection between $100,000 and $1,100,000 for appellant's claim against Eleanor Richards.

On January 23, 1987, appellant presented, to the trial court, a petition to intervene as a party plaintiff in the Richards' declaratory judgment action. He asserted that he was an indispensable party to the action and that he needed to intervene in order to protect his interest in an outcome favorable to the Richards. Appellant also requested that the trial of the case be continued in order to afford him sufficient time to prepare for trial.*fn2 His petition to intervene was denied in an order filed that day by the trial court. In its statement in lieu of an opinion the trial court explained that appellant had been aware of the trial schedule since the case was listed for trial and had refused the court's offer to allow his intervention without a continuance. Notice of appellant's appeal to this Court from the trial court's order of January 23, 1987, was filed on February 20, 1987.

On February 24, 1987, the trial court granted a motion for summary judgment in favor of defendants Thomas Trimbur and Paul J. Trimbur, Inc. On March 6, 1987, appellant presented a petition to remove the case from the ...


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