*1 ” 1100(с)].’ the rule Commonwealth v. Shel [Pa.R.Crim.P. ton, 8, -15, 364 694, 469 Pa. A.2d 697 (1976), quoting O’Shea, v. 491,496, Commonwealth Pa. 350 A.2d Here, (1976). Commonwealth did not file a petition Moreover, an extension time. seeking of the Common does not claim that of period wealth time should be 1100(d)7 excluded to Pa.R.Crim.P. pursuant from the compu period. tation of the mandatory reversed, The of judgment sentence is appellant discharged.
JACOBS, Judge, President concurs in the result. WATKINS, former President did Judge, participate the consideration or decision of this case. WILBERT, Wilbert, Tammy Wilbert, minors,
Michael Martin Edward J. Wilbert and Judith T. Wilbert, wife, his their parents and Edward J. Wilbert and guardians, and natural Wilbert, wife, Individually Judith T.
The HARLEYSVILLE MUTUAL INSURANCE
COMPANY, Appellant.
Superior Court of Pennsylvania.
Argued March 1976. April
Decided 1978. 1100(d) provides determining period Pa.R.Crim.P. that: “In trial, commencement of there shall be excluded such therefrom period delay any stage proceedings at (1) of of the as results from: unavailability attorney; (2) any of the defendant or his continu- thirty (30) days granted ance in request excess at attorney, only provided period or his beyond defendant (30th) day thirtieth shall be so excluded.” *3 Andrews, Frederick W. for Harrisburg, appellant. Shipman, Franklin Lee Harrisburg, appellees. WATKINS, Before Judge, JACOBS, President and HOFFMAN, CERCONE, PRICE, VAN dеr VOORT and SPAETH, JJ.
SPAETH, Judge: 29, 1972,
On T. July Wilbert, Judith an operating automo- registered name, bile in her was involved in an accident with an automobile driven an by motorist. Three mother; Wilbert were children with their mother and chil- dren all injured.
theOn date of the accident combination family automo- effect, bile was policy issued The Harleysville Mutual Wilbert, J. husband of Ju- to Edward Company Insurance a claim under the unin- and Mrs. Wilbert filed dith. Mr. policy, individually clause of the and sured motorist denied cover- Harleysville of their three children. on behalf operated the automobile owned and that age ground on the in or policy, was not listed Wilbert by Mrs. barred following the claim was therefore and that provision: not under Part IV policy This does apply
Exclusions. Uninsured Against Motorists”]: [“Protection to an insured while (a) bodily injury automobile) than an (other automobile relative, through or a being nаmed insured automobile; struck such the lower court for declaratory petitioned The Wilberts violation of the exclusion judgment,1 arguing regulations Act2 and of the rules and Motorist Uninsured the Insurance Commissioner promulgated by adopted agreed granted the Act. The lower cоurt pursuant that the Wilberts were entitled holding the petition, thereby appeal. We affirm.3 filed coverage. Harleysville -1- are not is correct that Wilberts enti To repeat issued. policy tled to under (with interpolations): exclusion does This *4 Act, 18,1923, 840, Judgments Declaratory Act of Junе P.L.
1. Uniform amended, seq. 831 et as P.S. § 909, amended, Aug. P.L. 40 P.S. 2000. § 2. Act of Generally, turning application on of an a case or construction jurisdiction is within the exclusive motorist clause Appeal, system. Automobile Ass’n United Services arbitration (1974). However, the lower A.2d 737 court’s reach) necessity (аs appellees’ adjudication of ours must reached contrary particular provision of the clause is to a that a claim constitutional, legislative, or For rea- administrative mandate. this properly was before the lower court. Id. son the case to an (a) bodily injury Wilbert and the an occupying (other automobile than children] an automobile) named insured or a relative . . [Edward Wilbert] [Judith Wilbert] and the children Here Judith an occupying automobile that had an both the characteristics of automobile not first, covered was pоlicy: an automobile “other automobile,” e., an insured than i. it was not in named second, policy; and it was an automobile “owned by a e., i. insured],” relative named by Judith, Edward’s [of wife. -2- however,
The foregoing, matter, does not end the for it is issued, to ask: As necessary Harleysville’s policy valid? The regulations rules and adopted promulgated by the provide: Commissioner
The extent of the coverage which shall be offered as “uninsured motorist shall coverage” be at least that cover- age contained in the form sample attached hereto as Exhibit C and made a part of regulation, which is the national standard form this insurance. (emphasis added). Pa.Code 63.2 §
The form referred to provides: This endorsement does not apply: (b) to bodily an insured while injury occupying an (other automobile than an insured automobile) ownеd aby named insured or any relative resident the same house- hold, or through being struck such automobile, but this exclusion does not principal named in- sured or his relatives while or if struck automobile owned an insured named the schedule or relatives; Id., Exhibit C at 184 (emphasis added). *5 omitted the empha- that
It be observеd will omission, however, This is not its policy. from sized clause that the is invalid. Even show enough policy itself by the exactly does not match Commissioner’s though policy the the as this case nevertheless form, applied if sample form, in effect the it should not be held same as has the undеr which the form was of the regulations violation promulgated. that the terms of the Commissioner’s
It is under arguable children are excluded—as they form Judith and the sample The argument under Harleysville’s policy. are excluded follows: might as go clauses, form consists two
The Commissioner’s еxclusion, second being clause being the first clause from exclusion. Under first clause an exclusion that excluded, are they occupy- the children Judith and automobile”, and than insured automobile “other ing an named relative “owned [of insured].” whether clause is therefore undеr second The question and children. is restored to Judith coverage clause, interpolations, with reads follows: The second does not of the first exclusion clause] “[The relatives named principal [Edward] ... an automobile and the children] in the schedule or his relatives.” an insured named Is “an was owned Judith. she Here the automobile is, If in she terms of the named the schedule”? met, is coverage have restored. If clause been second met, second clause have been not, is the terms of the she is not restored. that the meaning is no point prеtending There schedule,” term, clear. How- “an insured named it the ever, Commissioner meant likely it seems com- suggested insured.” This is “designated refer to a with the com- sample form more the Commissioner’s paring form, that uninsured motorist monly provides used not apply: does *6 to (b) bodily injury an insured whilе a occupying (other vehicle than highway an insured vehicle) highway insured, the named any designated insured relative resident in the same any household as the named or designated through insured or being struck such a but this exclusion vehicle does not apply the named or his relatives while or if occupying struck aby vehicle owned highway designated a insured or his relatives. Pretzel, P. Uninsured Motorists 30-32 (1972).
See Further- more, in the section of definitional the Commissioner’sform it is said:
“insured” means: the named
(1) insured as stated in the policy designated as named person insured in the sched- ule 63.2, C, Pa.Code Exh. at (emphasis added). §
If reasoning is it follows accepted, that Judith and the children are excluded under the Commissioner’s sample are excluded under They form. the first clause. The second clause, with reads: interpolations, exclusion of the “[The first does not principal named insured clause] or his relatives and the [Edward] children] ... occupying automobile owned named schedule is be construed as meaning [which aby designated insured or his relatives.” Judith was anot ] “designated insured”. Therefore the automobile she and the children were was not owned ocсupying designated “by insured or his relatives.” Therefore the terms of the second met, clause were not and coverage was not restored to Judith and the children.
-3- matter, Even this conclusion does not end the for now it is to ask: Did the necessary Commissioner have power to (аs issue his sample just construed)? form Farm Automobile Insurance In Bankes State (1970) Co., (WATKINS, JJ., SPAULDING, dissenting), allocatur re JACOBS, and fused, legislative the Uninsured history we reviewed Act, as was amended follows: Motorist act was recently motorist amended Act The uninsured became effective January 397 of 1968 whiсh No. enacted, most uninsured mo- this amendment When three exclusions similar to the torist contained policies here. They contained in Farms excluded ones State if: insured settles with the third party; 1. The an uninsured automobile 2. The insured *7 insured; or the owned by work- indirectly Benefits inure or to directly fund. compensation men’s the which 961, which was bill from the Bill
Senate
taken,
each of
was
contained
these
ultimately
amendment
1(e)(4)
In
it contained exclusion
particular,
exclusions.
2
pro-
to exclusion
above and which
corresponded
act
not
coveragе
by
the
the
does
required
vided that
the insured while in
by
sustained
bodily injury
“[t]o
entering into or
from a motor
alighting
or while
upon
in the insur-
other than
automobile described
vehicle
injured
the
of
...
if
ance
insurance
Thus,
propos-
of such other automobile.”
is the owner
2
include the
exclusion
abоve within
disputed
al
sought
Yet while
framework.
exclusions
statutory
the amended
included in
1968
specifically
above were
1
3
2
amendment, exclusion was stricken
not
statutory
There
appears
thus
a definite
legislature.
adopted by
uninsured
to .
extend
motorist
intent
legislative
uninsured
ocсupying
even
individuals
automo-
coverage
biles.
167-68,
This statement a carrier of the exclusion broadening by on an impermissible We now hold that even the the Commissioner. by allowed it) (as we have construed exclusion Commissioner’s out, legislature As Bankes evi- impermissible. pointed should when intended that there be dently “[t]he an uninsured insured is automobile occupying “the insured.” Here and the children]” automobile” “owned the in- 4 Thus, Judith by excluding sured.” and the children form the Commissioner has acted contrary legisla- tive intent. An administrative agency may promulgate intent in regulations contrary legislative expressed to which the statutory provision regulation relates. Xe- Corp. City Pittsburgh, 411, 417, rox 15 Pa.Cmwlth. (1974).5 A.2d
We are
this conclusion not
supported
only
legislative
Act,
of the Uninsured Motorist
history
but also by
the fact that “a distinct
majority
jurisdictions in
which the issue has been resolved”6 have held similar exclu
sions violative of the purpose of the uninsured motorist
statutes.
Mullis
especially
See
v. State Farm Mutual Auto
Co., Fla.,
mobile Insurance
(1971);
So.2d 229
see also
Widiss,
cited in
cases
note
supra
2.9 n. 3.
§
has
pointed out that
the Wilberts are
afforded
being
coverage for which
have not
they
paid
only by Judith,
4. Since the automobile was owned
and not
Judith
children,
might
suggested
legislative history
and the
be
support
here,
discussed
Bankes does not
the conclusion reached
i.
e.,
legislature
that the
only
intended that
should extend not
*8
sense,
to Judith but
to the children. As a matter of common
however,
coverage
the decision that
(despite
should extend to Judith
buy coverage)
her
to
failure
means that
it should also extend to the
(who
obligation
ability
buy
children
did not have either
the
to
coverage).
agree
JACOBS,
Judge
concurring,
5. We
with Presidеnt
that
opinion
harmony
should be read as in
with Nationwide Mut. Ins. Co.
Ealy,
(1972),
v.
Affirmed.
WATKINS, former President Judge, did not participate in the consideration or decision of this case.
JACOBS, Judge, President files a concurring opinion in VOORT, J., VAN der joins. JACOBS, President Judge, concurring: While I agree with the result reached I majority, believe that it is both unwise and unnecessary to invalidate the Commissioner’s form by holding Exclusion (b) contravenes the policy behind the Uninsured Motorists Act se. рer
227
the insurer
attempt by
Any
deny
completely,
here, must be
in derogation
considered
of the statute’s
which is to enable the innocent
purpose,
victim of an unin
motorist’s
to recover those
negligence
damages
sured
he would have received had the
driver
maintainеd
insurance. Bankes v.
State Farm Mutual
minimum
liability
Co.,
Automobile Insurance
162, 168,
216
264
Pa.Super.
A.2d
however,
believe,
I
(1970).
(b)
Exclusion
may
be used to divide the uninsured
properly
motorist coverage
in two or more automobile insurance policies issued to mem
same
in order to
family
prevent
bеrs
cumulation of
automobiles,
coverage among
since the insured still
required
the full
the Act.
It was
gets
protection
so
Mutual
in Nationwide
Insurance Co. v.
Ealy,
employed
138,
I hold the exclusion invalid only as to the facts of this case. applied VOORT, J., joins concurring
VAN der opinion. WILLIAMS, Appellant, ex rel. Janice COMMONWEALTH James MILLER.
Superior Pennsylvania. Court of Sept.
Submitted 1976. April
Decided