*1 ” 1100(c)].’ 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 der 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 named 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 court 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 June 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 (as 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 policy: 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) owned 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 observed 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 under 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 exclusion, 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 under 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 pretending 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 while 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 occupying 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 (as 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 which 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 coverage 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 above 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 occupying even individuals automo- coverage biles. 167-68, 264 A.2d at 199. at dictum, the decision in Bankes turned was

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 President that opinion harmony should be read as in with Nationwide Mut. Ins. Co. Ealy, (1972), v. 289 A.2d 113 and that the Com only missioner’s exclusion clause is herein held invalid as it affects a factual situation like the one in this case. See also Adelman v. State Co., Pa.Super. -, (1978). Farm Mut. Auto. Ins. It seem, however, helpful would that revision of the clause would be if these distinctions are to be clear. Widiss, Coverage (1969) 6. A. a Guide to Uninsured Motorist 2.9§ (Supp.1976). This premium. argument answered our decision in There, Bankes. notwithstanding that the insured had a paid for premium only uninsured motorist coverage that excluded to an insured “bodily injury occupying ... a land vehicle owned motor the named insured ... if such vehicle is not an automobile,” we held that the must extend to injuries suffered the riding an uninsured motorcycle. Furthermore, in that we have held that the policy underlying Uninsured Act Motorist to required Harleysville furnish coverage to the case, Wilberts in the circumstances of this a contract was imposed by law and it could not be abrogated the lack Or, to state the premium. point conversely: as Harleysville did not offer the Wilberts the to opportunity pay premium law, required by may not now complain of payment. lack has also pointed out that the question was reviewed and accepted by Commissioner. Such would amount to an approval from exemption requirements of the Uninsured Motorist Act. As an admin istrative agency may not promulgate regulations contrary intent legislative expressed statutory provision relates, which the regulation Xerox Corp. City of Pitts burgh, neither supra, may agency grant an exemption contrary legislative intent.

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. per

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 maintained 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 bers 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, 289 A.2d 113 (1972). See also Adelman v. Pa.Super. Co., Automobile Insurance Mutual Farm State (1977). -, A.2d would, therefore,

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