M. London, Inc. v. Fedders Corp.

• Decision Date: 30 November 1982
• Citation: 306 Pa.Super. 103,452 A.2d 236
• Parties: M. LONDON, INC., Lewis Feldman and Jennie Feldman, H/W, Paul London, Executor of the Estate of Louis London and Celia London v. FEDDERS CORPORATION and Fedders-Norge Eastern Distributing, Inc. Appeal of UNITED NATIONAL INSURANCE COMPANY, Amherst Insurance Company and Northeastern Fire Insurance Company of Pennsylvania.
• Court: Pennsylvania Superior Court

Page 236

452 A.2d 236

306 Pa.Super. 103

M. LONDON, INC., Lewis Feldman and Jennie Feldman, H/W, Paul London, Executor of the Estate of Louis London and Celia London v. FEDDERS CORPORATION and Fedders-Norge Eastern Distributing, Inc Appeal of UNITED NATIONAL INSURANCE COMPANY, Amherst Insurance Company and Northeastern Fire Insurance Company of Pennsylvania.

Superior Court of Pennsylvania.

Argued April 21, 1982.

Filed Sept. 17, 1982.

Reargument Denied Nov. 30, 1982.

Harry P. Begier, Jr., Philadelphia, for appellants.

William D. Parry, Philadelphia, for London, appellees.

Roger J. Harrington, Philadelphia, for Fedders, appellees.

August J. Lacko, Philadelphia, for amicus curiae.

Before WICKERSHAM, BROSKY and WIEAND, JJ.

WICKERSHAM, Judge:

This is an appeal from a trial court order denying a petition to intervene brought by United National Insurance Company, Amherst Insurance Company, and Northeastern Fire Insurance Company of Pennsylvania (hereinafter the insurance companies). The pertinent facts are as follows. A retail store, owned by M. London, Inc., (hereinafter London) and insured by the appellant--proposed intervenor insurance companies, was extensively damaged by fire on November 24, 1974. London presented claims for the damage to the store to the insurance companies which were settled for a total of $55,034.62.

London conducted an investigation into the cause of the fire and concluded that it was the result of a defective refrigerator manufactured and distributed by Fedders Corporation and Fedders-Norge Eastern Distributing, Inc., (hereinafter Fedders). London brought suit against Fedders on May 9, 1975, alleging damages of over $150,000.00. The insurance companies presented a petition to intervene in the suit on August 23, 1977, which was denied on March 8, 1978. An appeal from the order denying the petition to intervene was filed by the insurance companies with the superior court on March 23, 1978, and a petition for supersedeas was filed in the lower court on May 10, 1978. The lower court denied the petition for supersedeas on June 15, 1978; the insurance companies then filed an application for stay with the superior court. On July 31, 1978, the superior court denied the insurance companies' application for stay with a per curiam order.

A jury trial was held in the underlying action on November 6, 1978; the jury returned a verdict in favor of the defendants Fedders. Judgment was so entered on March 29, 1979.

Initially, we note that we may address the issues of appealability and jurisdiction sua sponte. MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815 (1976). Although generally an appeal will not lie from an order refusing leave to intervene (see Boise Cascade Corporation v. East Stroudsburg Savings Associations, --- Pa.Super. ---, 446 A.2d 614 (1982)), such an order is appealable if a contrary conclusion would effectively preclude much of the relief sought by the appellant. Marion Power Shovel Co. v. Fort Pitt Steel, 285 Pa.Super. 45, 48 n. 2, 426 A.2d 696, 697-98 n. 2 (1981).

The appellant insurance companies seek a reversal of the order of the lower court dismissing their petition for intervention, and a new trial in the action against Fedders. If the instant appeal were to be quashed the insurance companies' claims against Fedders would be effectively precluded as their claims, brought as subrogees, are entirely derivative from that brought by London. "As a subrogee derives his right to recovery from the injured party, the prohibition against splitting of actions is no less binding where the interest of a subrogee is involved." Travelers Insurance Company v. Hartford Accident and Indemnity Company, 222 Pa.Super. 546, 549, 294 A.2d 913, 915 (1972). The insurance companies have presented us with an appealable order.

The appellant insurance companies frame their first question involved as follows:

Does a subrogating insurance carrier have a right to intervene in its insured's action against a potential tortfeasor to recover for loss and damage, for which the subrogating insurance carrier has already, in substantial part, paid its insured?

Brief for Appellants at 2.

Whether to allow intervention is a matter within the discretion of the court below, absent a manifest abuse of that discretion. Marion Power Shovel Co. v. Fort Pitt Steel, supra. An abuse of discretion is more than just an error of judgment. A trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias, or...