IN THE SUPREME COURT OF PENNSYLVANIA 

DOCKET NO. 52 WM 2020             

JOSEPH TAMBELLINI, INC., d/b/a JOSEPH TAMBELLINI RESTAURANT 

v. 

ERIE INSURANCE EXCHANGE 

BRIEF OF AIG AMICI CURIAE 

Appeal from Matter Pending in the 
Allegheny County Court of Common Pleas 
No. GD 20-005137 

Keith Moskowitz* 
Dentons US LLP 
233 South Wacker Drive 
Suite 5900 
Chicago, IL  60606
(312) 876-8220
Pro Hac Vice Application 
Forthcoming

*Admitted in Illinois, 
Connecticut and New 
York

Clifford B. Levine 
  Pa. Id. No. 33507 
Alice B. Mitinger 
  Pa. Id. No. 56781 
Mark A. May 
  Pa. Id. No. 82187 
David F. Russey 
  Pa. Id. No. 84184 
Dentons Cohen & Grigsby P.C. 
625 Liberty Avenue 
Pittsburgh, PA 15222-3152 
(412) 297-4900

On behalf of AIG Amici Curiae 

TABLE OF CONTENTS 

STATEMENT OF INTEREST OF THE AMICI CURIAE ............................ 1 

SUMMARY OF ARGUMENT OF AIG AMICI CURIAE ............................ 1 

A.
B.

III. RELEVANT FACTUAL BACKGROUND ................................................... 2 
Nature Of The “Emergency Application” ............................................. 2 
Pennsylvania’s Response To COVID-19 And Types Of Relief
Available To Affected Businesses ........................................................ 4 
The Insurance Industry In Pennsylvania ............................................... 5 

C.

I.

II.

IV.

THE ONE-SIZE-FITS-ALL RELIEF SOUGHT HERE IS
UNTENABLE AND WOULD REFLECT AN INAPPROPRIATE
EXERCISE OF THIS COURT’S KING’S BENCH POWERS ..................... 9 
This Court’s Extraordinary Jurisdiction And Exercise Of King’s
A.
Bench Powers Must Be Used Sparingly And Should Not Be
Used Here .............................................................................................. 9 
The Application Asks This Court To Violate The Fundamental
Due Process Rights Of All Pennsylvania Insurers ..............................13 
The Declaratory Relief Demanded Here Cannot Be Granted
Without The Participation Of All Pennsylvania Insurers, As
Indispensable Parties ...........................................................................17 

C.

B.

V.

CONCLUSION ..............................................................................................20 

TABLE OF AUTHORITIES 

Cases 

Page(s) 

Bd. of Revision of Taxes, City of Philadelphia v. City of Philadelphia, 
   607 Pa. 104, 4 A.3d 610 (2010) ............................................................................ 10 
Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959) ........................................ 16 
Budtel Assocs., LP v. Continental Cas. Co., 915 A.2d 640 (Pa. Super. 2006) .......... 7 
Cnty. of Berks v. Pa. Labor Relations Bd., 544 Pa. 541, 678 A.2d 355 (1996) ...... 10 
Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 

346 A.2d 788 (1975) ............................................................................................. 17 

Com. Dept. of Transp., Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 

684 A.2d 1060 (1996) ........................................................................................... 14 
Com. v. Morris, 565 Pa. 1, 771 A.2d 721 (2001) .......................................... 9, 11, 12 
Com. v. Williams, 634 Pa. 290, 129 A.3d 1199 (Pa. 2015) ................................. 9, 11 
Commonwealth v. Martorano, 535 Pa. 178, 634 A.2d 1063 (1993) ....................... 10 
CRY, Inc. v. Mill Service, Inc., 536 Pa. 462, 640 A.2d 372 (1994) ................... 17, 18 
Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) .................................................... 16 
Foster v. Mut. Fire, Marine & Inland Ins. Co., 531 Pa. 598, 614 A.2d 

1086 (1992) ............................................................................................................. 5 

Friends of Danny DeVito, et al. v. Tom Wolf, Governor, Docket No., 68 

MM 2020 (Pa. April 13, 2020) ......................................................................... 4, 11 

Friends of Danny DeVito, et al. v. Tom Wolf, Governor, U.S. Supreme Court 

Docket No. 19A1032, (May 6, 2020) ................................................................... 11 
Gianni v. William G. Phillips, Inc., 933 A.2d 114 (2007) ....................................... 15 
Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986) .................... 6 
In re 2005 Sale of Real Estate by Clinton Cnty. Tax Claim Bureau, 915 A.2d 719 

(Pa. Commw. 2007) .............................................................................................. 17 
In re Bruno, 627 Pa. 505, 101 A.3d 635 (Pa. 2014) ................................................ 11 
In re Dauphin Cnty. Fourth Investigating Grand Jury, 596 Pa. 378, 943 

A.2d 929 (2007) .................................................................................................... 10 
In re Franciscus, 471 Pa. 53, 369 A.2d 1190 (1977) ........................................ 11, 12 
Mazur v. Washington Cnty. Redevelopment Auth., 954 A.2d 50 (Pa. 

Commw. Ct. 2009) ................................................................................................ 19 
Meeting House Lane, Ltd. v. Melso, 628 A.2d 854 (Pa. Super. 1993) ...................... 6 

ii 

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950) ..................... 13, 14 
Philip Morris USA v. Williams, 549 U.S. 346 (2007) ............................................. 14 
Phillips Petroleum Co. v. Schutts, 472 U.S. 797 (1985) ......................................... 16 
Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958) ..... 6 
Polydyne, Inc. v. City of Philadelphia, 795 A.2d 495 (Pa.Commw. 2002) ............. 17 
Shelley v. Kraemer, 334 U.S. 1 (1948) .................................................................... 14 
Sykes v. Nationwide Mut. Ins. Co., 413 Pa. 640, 198 A.2d 844 (1964)..................... 6 
Szoko v. Twp. of Wilkins, 974 A.2d 1216 (Pa. Commw. Ct. 2009) ......................... 19 
Vale Chem. Co. v. Hartford Acc. & Indem. Co., 512 Pa. 290 (1986) ............... 18, 19 
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ......................... 15 
Xpress Truck Lines, Inc. v. Pennsylvania Liquor Control Bd., 503 Pa. 399,         

469 A.2d 1000 (1983) ........................................................................................... 18 

  
Statutes 
  
42 Pa. C.S. § 502 ........................................................................................................ 9 
42 Pa.C.S. § 726 ............................................................................................... 3, 9, 10 
42 Pa.C.S. §§ 7501 ..................................................................................................... 3 
Pa. Const. art. I, sec. 6 .............................................................................................. 15 
U.S. Const. Amend. XIV ......................................................................................... 13 
  
Rules 
  
Pa.R.Civ.P. 1032(a).................................................................................................  17 
Pa.R.A.P. 3309 ..................................................................................................... 9, 14
 
  
  

 

iii 

 

   

 

BRIEF OF AIG AMICI CURIAE  

The AIG entities, which insure Pennsylvania policyholders, present this 

Brief as amici curiae in support of denial of the emergency application for 

extraordinary relief. 

I. 

STATEMENT OF INTEREST OF THE AMICI CURIAE 

The amici curiae, collectively identified as “AIG amici curiae,” are all 

insurance companies that are subsidiaries of AIG Property Casualty U.S., Inc., 

which is subsidiary of American International Group, Inc..  The AIG amici curiae, 

which insure commercial property insurance policyholders in Pennsylvania, are: 

•  New Hampshire Insurance Company 
•  Granite State Insurance Company   
•  Illinois National Insurance Co.   
•  American Home Assurance Company   
•  The Insurance Company of the State of Pennsylvania   
•  National Union Fire Insurance Company of Pittsburgh, Pa. 
•  Lexington Insurance Company  
•  AIG Specialty Insurance Company  

The policies that these insurers have issued in Pennsylvania include commercial 

insurance and property insurance.  Each policy is governed by its own terms, 

conditions, exceptions, endorsements and exclusions. 

II. 

SUMMARY OF ARGUMENT OF AIG AMICI CURIAE 

The exercise of this Court’s extraordinary jurisdiction and King’s Bench 

authority are inappropriate here.  The petitioner asks this Court to make a 

 

 

declaration as to the coverage obligations of all “insurers in the Commonwealth” 

and then to enforce those obligations as to “all businessowners in the 

Commonwealth.”  Appl. at ¶ 52, 53, 54.  The petitioner asks the Court to violate 

the fundamental due process rights of the scores of insurance companies that write 

property insurance for over one million Pennsylvania businesses and to impose a 

“one-size-fits all,” en masse resolution to all insurance disputes that have or may 

arise due to COVID-19.  This Court should not, through this single action for a 

single plaintiff, deviate from the normal trial and appellate procedures for 

consideration of the myriad situations that have and may continue to arise.  The 

AIG amici curiae ask to the Court to deny the extraordinary relief that the 

petitioner demands.   

III. RELEVANT FACTUAL BACKGROUND

A.

Nature Of The “Emergency Application”

On March 19, 2020, Pennsylvania Governor Tom Wolf ordered the closure 

of all non-life sustaining businesses in the Commonwealth, as a means to address 

COVID-19, and subsequently issued other orders (“Closure Orders”).  Joseph 

Tambellini, Inc. d/b/a Joseph Tambellini Restaurant (“Tambellini”) is a Pittsburgh-

based restaurant, insured by Erie Insurance Exchange (“Erie”) under a commercial 

general liability policy.  Tambellini contends that COVID-19 and the Closure 

Orders forced it to shut down.  On April 17, 2020, Tambellini filed an action 

2 

against Erie in the Allegheny County Court of Common Pleas, seeking a 

declaration that its Erie policy covers all of its losses, damages and expenses 

arising from COVID-19 and the Closure Orders.  Less than two weeks later, on 

April 29, 2020, Tambellini filed with this Court an “Emergency Application for 

Extraordinary Relief Pursuant to Rule 3309, 42 Pa.C.S. § 726 and King’s Bench 

Powers” (“Application”).1 

With its Application, Tambellini asks this Court not only to assume 

jurisdiction over its Court of Common Pleas action against Erie, as its insurer, but 

also asks the Court, on behalf of all insured businesses throughout the 

Commonwealth, to exercise its King’s Bench powers to assume control of all 

litigation – by all business owners against all insurance companies – for losses that 

may have resulted from COVID-19 and the Closure Orders.2   

Based on the facts alleged in its original complaint, Tambellini asserts that 

this Court’s supervision is required to address the insurance claims that have or 

may arise due to COVID-19 and the Closure Orders and would have this Court 

circumvent the standard trial and appellate process for those claims.  In filing the 

1 Although Tambellini seeks declaratory relief from this Court, it does not reference the 
Pennsylvania Declaratory Judgment Act, 42 Pa.C.S. §§ 7501 et seq. or its requirements. 

2 The application does not differentiate among commercial insurers, property insurers, 
homeowners’ insurers, vehicle insurers, or any other type of insurance carrier.  It also fails to 
describe what types of policies or policy terms, conditions, exceptions, endorsements and 
exclusions that the Court should review.  Tambellini does not assert that it has a contractual 
relationship or standing with respect to any Pennsylvania insurer other than Erie. 

3 

 

Application, Tambellini did not provide notice to any of the other business owners, 

whose interests it purports to represent to this Court.  Tambellini also failed to 

provide notice to any of the insurance companies, whose rights it would have this 

Court summarily disregard. 

B. 

Pennsylvania’s Response To COVID-19 And Types Of 
Relief Available To Affected Businesses  

The Closure Orders included an addendum, listing businesses that were 

“life-sustaining” and that could remain open.  The Closure Orders used the North 

American Industry Classification System, a code that the federal government uses, 

to compile the list of life-sustaining businesses.  That list was amended at least 

three times over the first 10 days following the initial closure order, and has 

continued to evolve, most recently with revisions on April 28, 2020.  Within the 

matrix of businesses affected, the Closure Orders have permitted some businesses 

to operate to varying degrees.  See 

https://www.scribd.com/document/452553026/UPDATED-11-45am-April-28-

2020-Industry-Operation-Guidance (last viewed May 5, 2020).  Pennsylvania’s 

comprehensive list correlates to the directive of the Department of Homeland 

Security Cybersecurity and Infrastructure Security Agency, which identified 16 

critical infrastructure industries.  See Friends of Danny DeVito, et al. v. Tom Wolf, 

Governor, Docket No. 68 MM 2020 (Pa. April 13, 2020), 5-6.  

4 

 

 

The Governor also established a waiver process, which allowed a business to 

obtain clarification as to whether it was or was servicing a life-sustaining business.  

As of March 24, 2020, over 34,000 waiver applications had been filed with the 

Commonwealth.  Id. at 43. 

C.

The Insurance Industry In Pennsylvania

The Pennsylvania Insurance Department regulates insurance companies in 

Pennsylvania.  40 P.S. §§ 41 et seq.; see also Foster v. Mut. Fire, Marine & Inland 

Ins. Co., 531 Pa. 598, 608, 614 A.2d 1086, 1091 (1992) (this Court recognized “the 

specialized complexities involved in insurance generally,” and in the regulation of 

this industry).  The Insurance Commissioner is afforded broad supervisory powers 

to regulate the insurance business.  40 P.S. § 221.1(c).  Scores of insurance 

companies write property insurance in the Commonwealth for over one million 

Pennsylvania businesses.3   

Commercial property policies in Pennsylvania can cover, inter alia, property 

damage to scheduled or unscheduled real and personal property, the property of 

others, as well as additional coverages such as extra expense, business interruption 

and contingent business interruption.  These coverages may be combined with 

3 See, e.g., Pennsylvania Insurance Department, Finding an Insurance Company, 
https://www.insurance.state.pa.us/scrpts/gfsearch (last visited May 4, 2020) (listing over 43 
property insurance companies); see, e.g., Pennsylvania Small Business Development Center, 
https://www.pasbdc.org/resources/small-biz-stats (last visited May 4, 2020) (placing the number 
of small business in Pennsylvania at over 995,000).   

5 

many other types of coverages, including commercial general liability coverage.  

No “one size-fits-all” policy exists.  One business might opt to have an “all risk” 

policy, another a “named perils” policy.  Each policy’s grant of coverage may 

reflect individually customized, broadened or restricted language through the 

inclusion or deletion of exclusionary language written into a manuscript policy or 

with endorsements or riders that broaden, limit or eliminate specific coverages or 

modify language used in the policy. 4    

When an insurance dispute arises, courts must examine the actual language 

used in a specific insurance contract to determine the rights and obligations of the 

parties.5  Insurance disputes typically involve fact-intensive review and claim-by-

4 The Insurance Department and Commissioner have recently noted: “[b]usiness interruption 
insurance does not usually cover communicable diseases, such as COVID-19.  This insurance 
coverage replaces lost income if a business is closed for a reason related to property damage to 
the location, like a fire,” and generally, business interruption insurance “was not designed or 
priced to cover communicable disease, such as COVID-19.”  See “FAQ: COVID-19 Business 
Interruption Insurance,” Pennsylvania Department of Insurance website, available at 
https://www.insurance.pa.gov/coronavirus/Pages/COVID-Business-Insurance.aspx (last visited 
May 5, 2020; see also, Elizabeth Blosfield, More States Introduce COVID-19 Business-
Interruption Bills, Claims Journal (Apr. 16, 2020), 
https://www.claimsjournal.com/news/national/2020/04/16/296600.htm (quoting Pennsylvania 
Insurance Commissioner). 

5 This Court has a long recognized, in coverage disputes, that that the specific language and terms 
of a policy control.  Effect must be given to all provisions in the contract and “interpretation 
must be applied to the language actually employed.”  Sykes v. Nationwide Mut. Ins. Co., 413 Pa. 
640, 643, 198 A.2d 844, 845–46 (1964) (citations omitted).  “In cases of a written contract, the 
intent of the parties is the writing itself.  Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 
124, 145 A.2d 672 (1958).  The intent of the parties is to be ascertained from the contractual 
document itself.  Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 390 (1986).  
The parties have the right to make their own contract, and it is not the function of a court to 
rewrite it.  Meeting House Lane, Ltd. v. Melso, 628 A.2d 854, 857 (Pa. Super. 1993). 

6 

claim analyses of the specifics surrounding a claimed loss.  Findings for a business 

interruption claim, based on the specific circumstances applied to specific policy 

provisions of the insurance contract, could include whether Pennsylvania law 

applies; whether actual direct physical loss or damage to covered property has 

occurred; whether any other exclusions, including those for virus, apply; whether 

the policyholder has met all conditions precedent to coverage; whether the 

policyholder took required steps to mitigate damages or restore operations; and 

whether time requirements have been met.  The actual amount of any covered 

business income or extra-expenses incurred must also be determined on a claim-

by-claim basis.  Each case would involve unique discovery and pre-trial issues 

before the courts.  

Insurance disputes in the Commonwealth will not necessarily involve 

policies governed by Pennsylvania law.  In resolving conflicts of law questions, 

courts must determine which state has the greater interest in the application of its 

law and “which state had the most significant contacts or relationships with the 

insurance contract.”  Budtel Assocs., LP v. Continental Cas. Co., 915 A.2d 640, 

643 (Pa. Super. 2006).  Resolution of conflict of law issues depends on the facts of 

each case, creating more individualized factual issues.  This Court’s exercise of 

emergency powers to adjudicate claims based on the insurance law of other states 

would be of little utility.  

7 

 

The Commonwealth’s Courts of Common Pleas provide an efficient forum 

for adjudicating insurance disputes, allowing for the determination of the law 

applicable to each policy, appropriate discovery, factual evidence and witnesses.  

Some counties, including Allegheny County, where Tambellini filed its complaint, 

have developed procedures for handling complex, commercial litigation and have 

judges who are experienced in trying these cases.6  Given the different Closure 

Orders, modifications and waivers that will be applied differently to different 

industries and different companies within the same industries, factual questions 

arising from COVID-19 must be addressed on a claim-by-claim basis under the 

specific terms of and law applicable to each policy. 

 

 

6 See, e.g., Allegheny County Court of Common Pleas Local Rule 249 Assignment of Judges, 
Commerce and Complex Litigation Center, 
https://www.alleghenycourts.us/civil/commerce_complex_litigation.aspx (last visited May 4, 
2020) (identifying “Insurance coverage disputes arising from policies insuring business 
enterprises and any disputes as to environmental insurance coverage provided, as to both types of 
disputes, that the dispute involves an amount of at least $250,000” as commercial cases 
presumptively eligible to be assigned to Commerce and Complex litigation center); see also 
Philadelphia Courts, https://courts.phila.gov/common-pleas/trial/civil/ (last visited May 5, 2020) 
(“The Philadelphia Commerce Court Case Management Program ("Commerce Court") is a 
specialized civil program of the Trial Division of the Philadelphia Court of Common Pleas. 
Commercial and business-to-business disputes filed after January 2000”). 

8 

 

 

 

IV. THE ONE-SIZE-FITS-ALL RELIEF SOUGHT HERE IS

UNTENABLE AND WOULD REFLECT AN INAPPROPRIATE
EXERCISE OF THIS COURT’S KING’S BENCH POWERS.

A.

This Court’s Extraordinary Jurisdiction and Exercise of
King’s Bench Powers Must Be Used Sparingly And Should
Not Be Used Here

Tambellini’s Application asks this Court both to assume extraordinary 

jurisdiction, pursuant to Section 726 of the Judicial Code, 42 Pa. C.S. § 726; and to 

exercise King’s Bench powers, as described in Pennsylvania Rule of Appellate 

Procedure 3309 and recognized in Judicial Code Section 502, 42 Pa. C.S. § 502.  

Tambellini not only seeks the Court’s extraordinary jurisdiction for its specific 

Court of Common Pleas complaint; but asks the Court to exercise its King’s Bench 

powers over any and all questions of insurance coverage arising from COVID-19 

and the Closure Orders, for all businesses and all insurers in the Commonwealth. 

This Court has exercised its extraordinary jurisdiction only in limited 

circumstances and exercises its King’s Bench powers only on rare occasions.  See 

Com. v. Morris, 565 Pa. 1, 17, 771 A.2d 721, 731 (2001) (where the Court 

exercised extraordinary jurisdiction over questions involving death penalty review, 

it noted that exercise of extraordinary jurisdiction “should be used sparingly.”); 

Com. v. Williams, 634 Pa. 290, 302, 129 A.3d 1199, 1206 (Pa. 2015) (King’s 

Bench authority must be exercised “with extreme caution”).  The Court explained: 

Pursuant to 42 Pa.C.S. § 726, we may “in any matter pending before any 
court or district justice of this Commonwealth involving an issue of 

9 

immediate public importance, assume plenary jurisdiction of such matter at 
any stage thereof and enter a final order or otherwise cause justice to be 
done.”  We have noted that in a particular case it may be appropriate to 
assume jurisdiction under section 726 in order to conserve judicial resources, 
expedite the proceedings and provide guidance to the lower courts on a 
question that is likely to recur.  Commonwealth v. Martorano, 535 Pa. 178, 
634 A.2d 1063, 1073, n. 6 (1993).   

The Court cautioned that “the presence of an issue of immediate public importance 

is not alone sufficient to justify extraordinary relief.... [W]e will not invoke 

extraordinary jurisdiction unless the record clearly demonstrates petitioner’s 

rights.”  Id., citing Cnty. of Berks v. Pa. Labor Relations Bd., 544 Pa. 541, 678 

A.2d 355, 359 (1996) (citation omitted).

Even where important government functions were at issue, this Court has 

declined to exercise its extraordinary jurisdiction and King’s Bench powers.  See, 

e.g., In re Dauphin Cnty. Fourth Investigating Grand Jury, 596 Pa. 378, 390, 943

A.2d 929, 935-36 (2007) (declined to exercise extraordinary jurisdiction in

challenge to a Grand Jury process, noting that “challenges are properly reviewable 

in the ordinary course, only once a final order issues,” but exercised extraordinary 

jurisdiction with respect to question as to county district attorney’s authority); Bd. 

of Revision of Taxes, City of Philadelphia v. City of Philadelphia, 607 Pa. 104, 

122, 4 A.3d 610, 620 (2010) (refusing to exercise King’s Bench power where 

parties’ dispute over “the propriety of reducing the Board of Revision of Taxes 

members’ salaries, while important, [did] not require accelerated review by this 

10 

Court out of the ordinary course.”).  This Court has noted that its “principal 

obligations are to conscientiously guard the fairness and probity of the judicial 

process and the dignity, integrity, and authority of the judicial system, all for the 

protection of the citizens of this Commonwealth.”  Williams, 634 Pa. at 302, 129 

A.3d at 1206 (citing In re Bruno, 627 Pa. 505, 573, 101 A.3d 635, 675 (Pa. 2014);

In re Franciscus, 471 Pa. 53, 61, 369 A.2d 1190, 1194 (1977)).  

This Court already has recognized that, despite the challenges that COVID-

19 poses, exercise of its extraordinary jurisdiction and King’s Bench powers is 

often not warranted.  As recently as April 13, 2020, this Court had an opportunity 

to consider a constitutional/King’s Bench challenge to the Closure Orders.  See 

DeVito.7  The Court’s treatment of that application highlights why the exercise of 

the Court’s extraordinary powers is inappropriate here.  DeVito involved only two 

respondents, the Governor and the Secretary of Health, who both agreed that the 

Court should exercise its King’s Bench jurisdiction to resolve constitutional issues.  

Id. at 2.  It also involved a request to interpret the Governor’s authority under 

statutes involving declaration of a disaster emergency.   

Although the full Court agreed on the importance of ruling on the 

constitutionality of the Closure Orders, and the Governor’s discretion to issue 

7 The U.S. Supreme Court has denied an application to stay this Court’s decision in DeVito.  U.S. 
Supreme Court Docket No. 19A1032, (May 6, 2020 Order Denying Application for Stay). 

11 

those orders, Chief Justice Saylor, Justice Dougherty and Justice Mundy indicated 

that they would have refrained from exercising discretion to grant King’s Bench 

jurisdiction because “several material aspects of the petitioners’ claims may 

involve issues of disputed fact.”  Id., Concurring and Dissenting Opinion at 1 

(emphasis supplied).  Those Justices felt that the issues raised “should have been 

left to the Commonwealth Court, in the first instance, as the court of original 

jurisdiction invested with fact-finding capabilities.”  Id. at 4 (emphasis 

supplied).  Here, unique insurance disputes will involve exponentially broader, 

individualized factual issues.  See Section III(C), supra. 

This Court has conscientiously guarded against use of its extraordinary 

powers and use of those powers is clearly unwarranted here.  In the context of one 

action of one insured against its insurer, Tambellini would have this Court make 

rulings that would affect the rights of insurers and policyholders in this 

Commonwealth without regard for the fact-intensive, claim-by-claim, policy-by-

policy analyses that are required for an appropriate determination of the parties’ 

rights and obligations, based on the actual state law applicable to each policy, the 

actual language of each contract and the actual facts of each insurance claim or 

dispute.  Tambellini asks the Court to by-pass that system and the myriad of factual 

situations that have and may continue to arise in the context of COVID-19 and the 

12 

 

Closure Orders and instead to impose a one-size-fits-all resolution through a 

definitive and indiscriminate declaration regarding coverage.  

The Commonwealth’s Courts of Common Pleas and their experienced trial 

judges remain the best forum for adjudicating insurance disputes, allowing for the 

factual evidence and witnesses necessary to answer these questions.  Tambellini 

may seek an immediate resolution to its claims but it does not and cannot assert 

this Court could provide any general guidance that would recur and would apply to 

any and all insurance disputes, to all Pennsylvania policy holders and all 

Pennsylvania insurers, due to COVID-19.  Contrary to Tambellini’s claims, 

jurisdiction over COVID-19-related insurance disputes should remain in courts 

vested with fact-finding capabilities. 

B. 

The Application Asks This Court To Violate The 
Fundamental Due Process Rights Of All Pennsylvania 
Insurers 

Tambellini asks this Court to declare the coverage obligations of all 

“insurers in the Commonwealth” and then to enforce those obligations as to “all 

businessowners in the Commonwealth.”  Appl. at ¶ 52, 53, 54.  This request denies 

the unnamed insurers notice and an opportunity to be heard and violates the Due 

Process Clause of the United States Constitution.  See U.S. Const. Amend. XIV.  

“The fundamental requisite of due process of law is the opportunity to be heard.”  

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (internal 

13 

 

 

quotation marks omitted)); Shelley v. Kraemer, 334 U.S. 1, 16 (1948) (“The action 

of state courts in imposing penalties or depriving parties of other substantive rights 

without providing adequate notice and opportunity to defend, has, of course, long 

been regarded as a denial of the due process of law guaranteed by the Fourteenth 

Amendment.”); Com. Dept. of Transp., Bureau of Driver Licensing v. Clayton, 546 

Pa. 342, 684 A.2d 1060, 1064 (1996) (recognizing that the essential requisites of 

procedural due process are notice and meaningful opportunity to be heard).  

Tambellini’s failure to comply with Pa. R. A. P. 3309, which requires applicants 

for extraordinary relief to provide notice to all “persons who may be affected 

thereby,” and thereby meaningfully access their “opportunity to be heard” and 

present their defenses (Mullane, 339 U.S. at 314), underscores the Application’s 

due process deficiencies.  Because it would be extremely cumbersome to comply 

with the rule’s notice requirements, Tambellini simply ignores them.  This 

demonstrates precisely why the single, massive, extraordinary jurisdiction matter 

proposed is not appropriate, and indeed violates due process rights. 

By proposing to foreclose the unnamed insurers from presenting any 

defenses, the relief that Tambellini seeks would also violate the due process 

guarantees of the Fourteenth Amendment.  Philip Morris USA v. Williams, 549 

U.S. 346, 353 (2007) (“[T]he Due Process Clause prohibits a State from punishing 

14 

an individual without first providing that individual with an opportunity to present 

every available defense.”).   

The interaction of extraordinary jurisdiction and the right to a jury trial also 

implicate due process considerations.  The Pennsylvania Constitution expressly 

requires civil jury trials.  See Pa. Const. art. I, sec. 6 (“Trial by jury shall be as 

heretofore, and the right thereof remain inviolate.  The General Assembly may 

provide, however, by law, that a verdict may be rendered by not less than five-

sixths of the jury in any civil case.”).  Pennsylvania courts have applied the plain 

language meaning of this rule.  See, e.g., Gianni v. William G. Phillips, Inc., 933 

A.2d 114, 115 (2007) (noting state constitutional right to trial by jury).  Were this

Court to accept jurisdiction, it would need to expend significant resources 

monitoring jury trial proceedings, something the Courts of Common Pleas have 

both capacity and expertise to do.  Cf. Pa. Const. art. V, sec. 9 (“there shall also be 

a right of appeal from a court of record or from an administrative agency to a court 

of record or to an appellate court).   

Further, the process as contemplated may deny room for defendants to 

exercise their federal statutory rights to removal to federal court, 28 U.S. Code 

§ 1441, or to defend based on lack of personal jurisdiction, World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (“The Due Process 

Clause of the Fourteenth Amendment limits the power of a state court to render a 

15 

valid personal judgment against a nonresident defendant.”).  The ill-defined scope 

of the affected insurers could sweep in insurers not otherwise subject to personal 

jurisdiction in Pennsylvania or that would typically be entitled to removal of an 

action to federal court.  Alternatively, to the extent that the relief that Tambellini 

suggests in the Application is meant somehow to afford case-by-case exercise of  

rights to removal and contestation of personal jurisdiction, than the all-at-once, up-

or-down adjudication it promises is illusory, particularly where many of these 

cases may address the law of sister states, which Pennsylvania courts are obligated 

to respect and apply where appropriate.  Phillips Petroleum Co. v. Schutts, 472 

U.S. 797 (1985).8 

As a result, even if the Court were to consider exercising its extraordinary 

jurisdiction here, it could not do so without flouting these and other constitutional 

protections, leading to invalid results and creating the litigation bottleneck that 

Tambellini asserts would be cleared. 

8 At the federal level, jury trials form part and parcel of American consideration of due process 
rights.  The Seventh Amendment requires breach-of-contract disputes between private parties to 
be decided by a jury.  This right to a jury trial is paramount.  See Beacon Theatres, Inc. v. 
Westover, 359 U.S. 500, 510 (1959) (“Since the right to jury trial is a constitutional one . . . 
discretion [in determining the order of causes to be tried first] is very narrowly limited and must, 
wherever possible, be exercised to preserve jury trial.”); Dairy Queen, Inc. v. Wood, 369 U.S. 
469, 473 (1962) (“Beacon Theatres requires that any legal issues for which a trial by jury is 
timely and properly demanded by submitted to a jury.”). 

16 

C.

The Declaratory Relief Demanded Here Cannot Be Granted
Without The Participation Of All Pennsylvania Insurers, As
Indispensable Parties

Tambellini seeks to determine the rights under all insurance policies in the 

Commonwealth without the participation of insurers, other than Erie.  In 

Pennsylvania, an indispensable party is one “whose rights are so directly connected 

with and affected by litigation that [the entity] must be a party of record to protect 

such rights[.]”  Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 

377, 379, 346 A.2d 788, 789 (1975).; see also CRY, Inc. v. Mill Service, Inc., 536 

Pa. 462, 468, 640 A.2d 372, 375 (1994) (same).  Here, the absent and insurers and 

policyholders, whose rights Tambellini would have this Court adjudicate in 

absentia, have essential contractual rights that cannot be adjudicated without them.  

Because these insurers are not parties, this Court lacks subject matter jurisdiction 

and entertaining Tambellini’s Application without them would risk rendering an 

advisory opinion.   

Failure to join an indispensable party to a lawsuit deprives the court of 

subject matter jurisdiction.  In re 2005 Sale of Real Estate by Clinton Cnty. Tax 

Claim Bureau, 915 A.2d 719 (Pa. Commw. 2007); Polydyne, Inc. v. City of 

Philadelphia, 795 A.2d 495 (Pa.Commw. 2002).  Failure to join an indispensable 

party is a nonwaivable defense under the Pennsylvania Rules of Civil Procedure.  

Pa.R.Civ.P. 1032(a).   

17 

 

In determining whether a party is indispensable, the focus is on the party that 

has not been joined.  This Court has stated that determining whether a party is 

indispensable requires consideration of at least four factors: 

•  Do absent parties have a right or interest related to the claim? 
•  If so, what is the nature of that right or interest? 
•  Is that right or interest essential to the merits of the issue? 
•  Can justice be afforded without violating the due process rights  of 

absent parties? 

CRY, Inc., at 375 (citation omitted).  It is beyond dispute that parties to a contract 

must be joined as parties to a dispute involving the rights under that contract.  See 

Xpress Truck Lines, Inc. v. Pennsylvania Liquor Control Bd., 503 Pa. 399, 469 

A.2d 1000, 1006 (1983).   

This Court has held that even if one or more of the parties asserts the 

existence of important insurance coverage issues that are likely to recur, it does not 

obviate the need to join indispensable parties.  See Vale Chem. Co. v. Hartford 

Acc. & Indem. Co., 512 Pa. 290, 295 (1986).  In that case, the Court recognized the 

importance of joining interested parties to declaratory judgment actions involving 

insurance coverage, including insurers and affected persons with claims against the 

policyholder.  Id. at 295-96.  In asking this Court to consider this single, expedited 

proceeding, Tambellini would have the Court exclude the insurers and the 

policyholders whose interests it asks this Court to adjudicate.   

18 

 

 

Excluding these interested parties would result in impermissible advisory 

opinion.  See Vale, 512 Pa. at 295 n.2.  “A declaratory judgment may be obtained 

only where there is a real controversy; it must not be employed to determine rights 

in anticipation of events that may never occur or for consideration of moot cases or 

for the rendition of an advisory opinion that may prove to be academic.”  Szoko v. 

Twp. of Wilkins, 974 A.2d 1216, 1219 n. 5 (Pa. Commw. 2009) (citing Mazur v. 

Washington Cnty. Redevelopment Auth., 954 A.2d 50 (Pa. Commw. 2009), appeal 

denied, 600 Pa. 766, 967 A.2d 961 (2009)).  Tambellini cannot disregard the 

interests of the indispensable parties it has failed to join to its ill-conceived 

application for extraordinary relief. 

19 

V.

CONCLUSION

For the foregoing reasons, the AIG amici curiae asks this Court to refrain

from exercising its extraordinary jurisdiction and King’s Bench powers. 

Keith Moskowitz* 
Dentons US LLP 
233 South Wacker Drive 
Suite 5900 
Chicago, IL  60606 (312) 
876-8220
Pro Hac Vice Application 
Forthcoming

*Admitted in Illinois, 
Connecticut and New 
York

Dated:  May 7, 2020 

3338978.v1

Respectfully submitted, 

By________________________ 
Clifford B. Levine 
  Pa. Id. No. 33507 
Alice B. Mitinger 
  Pa. Id. No. 56781 
Mark A. May 
  Pa. Id. No. 82187 
David F. Russey 
  Pa. Id. No. 84184 
Dentons Cohen & Grigsby P.C. 
625 Liberty Avenue 
Pittsburgh, PA 15222-3152 
(412) 297-4900

On behalf of AIG Amici Curiae 

20 

CERTIFICATE OF COMPLIANCE 

Pursuant to Pennsylvania Rule of Appellate Procedure 1115 (f), I hereby 

certify that this BRIEF has a word count of 4,450 words, as counted by Microsoft 

Word’s word count tool. 

Clifford B. Levine

atter Pending in the Allegheny 
County Court of Common Pleas 
No. GD 20-005137 

  M

Emergency Application for 
Extraordinary Relief 

IN THE SUPREME COURT OF PENNSYLVANIA 

ORDER 

JOSEPH TAMBELLINI, INC., 
d/b/a JOSEPH TAMBELLINI 
RESTAURANT, 

                                     Petitioner, 

                           vs. 

RIE INSURANCE EXCHANGE, 

                                     Respondent. 

: 
: 
: 
: 
: 
: 
: 
: 
: 
: 

   

   

   

   

  E

AND NOW this ___ day of May, 2020, upon consideration of the 

Application of the AIG Applicants, as identified, to participate as Amici Curiae in 

this proceeding, the AIG Application is GRANTED and the Court will accept the 

Brief of AIG Amici Curiae, as attached to the Application, for consideration in this 

BY THE COURT: 

______________________________ 

 

 

 

 

 

 

 

 

 

matter. 

   

   

3337943.v1 

 

 

 

Richard W. DiBella 
Tara Maczuzak 
Dibella, Geer, McAllister & Best 
11th Floor 
20 Stanwix Street 
Pittsburgh, PA  15222 
rdibella@dgmblaw.com 
tmaczuzak@dgmblaw.com 

n Behalf of Erie Insurance 

Exchange 

  O

 

 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that the foregoing APPLICATION and 

BRIEF OF AIG APPLICANTS was filed with the Court on the 7th day of May, 

2020 and that a true and correct copy of the APPLICATION and BRIEF, as 

permitted by the Court, was filed and served by Electronic and U.S. First Class 

Mail on the 7th day of March, 2020, as follows: 

                             

 

John P. Goodrich, Esquire 
Jack Goodrich & Associates 
429 Fourth Avenue, Suite 900 
Pittsburgh, PA 15219 
jack@goodrichpc.com 

James. C. Haggerty, Esquire  
Haggerty, Goldberg, 
Schleifer & Kupersmith, P.C. 
1835 Market Street, Suite 2700 
Philadelphia, PA 19103 
jhaggerty@hgsklawyers.com 

Scott B. Cooper, Esquire  
Schmidt Kramer, P.C. 
209 State Street 
Harrisburg, PA 17101 
scooper@schmidtkramer.com 

 

 

 

Jonathan Shub, Esquire  
Kohn Swift & Graft 
1600 Market Street, Suite 2500 
Philadelphia, PA 19103 
gcroner@kohnswift.com 

n Behalf of Joseph Tambellini, 

Inc. d/b/a Joseph Tambellini 
Restaurant 

 

  O

 

 

_______________________ 
Clifford B. Levine