*1 Petition for Writ of Ex- Mandamus and/or traordinary Relief is DENIED. Pennsylvania, COMMONWEALTH Respondent
v.
Joseph McDERMOTT, Petitioner.
Supreme Pennsylvania. Court of 7,
Jan. 2009. EXCHANGE,
ERIE INSURANCE Appellant v.
ORDER Emily Mark D. MAIER and Maier, Appellees. A. PER CURIAM. NOW, AND 7th day January, Pennsylvania. Superior Court of 2009, the Petition for Appeal Allowance of and the Motion to Proceed Pro Se 23, Argued Sept. 2008. DENIED. 31, Filed Dec. 2008. TURNER,
James Petitioner
v.
PENNSYLVANIA BOARD
OF PROBATION AND
PAROLE, Respondent.
No. EM167 2008.
Supreme of Pennsylvania. Court
Jan.
ORDER
PER CURIAM. NOW,
AND day January, 8th
2009, the Application for Leave to File
Original GRANTED, Process is and the *2 Leonard, for Pittsburgh, appel-
Arthur lant. Pittsburgh, ap- D. for Livingston,
Scott pellee. KLEIN, and
BEFORE: POPOVICH *, JJ. FITZGERALD KLEIN, OPINION BY J.: (Erie) Exchange ap- 1 Erie Insurance declaratory peals judgment from a order- indemnify Mark ing to and W. it defend denying its and A. Maier and Emily Maier to it to defend to refuse order cross-motion indemnify.1 reverse both orders and obligation under no to and rule that Erie is indemnify the Maiers. defend or either brought was underlying lawsuit Pennsylvania Bank of as First National Bank of successor interest National Bank”). (collectively, “the Es- Northeast sentially, the claimed that Maiers Bank Bank in a fraud on the as participated represents creditors The Bank creditor. Caroyln Jeffrey Anthony Dolak- they by a home owned. Anthony, secured home for purchased Maiers $650,000, the Bank believed and because from could be received that was all that forego interest agreed However, it than that. larger a balance Bank that the Maiers alleged is $200,000 for agreed additional pay * matter, Supe specially assigned to the declaratory judgment Former Justice it consid trial rior Court. 7531-41, §§ 42 Pa.C.S. final under ered under Pa. qualifies as a final order therefore claim the trial court rul- While Maiers' 341(b)(2). R.A.P. appeal, interlocutory ripe and not pre- appeal order in a this is an from final “personal property” Anthonys may which worth While the had fraud. National, much less than that. The was to reason relationship duty First induce creditors allow the interest did not. It is hard to see the Maiers how *3 pass the and Antho- have the responsible the could be Maiers First nys receive some cash. they intentionally partici- unless National a pated in fraud.
¶ 3 While it
clear the
of
allegations
misrepresentation
conspir-
intentional
and
¶
language
complaint,
The
typ-
6
of the
by
acy
not covered
the
home-
Erie
ically
in determining
the touchstone
cov-
policies,
owners’
the Maiers
and
alleged
action,
declaratory judgment
in a
erage
the trial court
that
count
held
because one
the
of
in-
complained
indicates
acts
were
“negligent misrepresentation,”
claimed
the
example:
tentional. For
policies should cover the First National
they
At
time
and
signed
the
executed
lawsuit. We
for a
of
disagree
number
Agreement,
the Articles of
Settlement
reasons.
Statement,
documents,
closing
and other
Negligent Misrepresentation
an
is not
purchase
knew that the true
Defendants
Occurrence
$850,000.00.
price of the
was
Property
¶ 4
note
Pennsylvania
We first
the
Complaint,
Negli-
Plaintiffs
Count III —
Supreme Court in Kvaemer
Divi
Metals
¶ 125,
gent Misrepresentation,
9/22/06.
U.S.,
sion Kvaemer
Inc. v. Commercial
of
representation
Defendants’
on the Arti-
Co.,
Union Ins.
Pa.
589
¶ gist actually go of the action in specific the First which intention- Therefore, charge case of conspiracy National is a and al actions and results. the alle- paragraphs language 2. Other do use that is not alter the fact that the Bank This does claims, “negligence" akin to more standard specific allegations spe- made count of (or known)” such as "knew should knowledge cific and intended actions. investigation.” "failed to make reasonable it is an gations coverage do not constitute an “occurrence” there is no because inten- tional act. by required There no Loss of Use 8 This result can be seen look begin noting that no requirements prove at four any binding party Pennsylva has cited to negligent misrepresentation. claim of specific question. nia law on this case Negligent misrepresentation requires 1) proof of a misrepresentation of: ¶ 12 suffering economic 2) fact; under material made circum on loss a transaction does constitute misrepresenter stances which the only “loss of use” of the *4 3) falsity; ought to have known its with bring damage possibly that this un could it; an intent to induce to on another act Here, coverage policies. der the of the the 4) injury party and which results in to a Bank’s release of its only “damage” is the justifiable in acting reliance on the mis again, Once property. ben on the representation. damage the common is not within sense Contractors, coverage policies. of homeowner’s While Bilt-Rite Inc. v. Archi- The Studio, 270, policies insurance are to be construed Pa. tectural 581 866 A.2d (2005). company there are against the insurance 277 if are ambiguities, when the words clear ¶ given of claim 9 elements the as given their they must unambiguous, be by Supreme our Court demonstrate Kvaemer, plain meaning. supra. “Loss specific falsity a of the of knowledge while when of use” of the comes some property the is is an requirement3 claim not a there unusable. property accident makes the the person rely intent for another on the notion that support can find no Here, misrepresentation. underly- in the the loss of a ben. loss of use includes claim, complaint alleges the that there ¶ knowledge falsity the in specific policies of 13 involved There three Catastrophe statement. This makes the claim as found poh- a matter: Personal complaint in more akin to intentional a cy, “Homeproteetor” pobey the so, policies the claim of misrepresentation. Even All three “Homeowners” still contains the negligent misrepresentation damage” to include “property define an of takes specific element intent which of of In the tangible property. loss use the policies the claim outside realm of uninten- Homeproteetor and Homeowners defining tional. separate there section what is use.” These will be covered for “loss of ¶ Therefore, not “occur- 10 this was an as reasonable damages include such items demonstrated, rence” or accident. As an occurrence renders living expenses if (i.e. even if this the de- “negligent” were uninhabitable, loss nor- or of residence falsity fendants have known the of should these two mal It clear under rents. statement) misrepresentation, there is represent ben does not policies that bank still unless there was a concur- liability no proper- tangible personal the loss of use of act in person rent intent have the other ty- Therefore, if detrimental even rebanee. ¶ Catastrophe policy be con- situation could stretched to be Personal Kvaemer, damage defines property sidered an “occurrence” after be: text misrepresent falsity the statement. The Appellants the ele- known” the of themselves brief, charge claiming clearly states that the defendant of this in their of Bilt-Rite ments ought merely ought misrepresenter to have known. "knew or
911 [ijnjury tangible seeking, of Bank is is not covered loss of destruction use, property, including loss of but use. tangible the decrease value of the may represent 17 a bank’s lien While damage. due to the piece in a tangible interest of Policy Personal Catastrophe at 3. This is it, we can no to call in and of find reason similar language to that in the oth- found itself, tangible property contemplated as However, er policies. two the Personal Thus, policies. negligent these insurance policy Catastrophe does not contain the misrepresentation piece of value of a separate defining section “loss use.” property cannot be considered the loss Therefore, may guided by while we be of use of the insured
language found in policies, the other two reasons, For these both we are not bound we reverse language. entry trial court orders and remand for ¶ Nonetheless, definition declaratory judgment in favor of the Erie policy question at specific contains refer- against relin- Maiers. Jurisdiction “tangible ence to property” as what *5 quished. Erie Exchange’s Insurance Mo- covered. Maiers have provided us Strike/Suppress Non-Conforming tion to with any no case law nor can we find case DE- Appellees Portions of Brief for law that defines bank’s lien on real es- NIED; Quash Maiers’ Appeal Motion “tangible tate property” that is covered Attorney’s and Recover Fees is DENIED. personal fact, insurance In it appears that if the “loss of value”
home occurrence, had been the result of an J., FITZGERALD, files a the definition of property damage rules out Concurring Statement.
payment by excluding the “decrease in CONCURRING STATEMENT BY tangible value of the property due FITZGERALD, J.: damage.” Finally, there is in the nothing com- ¶ 1 I concur with the result reached plaint indicates that Bank has However, majority. my I emphasize claimed any damage tangible property. finding unique that the circum- facts and The damages sought purely monetary, not trigger stances of this case do cover- the Bank ownership does seek age pursuant specific policy to the lan- Further, the basis of the dam- guage policies and insurance at issue and ages, negligent misrepresentation, also against expanding caution scope any makes no claim that tangible property opinion. injured. has damaged been As noted in section, the prior damage claimed is property the value of the misrep- allegation
resented. There is no
property itself be cannot used as resi-
dence any way or that it been in has injured. if,
physically damaged or Even manner, misrepresentation
some about piece
how much a did worth
actually injury cause to the property, as above,
noted of that decrease value
property, which is essentially what