*1 agreement contemplates that the states Moreover,
potential property. sale right to himself the of first
Smith reserved explicitly
refusal because the clause states right.” “grantor
that the ... shall have the Therefore, Exhibit we find that
Plaintiffs 2. quitclaim provision in deed dated
January 10, quoted above ended refusal, along first personal right of
Smith’s personal rights any other that Smith Plummer, supra, had. have 300; Hershey Poorbaugh,
A.2d at cf. 435-36 (a grantor only convey that can owns).
he foregoing, no
Based on the we find error the Hum-
the trial court’s determination that appurte-
berts have a water line easement property
nant to the Southall-Antolik rights
that the Humberts’ the con- arose via
veyance predecessors to them and their Accordingly,
title. affirmed. February 8,
Order of of Com- Pleas, County,
mon Civil Westmoreland Divi-
sion at 1995 is AFFIRMED. No.
REDEVELOPMENT AUTHORITY
OF CAMBRIA COUNTY
INTERNATIONAL INSURANCE COMPA
NY, Group, Barr Erie Insurance Town
ship, Community Marsteller Au Water
thority, Lehman, Inc., Turjan Joseph P. Company, Inc., and
Construction Kuku Contracting,
rin Inc.
Appeal ERIE INSURANCE GROUP.
Superior Pennsylvania. Court of
Argued May 1996.
Filed Nov. *2 Kaltenbaugh, appel- Ebensburg,
David lant. Cochenour, ap- Pittsburgh,
Pamela G. pellee Ins. Co. Intern. Tokarsky, Johnstown, par- A.
Michelle ticipating party. McEWEN, Judge,
Before
President
CAVANAUGH, J., CIRILLO, President
Emeritus,
SOLE, BECK,
Judge
DEL
POPOVICH,
ELLIOTT,
FORD
SAYLOR
EAKIN,
JJ.
McEWEN,
Judge:
President
This
has been taken from the order
response
entered in
to the cross-motions for
summary judgment
filed
(2)
standards, and
judgment
comply
DER
declaratory
instituted
therefore,
are,
by appellee,
Redevelopment
potable
deliver
water. We
(hereinafter
County,
“Redevelop-
judgment
Cambria
entered
constrained to vacate
Authority”), seeking a
declaration
Authority.
Redevelopment
in favor
(hereinafter
Group
Erie Insurance
appellant,
Township
Barr
*3
“Erie”),
appellee
and
International
Authority
Redevelopment
in the
against
the
(hereinafter “International”),
Company
owed
alleged
Redevelop-
that the
indemnify
appellee
and
to defend
Authority
into a contract
had entered
Authority in
Redevelopment
the action filed
MCWA,
the
Township
the
with Barr
and
Authority
against the
in 1992
Barr Town-
entity
Township to own and
created
Barr
Community
ship and Marsteller
Water Au-
operate
system,
to administer
the water
“MCWA”).
(hereinafter
thority
conclude
We
$525,000
community
grant
of
block
excess
trial court erred
it
the learned
when
Department
the
of
received from
Com-
funds
required, pursuant
found that Erie was
Affairs,
munity
provide
the services
and
the contract of insurance issued
Erie to
necessary
supervise
of
the construction
Redevelopment Authority,
the
to defend the
system.1
improvements
certain
the water
Authority in
Redevelopment
the action filed
claimed,
Township
the MCWA
The
and
Township
it
the
the MCWA
and
the
damages
the three count
sought
arising
from the al-
leged
township
system Redevelopment Authority,
that the
failure of the
water
Redevel-
1. The
planning,
WHEREAS,
ment in
b.
water
be used for Activities such as
lations,
ment of all
February
procedures.
plicable
partment Community
WHEREAS,
(cid:127)
2. AUTHORITYshall
engineering,
quired
monitoring
c.
Moss Creek and
adequate funding
gram
THEREFORE,
mal
not be limited to the
mately responsible
of
(3)
spective program
and
SHIP
tion, design, engineering and construction of
eration of the Activities.
a.
1. AUTHORITY shall
wealth
quired program reports to the Common-
required
activities
Compliance
agreement provided,
application
1985/1986
manage
be
preparation
activities in full
OF
system improvements
proper
environmental review
necessary
as outlined in the formal
federal,
performance
presentation
BARR and AUTHORITYas follows:
administration,
timely
Pennsylvania.
services as
program
easements
the
the TOWNSHIP OF BARR is ulti-
including:
all
administration,
construction,
it is
for funds.
CDBG
respective program
through
state and local laws and
Marsteller, (2)
grant expenditures
documentation
funds as outlined in the for-
and incidental
and submission of
program
for
following:
agreed
activities,
of all
compliance
proper
provide
and
Program
Affairs.
administrate, operate
administering the
inter alia:
all
be
legal, accounting,
program
rights-of-way,
requests
Pennsylvania
needs.
between TOWN-
consulting and
required, and
delivery
manner
the
to include but
funds
for the re-
the
with all
perform
application
acquisition
funds
Villages
the fulfill-
clearance
and
monitor-
acquisi-
and
all
dated
regu-
shall
pay-
pro-
and
De-
ap-
op-
re-
re-
all
program close-out.
this
BARR and
THORITY shall
f.
program audit.
tions,
professional
(cid:127)
all
systems
(cid:127)
d.
retained
as amended.
e. Provision of the
reports.
sary,
the basis of
its
sylvania
(cid:127)
(cid:127)
11. The
1985/1986
ble
their resolution
monwealth
tors.
monwealth
wealth
formance
data needed for internal assessments of
the collection and evaluation
and/or
the
quate
contract
knowledge,
Preparation
provisions
Complete
Agreement.
Upon completion
monitoring findings.
cooperation
required
work has been
prompt
[*]
which will become
work
complaints,
monitoring purposes.
Urban
AUTHORITYshall act and serve
terms and conditions of both
compliance
CDBG
the TOWNSHIP
and
capacity,
[*]
monitoring
and
performance
information and
work,
and
response
Pennsylvania,
other
and submission of
Redevelopment
compliance
the Commonwealth of Penn-
being
certify to
with and
[*]
Program Application
adequate program
necessary
proper
with
completed
observations
party
under and
and insurance of
forwarded
visits and
[*]
to citizen
activities,
program
fully
report
response
and for Common-
OF
TOWNSHIP
and
and
[*]
belief,
in accordance
BARR at
Law of
to the
vested in and
according
of
proper
of such and
subcontrac-
any
the
close-out
inquiries
program
to Com-
[*]
and
inspec-
best
record
neces-
possi-
Com-
final
final
ade-
per-
in a
AU-
OF
opment Authority
“properly
juncture
had' failed to
“determination
as to
perform” the duties it had
whether Erie
International are
assumed under
re-
and/or
indemnify
contract,
quired
Authority
if
negligent,
had been
and had
township is successful.... While we have
unjustly
been
enriched as a result of the
defend,
no doubt as to Erie’s
paid
retention
the monies
to it to adminis-
question
answer to the
of whether Erie
project.
ter
Redevelopment
Author-
indemnify
must
event
ity contacted Erie and
Insur-
International
township’s
action is
is far
sueeessfid
Company upon receipt
complaint,
ance
certainty required
removed from the
requesting that each
company
de-
entry
summary
judgment.
It
fend and
the Redevelopment Au-
impossible
(negli-
to know on what basis
thority. Both companies denied that
their
contract,
gence,
unjust
breach of
enrich-
policies imposed
to defend or to
*4
ment)
(if
all)
township might
the
at
recover
indemnify
Redevelopment
the
Authority
Authority;
against the
there are numerous
against
by
Township
claims made
and
in
exclusions
the Erie
could
which
the MCWA.
prelude coverage, depending upon the the-
response,
Redevelopment Authority
ory
recovery.”
declaratory judgment
instituted the instant
I.
Superior
Jurisdiction
Court
action,
seeking a declaration
Erie
that
and
obligated
8, 1995,
International were
to defend the On March
Erie filed
a notice
Redevelopment Authority
appeal
1995,
in
Pittsburgh
insti-
No.
as of
341(a),
against
by
right, pursuant
tuted
it
to Pa.R.A.P.
from
Township
Barr
7,1995. Erie,
MCWA,
February
order
for reasons
that Erie and International
hereinafter,
8,
obligated
addressed
also
March
filed on
Redevelop-
were
1995, a
requesting
motion
that
trial
court
Authority
ment
event
that
Rede-
certify
1995,
7,
February
pursu-
the order of
velopment Authority was found
liable
341(c)(1),2
ant to Pa.R.A.P.
an
and filed
alter-
Township and the
MCWA the
requesting
native motion
that
trial
court
action.
7, 1995,
February
by
amend the order of
The trial court
that
found
the Non-Profit
adding
specified
language
Pa.C.S.
Organization Liability
is-
702(b)
§
permit
so as to
Erie to seek allow-
by
sued
did
require
International
not
that
of appeal pursuant
ance
312 and
Pa.R.AP.
provide
International
any
a defense to
action Pa.R.A.P. 1311. The trial court denied the
Authority
filed
but that Erie was
request
finality
certification
under Pa.
obligated, pursuant
gener-
to the terms of its
341(e)(1)
8,
by
R.A.P.
order
March
dated
liability policy,
al
Redevelop-
defend
1995,
petition
and Erie
Superior
filed
in the action instituted
1995,
Court No. 29 Misc.Dkt.
pursuant to
by
Township
it
341(c)(2),
the MCWA.
Pa.R.A.P.
review of
order
The trial court
declined make a
which had denied certification of the order of
341(c)
(1)
provides:
2. Pa.R.A.P.
may
An
be
order
amended to include the
days
finality
determination of
entry
within 30
(c) When more than one claim for relief is
appeal
A
of the order.
notice of
or a
action,
claim,
presented in an
whether as a
petition
within
review
be filed
counterclaim, cross-claim,
third-party
or
claim
amended,
days
entry
after
of an order as
involved,
multiple parties
or when
are
the trial
period
provided
unless a
time
shorter
governmental
court
other
enter
unit
903(c)
1512(b).
Rules
final order as to
more
one or
but fewer than all
(2)
governmental
The trial court or other
parties only upon
express
of the claims or
an
required
application
unit is
act on
an
for a
appeal
determination that an immediate
would
finality
determination of
(c)
under subdivision
facilitate resolution of the entire case. Such
days
entry
within 30
of the order.
appealable
becomes
order
when entered.
During
application
the time an
for determi-
In the absence of such
determination
pending,
finality
nation for
the action will
order,
entry
of a final
order or other form
stayed. Any
application
be
denial of such an
adjudicates
decision
fewer than all the
shall be reviewable
of discre-
abuse
pursuant
claims
Chapter
shall
constitute
final
tion
15.
341(c).
order.
Pa.R.A.P.
(2)
by
742;
interlocutory
per-
7,
§
orders
February
petition for review
from
1995. This
1311,
mission,
Pa.RA.P.
Superior
Pa.RAP.
denied
order of the
Court
(3)
702(b);
18,1995.
§
from certain interlocu-
Pa.C.S.
April
dated
311; 42
tory
right, Pa.RAP.
orders as of
court, however, by
order dated
trial
(4)
702(a);
collat-
§
from certain
Pa.C.S.
amended,
5, 1995,
response to
April
See,
orders,
e.g.: Conti-
Pa.RAP. 313.
eral
Erie,
petition
the order of
second
filed
Building
Bank v. Andrew
nental
7, 1995,
February
provide, pursuant
648 A.2d
702(b)
Code,
of the Judicial
Section
ground
opinion
substantial
for difference of
concerning
Erie’s
to defend the Author-
(1) any order that
A final order is
existed,
ity
that an immediate
so
(2) any
parties,
disposes of all claims or of all
7,1995,
February
would advance
the order
expressly
a final
defined as
order that
the ultimate determination of
controver-
statute,
order entered
702(b);
sy.
Pa.RA.P.
See:
Pa.C.S.
(c)
pursuant
to subsection
a final order
Erie then
at No. 52 Misc.Dkt.
See,
Steinbach,
e.g., Miller
Pa.RAP. 341.
5, 1995, petition requesting
May
(1996);
Ha
Chapter provides Rules which 13 of the have the force atory judgment for review of actions shall Appellate Procedure allows order, interlocutory petition per light an order via a final and effect Welsh, appeal, diligently Hoover v. appellant mission have fact that counsel alio, (1992), jurisdiction 615 A.2d de attempted perfect this nied, 535 Pa. 634 A.2d where applicable to procedure both the Court via has the trial court certified order procedure appli- well appeals as as the direct sought, appeal pursuant which the is appeals by permission, interlocutory cable to 702(b)4 1311(b). jurisdiction and Pa.R.A.P. Pa.C.S. possessed are we find that we Superior and, therefore, exercise discre proceed matter interlocu permit appeal by appellee. tion to from an deny quash the motion tory appeal if the from which the order order sought requisite contains the certification Liability Policy II. General days if appellant, within 30 Issued Erie entry order, request files a with the scope appeal of an from an Our of review trial order and court for amendment of the summary judgment plena- granting order acts within trial court to amend ry: days thereafter. granting a reviewing an order motion above, attempted As recounted summary judgment, must view the we interlocutory
perfect permission light most favorable record appellate so to insure review of the deter non-moving All as to the party. doubts trial mination made court genuine of material of a issue existence February if the even order entered on moving fact must resolved be order, if the was not final even Moreover, summary judgment party. pursuant trial court denied certification proceedings, it is not court’s function 341(c). Trainer, Pa.R.A.P. Matukonis v. Cf. facts, only but to deter- determine 570, 572-574, 657 A.2d if an issue of material fact exists. mine (1995); Fayne, Bonner v. only grant- Summary judgment should be 657 A.2d those eases are free and clear ed in (Pa. Cooper, Womeldorf from doubt. Cmwlth.1995). Summary judgment proper where epitomizes This case the difficulties *7 to in- depositions, answers pleadings, prudent which can encountered be and af- terrogatories, admissions of record diligent practitioner attempting in to unravel trial court’s support on file fidavits finality question of the of the intricacies no issue of materi- genuine conclusion that purposes appellate orders for review. moving party is al [that] fact exists Pines, Pennsylvania Ap Zygmont A. See: judgment as a matter of law. entitled pellate Require Practice: Procedural Vagaries Jurisdiction, Presbyterian Medical 91 Phico Insurance Co. v. ments 224, (1986). 221, Pa.Super. Corporation, 444 Dick.L.Rev. 56 there can be While Services (1995), 753, quoting American granted 755 dispute no Court could have 663 A.2d Casualty Maryland Insurance Co. v. appeal pursuant allowance of to Pa.R.A.P. States 179-181, Co., 170, A.2d Pa.Super. 427 628 upon 1311 the trial court’s certification based (1993). Tasman, 880, order, light express statutory Marks v. in 885 Accord: (1991); 132,, Hertz 589 A.2d 206 provision in 7532 the Judicial Code 527 Pa. Section 702(b) grounds opinion and that an difference 4. Section states: materi- from the immediate (b) Interlocutory appeals by permission.— ally termination of advance ultimate unit, government When court or other matter, The it so state in such order. shall interlocutory making a manner in an order in may thereupon its appellate tion, discre- court juris- which final order would be within court, permit appeal to an be taken from such appellate an shall be of diction of interlocutory controlling an order. opinion that such order involves 702(b). 42 question law to which there is substantial Pa.C.S. 588 Smith, at, 1317;
Carp. supra policy period. personal injury v. 657 A.2d at The Harleys Madison Co. v. property damage Construction or must be caused an Co., ville Mutual Insurance 451 place occurrence which takes in the cov- (1996). 136, 141, 678 A.2d 804 territory, (emphasis supplied) ered applied pay any per- standards to be re will additional sums or We viewing coverage questions arising under in form additional acts or services that surance contracts well explicitly are settled. “The are covered under what we also proper regarding focus issues of pay, nothing else. under insurance contracts is the reasonable Advertising Injury Liability Coverage C — expectation of In determining the insured. pay damages will of adver- We because insured, expectations the reasonable tising injury any- for which the law holds totality courts must examine the of the insur protect responsible one we which are Corpora ance transaction involved.” Hertz by your policy. only covered cover We Smith, 575, 578, tion v. advertising injury offense caused an (1995) (citations omitted). A.2d policy during period committed and in Underwriters,
Accord: Britamco
Inc. v.
advertising your
prod-
goods,
the course of
Weiner,
431 Pa.Super.
A.2d
place
ucts
services and which takes
alio, denied,
540 Pa.
589
indemnify
duty to defend or
that it has no
arising out of and based
the breach
Authority
the
suit arises
Authority,
the
since
not fall-
contractual duties
the
not
is
out of a breach of contract which
ing
required definition
an “oc-
within the
contemplated or cov-
or occurrence
currence”,
accident
duty
the
Erie had no
con-
liability
provisions
general
ered
the
tract of insurance
defend or
Township
policy.
Barr
and
insurance
While
Redevelopment Authority
underly-
the
the
employed negligence con-
the MCWA have
ing action.
drafting
complaint, it
cepts in
their
cannot be
The
to defend
a distinct obli-
disputed that
claims arise out
and
their
gation, separate
apart from
in-
and
imposed upon the
upon duties
are based
provide
Erie
coverages.
surer’s
Authority solely
contract
result of the
Co.,
Ins.
Exchange
Ins.
v. Transamerica
Authority
Township
and Barr
between the
582,
1363,
574,
516 Pa.
533 A.2d
1368
complaint,
The
through the MCWA.
(1987). Moreover,
agrees
insurer
MCWA,
Township
Barr
drafted
suit aris-
defend
insured
by the fail-
damages allegedly caused
seeks
if such suit is
under the
“even
Authority
perform the duties
ure of the
false,
groundless,
or fraudulent.” Ge-
Township,
in its
with the
set forth
contract
deon v. State Farm Mutual Automobile
alia,
Authority
alleging, inter
“did
Co.,
320,
Pa.
188 A.2d
Ins.
410
...,
properly perform
but did
its duties
(1963).
agrees
321
Since
insurer
unsMllfully
carelessly
negligently,
so
burden of de-
relieve
insured
thereby
perform
duty, which
failed to
fending even
suits which have no
those
proximate
[Barr
failure was the
cause of
fact,
obligation
basis
to defend
”
injuries....
Township’s]
arises whenever the
contract of insurance issued
injured
party
potentially
come
general liability policy,
is a
Id.;
coverage
policy.
within
expressly
providing
to defend and
Co.,
Maryland
v.
see also Wilson
Cas.
provide primary
cover-
written
588,
(1954);
377 Pa.
755;
A.2d at
su-
Grzeskiewicz,
Britamco Underwriters v.
pra
*10
union
$25,000
under the
“death benefit”
universally
interpreted liabili-
Courts
have
third-party
a
employer
to
The
provisions, identical
that
contract.
ty-coverage
referring to
Insurance Com-
appellants’ policy,
in
as
claim
found
Continental
tort,
in
The
liability sounding
liability
not in contract.
carrier.
pany, his
insurance
Surplus
Co. v.
Lines Ins.
Supreme
International
held that Continen-
Alaska
Coverage Corp.,
Cal.App.3d
obligation
Devonshire
Company
no
tal
had
Insurance
repre-
a
Cal.Rptr.
$25,-
is
pay the
employer
or to
to defend
Devonshire,
gen-
a
case. There
interpreting
sentative
In
000 death benefit.
$500,000
agent,
eral-insurance
had issued a
comprehensive general-liability
standard
policy
concerned,
on clubhouse. Un-
fire-insurance
are
as
clause with which we
insured,
separate
der a
contract with the
provision
contractual-liability
well as
agreed
to obtain
had
either
Devonshire
here,
pertinent
the court said:
insurance or to
additional
coverage portions in is-
“Neither
$500,000.
damages insured for
excess
arising from an
damages
applies
sue
the extra insur-
Devonshire failed
obtain
duty.
of a contractual
breach
insured’s
The
clubhouse
[Drexelbrook]
ance.
language
There is no
section
burned,
judg-
and the insured obtained
tangentially al-
which even
against Devonshire for more than
protecting
ludes to
$800,000.
sought
hold its
Devonshire
P.2d at 710.
breaches
contract.” 498
liability-insurance
responsible
carrier
reaching the
conclusion
Other cases
same
insurer,
ruling
judgment.
In
for the
Olympic, Inc. v.
Wash
include
Providence
interpret-
Appeals
the California Court of
Alaska,
ington
Company
Insurance
comprehensive-liability provision,
ed a
(Alas.[Alaska]1982);
v.
Kisle
St.
P.2d 1008
coverage provision in the
identical to the
Compa
and Marine Insurance
Paul Fire
case,
liability
present
extending
as
ny, 262
P.2d 1198
Boiler
Or.
based
on tort claims:
Refractory
Maryland
Ca
Brick and
Co.
‘legally obligated
pay as
phrase
“The
50, 168
sualty
S.E.2d
Va.
*
* *
*
damages’ as used in the
[liabili-
ty] policy,
synonymous
‘damages
treatise,
Law
Long in his
The
Rowland H.
liability
by
imposed
law.’ That
Insurance,
Liability
summarized the
uniformly
phrase
latter
has
inter-
been
judicial interpretations of standard
uniform
arising
preted
referring
liability
to a
liability-coverage provisions found
cur-
distinguished
ex delicto as
from ex con-
policies:
rent
earlier
(Ritchie
Casualty
v. Anchor
tractu.
insuring provision
promise
“The
Co.[,
Cal.App.2d
profit Organization, Entity named A. which the ration of AGREEMENTS INSURING Page more than owns the Declarations B Coverages I. A and voting outstanding stock. 50% Company pay will on behalf A. The ‘Wrongful Act” shall term D. The which the Insureds the Insureds all Loss alleged or mis- error any actual or mean any legally obligated pay shall be or act misleading statement statement or against or made civil claim claims first by neglect or breach or omission or Act, Wrongful provided them because of individual Insureds or more one during is first the claim made capacity as an autho- acting in their while period and notice of said policy written Entity, subject representative rized by Company during claim is received terms, and limita- to the conditions further period. policy policy. of this tions any amount E. shall mean Company “Loss” B. The will reimburse legally obligated Entity are Entity which the Insureds for all Loss for which the required, Entity pay or shall be which required by law to indi- shall be by indemnity to pay permitted or law any or vidual Insureds civil claim Insureds, any claim or claims made against because of claims first made them them, Wrongful and shall Acts Act, Wrongful provided the claim is damages, but not be limited include during period policy first made costs, cost judgments, settlements and written notice of said claim is received legal actions investigation and defense period. Company during policy (excluding cost the salaries from such ‡ ‡ ‡ ‡ Entity), claims employees of the officials or III. Definitions therefrom, cost proceedings appeals or bonds; provided or similar of attachment Entity A. mean the “Insureds” shall however, subject of loss shall always, such is, was, any or Individual who now imposed penalties or not include fines Officer, Trustee, Director, Em- shall be a law, may be deemed or matters which Staff member ployee, Volunteer or pursuant the law uninsurable under Executive, any Entity include and shall Policy shall be construed. Board Member and Committee Member Exclusions. or not. IV. whether salaried alleged to have been committed Liability clause ted or Exclusion 6. The Professional orga- provides, any the insured or member of contained in the International insured pertinent part: rendering of or failure render nization law, attorney professional medi- claim(s) services as apply based This shall not architect, of, personnel, engineer, or accoun- any cal upon, arising out or attributable alleged tant. or omissions commit- actual or errors Company shall not be liable to make 7. The willful violation of statute or payment for Loss in ordinance connection with committed or Insured; knowledge claim or consent of allegedly, made the Insureds arising discharge, based dispersal, out of 8. The one release or added) smoke, soot, fumes, escape of vapors, following: (emphasis more acids, alkalis, chemicals, liquids toxic gaining any personal 1. An Insured gases, irritants, waste materials other *13 profit advantage they or to which pollutants upon or or contaminants into legally (emphasis were not entitled land, atmosphere any or watercourse added); water; body or by any 2. The return the Insureds of 9. The Insured’s activities in a fiducia- paid in remuneration fact to them if ry any capacity respects employee payment of such remuneration shall plan. benefit by be held the courts to be in violation (1.) (2.) apply Exclusions and do not added); (emphasis of law Coverage B. Brought about or contributed to we While believe the issue of Insureds, dishonesty however, duty International’s the Rede notwithstanding foregoing, In- velopment Authority question is a amenable sureds protected shall be declaratory to resolution via an action for any terms of this as to claims see, judgment, e.g., Equipment Solcar Leas against brought which suit is them ing Pennsylvania Corp. v. Manufacturers’ any alleged dishonesty reason of on supra Assoc. part Insureds, judg- unless a 527, may A.2d we issue resolve this adjudication ment or other final thereof it has not been raised adverse to the Insureds shall establish appeal. sponte “Sua consideration issues that acts of active and deliberate dishon- deprives opportunity counsel of the to brief esty committed the Insureds with argue and the issues and the court of the actual purpose dishonest and intent were advocacy.” Wiegand benefit of counsel’s adjudi- material to the cause action so Wiegand, 461 Pa. cated; Claims, February 4.a. The order of demands or actions is vacated seek- relief, redress, entry summary and the remanded for any or form case other judgment in favor Erie and International money damages; than against Redevelopment on expenses For relating b. fees or duty the issue of the to defend. claims, seeking demands or actions relief Order reversed. Case remanded. Juris- redress, or form other than mon- relinquished. diction ey damages; direct, Any damages, 5.a. whether indi- SOLE, J., concurring DEL files a consequential, arising from, or rect or dissenting opinion. by, bodily injury, personal injury, caused SOLE, Judge, concurring DEL sickness, death; or disease dissenting: of, or b. Loss criminal abstraction agree IWhile with the conclusion that the damage tangible or destruction of present appeal properly before us re- property prop- or the loss use of such view, I do so reasons different than those erty by foregoing; reason Further, expressed by Majority. I write Defamation, including, 6.a. but not lim- my separately to note dissent the issue of slander; ited to libel or duty my interpreta- Erie’s defend because publication A or b. utterance in the language Complaint tion advertising, insured, course of related to Redevelop- Erie’s broadcasting telecasting Authority, activities ment causes to conclude that me Entity; conducted or on behalf of the Erie does have a to defend. En- Defendants, specifically diligent C. Majority Appellant’s cites Au- Redevelopment jurisdiction and Section perfect gineer, but also efforts to Code, reviewing of the Judicial Pa.C.S. monitoring thority, in not finality of the instant determining in the method being negligent in otherwise obligation Erie had an which ruled that harm Engineer, caused of selection the matter left undetermined defend but Community Au- Water to the Marsteller view, it the nature of indemnity. my installing paying specifying, thority by it is which dictates that order at issue compo- designed or sized improperly appealable. final and including: system, nents to the determination that The trial court’s system (a) Design treatment of water defend, effectively ended had a on data from system based for the declaratory judgment The trial action. utilized; than other source court, ruling Erie had (b) and feed Design pumps, motor defend, the claim made found that *14 are inade- water source system from Authority type was of Redevelopment regular provide efficient quate to coverage offered which would fall under the tank; supply to water that could be done by Erie. This all storage (c) inadequate Improper Enforce- declaratory judgment action. this tank. garnishment pro- arise in a ment could ceeding of a trial con- goes beyond after the conclusion breach This claim Be- entry against its insured. of a verdict tract, alone would create and it declaratory judgment action was cause the ultimately While defend its insured. Erie to order, it entry at the of the court’s concluded indemnify, duty duty to not be there appeal from that appropriate for Erie allegation this because of to defend arose Erie it reviewed. order if it desired to have policy is- Complaint. The in the contained timely trial file a from the court did negligent provides sued summary judgment this granting regarding negligent allegation acts. The action, declaratory judgment this matter thus engineer, creates hiring of an us for properly before review. I cannot is for this reason defend. It presented in Upon review of the issue express my opinion, and Majority join the Majority finds appeal, I must dissent. dissent. no to defend or that Erie had underly- Authority Redevelopment allegations since in that action upon the breach of contractual were based noting that the con-
duties. While negli- allegations “employed tained Individually LOMBARDO, and as Ilene concepts,” Opinion gence Majority Heir of the Estate and Sole Executrix Majority claims are concludes that Barsh, Deceased, Dorothy alleged to result of the contract which was However, there is have been breached. Bank, BANK, N.A., Com- PNC claim made least one MELLON plaint not concern breach which does National N.A., Provident Successor contract. Barsh, Barsh Bernice Bank Stanford Interiors. and Bernice Barsh Complaint, there paragraph of the 20C. selecting regarding method of a claim BANK, N.A. Appeal MELLON engineer. It states: Pennsylvania. Superior receipt bargained Despite full part on the of the Defen- consideration Argued Sept. has not dants, bargained benefit 26, 1996. Filed Nov. Commu- for the Marsteller
been achieved designated benefi- nity Water above, ciary agreements referred
including following: