*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 681 A.2d 775 interlocutory appeal, file leave to Corp., halyak Integra Financial July order dated was denied 171, -, August sought 1995. On *5 Davis, Corp., v. Jerry Inc. 450 Pa.Su Nufab appeal Supreme of in the allowance Court (1996). 1256, 696, 697-699, per. 677 A.2d 1257 Superi- No. from the 456 W.D.Allo.Dkt. 1995 judgment declaratory An action for July 19, Although or Court order of of obtain a is available to declaration initially granted Supreme Court allow- duties, legal rights, or status of the existing February appeal by ance of order dated will aid in the parties where the declaration 1996, 27, 1996, W.DAppeal at 9 Dkt. justiciable con genuine, determination of appeal subsequently dismissed Fidelity Pennsylvania troversy. Bank v. 31,1996.3 May Court on Commission, Turnpike Pa. 498 1995, International, 3,May on a mo- filed (1982); 1154, 444 Nationwide A.2d 1158-60 quash had appeal tion to which Erie filed Cummings, v. 438 Mutual Insurance Co. right Pittsburgh as of on the at No. 488 1995 1338, 586, 5,n. A.2d Pa.Super. 590-591 652 ground appeal improperly that the had been alio, denied, 650, (1994), 540 Pa. 659 1340n. 5 interlocutory By taken from an order. order (1995). declaratory judgment A.2d A 988 19, July 1995, Superior dated de- Court particularly appropriate in constru action is quash In- nied International’s motion to ing contracts insurance in order deter of ternational, 2, 1995, August requested re- obligated to de mine an insurer is whether of order had consideration which denied indemnify claiming under the one fend and/or quash appeal its motion Liberty Insurance Co. policy. Mutual Thus, despite the at No. 00488 Pitts.1995. 95-99, 906, Co., 94, A.2d Pa. 318 S.G.S. diligent advocacy of counsel for the Authori- (construc § 907-908 Pa.C.S. ty, appeal pending this the sole now before documents). Redevelop also: tion of See appeal right of Court is direct as City Philadelphia v. by Judge Leahey on Feb- the order entered America, 450 Company North Insurance 1995, ruary 7, an which International (1996). 256, 675 A.2d 1256 interlocutory. quash must contends we an proper construction of may as a matter jurisdiction has an issue which be resolved Superior Court declaratory judgment Al law in a action. appeals right as of to entertain taken order, 441 Pa.Su- Insurance from final Pa.C.S. exander CNA Pa.RA.P. May Superior at No. 488 PGH 1995. Supreme in the 3. The Court Order of provided: prejudice to appeal is without Dismissal of the NOW, day May, this parties AND 31st issues in to raise the substantive sponte improvident- appeal is sua dismissed appeal. subsequent petition for allowance ly appeal pending granted in view of direct (1995). per. 507, language of Section the Judicial Declaratory Judgment provides, Act Code, in- February the order of resem- ter alia: order, interlocutory sought bled an certifica- record, respective Courts within their court, tion of the order as final from the trial jurisdictions, power shall have to declare 341(e)(1), pursuant to Pa.R.A.P. and also rights, status, and legal other relations sought, alternative, amendment of the whether or not could be farther specified include the statement relief claimed. proceeding No shall be 702(b) Section Code so Judicial as to open objection ground on the that a permit petition ap- Erie to for allowance of declaratory judgment prayed decree peal request if its for certification of the for. The declaration be either affir- order as final was denied the trial court or effect, negative mative or in form thirty not acted on court within the trial such declaration shall have the force (30) days February Liberty 1995. See: judgment or decree. effect of final State Bank v. Bank Northeastern Penn- added). (emphasis Pa.C.S. — -, sylvania, 683 A.2d 889 Court, Harleysville This Mutual Insur- 341(e) Rule Appellate of the Rules of Madison, ance Co. v. provides: Procedure A.2d 564 reversed a trial court order When more than claim for one relief is had dismissed a in a declara- action, presented claim, whether as a tory judgment Harleysville action wherein counterclaim, cross-claim, party or third Company requested had a deter- claim, or multiple parties when are in- mination of its to defend or volved, governmen- the trial court other party third defendant in an ac- tal unit enter a final order as to one Superior tion. The Court held trial or more but all fewer than of the claims or court improperly had concluded that Har- expressed determina- leysville await had to resolution *6 appeal tion that an immediate would facili- underlying negligence prior action to obtain- tate resolution of the case. entire Such an ing a rights declaration of its and duties appealable order becomes when entered. the contract at 364- insurance. Id. determination, In the absence of such en- 366, 609 A.2d at 566. try order, any aof final order or other case, in trial court the instant while adjudicates form of decision that fewer determining that Erie had a to defend than all the claims or shall not the Authority litigation, in the underlying constitute a final order. declined to rule on the issue of whether Erie indemnify. International had a to 341(e). Pa.R.A.P. The court concluded that a on decision Rule, Under may could this a trial court await resolution of certify interlocutory an specifically de- order as final clined to indemnity. rule on the issue of express an determination that an immediate Thus, defining rights while orders duties appeal would facilitate resolution the en declaratory judgment generally actions are made, If tire case. such a determination is orders, final February the order of appeal an immediate unap- of an otherwise specifically provided that a declaration of the pealable interlocutory order be filed as right of the to indemnification right days within 30 date certifi sought could be trial. after cation the order. Continental Bank v. Building 559, Pa.Super. Andrew 436 However, 7, February while order of 551, (1994); 648 A.2d 554 Robert H. 1995, dispose did not of all of the claims McKinney Albright, Jr. Associates Inc. v. parties, submitted to the court Section Pa.Super. 440, 441, 937, 429 632 A.2d 938 pro- 7532 of specifically the Judicial Code court, ease, declaratory vides trial in the instant judg- that a declaration request certification, preclud ment action have denied the “shall the force and effect appeal of a final judgment right by or decree.” 42 an as of Erie Pa.C.S. under Rule § Erie, that, 341(e). recognizing despite in declar- Pennsylvania that orders entered

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. 655 A.2d 508 territory. the covered (1994); Security Dibble v. America Life * * * * * * Co., Ins. 404 Pa.Super. 590 A.2d is to be construed in favor of the insured and Bateman Motorists Mutual Ins. pectations Pa. tions which are clear and St. Paul (1993). However, ance transaction must be 352, 354 the reasonable 241, 244-246, complain the insurer. Britamco Underwrit based Mercury v. were expectations frustrated While determination involved, his Insurance Co. v. where ambiguous, totality her an insured provision of the insured reasonable unambiguous. A.2d provision Co., Corbett, limita insur of an ex penses. limitation be rence. We will cover currence. The occurrence must arise from the covered shown penses resulting takes willWe penses Medical condition rendered ^[******] place during Payments Coverage pay the declarations. The three any person does not territory. within three all reasonable medical ex- from occurrence — premises apply injured by policy period The services must years to funeral D medical operations the oc- occur- and in year ex- ex- ers, Weiner, A, B, Coverages and D C supra; Inc. Bateman Mo Co., supra torists Mut. Ins. may investigate or claim We settle 283; A.2d at Madison Co. v. Construction for damages against anyone pro- suit we Harleysville Mutual Insurance su tect, expense. anyone protect at our If we *8 142, pra at 678 805. A.2d at by policy, damages is sued for covered choose, lawyer will we defend with the we general liability coverage policy The issued allegations if even the are not true. Our by Authority provided, perti- to Erie the obligation any pay judgment claim part, nent as follows: when have used defend suit ends we Our Promise up protection by paying judg- our limit of Injury A Liability Coverage Personal — A, coverages ments or settlements under Property Damage Liability Coverage B — B, or D. C pay damages per- will for We because of Erie, injury property damage Appellant, sonal con- new matter anyone protect the complaint law holds we tained its answer to the filed in by responsible action, declaratory and which are judgment covered the claimed your policy. inju- personal underlying We cover the since the Rede- ry property damage allegations velopment Authority and which occurs dur- involved

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. 105 A.2d 304 Bibo- age when other insurance available. even Co., rosch v. Transamerica Ins. 412 an insurance purpose intent such (1992); 505, Pa.Super. 603 A.2d 1050 liability protect insured Co., Youngman Ins. v. CNA 401 Pa.Su- person essentially injury accidental to the (1991). 381, per. A.2d 585 511 coverage than property of another rather may po- claim to determine whether a disputes to contractual between tentially coverage within come Co. v. undertaking. See: Phico Insurance policy, scope must we first ascertain Corp., supra Presbyterian Medical Services of the insurance and then ana- 225-229, 756-757; Hertz at 663 A.2d at Cor- lyze allegations complaint. 581-583, Smith, 657 poration supra v. at Biborosch, 509, Pa.Super. at 412 603 1319; Ryan Inc. v. Home A.2d at Homes (citing A.2d 1052 v. at Cadwallader New Co., 342, Indemnity Co., 582, Casualty Pa. Amsterdam alio, denied, A.2d (1959)). 152 A.2d 484 N.J., Pa. A.2d 491 Toombs Grzeskiewicz, Britamco Underwriters Casualty Surety Inc. v. Aetna 639 A.2d A.2d (1994). case, trial court in the instant Presbyterian Phico Insurance Medical Co. Township and the recognizing that Corp., supra Services employed negligence concepts in MCWA had *9 allegations complaint, concluded applicable case Our review of coverage for jurisdictions general precluding rule compels law that the from this and other assumpsit inapplicable.5 in was correctly asserts claims sound the conclusion that is 5. trial court noted that the to defend broadly interpreted than the to indem- Presbyterian more v. Co. Medi- Phico Insurance 223-225, nify. Leasing Corp. Equipment v. A.2d at Accord: Solear at Corp., supra cal Services Co., Pennsylvania Insurance Asso. Manufacturers' as complaint determination to whether causes of claims in asserted and found action sound in or in contract tort is diffi in that the action both its essence and cult due to the somewhat confused state face its was one for breach of con- Fire, our law. See Ma Grode Mutual addition, tract. noted: we rine, Co., and Inland Insurance 154 Pa. To allow indemnification under the facts (1993) (noting A.2d Commw. presented here would have effect area).... existence confusion in the making the insurer sort of silent busi- simple We expressed believe the in rule partner subject great ness risk in the Keystone Co., Raab [v. economic without prospects venture (1979)] 412 A.2d 638 sharing in the economic benefit. The inadequate to determine the true character expansion scope insurer’s Although certainly a claim. the rule liability would be without cor- enormous easily bright sets forth a discernable responding compensation. There is sim- claim, considering line for nature it ply expect no reason to that such a imagine many agreement- not difficult to liability would be covered under a com- complaints based which be character prehensive policy has, liability as sounding ized they tort when more genesis, purpose its protecting properly should be seen as contractual. entity liability from individual for es- Therefore, we turn to the second line of sentially in- injury accidental to another eases, which appropriately we believe more dividual, damage or property to anoth- addresses the characterization issue. if, possessions, perhaps, er’s even Co., Telephone In Bash v. Bell 411 Pa.Su- expand- has been per. 601 A.2d 825 we took injuries ed non-bodily to cover other that approach somewhat different the issue. sound in tort. case, In that which arose in connection Id., at 591 A.2d at 306. agreement relating the breach of an publication telephone directory aof Although appellant that contends advertisement, we examined federal au- Valley’s claims asserted Delaware com- thority and that to be indicated construed plaint both were contractual and tortious action, wrong tort ascribed to the nature, its contention must fail. Our gist must defendant be the the action complaint question review of the demon- being with the contract collateral. In addi- ap- strates that action related tion, we noted that contract action pellant Valley and Delaware and arose out simply be converted into a tort action performance manage- of the former’s aof by alleging question that the conduct in agreement. Consequently, while De- was wantonly. Finally, done we stated Valley allegations ap- laware included that important that the difference between con- pellant engaged gross negligence in both tract and tort actions is latter lie misconduct, willful agreement un- imposed from the breach of duties as a questionably not collateral matter of social while the lie former claims. imposed by the breach of duties mutual Presbyterian Phico Insurance Co. v. Medical consensus. supra Corp., Services 663 A.2d at We note Bash consistent with the (footnotes omitted). 756-758 approach taken in N.J. Toombs Inc. Court, Similarly, Wyoming Supreme Casualty Surety Aetna & 404 Pa.Su- addressing general liability per. whether a insur- A.2d In that case, policy provided coverage ance for claims aris- we considered whether relating agreement negligent breach of an to the breach of an obli- alleged gation establish two to obtain medical for an restaurants tortious employee, opinion, claims that were covered in a insur- well-reasoned ob- policy. briefly ance We examined the served:

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 286 P.2d 1000 liability policies [1995].]) earlier theory The that Devonshire * * * * liability pay all reason of sums liability for which assumed * * * law for insured ‘imposed liability provided cov- [its insurer] damages.’ editions In more recent erage cannot be sustained terms all policy, promise pay is to sums applicable law.” 155 legally shall become “which the insured Cal.Rptr. damages.’ Damages obligated pay Supreme Alaska considered Court of damages which a law and ‘imposed similar to the case at bar factual situation obligated’ pay ex person ‘legally Company Continental impos press thought. same law (Alaska 1972). Bussell, 498 P.2d 706 liability pay upon the insured es case, employer agreed in a union injuries damage damages bodily purchase for his contract to life insurance carelessness property caused his aircraft in the employees who traveled in ownership, main arising out employer pur- course of business. tenance, care, custody, proper or use of liability-insurance policy, but chased a liability upon ty. is the This acquire life promised insur- failed to ‘to behalf agrees pay on insurer perished in an employee ance. When the insured shall all sums which crash, for the insured airplane the estate sued *11 legally obligated III. THE NON-PROFIT ORGANIZA- pay.’ become This provision limits the TION LIABILITY INSURANCE POL- obligation. insurer’s ‘Liability imposed by damages’ law for ICY BY ISSUED INTERNATIONAL damages which the insured becomes INSURANCE COMPANY ‘legally obligated’ to pay the exclude A. Duty to Defend liability concept of which the insured * * policy The insurance issued In voluntarily have assumed Authority ternational to the was a Non Long, Liability Insurance, Law of Organization Liability Profit Insurance Poli 1.10, p. § 1-25. cy, indemnity reported claims made and Appleman, See 7A also Insurance Law and (1) type policy which provide does not for (Berdal ed.), pp. Practice 55-56 any action, expressly defense of pro (1979). coverage only vides in excess of other avail Action Ads Inc. v. Great American Insur- Accord: Pace Construction ance G. Insurance Action havior, but from Therefore, liability stemmed choose to assume We bility for their tortious conduct and not on the issue in the (8th Cir.1991). Co., ^[*] conclude that the which the Ads’ which a policy not ^[*] comprehensive Great Company, potential present P.2d from its own law to defend Action Ads. ^[*] a contractual particular American imposes pursuant case liability 934 F.2d 43-45 ^[*] v.Co. U.S. F. & encompasses general-liability on negligent had insured to contract. ^[*] (Wyo.1984). all obligation. clause no insureds ^[*] duty 179- case be- lia- unambiguous language of part ing action. cy, and part: provide coverage only in excess of all other able available erate for required then interests. take reasonable measures to counsel. In the Redevelopment Authority of International coverages. trial court found that there was no event emphasis, coverage, Alexander CNA Ins. If of a defense the Insured shall properly gave was claim, provided, policy, provide expressly the insurance the Insureds shall a suit shall be which, protect effect defense written to pertinent underly- we reit appoint on the their poli- the Duty Indemnify B. Redevelopment Authority in- International, support of its for motion stant similarly seeking case is convert summary judgment, argued in the trial court general liability policy professional into a lia- policy provide coverage that its did not bility policy performance or a bond. The arising claims from a breach of contract since express provisions of the insurance contract policy loss, definition in employing provide coverage do not the claims in phrase “legally obligated pay”, precluded underlying action which arise out of re- any finding that International could be liable late to parties, the contract between the indemnify Authority liability Authority, upon reading contract imposed upon Authority as a result of its Erie, insurance issued could not have opposed breach of a contract to a loss reasonably expected that the Erie negligence. incurred as a result of Interna- performance act as a insuring bond tional, argument upon which relied performance of the contractual duties which rationale recounted in the cases re- earlier Authority pursuant undertook to the viewed, did not file a cross and thus Township 1987 contract with Barr indemnify issue of International’s We, therefore, that, pursuant MCWA. hold fully has been briefed express policy, to the terms Erie has appeal. on no to defend or to the Rede- velopment Authority in specifically the action filed While the International Township it Barr professional excludes claims negli- MCWA. “based *12 non- that “Entity” shall mean B. provides cover- expressly gence”6, policy Corpo- or Organization, Association profit than the range of claims age for wider in the Declarations is named ration which liability to the Redevel- general policy issued inception legally constituted and Authority by The International Erie. opment any non-profit sub- policy and of this date pertinent part: policy provides, ap- at the time the that existed sidiaries Coverage will completed. plication was ORGANIZATIONS NON-PROFIT non-profit sub- automatically apply to all LIABILITY INSURANCE in- acquired after the formed or sidiaries (1) payments of IN subject CONSIDERATION policy, this ception date of subject all of the premium and company within to the written advice terms, this formation, conditions and exclusions acquisition or days of agrees the In- Policy, Company with re- any premium payment of additional Entity Coverage A and the sureds under quired. B Coverage as follows: any non- “Subsidiary” shall mean C. Corpo- Association or

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: