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C. H. PITT CORPORATION v. INSURANCE COMPANY NORTH AMERICA (10/09/69)

decided: October 9, 1969.

C. H. PITT CORPORATION
v.
INSURANCE COMPANY OF NORTH AMERICA, APPELLANT



Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1966, No. 3344, in case of C. H. Pitt Corporation v. Insurance Company of North America et al.

COUNSEL

Robert A. Doyle, with him Duff, Grogan & Doyle, for appellant.

Ralph H. German, with him William S. Smith, and Houston, Cooper, Speer & German, for appellee.

Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy dissents. Mr. Justice Jones did not participate in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 435 Pa. Page 382]

C. H. Pitt Corporation (Pitt) owns and operates the Carlton House Hotel, which is situate on land abutting on part of Court Place, Sixth Avenue, Bigelow Boulevard and Grant Street in the City of Pittsburgh. Pitt is the named insured in a comprehensive liability insurance policy issued by the Insurance Company of North America (I.N.A.). In this policy the insurer agreed to pay to the insured all sums which it became "legally obligated to pay as damages because of personal injury . . . or destruction of tangible property . . . caused by an occurrence*fn1 . . . arising out of the ownership, maintenance or use of the premises . . . and all operations necessary or incidental thereto." The policy defined "premises" as the hotel building "and includes the ways immediately adjoining

[ 435 Pa. Page 383]

    on land." The policy specifically provided that coverage did not apply: "1. To liability assumed by the Insured under any contract or agreement. . . . 3. . . . to the ownership, maintenance, operation, use, loading or unloading of: . . . (b) automobiles if the occurrence or accident takes place away from such premises or the ways immediately adjoining."

On June 13, 1966, while said policy was in force, Mrs. Gloria F. Pifer parked an automobile equipped with paraplegic controls at or near the Bigelow Boulevard entrance to the hotel. She left the keys in the automobile and notified the doorman, Grover Lee Johnson, that she was about to enter the hotel to visit a guest and would remain there for approximately one hour. About two hours later when Mrs. Pifer had not returned, Johnson entered the automobile and began to operate it to provide space for the movement of another vehicle. After he activated the ignition system and shifted the gear selector arm into "reverse", the automobile jumped backward at a high rate of speed across the cartway of Bigelow Boulevard and continued at a high rate of speed "across the cartway of Grant Street." Although Johnson stepped on the brake, the automobile continued moving and collided with the front end of an automobile operated by Ralph Stock.

After this collision, both automobiles came to rest. Thereafter, Johnson shifted the gear arm to the "drive" position without touching the accelerator and the Pifer automobile immediately proceeded forward at a high rate of speed in a southbound direction on the left-hand side of Grant Street for about two blocks, where it collided with an automobile owned by the City of Pittsburgh and occupied by two city policemen. This collision drove the police vehicle into an automobile owned and operated by Edward Heintz.

[ 435 Pa. Page 384]

Subsequently, the two policemen sued Pitt in the Court of Common Pleas of Allegheny County to recover damages for personal injuries. Heintz and his wife, residents of Chicago, Illinois, instituted an action against Pitt in the United States District Court for the Western District of Pennsylvania to recover for personal injury and property damage.

I.N.A. was notified of the claims, but denied coverage. Pitt then filed a petition in the Court of Common Pleas of Allegheny County seeking a declaratory judgment (1) that under the terms of the policy, it was insured against loss resulting from the claims, outoutlined before; and (2) that I.N.A. was legally obliged to defend the suits arising out of these claims. I.N.A. filed an "Answer Raising Questions of Law" contending that proceedings for a declaratory judgment did not lie. The court ruled that such proceedings were proper and dismissed legal objections thereto. I.N.A. then filed an "Answer on the Merits." Later the case was called for trial before a judge, sitting without a jury, where some testimony was taken, but most of the facts were stipulated of record by the parties.*fn2 In the stipulation, the parties did not agree (1) as to the exact location of the Stock automobile when it was hit by the Pifer automobile (they did agree, however, that the collision "did not take place on the premises of the hotel"); (2) whether or not Johnson was acting within the scope of his ...


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