The opinion of the court was delivered by: HUYETT
Plaintiff, Transport Indemnity Company (Transport), filed this action seeking a declaratory judgment that the comprehensive automobile liability insurance policy issued by defendant, Liberty Mutual Insurance Company (Liberty) to Marty's Express Company (Marty's) covered the injury suffered on November 2, 1967, by David Rispo, an employee of Marty's. Defendant admits that "[on] November 2, 1967, there was a policy of insurance in effect issued by defendant, Liberty . . ., to Marty's . . ." but, not surprisingly, contends that the Liberty policy does not afford coverage to David Rispo's injury. In accordance with that position defendant, relying on the decision in Pennsylvania Manufacturers Association Insurance Co. v. Aetna Casualty and Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967) (PMA v. Aetna), moved for summary judgment. In an Order of February 19, 1975, we denied the motion of defendant for summary judgment. In that Order we concluded that PMA v. Aetna controls this case but that there remained a genuine issue of material fact which precluded summary judgment.
That issue was whether or not the injury to David Rispo arose out of and in the course of his employment with Marty's.
1. Plaintiff is a corporation with its principal place of business in California.
2. Defendant is a corporation with its principal place of business in Boston, Massachusetts.
3. Both plaintiff and defendant are insurance corporations licensed to engage in the casualty business in the Commonwealth of Pennsylvania.
4. Defendant has an office at 15 Esso Road, Bala Cynwyd, Pennsylvania.
5. On November 2, 1967, Marty's was the named insured under an automobile comprehensive insurance policy issued by defendant Liberty.
6. On November 2, 1967, Marty's was the named insured under a workmen's compensation policy issued by defendant Liberty.
7. On November 2, 1967, Motor Freight Express, Inc., was the named insured under an automobile comprehensive insurance policy issued by plaintiff Transport.
8. On November 2, 1967, Motor Freight Express, Inc., was the named insured under a workmen's compensation policy issued by plaintiff Transport.
9. On November 2, 1967, David Rispo, employed generally by Marty's, was directed to pull a trailer by tractor from the yard of Motor Freight Express Inc., in Philadelphia to the premises of J. A. Cunningham, Inc., in Philadelphia. Pursuant to these directions, David Rispo pulled the trailer by tractor to J. A. Cunningham where the trailer was to be partially unloaded by J. A. Cunningham's employees.
10. According to the testimony of Dominick Marano, Vice-President of Marty's, and David Rispo, which testimony we found highly credible, David Rispo, as the driver of the tractor-trailer, became responsible for the load when he left ...