Appeal from the Order dated Aug. 21, 1975 of the Court of Common Pleas, Civil Div., Centre County, Pa. at No. 241 October Term, 1973.
David H. Trushel, Pittsburgh, for appellant.
No appearance entered nor brief submitted for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Price, Van der Voort, and Spaeth, JJ. (Cercone, J., absent). Cercone, J., did not participate in the consideration or decision of this case.
[ 248 Pa. Super. Page 443]
This is a declaratory judgment action. Barbara Ann Crespy filed an action to recover damages for injuries suffered in an automobile accident. Among the defendants were appellant Jeffrey Bliesmer and appellee Regina Borger. The carrier for Bliesmer filed a petition for declaratory judgment, seeking a determination of whether it or the carrier for Borger would be liable for any verdict obtained against Bliesmer. The lower court held that Bliesmer's carrier should provide primary coverage. We affirm, for reasons different from the lower court's.
The facts were found and stated by the lower court as follows:
[ 248 Pa. Super. Page 444]
Defendant, Regina Borger, was the owner of a Ford station wagon which she lent to her daughter, Zonie Borger, for her use while employed in State College. Contrary to directions of her mother, Zonie permitted others to operate the vehicle, including John Stickel and Jeffrey Bliesmer (defendants herein). In October, 1971, Stickel offered to buy the vehicle; and on October 12th, he and Zonie went to her parents' home where Stickel and the parents made a deal. Defendant, Regina Borger, signed and notarized the certificate of title for transfer of ownership to Stickel. However, because Stickel did not have the full purchase price, Regina Borger retained the certificate, which was to be delivered to Stickel only when he paid the balance of the purchase price. Zonie was directed to drive the car to State College (being accompanied by Stickel) to park it and await full payment. However, Zonie misunderstood parental direction and gave the keys to Stickel to park it. On the following day, October 13th, defendant-Bliesmer obtained the keys from Stickel, went for a ride with plaintiff as passenger, and became involved in an accident, causing serious injuries to plaintiff.
From these facts the court concluded that "title to the Borger car was still in Regina Borger at the time of the accident, there having been no delivery or effective transfer of title," R. 124a,*fn1 and that while appellant Bliesmer was covered by the omnibus clause of appellee Borger's insurance policy, in addition to being covered by his father's policy. R. 125a-126a, his father's policy should provide primary coverage, R. 126a.
This case is controlled by our recent decision in Belas v. Melanovich, 247 Pa. Super. 313, 372 A.2d 478 (1977), and by Carlsson v. Pennsylvania General Insurance Co., 214 Pa. Super. 479, 257 A.2d 861 (1969) (dictum), aff'd 438 Pa. 533, ...