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AETNA INS. CO. v. PENNSYLVANIA MFRS. ASSN. INS. CO
June 30, 1978
AETNA INSURANCE COMPANY
PENNSYLVANIA MANUFACTURERS ASSOCIATION INS. CO., Publicker Industries, Inc., Salvatore Dejewski and Carol, h/w Joan Wexler, ADMX. of the Estate of Neil Wexler, Deceased
The opinion of the court was delivered by: GREEN
FACTS AND PROCEDURAL HISTORY
This declaratory judgment action arises out of incidents occurring on the premises of Publicker Industries, Inc. (Publicker). On January 27, 1971, Shafiq Suleiman was discharged from his position with Publicker. On January 29, 1971, Suleiman returned to the premises of Publicker and shot Neil Wexler and Carol Dejewski, both employees of Publicker. As a result of the shooting incident, Wexler died and Dejewski sustained injury.
Subsequently, Dejewski and Joan Wexler, administratrix of the estate of Neil Wexler, brought suit in the Common Pleas Court for Philadelphia County against Publicker. In support of her request for compensatory and punitive damages, Dejewski alleged in part:
Prior to January 29, 1971, the Defendant (Publicker) through its employees, servants and agents, knew that Shafiq Suleiman was unstable, that he threatened female employees of the Defendant, that he threatened the wife-plaintiff, that he had threatened to take violent action against his being fired on or about January 27, 1971, that he constituted a danger to all employees of the Defendant and the wife-plaintiff in particular.
Wexler, seeking damages for the death of her husband, alleged that:
The death of the decedent was caused by the negligence of (Publicker), its agents, servants and employees in that they having, or should have had knowledge (sic) that the said Shafiq Suleiman a former employee was a dangerous person, mentally deranged, who had frequently threatened that he would commit bodily harm to (Publicker's) employees nevertheless permitted him to enter upon the premises of (Publicker).
Wexler also filed a Workmen's Compensation Fatal Claim Petition against Publicker. Publicker filed an Answer denying that the death was related to employment. Such Answer was filed through the Pennsylvania Manufacturers' Association Insurance Company (PMA), Publicker's Workmen's Compensation carrier. At the request of claimant Wexler's attorney, Referee Stevenson ordered an indefinite postponement of the Workmen's Compensation proceeding pending the determination of the Common Pleas action.
Publicker tendered the defense of both the Dejewski and Wexler actions to PMA pursuant to the provision of a Workmen's Compensation and Employer's Liability policy issued to Publicker. PMA declined to afford Publicker either a defense or coverage for the actions, stating that the claims do not "arise out of and in the course of (the claimants') employment", within the meaning of the policy provisions which afford coverage.
Aetna has instituted an action for declaratory judgment, praying that this Court adjudge the following:
(a) That coverage for the suits instituted in the Common Pleas Court of Philadelphia County as above described is provided under the policy issued by Pennsylvania Manufacturers Insurance Company;
(b) That Aetna Insurance Company, plaintiff herein, does not extend coverage for the damages claimed in said suits;
(c) That P.M.A. shall be obliged to assume the defense of the actions pending in the Common Pleas Court within the limits of its coverage;
(d) That plaintiff shall be reimbursed by P.M.A. for all expenses and costs incurred to date; and
(e) For such other and further relief as may seem proper.
Plaintiff Aetna has joined insurer PMA, the insured, Publicker, and claimants Dejewski and Wexler as defendants in this action. Jurisdiction is asserted under 28 U.S.C. § 1332, the diversity jurisdiction statute.
Defendant PMA has moved for judgment on the pleadings or, in the alternative, for summary judgment.
We deny defendant's motion for judgment on the pleadings since plaintiff's pleadings are sufficient on their face. In view of our finding set forth below that there is indeed at least one genuine issue as to a material fact, i. e., the ...
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