Original jurisdiction in the case of Piper Aircraft Corporation v. Insurance Company of North America and the Pennsylvania Department of Transportation.
F. Hastings Griffin, Jr., with him Carl Oxholm, III, and of counsel, Bernard A. Ryan, Jr., Dechert, Price & Rhoads, for plaintiff.
Henry H. Jansson, with him J. Grant McCabe, III, Rawle and Henderson, for Insurance Company of North America, defendant.
Gregory C. Santoro, Assistant Attorney General, with him Ward T. Williams, Chief Counsel and Edward G. Biester, Jr., Attorney General, for Department of Transportation, defendant.
President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.
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Directed to this Court's original jurisdiction, Piper Aircraft Corporation (Piper) has filed a petition for review seeking declaratory relief under the Declaratory Judgments Act, 42 Pa. C.S. § 7531 et seq. Named as parties-defendant are the Insurance Company of North America (INA) and the Pennsylvania Department of Transportation (Department). Plaintiff Piper requests this Court to determine the contractual duty, if any, of each defendant to bear the burden and expense of defending Piper in several damage suits arising from the crash of an airplane. The airplane was owned by Piper, leased to the Department, and insured by INA. Piper's petition has been met by preliminary objections filed by both defendants.
Piper's petition avers the following facts: On February 1, 1977 Piper leased a Cheyenne airplane to the Department for a term of one year. Under the provisions of the written lease the Department agreed to indemnify and "save" Piper harmless from all claims, liabilities, costs and expenses occasioned by the operation of the airplane during the term of the lease. In addition, the Department obtained from INA an insurance policy covering the airplane. Then, by subsequent
[ 53 Pa. Commw. Page 211]
endorsement on the policy, the insurance was extended to include Piper, as a co-insured with the Department. On February 24, 1977 the airplane crashed near Harrisburg, Pennsylvania, causing several fatal injuries. From that crash nine lawsuits have been commenced against Piper.
Count One of the petition is directed against INA but is made to include the Department as an indispensable party. Count Two is against the Department only. In the first count Piper asserts that under the insurance policy INA has an obligation to defend both it and the Department, but has not defended Piper in the crash lawsuits. The second count contends that the Department also has a duty to defend Piper in those lawsuits, pursuant to a covenant in the lease, but has failed to do so. It is these asserted obligations to defend that Piper asks us to determine and declare.
The preliminary objections filed by the defendants raise questions of this Court's jurisdiction to entertain the matter, assert that Piper's two counts constitute a misjoinder of actions, and move for a more specific pleading. With the case in that posture, we consider only the issues generated by the objections.
The plaintiff urges that this Court has exclusive original jurisdiction over the action laid in Count One of the petition, pursuant to Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. § 761(a)(1). That assertion is based on the premise that the Department is an ...