No. 623 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, at No. 2165 September Term, 1977
Charles P. Menszak, Jr., Philadelphia, for appellant.
Richard A. Weisbord, Philadelphia, for appellee.
Price, Watkins and Montgomery, JJ.
[ 288 Pa. Super. Page 446]
The Appellant, Erie Indemnity Company, appeals from an Order entered by the lower court granting a Petition for Declaratory Judgment. The Judgment was sought by the Appellee, Richard I. Cohen, after the Appellant disclaimed
[ 288 Pa. Super. Page 447]
coverage under an automobile insurance policy for Cohen, who was the listed insured under the policy, after his involvement in an accident on January 1, 1975.
The essential facts are not in dispute. The Appellee was involved in the accident while operating a vehicle owned by his father. It was stipulated in the lower court that while the vehicle was not stolen, the Appellee did not have his father's permission to operate the vehicle at the time of the accident. The Appellee was the "named insured" in an automobile liability insurance policy which had been issued to him by the Appellant. The Appellant first disclaimed coverage by a letter dated September 17, 1975, which cited two sections of the insurance policy which are not relevant to the instant proceedings. Subsequent to the Appellee's filing of this action seeking to compel the insurer to extend coverage, the Appellant defended on the ground that the Appellee was not insured at the time of the accident because of the following clause of his insurance policy, which is set forth in its exact typographical form:
"The following are Insureds under Part I:
(b) with respect to a non-owned automobile,
(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, ...