Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Colonial School District v. Romano's School Bus Service, Inc., William S. Filewicz, et al., No. 85-07772.
John J. O'Brien, Jr., for appellant.
Larry Jackson, with him, Joseph Goldberg, Margolis, Edelstein, Scherlis, Sarowitz and Kraemer, for appellees.
Judges Colins, Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.
[ 115 Pa. Commw. Page 88]
Colonial School District (Appellant) appeals from an order of the Montgomery County Court of Common Pleas granting the motion for summary judgment of Romano's School Bus Service, Inc. (Romano's) and William S. Filewicz (collectively Appellees) and dismissing, without prejudice, Appellant's declaratory judgment action against Appellees. We affirm.
Appellant filed this declaratory judgment action as a result of an action filed against it and Appellees by the parents of Philip Cutler (Cutlers) for damages in connection with Philip's death. A brief recital of the facts alleged in the complaint in that case is useful and necessary to understand the genesis of this case.
On December 2, 1983, Philip, a student in the Colonial School District, was killed when he was struck by the school bus he had just exited when crossing in front of the bus to reach his home on the opposite side of the street. The bus was owned by Romano's and driven by its employee, Filewicz. The Cutlers filed suit in trespass (Cutler lawsuit) against Appellant and Appellees. They alleged: (1) Appellees were negligent in their operation of the bus; (2) Romano's was negligent in hiring and training Filewicz; and (3) Appellant was negligent because by allowing Philip to exit on the wrong side of the street, it failed to assure proper school bus routes.
[ 115 Pa. Commw. Page 89]
Appellant filed this declaratory judgment action on May 14, 1985 against Appellees. Appellant alleged in its complaint that under the terms of its contract with Romano's to provide bus transportation for Appellant's students, Romano's is required to defend Appellant in the Cutler lawsuit. Appellant requested that the trial court declare that the agreement between it and Romano's requires Romano's to defend it in the Cutler lawsuit.*fn1 Appellees in their answer to Appellant's complaint denied that the contract between Romano's and Appellant was applicable to the Cutler lawsuit and that even if it were, the contract does not require Romano's to defend Appellant in the Cutler lawsuit. Subsequently, Appellees moved for summary judgment. In its order, dated October 22, 1986, the trial court granted Appellee's motion for summary judgment and dismissed, without prejudice, Appellant's complaint against the Appellees because:
[G]iven the allegations of Colonial's [Appellant] complaint, the terms of the contract between Colonial and Romano's, and the present status of the litigation in the related action of Cutler v. Filewicz, No. 84-3138, Montgomery County [Cutler lawsuit], the declaratory judgment action brought by Colonial School District against defendants Filewicz and Romano's seeks relief which is advisory in nature and inappropriate for resolution by declaratory judgment.
Our scope of review of a grant of summary judgment is limited to determining if the trial court committed an error of law or a manifest abuse of discretion. Miller v. Emelson, 103 Pa. Commonwealth Ct. 437, 520 ...