Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Commonwealth of Pennsylvania, Department of General Services and The Frank Briscoe Co., Inc. v. Celli-Flynn and Associates, Inc., P.C., Bliss & Nyitray, Inc., et al., No. 1806 S 1986, dated February 2, 1987.
Bruce W. Kauffman, with him, Sheryl L. Auerbach, Dilworth, Paxson, Kalish & Kauffman, and Robert S. Peckar and Robert A. Drucker, Peckar & Abramson, for appellants.
Andrew Fylypovych, Harvey, Pennington, Herting & Renneisen, Ltd., for appellee, Continental Casualty Company.
James David Elder, James David Elder and Associates, for appellees, Northbrook Insurance Company, General Accident Insurance Company of America and Northbrook Excess and Surplus Insurance Company.
President Judge Crumlish, Jr., and Judges Doyle, Barry, Colins, Palladino, McGinley and Smith. Opinion by Judge Palladino. Dissenting Opinion by Judge Colins.
[ 115 Pa. Commw. Page 496]
The Commonwealth of Pennsylvania, Department of General Services (Department) and The Frank Briscoe Co., Inc. (Briscoe) (collectively Appellants) appeal from an order of the Court of Common Pleas of Dauphin County granting preliminary objections, in the nature of a demurrer, of Defendant/Appellee insurance companies (insurance companies).
We begin by noting that a demurrer admits as true all well-pleaded facts, but does not admit conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinions. Upper Moreland Township v. Pennsylvania Department of Transportation, 48 Pa. Commonwealth Ct. 27, 409 A.2d 118 (1979). Thus, the following recitation of facts is based on statements contained in Appellants' complaint, although some of the background information, which is not in dispute, is gleaned from the briefs of the parties.
In 1966 the Department and Celli-Flynn & Associates, P.C. (Celli-Flynn), an architectural design firm, entered into an agreement regarding construction of the David L. Lawrence Convention Center (Center) in Pittsburgh. The agreement provided, inter alia, that all design professions retained by Celli-Flynn and the Department would be required to obtain professional liability insurance.
In 1977, the Department awarded to Briscoe the prime contract for general construction of the Center. The contract provided time was of the essence and set forth a time limitation for completion. The project was substantially completed 675 days past the due date. The Department brought suit against Briscoe, and Briscoe counterclaimed. Exhaustive discovery followed, and led the Department to conclude that the design professionals, and not Briscoe, were responsible for the delays which caused damage. The Department and Briscoe
[ 115 Pa. Commw. Page 497]
entered into a settlement agreement in which they agreed to jointly prosecute their claims to recover damages for the harm allegedly suffered.
Accordingly, Appellants brought suit against the design professionals and their insurance companies, seeking damages, and brought a declaratory judgment action against four named insurance companies and a John Doe insurance company, seeking declarations as to the extent of insurance coverage the insurance companies would be required to provide. The insurance companies demurred, arguing: 1) Appellants could not maintain an action against the insurance companies unless and until it obtained a judgment against the insureds; and 2) Appellants were not entitled to a declaratory judgment of the extent of insurance coverage issued to the insureds. The trial court ...