Appeal from the Order entered in the Court of Common Pleas of Luzerne County, Civil Division, No. 4964-C of 1987
Thomas J. Nolan, Scranton, for appellant.
John Sobota and Joseph E. Jane, Wilkes-Barre, for appellees.
Cavanaugh, Tamilia and Popovich, JJ.
[ 380 Pa. Super. Page 589]
This appeal is brought pursuant to an Order of this Court dated May 25, 1988 which granted the petition for review filed by appellant Donegal Mutual Insurance Company (Donegal Mutual). Donegal Mutual appeals a May 4, 1988 refusal of the trial court to amend its April 8, 1988 Order to grant permission to file this appeal, and the April 8, 1988 Order itself. The April 8, 1988 Order denied appellant's motion for summary judgment and directed the appellant to defend Ellen Anne Ferrara in the matter of Ronald Spock and Lisa Spock, his wife v. Ellen Anne Ferrara, No.
[ 380 Pa. Super. Page 590831]
-C of 1987, Luzerne County Court of Common Pleas. The Order also denied without prejudice appellant's request for declaratory relief concerning its obligation to indemnify Ferrara.
Ronald Spock and his wife Lisa brought action against Ellen Ferrara alleging she had committed a battery and assault on Ronald Spock when she twice kicked him in the groin area which eventually which caused him to undergo a right orchiectomy. The complaint also sought both compensatory and punitive damages, as well as damages for the wife's loss of consortium. On October 5, 1987, Donegal Mutual, as Ferrara's home-owner insurer, brought a separate action, which is the basis of this appeal, seeking declaratory judgment and alleging among other things it was not required under the policy to defend/indemnify Ferrara because the policy excludes from coverage any bodily injury or property damage which is expected or intended by the insured and the allegations in the complaint against Ferrara indicate the injuries complained of resulted from intentional acts of Ferrara. Donegal Mutual also filed a motion for summary judgment in its declaratory judgment action on January 21, 1988. The matter was resolved by the April 8, 1988 Order in question. As noted above, after the court on May 4, 1988 refused to amend the interlocutory Order of April 8, 1988 to grant permission to file appeal, this Court granted permission for this appeal.
On appeal Donegal Mutual argues the court erred in denying its motion for summary judgment and in deciding in the declaratory judgment action that Donegal Mutual must defend Ferrara. Donegal Mutual further urges the court erred in affirmatively ordering it to defend Ferrara because no cross-motion for summary judgment was filed by the opposing parties.
While we granted permission to appeal, a determination must be made as to whether the appeal is properly before us or whether permission to appeal was inadvertently granted. Although appeal may not ordinarily be taken from an Order denying a motion for summary judgment
[ 380 Pa. Super. Page 591]
since such an Order is interlocutory, this Court granted permission to appeal, as noted above. See Husak v. Berkel, Inc., 234 Pa. Super. 452, 341 A.2d 174 (1975); 42 Pa.C.S. §§ 702; 742; Pa.R.A.P. 1311. The petition for review, requesting permission to appeal, was granted after a vote of the full Court, when this Court determined there was a controlling question of law, as to which there is a substantial ground for ...