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FEDERAL KEMPER INSURANCE COMPANY v. JERRY L. DERR AND THERESA A. DERR (08/07/89)

filed: August 7, 1989.

FEDERAL KEMPER INSURANCE COMPANY
v.
JERRY L. DERR AND THERESA A. DERR, HIS WIFE, GARY WAYNE HANNA AND EDWARD A. GAPPA, ADMINISTRATOR OF THE ESTATE OF DEBORAH L. GAPPA. APPEAL OF JERRY L. DERR AND THERESA A. DERR. (TWO CASES) APPEAL OF EDWARD A. GAPPA, ADMINISTRATOR OF THE ESTATE OF DEBORAH L. GAPPA, DECEASED



Appeal from the Judgment entered in the Court of Common Pleas of Columbia County, Civil Division, No 214 of 1985.

COUNSEL

Michael Dennehy, Philadelphia, for appellants at No. 2287.

Scott A. Bennett, Philadelphia, for appellant at No. 2395.

David C. Dickson, Jr., Berwick, for Federal Kemper, appellee.

Montemuro, Tamilia and Montgomery, JJ.

Author: Tamilia

[ 386 Pa. Super. Page 384]

This matter involves consolidated appeals. On February 26, 1985, appellee Federal Kemper Insurance Company (Federal Kemper), with whom the appellants, Derrs, had a homeowner policy, brought an action seeking a declaratory judgment to determine that the Derrs and one Gary Hanna were not entitled to any coverage under the policy and that it had no duty to defend those parties in the action brought by the estate of Deborah Gappa, deceased. The facts, as stated by the trial court in its Opinion, are as follows:

On August 14, 1982, Gary Wayne Hanna, while operating an all-terrain vehicle owned by Jerry L. Derr, struck one Deborah Gappa, allegedly causing her personal injuries and ultimately her death by suicide.

At the time of the incident, Deborah Gappa was walking along a private road leading to a 10 acre tract of land owned by Jerry L. and Theresa Derr, located in the Roaring Creek Forest Preserve in Roaring Creek Township, Columbia County, Pennsylvania. The Derrs admittedly gave Hanna permission to operate the all-terrain vehicle.*fn1

The private road upon which the incident occurred is the only means of ingress or egress to the Derr land, and likewise serves about ninety (90) other adjoining land owners in the Forest Preserve, all of whom possess an easement for access purposes over the roadway in question.

Roaring Creek Forest Preserve, Inc., a corporation consisting primarily of the aforesaid land owners, initially obtained an easement over the private road from a predecessor in interest, who had acquired it from one Al Tomcavage in exchange for a 10 acre lot in the Forest Preserve. All ninety (90) land owners in the Forest Preserve were granted easements over the private road in

[ 386 Pa. Super. Page 385]

    their respective deeds. The owners in turn annually contributed an equal amount to the Roaring Creek Forest Preserve Landowner's Association to provide for the maintenance and repair of the said private road.

The Defendant Derrs for many years before and after the incident have utilized a camper on their lot as a weekend and summer-type retreat and part-time vacation residence. Their principal residence is elsewhere and not connected with the Forest Preserve in question.

The Estate of Deborah Gappa has instituted a separate suit against the Derrs for alleged negligence in allowing Gary Hanna to operate their all-terrain vehicle, thereby causing the aforementioned ...


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