HomeMy WebLinkAbout2004-6162 Civil (2)
SOUTHCENTRALEMPLOYMENT
CORPORATION
Plaintiff,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
BIRMINGHAM FIRE INSURANCE
COMPANY OF PENNSYLVANIA
Defendant
CIVIL ACTION-LAW
NO. 2004-6162 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, 1., April 3, 2006.
In this declaratory judgment action, Plaintiff sued its insurance carrier on a "Not-
for-Profit Protector" policy as a result of the insurer's denial of coverage with respect to
certain federal funds which Plaintiff allegedly did not properly account for. 1 Defendant
insurer's motion for judgment on the pleadings was granted by an en banc panel of this
court on the basis of this court's interpretation of the contract in question? The order was
accompanied by an opinion. 3
From the order granting the insurer's motion for judgment on the pleadings
Plaintiff has filed a notice of appeal to the Pennsylvania Superior Court.4 The bases of
the appeal have been expressed in Plaintiff s Statement of Matters Complained of on
Appeal as follows:
1. Whether the court erred as a matter of law in construing an ambiguous
exclusionary provision in an insurance policy in favor of the insurance
company. . . .
2. Whether the court erred as a matter of law in ruling, in effect, that the
insured could not possibly recover against the insurance company on a policy
containing an ambiguous exclusionary provision. . . .
3. Whether the court erred as a matter of law by improperly considering facts
outside the complaint in adopting the insurance company's interpretation of an
ambiguous exclusionary provision. . . .
1 Plaintiffs Complaint, filed December 8, 2004.
2 Order of Court, February 3, 2006.
3 Opinion of Court, February 3, 2006.
4 Plaintiffs Notice of Appeal, filed March 3,2006.
4. Whether the court erred as a matter of law in failing to hold that the
exclusionary provision at issue is inconspicuous, and, consequently,
unenforceable. . . .
5. Whether the court erred as a matter of law in ruling that the insured is not
entitled to a legal defense under an ambiguous exclusionary provision of an
insurance policy. . . .5
The rationale for the court's view that the terms of the policy excluded coverage
for the type of loss claimed by Plaintiff in this case is contained in the court's opinion
accompanying the order appealed from and will not be reiterated here. With respect to
Plaintiff s contention that the court, in reaching this conclusion, considered "facts outside
the complaint," it may be noted that the court's opinion supported its statement of facts
by citations to the pleadings and attachments thereto. The court is unaware of its
consideration of any facts not alleged or conceded by Plaintiff in the pleadings.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Brian C. Caffrey, Esq.
Saidis, Shuff, Flower & Lindsay
26 W. High Street
Carlisle, P A 17013
Attorney for Plaintiff
Lawrence 1. Bistany, Esq.
David E. Edwards, Esq.
Celestine Montague, Esq.
White and Williams, LLP
1800 One Liberty Place
1650 Market Street
Philadelphia, P A 19103
Attorneys for Defendant
5 Plaintiffs Statement of Matters Complained of on Appeal Pursuant to Pa.RA.P. 1925(b).
2