explaining that merely accepting the non-binding decisions of other courts "by the purely mechanical process of searching the nations courts for conflicting decisions" amounts to an abdication of this Court's judicial role
How later courts described this case
- explaining that merely accepting the non-binding decisions of other courts "by the purely mechanical process of searching the nations courts for conflicting decisions" amounts to an abdication of this Court's judicial role
Written by the judges who cited it.
The opinion
McEWEN, President Judge,
dissenting:
¶ 1 While the author of the majority Opinion has in usual fashion undertaken a careful analysis of the issues presented in this appeal and proceeded to a perceptive expression of position, I am obliged to dissent and do so in reliance upon the dissenting opinion of our learned colleague Judge Justin M. Johnson in Lititz Mut. Ins. Co. v. Steely, 746 A.2d 607 (Pa.Super.1999). Appellee Umbel seeks a recovery, in the underlying civil action, from appellee Fayette County Housing Authority, based upon claims that the authority failed to comply with various federal statutes and regulations. Thus, the civil action underlying the instant declaratory judgment proceeding does not present a claim for bodily injury arising out of the “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants”, but arises, as the complaint recites, from the Authority’s “derogation of its regulatory responsibilities”. The Lititz dissent of Judge Johnson provides so clear a clarion call for rejection of the claim of exclusion that I more wisely serve to cite to his insightful discussion of the foregoing notions, as well as the well established principle that it is the nature of the claim, and not the details of the injury, which triggers the duty of an insurer to defend. Thus, I would affirm the decision of the distinguished Judge Gerald R. Solomon requiring appellant to provide a defense to appellee, Fayette County Housing Authority, in the underlying action.
¶ 2 FORD ELLIOTT, J., and MUSMANNO, J., join this Dissenting Statement.