concurring and dissenting:
While I agree with the conclusion that the present appeal is properly before us for review, I do so for reasons different than those expressed by the Majority. Further, I write separately to note my dissent on the issue of Erie’s duty to defend because my interpretation of the policy language and the Complaint filed against Erie’s insured, the Redevelopment Authority, causes me to conclude that Erie does have a duty to defend.
*595The Majority cites to Appellant’s diligent efforts to perfect jurisdiction and Section 7532 of the Judicial Code, 42 Pa.C.S. § 7532, in determining the finality of the instant order which ruled that Erie had an obligation to defend but left undetermined the matter of indemnity. In my view, it is the nature of the order at issue which dictates that it is final and appealable.
The trial court’s determination that Erie had a duty to defend, effectively ended the declaratory judgment action. The trial court, in ruling that Erie had a duty to defend, found that the claim made against the Redevelopment Authority was of the type which would fall under the coverage offered by Erie. This is all that could be done in this declaratory judgment action. Enforcement could arise only in a garnishment proceeding after the conclusion of a trial and the entry of a verdict against its insured. Because the declaratory judgment action was concluded at the entry of the court’s order, it was appropriate for Erie to appeal from that order if it desired to have it reviewed. Erie did file a timely appeal from the trial court order granting summary judgment in this declaratory judgment action, thus this matter is properly before us for review.
Upon review of the issue presented in this appeal, I must dissent. The Majority finds that Erie had no duty to defend or indemnify the Redevelopment Authority in the underlying action since the allegations in that action were based upon the breach of contractual duties. While noting that the complaint contained allegations which “employed negligence concepts,” Majority Opinion at 589, the Majority concludes that the claims are a result of the contract which was alleged to have been breached. However, there is at least one claim made in the underlying Complaint which does not concern a breach of contract.
In paragraph 20C. of the Complaint, there is a claim regarding the method of selecting an engineer. It states:
Despite full receipt of the bargained for consideration on the part of the Defendants, the bargained for benefit has not been achieved for the Marsteller Community Water Authority as designated beneficiary of the agreements referred to above, including the following:
C. The Defendants, specifically the Engineer, but also the Redevelopment Authority, in not monitoring or reviewing or in otherwise being negligent in the method of selection of the Engineer, caused harm to the Marsteller Community Water Authority by specifying, installing and paying for improperly designed or sized components to the system, including:
(a) Design of water treatment system for the system was based on data from source other than utilized;
(b) Design of pumps, motor and feed system from water source are inadequate to provide efficient and regular supply to water tank;
(c) Improper and inadequate storage tank.
This claim goes beyond a breach of contract, and it alone would create a duty upon Erie to defend its insured. While ultimately there may not be a duty to indemnify, a duty to defend arose because of this allegation contained in the Complaint. The policy issued by Erie provides coverage for negligent acts. The allegation regarding the negligent hiring of an engineer, creates the duty to defend. It is for this reason that I cannot join the Majority opinion, and express my dissent.