J-A09014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STATE FARM MUTUAL AUTOMOBILE                   IN THE SUPERIOR COURT OF
INSURANCE COMPANY                                    PENNSYLVANIA



                       v.

PAUL FULLER, MARK CZYZYK, MICHELE
CZYZYK, AND ROSE NEALON

APPEAL OF: ROSE NEALON

                                                  No. 1488 MDA 2016


                 Appeal from the Order Entered August 5, 2016
             In the Court of Common Pleas of Lackawanna County
                      Civil Division at No(s): 15-CV-999


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                              FILED JUNE 26, 2017

       Rose Nealon (Nealon) appeals from the order entered on August 5,

2016, in the Court of Common Pleas of Lackawanna County, granting

summary judgment in favor of State Farm Mutual Automobile Insurance

Company (State Farm), in the declaratory judgment action filed by State

Farm.1 State Farm sought declaratory relief based on its position that the

insured vehicle, in which Nealon was a passenger at the time of the

accident, was being operated by Paul Fuller (Fuller) without the permission

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1
  Prior to August 5, 2016, a default judgment had been entered against
Fuller. See Order, 3/15/2016. Nealon, the plaintiff in the underlying tort
action, is the sole appellant.
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of the insured owner, Michelle Czyzyk. In this timely appeal, Nealon claims

the trial court erred in granting summary judgment: (1) while there still

existed genuine issues of material dispute, (2) where the trial court lacked

jurisdiction in that no controversy existed regarding the insurance policy,

and (3) where the trial court did not apply consistently prior orders

regarding the existence of genuine issues of material dispute. Following a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.

       This declaratory judgment action arises from the underlying personal

injury action, regarding an automobile accident, filed by Rose Nealon against

Paul Fuller, Michele Czyzyk and her brother, Mark Czyzyk.2 The facts giving

rise to these actions are more fully discussed below.

       Our scope and standard of review for an order granting summary

judgment is well settled.

       A reviewing court may disturb the order of the trial court only
       where it is established that the court committed an error of law
       or abused its discretion. As with all questions of law, our review
       is plenary.

       In evaluating the trial court's decision to enter summary
       judgment, we focus on the legal standard articulated in the
       summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
       where there is no genuine issue of material fact and the moving
       party is entitled to relief as a matter of law, summary judgment
       may be entered. Where the non-moving party bears the burden
____________________________________________


2
  The trial court consolidated the personal injury action and the declaratory
judgment action for pretrial purposes only. See Order, 4/4/2016.



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     of proof on an issue, he may not merely rely on his pleadings or
     answers in order to survive summary judgment. Failure of a
     nonmoving party to adduce sufficient evidence on an issue
     essential to his case and on which it bears the burden of proof
     establishes the entitlement of the moving party to judgment as a
     matter of law. Lastly, we will view the record in the light most
     favorable to the non-moving party, and all doubts as to the
     existence of a genuine issue of material fact must be resolved
     against the moving party.

Byoung Suk An v. Victoria Fire and Cas. Co., 113 A.3d 1283, 1287-88

(Pa. Super. 2015) (citation omitted).

     Because Nealon’s second claim addresses an issue of jurisdiction, we

will review it first. Nealon argues this declaratory judgment action seeks an

advisory opinion in that there has been no determination of negligence,

therefore it is speculation that the State Farm automobile insurance policy

will be required to indemnify anyone. This argument is unavailing.

     The long-standing rule has been that declaratory judgments are
     not obtainable as a matter of right. Whether the lower court
     should exercise jurisdiction over a declaratory judgment
     proceeding is a matter of sound judicial discretion. Clark, Inc.
     V. Township of Hamilton, 128 Pa.Commw. 31, 38, 562 A.2d
     965, 968-969 (1989), citing State Farm Mut. Ins. Co. v.
     Semple, 407 Pa. 572, 180 A.2d 925 (1962); Smith v. County
     of York, 37 Pa.Commw. 47, 388 A.2d 1149 (1978), cert.
     denied, 441 U.S. 908, 99 S.Ct. 1999, 60 L.Ed.2d 377 (1979);
     Presbyterian-University of Pennsylvania Medical Center v.
     Keystone Ins. Co., 251 Pa. Super. 71, 380 A.2d 381 (1977).
     See also, State Automobile Insurance Association v.
     Kuhfahl, 364 Pa. Super. 230, 233, 527 A.2d 1039, 1040
     (1987), appeal denied, 517 Pa. 618, 538 A.2d 500 (1988).

     In Pennsylvania, declaratory relief is unavailable when it is
     sought merely in anticipation of an action at law by another
     party. Commonwealth, Department of General Services v.
     Frank Brisco, Co., 502 Pa. 449, 458-459, 466 A.2d 1336,
     1340-1341 (1983); Penox Technologies, Inc. v. Foster

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         Medical Corp., 376 Pa. Super. 450, 454, 546 A.2d 114, 115
         (1988).

American Nuclear Insurers v. Metropolitan Edison Co., 582 A.2d 390,

392 (Pa. Super. 1990) (footnote omitted) (italics added).

         Nealon has filed an action seeking indemnification from parties who

are alleged insureds under the State Farm automobile insurance policy. Not

only is indemnification at issue, but State Farm might also be required to

provide a defense in the personal injury action.      Clearly, this declaratory

judgment action was not filed in mere anticipation of another action.

         We are also informed by Justice Saylor’s explanation of the purpose of

the Declaratory Judgment Act in his dissenting opinion in Nationwide

Mutual Insurance Company v. Wickett, 763 A.2d 813 (Pa. 2000).

“Moreover, the primary and direct purpose of the Declaratory Judgments

Act, a version of the Uniform Declaratory Judgments Act, was to authorize

courts to grant declaratory relief in the face of objections that such relief

represented the giving of advisory opinions rather than the adjudication of

controversies.”      Wickett, 763 A.2d at 819 (Saylor, J. dissenting).

Accordingly, we conclude that a situation as is instantly present, where an

insurance company seeks a determination of the applicability of its policy to

a matter in litigation, does not concern an advisory opinion. Accordingly, the

trial court had jurisdiction to entertain this matter and to rule on State

Farm’s motion for summary judgment. Nealon is not entitled to relief on this

issue.

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     Next, we address Nealon’s substantive claim that the trial court erred

in granting summary judgment where there remained open genuine issues

of material dispute.   The general facts as related by the trial court in its

Pa.R.A.P. 1925 (a) opinion are as follows:

     Rose Nealon avers that on August 2, 2012, she was a passenger
     in a 2002 Kia Sportage owned by Michele and Mark Czyzyk, a
     brother and sister, and driven by Paul Fuller. Nealon says that
     Fuller was “under the influence of illegal narcotics, prescriptions
     [sic] drugs and/or alcohol,” and ultimately “lost control of the
     vehicle and struck a parked car.” She further alleges that the
     Czyzyks allowed Fuller access to the Kia Sportage when they
     knew or should have known that he was intoxicated. As a result
     of the accident, Nealon sustained injuries including left tibial and
     fibulal fractures, a right forearm injury, a head contusion, and
     left leg pain. On November 25, 2012, she filed a Complaint
     advancing claims of negligence against Fuller, negligent
     entrustment against Defendants Czyzyk, and breach of contract
     against the vehicle’s insurer, State Farm Mutual Automobile
     Insurance Company, with regard to uninsured and underinsured
     motorist insurance coverage.

     On January 27, 2015, State Farm initiated a separate declaratory
     judgment action, originally docketed at 2015-CV-999, against
     Fuller, Mark Czyzyk, and Nealon. In that action, State Farm
     avers that “any and all claims that may be asserted against
     [Fuller and Mark Czyzyk] are excluded from coverage and/or are
     not entitled to coverage” under the provisions of the
     underinsurance policy between State Farm and its insured,
     Michele Czyzyk, because these Defendants are not “named
     insureds” under the policy, as required by its language. On
     Fullers motion, we consolidated both matters on April 4, 2016,
     for pretrial purposes only.

                                      …

     State Farm contends that Fuller, Mark Czyzyk, and Nealon are
     excluded from coverage and/or are not entitled to coverage
     under Michele Czyzyk’[s] State Farm insurance policy because
     neither Fuller nor Czyzyk are “named insureds under said policy
     of insurance and are not insureds by definition under the terms

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       and provisions of said policy of insurance…” Critical to this
       argument is the assertion that Fuller “did not have permission to
       be driving the subject vehicle at the time of the accident.”

Id. at 4. Trial Court Opinion, 8/4/2016, at 1-2, 4.

       Also relevant to the disposition of this matter, the Kia, driven by

Fuller, in which Nealon was a passenger, was owned by Michele Czyzyk.

Deposition Nealon, 6/19/2014, at 69; Deposition Michele Czyzyk, 6/16/2014

at 8; Deposition Mark Czyzyk, 6/19/2014, at 11-14; Mark Czyzyk Answer to

Declaratory Judgment Complaint, 9/13/2015, at ¶¶ 5, 7; Nealon Answer to

Declaratory Judgment Complaint, 4/28/2015 at ¶ 7. Michele Czyzyk is the

named insured on the State Farm automobile insurance policy at issue.

Mark Czyzyk Answer to Declaratory Judgment Complaint at ¶ 7; Nealon

Answer to Declaratory Judgment Complaint at ¶ 7.3 Mark Czyzyk gave

permission to Paul Fuller to drive the Kia prior to the accident. 4 Deposition

Nealon, at 43; Deposition Fuller, 2/18/2015, at 18.5    Michele Czyzyk gave

her brother, Mark, permission to drive the Kia to run short errands.
____________________________________________


3
   Although the declarations page for the State Farm automobile insurance
policy at issue is referenced in the certified record, the declarations page
itself has not been made part of the certified record. We find no dispute to
the fact that Michele Czyzyk is the named insured on that policy.
4
   Mark Czyzyk denied giving Fuller permission to drive the Kia. However,
because of the posture of this appeal, we view any disputed evidence in the
light most favorable to Nealon, as the non-moving party.
5
  Fuller testified Nealon told him that Mark Czyzyk had given him permission
to drive the Kia.




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J-A09014-17


Deposition Michele Czyzyk, at 20-23; Deposition Mark Czyzyk, at 13. There

is no evidence of record indicating Michele Czyzyk gave her brother

permission to allow any other person to drive the Kia.

       The central and dispositive issue in this matter is whether Fuller was a

permissive driver of the Kia. If he was, then under the definitions provided

in the insurance policy, he was an insured and State Farm would be required

to defend Mark Czyzyk and Paul Fuller, and might be required to indemnify

them regarding Nealon’s claimed injuries.      See State Farm Policy, Liability

Coverage, Additional Definitions, at 7, ¶ 3.

       Relevant definitions from the State Farm automobile insurance policy

are:

       Your means the named insured or named insureds on the
       Declarations Page.
                                 …

       Insured means:
                                       …
        3. any other person for his or her use of:
         a. your car
       Such vehicle must be used within the scope of your consent.

State Farm automobile insurance policy at 6-7 (italics in original).

       The law in Pennsylvania regarding permissive use is:

       Whether a user of an automobile has the permission necessary
       to elevate that user to the status of an additional insured
       depends upon the facts and circumstances of each case in light
       of the underlying policy language. See e.g. Federal Kemper
       ins. Co. v. Neary, supra, 366 Pa.Super. at 139, 530 A.2d at
       931. The owner's permission to use an automobile may either be
       expressed or implied. Id. “Implied permission may arise from
       the relationship of the parties or by virtue of a course of conduct

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      in which the parties have mutually acquiesced.” Id. at 140-41,
      530 A.2d at 931 (citing Brower v. Employers’ Liability
      Assurance Co. Ltd., supra, 318 Pa. at 444, 177 A. at 828;
      Esmond v. Liscio, supra, 209 Pa. Super at 206, 224 A.2d at
      796). “However, ‘permission’ requires something more than
      mere sufferance or tolerance without taking steps to prevent the
      use of the automobile, and permission cannot be implied from
      possession and use of the automobile without the knowledge of
      the named insured.” St. Farm Mut. Ins. Co. v. Judge, supra,
      405 Pa. Super. at 381, 592 A.2d at 714; Federal Kemper Ins.
      Co. v. Neary, supra, 366 Pa. Super. at 140, 530 A.2d at 931
      (quoting Blashfield, Automobile Law and Practice, § 315.10 at
      608) (emphasis added).

      Our focus, then, is not directed to the actions of the ultimate
      user of the auto, but rather, “whether the named insured said or
      did something that warranted the belief that the ensuing use
      was with his consent. There must be ‘a connection made’ with
      the named insured's own conduct; [mere] proof of ‘acts,
      circumstances, and facts, such as continued use of the car,’ will
      be insufficient ‘unless they attach themselves in some way to the
      acts' of the named insured.” Id.; Belas v. Melanovich, 247 Pa.
      Super. 313, 324, 372 A.2d 478, 484 (1977) (quoting Beatty v.
      Hoff, 382 Pa. 173, 177, 114 A.2d 173, 174 (1955)) (emphasis
      added).

Nationwide Mutual Insurance Company v. Cummings, 652 A.2d 1338,

1344-45 (Pa. Super. 1994).

      Accordingly, under the definitions found in the State Farm policy, as

applied by Cummings, Fuller could be considered a permissive user if

Michele Czyzyk, the owner of the car and the named insured on the policy,

did something that warranted Fuller’s belief that she consented to his use of

her car.

      Viewing the evidence in the light most favorable to Nealon, we must

accept that Mark Czyzyk gave Fuller permission to use the car.     However,


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the evidence also shows that Mark Czyzyk was not the owner/named insured

of the Kia. Both the State Farm automobile insurance policy and case law

require valid permission come from the named insured, either directly or by

implication. Therefore, in order for Fuller to be considered a permissive user

of the car, there must be additional evidence that Michele Czyzyk, the

named insured, gave her brother permission to loan the car to other people.

In light of the evidentiary record, there are no disputed facts to prevent the

determination, as a matter of law, whether Michele Czyzyk gave her brother,

Mark, permission to loan her car to any other person. While the record is

clear that Michele granted her brother permission to use the car himself, the

certified record is bereft of evidence that such permission included granting

Mark the right to allow any other person to use the car. Accordingly, Fuller

was not a permissive user of Michele Czyzyk’s Kia and he is not entitled to

coverage under the State Farm automobile insurance policy.6

       In her final claim, Nealon argues the trial court’s orders of July 22,

2016, and August 5, 2016 inconsistently ruled on whether any genuine

issues of material fact remained open.           This argument misapprehends the

scope and subject matter of the two orders.           Therefore, this argument is

without merit.
____________________________________________


6
  It does not appear that Nealon argues that she is independently entitled to
any coverage under the State Farm automobile insurance policy. Such a
claim would also fail, as passengers in a car being operated without
permission are also excluded from coverage. See Cummings, supra.



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      On July 22, 2016, the trial court granted Michele Czyzyk’s motion for

summary judgment in the underlying tort action filed by Nealon and denied

Mark Czyzyk’s similar motion. Essentially, the order determined there were

no facts of record that allowed a finding of negligence against Michele

Czyzyk, but there was still an open factual question whether Mark Czyzyk

had negligently allowed Fuller the use of the Kia.     As noted above, in the

declaratory judgment action, the only relevant question was that of Michele

Czyzyk’s permission, not Mark’s.        Accordingly, the open question of Mark

Czyzyk’s negligence in the tort action does not conflict with any aspect of the

trial court’s ruling in the declaratory judgment action. Therefore, Nealon is

not entitled to relief on this claim.

      Having found no abuse of discretion or error of law on the part of the

trial court in granting State Farm declaratory relief, Nealon cannot prevail in

this appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2017




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