J-S58003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CLYDE ROGERS, INDIVIDUALLY AND                   IN THE SUPERIOR COURT OF
CLYDE ROGERS D/B/A ROGERS                              PENNSYLVANIA
FLOORING CO.


                       v.


HARLEYSVILLE INSURANCE

APPEAL OF: CLYDE ROGERS

                                                      No. 289 MDA 2016


                Appeal from the Order Entered January 21, 2016
                 in the Court of Common Pleas of Berks County
                          Civil Division at No.: 14-674


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 13, 2016

        Appellant, Clyde Rogers, appeals from the trial court’s order granting

the motion for summary judgment of Appellee, Harleysville Insurance. We

affirm.

        The trial court’s opinion aptly sets forth the relevant facts and

procedural history of this case, as follows.

               [Appellant] filed a complaint on January 15, 2014.
        According to this complaint, on January 25, 2012, [Appellant’s]
        work vehicle, a 1999 Dodge B250 STD two door Cargo Van
        Extended, caught fire. The van was a total loss, and all the
        tools, equipment, and material inside were destroyed. The van
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     was towed from the scene and has been in storage since then at
     a rate of $35.00 per day, plus sales tax. The cost to replace the
     tools lost in the fire is over $7,000.00. [Appellant’s] rental van
     cost was $1,220.68. [Appellant] lost revenue of $14,044.00 for
     two jobs that were unable to be completed due to the loss. At
     the time of the incident, [Appellant] owned a commercial auto
     insurance policy and an inland marine policy (commercial
     insurance policy) issued by [Appellee].

           [The] complaint alleges two counts against [Appellee]:
     Count one is a breach of contract claim. [Appellant] contend[s]
     that the[] insurance policies contain provisions to insure
     property, tools, equipment, and payroll. [Appellant] assert[s]
     that [Appellee] breached its duty by failing to make appropriate
     payments upon [] demand. Count two is a bad faith claim
     arising from [Appellee’s] failure to offer [Appellant] a reasonable
     amount of damages and losses sustained by [him].

           On February 17, 2012, [Appellee] issued a payment to
     [Appellant] in the amount of $5,000.00, the policy limit on
     unscheduled items of tools and equipment. [Appellant] cashed
     this check.

           [Appellee] filed a motion for summary judgment on
     December 18, 2014. [The motion sought a legal ruling that
     Appellant only was entitled to reimbursement in the amount of
     $1,120.00 for the value of the van and $1,220.68 for the value
     of his vehicle rental, and that he had been otherwise fully paid
     under the policy.] On December 16, 2015[, Appellee] filed a
     praecipe for argument of the motion for summary judgment to
     be heard on January 19, 2016. [Appellee] served this praecipe
     upon [Appellant’s] attorney by first class mail on December 16,
     2015.

           [Appellant] and/or [his] attorney did not appear for the
     argument.     After a review of the record and following
     [Appellee’s] argument, th[e trial] court granted [Appellee’s]
     motion for summary judgment and dismissed [Appellant’s]
     complaint upon [Appellee’s] payment of [the rental claim in the
     amount of $1,220.68 and the claim for the cash value of
     Appellant’s van in the amount of $1,120.00].




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              [Appellant] filed a motion for reconsideration which th[e
       trial] court denied on February 2, 2016. [Appellant] then filed
       this timely appeal.[1]

(Trial Court Opinion, 3/24/16, at 1-2) (unnecessary capitalization omitted).

       Appellant raises three questions for our review.

       A.    Whether there was sufficient evidence contained in the
       record and in []Appellant’s brief in response to [the motion for]
       summary judgment to [demonstrate that] the policy is vague
       and ambiguous and contained provisions to support [A]ppellant’s
       claims[?]

       B.    Whether the [A]ppellee acted in bad faith in the handling
       of [A]ppellant’s claims[?]

       C.   Whether the trial court erred in granting summary
       judgment after holding a hearing in which [Appellant’s] attorney
       was not present[?]

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

       Our standard of review of a court’s 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. [See] 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
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1
  Pursuant to the trial court’s order, Appellant filed a timely statement of
errors complained of on appeal on March 14, 2016. The trial court filed an
opinion on March 24, 2016. See Pa.R.A.P. 1925.



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       party bears the burden 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 & Cas. Co., 113 A.3d 1283, 1287-88 (Pa.

Super. 2015), appeal denied, 130 A.3d 1285 (Pa. 2015) (case citation

omitted).

       In his first issue, Appellant maintains that the record contained enough

“evidence [that] the policy is vague and ambiguous and contained provisions

to support [his] claims[]” to overcome Appellee’s motion for summary

judgment.      (Appellant’s Brief, at 8) (capitalization omitted).   Specifically,

Appellant argues that because “[t]he policies lack a formal declarations page

and do not clearly and specifically outline coverages[,]” they are “vague and

ambiguous and can be subject to multiple interpretations.” (Id. at 9). This

issue lacks merit.2

              The interpretation of an insurance policy is a question of
       law for the [C]ourt.      Our standard of review, therefore, is
       plenary. In interpreting the language of an insurance policy, the
       goal is to ascertain the intent of the parties as manifested by the
____________________________________________


2
  Appellant provides absolutely no pertinent law or discussion to support his
argument that an insurance policy is ambiguous for not containing a formal
declarations page. (See Appellant’s Brief, at 9). Moreover, review of the
insurance policies reveals that they do, in fact, contain declaration pages.




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      language of the written instrument. The polestar of our inquiry
      is the language of the insurance policy. When analyzing a
      policy, words of common usage are to be construed in their
      natural, plain, and ordinary sense. When the language of the
      insurance contract is clear and unambiguous, a court is required
      to give effect to that language. Although a court must not resort
      to a strained contrivance or distort the meaning of the language
      in order to find an ambiguity, it must find that contractual terms
      are ambiguous if they are subject to more than one reasonable
      interpretation when applied to a particular set of facts. Where a
      provision of a policy is ambiguous, the policy provision is to be
      construed in favor of the insured and against the insurer.

Byoung Suk An, supra at 1288 (citation and quotation marks omitted).

Additionally, “courts should not under the guise of judicial interpretation,

expand coverage beyond that provided in the policy.”         Id. (citation and

quotation marks omitted).

      In this case, the trial court found that the language of the subject

insurance policies is clear and unambiguous, and did not contain any

language supporting Appellant’s claims for breach of contract and bad faith.

(See Trial Ct. Op., at 6). We agree.

      We first note the well-settled principle that “[t]o successfully maintain

a cause of action for breach of contract the plaintiff must establish: (1) the

existence of a contract, including its essential terms, (2) a breach of a duty

imposed by the contract, and (3) resultant damages.” Albert v. Erie Ins.

Exch., 65 A.3d 923, 928 (Pa. Super. 2013) (citation omitted).       As to bad

faith, this Court has stated:

      To succeed in a bad faith claim, the insured must present clear
      and convincing evidence that the insurer did not have a
      reasonable basis for denying benefits under the policy and that

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      the insurer knew of or recklessly disregarded its lack of
      reasonable basis in denying the claim. Bad faith in the context
      of insurance litigation has been defined as any frivolous or
      unfounded refusal to pay proceeds of [a] policy. To constitute
      bad faith it is not necessary that the refusal to pay be
      fraudulent. However, mere negligence or bad judgment is not
      bad faith. To support a finding of bad faith the insurer’s conduct
      must be such as to import[] a dishonest purpose. It also must
      be shown that the insurer breached a known duty (i.e., good
      faith and fair dealing), through some motive of self interest or ill
      will.

Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 380 (Pa.

Super. 2002) (citations and quotation marks omitted).

      In the case before us, in granting summary judgment to Appellee, the

trial court found:

             The damages to [Appellant] occurred on January 25, 2012.
      The argument on [Appellee’s] motion for summary judgment
      was on January 19, 2016. During the almost four years between
      these two events, the only appraisal was done by [Appellee’s]
      expert. If [Appellant] disagreed with the appraisal, it was [his]
      duty to provide [his] own appraisal; [he] did not do so.
      [Appellee’s] appraiser valued the van at $1,120.00.            The
      commercial auto policy provides coverage for the insured vehicle
      under “Physical Damage Comprehensive Coverage” at a limit of
      “Actual cash value or cost of repair, whichever is less, minus the
      deductible for each covered auto, but no deductible applies to
      loss caused by fire or lightning.” Therefore, the value of the loss
      is the actual cash value, less an adjustment for depreciation. No
      deduction applies to a loss caused by fire. The appraiser valued
      the van at $1,120.00, the amount th[e trial] court awarded
      [Appellant].

            [Appellant] contended that it cost [him] more than
      $1,120.00 to buy a replacement van. That may be true, but the
      policy does not provide for the cost of a replacement van.
      Although it was not considered in th[e trial] court’s decision,
      [Appellant] finally had the van appraised on January 23, 201[6].
      Th[e] court notes, however, that the appraisal was meaningless
      because it provided the cost range of a replacement van based

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     on miles and overall condition. Thus, even to the present time,
     [Appellant has] not secured a meaningful appraisal. For these
     reasons, th[e trial] court found that the value of the van at the
     time of the fire was $1,120.00.

           [Appellant’s] insurance policy provided for rental
     reimbursement at a rate of $50.00 per day, up to thirty days
     ($1,500.00). [Appellant] incurred rental expenses of $1,220.68.
     Th[e trial] court ordered [Appellee] to pay these rental costs.

         [Appellant] made a claim for tools and equipment in the
     amount of $7,001.95. . . .

     . . . According to the policy, the blanket limits of insurance for
     tools and equipment are $5,000.00 for unscheduled items or
     $2,000.00 for any one item. For additional acquired property,
     the limit of coverage is the lesser of twenty-five percent of the
     total limit of insurance, or $1,250.00 based upon the $5,000.00
     blanket limit of insurance, or $10,000.00, if the additional
     acquired property was purchased within thirty days of the loss.
     Therefore, the limit of insurance for additional acquired property
     is $1,250.00, assuming it was purchased within thirty days prior
     to the loss. [Appellant] never identified any equipment that was
     purchased within thirty days of the loss. For these reasons,
     [Appellant is] not entitled to additional acquired property
     coverage.

           [Appellant] seek[s] loss of income in the amount of
     $14,044.00. [His] policy does not provide coverage for lost
     business income, and [he was] not charged for coverage of lost
     business income. Therefore, th[e trial] court did not award loss
     [of] business income.

           [Appellant] contend[s] that [he is] owed towing and
     storage fees. This assertion is without merit. The declarations
     page of the policy shows that there was no towing limit of
     coverage provided, and no premium was charged for it. There is
     also no coverage under [Appellant’s] policy for vehicle storage,
     and [Appellee] did not charge [Appellant] a premium for it.
     Thus, th[e trial] court granted summary judgment in favor of
     [Appellee] on this issue.




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(Trial Ct. Op., at 6-9) (unnecessary capitalization omitted). Our review of

the certified record supports the trial court’s findings.

      The clear unambiguous language of the commercial auto policy

provides that in the event of a total loss, Appellee would provide Appellant

with the actual cash value of the covered auto, with “[a]n adjustment for

depreciation and physical condition . . . in the event of a total ‘loss.’”

(Commercial Auto Policy, 2/11/12-2/11/13, at Endorsement to Business

Auto Coverage Form, at 2; see id. at 1; see also Schedule of Coverages

and Covered Autos, Physical Damage Comprehensive Coverage (stating limit

is “actual cash value or cost of repair, whichever is less[] . . . .”

(unnecessary capitalization omitted))). Pursuant to the policy’s clear terms,

Appellee obtained an appraisal of Appellant’s van, agreed to waive the

$250.00 deductible, and offered to pay him the $1,120.00 cash value of the

vehicle.   (See Autosource Valuation, 1/25/12, at 2; Motion for Summary

Judgment, 12/18/14, at 4). Therefore, based on the insurance policy’s clear

and unambiguous language, Appellant failed to prove either that Appellee

breached the terms of the policy or acted in bad faith by refusing to

reimburse Appellant for the replacement cost of the van, and instead

offering him its cash value.        See Albert, supra at 928; see also

Bonenberger, supra at 380.

      Also, pursuant to the clear language of the rental reimbursement

coverage endorsement to the commercial auto policy, Appellant was entitled


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to rental reimbursement in the amount of $50.00 per day, for a total of

$1,500.00. (See Commercial Auto Policy, Rental Reimbursement Coverage,

at 1).   Appellant presented evidence that he paid $1,220.68 in rental

expenses, which Appellee agreed to pay.          (See Motion for Summary

Judgment, 12/18/14, at 3).

      Additionally, the clear and unambiguous language of the Inland Marine

policy, which covered Appellant’s unscheduled tools, provided that the

blanket insurance limits were $5,000.00 for any one occurrence.          (See

Inland Marine Supplemental Schedule, 2/11/12-2/11/13, at 1).         Although

Appellant argues that the policy provides $10,000.00 in coverage for

property, our review reveals that this is only for “additional acquired

property” beyond the unscheduled tools.        (Id.) (capitalization omitted).

Appellant did not provide any evidence to the trial court or this Court that he

had any “additional acquired property” or even any covered, unpaid claims.

Therefore, the court’s finding that Appellee’s $5,000.00 payment to

Appellant fully satisfied his insurance claim for the unscheduled tools under

his Inland Marine policy is supported by the evidence of record.

      Finally, Appellant claims that he presented sufficient “evidence to

demonstrate that the policy does in fact contain coverage for loss of

business income, and storage fees.” (Appellant’s Brief, at 9; see id. at 8-9).

We disagree.




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         First, the pages of the reproduced record to which Appellant refers in

support of his argument that he is entitled to loss of business income do not

support his claim that he is entitled to reimbursement for payroll as the sole

employee merely because one of them refers to payroll as the premium

basis.     (See id. at 8; Commercial Liability Coverage Part Supplementary

Schedule, at 1).      Appellant does not identify any part of the policy that

provides reimbursement for payroll. Second, although Appellant is entitled

to work loss benefits of up to $5,000.00, this applies only when he, as the

covered insured, suffers bodily injury as the result of an auto accident. (See

Commercial Auto Policy, Pennsylvania Added and Combination First Party

Benefits Endorsement, at 1-2).

         Finally, the storage fee to which Appellant is entitled is contained in

the Inland Marine supplemental policy, which provided him with coverage for

his tools, not his van.        (See Appellant’s Brief, at 8; Inland Marine

Supplemental Schedule, at 1). Therefore, any claims based on storage fees

for his van and work loss benefits, fails.

         Hence, we conclude that the trial court properly decided that, based on

the clear and unambiguous language of the policy, Appellant failed to

establish that Appellee breached the insurance policy or acted in bad faith in

denying the uncovered claims. See Albert, supra at 928; Bonenberger,

supra at 380. Appellant’s first issue lacks merit.




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      In his second issue, Appellant claims that “Appellee acted in bad faith

in the handling of [his] claims.”    (Appellant’s Brief, at 10) (unnecessary

capitalization   omitted).   Specifically,   Appellant   argues   that   Appellee

“frivolously” denied him reimbursement for his rental costs. (Id.). For the

reasons discussed above, (see infra at 8-9), this issue lacks merit.

      Finally, in his third claim, Appellant maintains that “the trial court

erred in granting summary judgment after holding a hearing in which

[Appellant’s] attorney was not present.”           (Appellant’s Brief, at 11)

(unnecessary capitalization omitted). This issue lacks merit.

      Pursuant to the note to Pennsylvania Rule of Civil Procedure

1035.3(d), “[p]rocedural requirements with respect to argument and briefs

[in motions for summary judgment] are governed by local rule.” Pa.R.C.P.

1035.3(d), note. Berks County Local Rule of Civil Procedure Number 211.6,

assignment of cases for argument, provides:

            (a) At the end of the Tuesday (or Monday if Tuesday is a
      holiday) preceding the next scheduled argument court date,
      Court Administration shall prepare the list of all those
      cases praeciped for argument, noting the caption, nature of
      the matter to be argued, names of counsel or parties without
      counsel, and name of the judge assigned to the case, whether
      argument is before a panel of judges or a single judge.

            (b) Court Administration shall prepare a schedule of
      assignment of cases designating courtrooms, judges and times
      that arguments will be heard at argument court, and shall post
      such schedule by noon of the Thursday (or Wednesday if
      Thursday is a holiday) preceding argument court in the
      prothonotary’s        office        and        online       at
      www.countyofberks.com/courts, and shall post such schedule on


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      argument court day in the first floor lobby at the Courthouse and
      County Services Center.

            (c) Upon such posting in the prothonotary’s office the
      prothonotary shall notify the judge or judges assigned to
      hear arguments in the respective cases. On argument court day
      counsel and/or parties shall report directly to the assigned
      courtroom prior to the time fixed for oral argument for their
      respective cases.

B.R.C.P. No. 211.6 (emphases added).

      Here, Appellee filed a praecipe for argument on its motion for

summary judgment on December 16, 2015.          (See Praecipe for Argument,

12/16/15). The praecipe identified the requested argument date as January

19, 2016.     (See id.).     In the affidavit of service for argument court,

Appellee’s counsel certified that she served Appellant’s counsel with the

praecipe on December 16, 2015.        (See Affidavit of Service for Argument

Court, 12/16/15). Appellant does not claim that Court Administration failed

to adhere to the requirements of Rule 211.6, and there is nothing in the Rule

that imposes a duty on a judge to notify a party about the argument date

and time.   (See Appellant’s Brief, at 11); see also B.R.C.P. No. 211.6.

Moreover, Appellant fails to identify a rule that prohibits a court from

deciding a motion for summary judgment when one of the parties fails to

appear at argument, and we are not aware of any such rule.                (See

Appellant’s Brief, at 11).   Accordingly, we conclude that the court did not

commit an error of law by granting summary judgment where Appellant’s




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counsel failed to appear for argument.      See B.R.C.P. No. 211.6; Byoung

Suk An, supra at 1287-88. Appellant’s third issue does not merit relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2016




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