J. S47032/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JUDITH KOERNER                            :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                    v.                    :
                                          :
GEICO CASUALTY COMPANY,                   :           No. 30 EDA 2017
                                          :
                          Appellant       :


              Appeal from the Order Entered November 14, 2016,
                 in the Court of Common Pleas of Pike County
                         Civil Division at No. 810-2016


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED OCTOBER 19, 2017

      Geico    Casualty   Company     (“Geico”)   appeals   from   the   order   of

November 14, 2016, overruling its preliminary objections.1 We dismiss the

appeal as moot and remand to the trial court with directions to dismiss the

complaint filed by plaintiff/appellee, Judith Koerner (“Koerner”), with

prejudice.

      The trial court has summarized the history of this case as follows:

                     On May 19, 2016, [Koerner] initiated a lawsuit
              (“First Lawsuit”) by filing a Complaint against GEICO
              [], her car insurance company. See Docket No. 746-
              2016 Civil. The Complaint alleged that [Koerner]
              was injured when objects from an unknown and
              uninsured motorist forced [Koerner]’s car into a
              guardrail causing injuries to [Koerner].          The

1 Order overruling preliminary objections which assert lis pendens is
appealable as a collateral order.  Richner v. McCance, 13 A.3d 950
(Pa.Super. 2011).
J. S47032/17


            Complaint further alleges that [Koerner] is entitled to
            compensation under her insurance policy pursuant to
            the    Pennsylvania     Motor     Vehicle    Financial
            Responsibility Law (PMVFRL), 75 Pa.C.S. § 1701,
            which requires insurance companies to provide policy
            holders with the option to purchase uninsured
            motorists [sic] coverage.

                  [Koerner] initiated the instant case (“Second
            Lawsuit”) [] on June 2, 2016 by filing a Writ of
            Summons. She then filed a Complaint in the matter
            on July 27, 2016.       The Complaint alleged that
            [Geico] failed to [comply] with several of [Koerner]’s
            discovery demands, including a failure to produce a
            representative for deposition, a failure to produce
            relevant documentation, and a failure to produce a
            recording of a phone call between [Koerner]’s
            counsel and a representative of [Geico].          The
            Complaint asked for Declaratory Judgment against
            [Geico] for its failure to comply with Pennsylvania
            law.

                  On August 12, 2016, [Geico] filed a Preliminary
            Objection in the form of a Motion to Strike based
            upon lis pendens. [Koerner] filed an Answer to the
            Preliminary Objection on September 30, 2016.
            Following a hearing on October 17, 2016, this Court
            issued an Order on November 14, 2016, denying and
            dismissing [Geico]’s Preliminary Objection.

                  On December 14, 2016, [Geico] filed a Notice
            of Appeal as to this Court’s Order of November 14,
            2016. On December 16, 2016, this Court ordered
            that [Geico] file a Concise Statement of Matters
            Complained     of    on    Appeal    [pursuant    to
            Pa.R.A.P. 1925(b)] within twenty-one (21) days from
            the date of the Order.      [Geico] filed a Concise
            Statement of Matters Complained of on Appeal on
            January 6, 2017.

Trial court opinion, 2/10/17 at 1-2.




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        Subsequently, the First Lawsuit was removed to federal court.                  On

June 20, 2017, Geico filed an application for leave to file a post-briefing

communication, consisting of the Honorable Richard P. Conaboy’s June 14,

2017 memorandum and order ruling on Geico’s motion to dismiss in that

case.    Judge Conaboy dismissed Counts I and II of the Second Amended

Complaint for breach of contract and common law bad faith on the basis that

Geico had tendered the limits of Koerner’s uninsured motorist (“UM”)

coverage ($15,000). This was the full amount that Koerner could recover on

a first-party UM claim.      Although Koerner argued that a potential excess

verdict would be recoverable as consequential damages, Judge Conaboy

determined that the rationale for an insurer’s excess verdict liability does not

apply in a first-party UM case.           Koerner v. Geico, 3:17-cv-455 (MD.Pa.

June 14, 2017), unpublished memorandum at 22. Judge Conaboy allowed

Koerner to proceed on Count III, statutory bad faith under 42 Pa.C.S.A.

§ 8371, with the exception of compensatory and consequential damages

which are not permitted under the bad-faith statute. Id. at 23.

        All of Koerner’s allegations in the Second Lawsuit relate to purported

discovery    violations,   i.e.,   that    Geico   failed   to   make   its    employee,

Paul Brunskole, available for deposition; that Geico failed to turn over

recordings of a May 17, 2016 phone call between Mr. Brunskole and

Koerner’s attorney; and that Geico failed to comply with Koerner’s document

demands.      (See 6/27/16 Complaint, RR Vol. 2 at 61-65.)                    All of these



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purported discovery violations stem from the First Lawsuit, and it is

undisputed that Geico has since complied with Koerner’s discovery requests.

      In Count II of the Complaint in the Second Lawsuit, which Koerner

titles “Declaratory Judgment,” Koerner seeks a declaration that, inter alia:

Geico acted in violation of Pennsylvania law; Geico must comply with all

applicable laws in Pennsylvania; Geico is prohibited and enjoined from

uttering false statements; Geico is prohibited and enjoined from fabricating

evidence; Geico is required to comply with the Pennsylvania Unfair

Insurance Practices Act; and Geico is required to comply with the

Pennsylvania Unfair Trade Practices and Consumer Protection Law. (Id. at

65-67.) Koerner alleged no facts in support of her request for declaratory

relief other than those relating to her discovery requests pertaining to the

First Lawsuit.

      As a preliminary matter, we must address whether this appeal is moot

as Geico has averred. Our courts cannot “decide moot or abstract questions,

nor can we enter a judgment or decree to which effect cannot be given.”

Sayler v. Skutches, 40 A.3d 135, 143 (Pa.Super. 2012), appeal denied,

54 A.3d 349 (Pa. 2012) (citation omitted).

      As our court has previously stated:

            “The mootness doctrine requires that an actual case
            or controversy must be extant at all stages of review
            . . . .” Pap's A.M. v. City of Erie, 571 Pa. 375, 812
            A.2d 591, 600 (2002) (quoting In Re Cain, 527 Pa.
            260, 590 A.2d 291, 292 (1991)). “Where the issues
            in a case are moot, any opinion issued would be


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            merely advisory and, therefore, inappropriate.”
            Stuckley v. Zoning Hearing Bd. of Newtown
            Twp., 621 Pa. 509, 79 A.3d 510, 516 (2013). “An
            issue before a court is moot when a determination is
            sought on a matter which, when rendered, cannot
            have any practical effect on the existing
            controversy.”   Printed Image of York, Inc. v.
            Mifflin Press, Ltd., 133 A.3d 55, 59 (Pa.Super.
            2016) (citation and internal quotation marks
            omitted).

In re 2014 Allegheny County Investigating Grand Jury, 147 A.3d 922,

923-924 (Pa.Super. 2016), appeal granted in part, 2017 WL 2129839 (Pa.

May 16, 2017).

            Only where there is a real controversy may a party
            obtain a declaratory judgment.         A declaratory
            judgment must not be employed to determine rights
            in anticipation of events which may never occur or
            for consideration of moot cases or as a medium for
            the rendition of an advisory opinion which may prove
            to be purely academic.

Gulnac by Gulnac v. South Butler County Sch. Dist., 587 A.2d 699, 701

(Pa. 1991) (citations omitted).

      Here, we agree with Geico that the matter is moot.    Geico tendered

the UM policy limits of $15,000 and complied with Koerner’s discovery

requests.   Judge Conaboy in federal court dismissed Counts I and II of

Koerner’s Second Amended Complaint in the First Lawsuit and allowed her to

proceed only on Count III, statutory bad faith.    While Koerner sought a

declaratory judgment that Geico was in violation of Pennsylvania law, all of

the factual allegations related to Geico’s purported failure to comply with




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Koerner’s discovery requests in the underlying UM litigation.2     There is no

actual case or controversy. Accordingly, Koerner’s Complaint in the Second

Lawsuit is properly dismissed.

      Geico’s application for leave to file post-briefing communication is

granted. Appeal dismissed. Case remanded with instructions to dismiss the

Complaint with prejudice. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/19/2017




2 Geico points out that it is not aware of any case law allowing an insured to
seek declaratory judgment relief in the context of a discovery dispute.
(Geico’s brief at 18; Geico’s reply brief at 13.) This court is not aware of any
either, and we observe that Koerner could have simply filed a motion to
compel or a motion for sanctions in the underlying UM litigation in the First
Lawsuit.


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