J-A15018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OLD REPUBLIC INSURANCE COMPANY                     IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                            Appellee

                      v.

MATTHEW STEVENS AND ALEXANDRA
KOBRICK

APPEAL OF: ALEXANDRA KOBRICK

                            Appellant                No. 1903 MDA 2016


                Appeal from the Order Entered October 19, 2016
              In the Court of Common Pleas of Lackawanna County
                       Civil Division at No(s): 15-CV-2706

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                      FILED NOVEMBER 14, 2017

       Appellant Alexandra Kobrick appeals from the default judgment

entered in favor of Appellee Old Republic Insurance Company in a

declaratory judgment action regarding insurance coverage for defendant

Matthew Stevens in a federal civil rights action that Appellant brought

against Stevens (“the Kobrick Suit”). We affirm.

       On November 25, 2013, Appellant sued Stevens in the United States

District Court for the Middle District of Pennsylvania.1 Stevens was a music

teacher and band director in the Lakeland School District.   In addition to

Stevens, Appellant’s complaint named Lakeland as a defendant, along with


____________________________________________
1   Docket No. 3:13-cv-02865-MEM.
J-A15018-17


Lakeland’s     superintendent       (Dr. Margaret Billings-Jones)   and   principal

(Thomas Kameroski).         Compl. in the Kobrick Suit, 11/25/13, at 2-3, 5-6

¶¶ 8-14, 28-39.2

       In the complaint, Appellant averred that Stevens sexually assaulted

her. The complaint alleged:

             32. At all relevant times hereto, Plaintiff Alexandra
       Kobrick was a participant in the band and a student of Defendant
       Matthew Stevens at Lakeland Junior-Senior High School.

             33. In or about December, 2011 – January, 2012,
       Defendant Matthew Stevens sent Plaintiff Alexandra Kobrick a
       series of inappropriate text messages of a sexual and flirtatious
       nature.

             34. By January, 2012, the relationship between
       Defendant Stevens and Plaintiff became physically sexual in
       nature.

             35. In January, 2012, Defendant Stevens and Plaintiff
       were alone in Defendant Stevens’ office when Defendant Stevens
       kissed Plaintiff and instructed Plaintiff that she should tell no one
       else about the contact.

              36. After these initial sexual advances occurred,
       Defendant Stevens would thereafter take Plaintiff into a “drum
       closet” in the band area on the premises at Lakeland Junior-
       Senior High School and would engage in sexual contact with the
       Plaintiff, who was a minor and his student at the time.

              37. Defendant Stevens continued the sexual advances,
       which included Stevens touching Plaintiff’s breasts and genitalia
       both over and under her clothing, digitally penetrating Plaintiff’s
       vagina, performing oral sex on Plaintiff, and directing and having
       Plaintiff to perform oral sex on him. Such sexual contact
       occurred in the drum closet, back stage in the auditorium and
       other locations on Defendant Lakeland School District property.
____________________________________________
2 Appellant also sued another school, Western Wayne School District, and
some of its officials.  The allegations against Western Wayne are not
relevant here.

                                           -2-
J-A15018-17



           38. Defendant Stevens’ abuse of the Plaintiff occurred
     during school hours and when Plaintiff stayed after school on the
     premises owned, controlled and maintained by Defendant
     Lakeland School District. The inappropriate activity and abuse
     continuously occurred approximately 2-3 times per week from
     January 2012 until the end of the school year, and beyond.

Compl. in the Kobrick Suit, 11/25/13, at 5-6 ¶¶ 32-38.       Appellant alleged

that Stevens’ conduct caused her psychological damage, physical harm, and

emotional distress. Id. at 17 ¶ 66, at 30 ¶ 125, at 32 ad damnum clause, at

39 ¶¶ 157-58, 161. The complaint stated six counts against Stevens:

     • Count I:   Violation of the Civil Rights Act, 42 Pa. C.S. § 1983, for

     infringement of her rights to due process, personal security, bodily

     integrity, and freedom from illegal seizures.

     • Count II: Assault.

     • Count III: Battery.

     • Count VIII:      Violation of Article 1, Section 1 of the Pennsylvania

     Constitution by “intentionally and deliberately violat[ing] Plaintiff’s due

     process rights.”

     • Count X: Sexual and simple assault.

     • Count XIV: Intentional infliction of emotional distress.

Id. at 16-20, 29-32, 38-40 ¶¶ 59-76, 123-25, 130-34, 156-61. Appellant

sought damages in excess of $75,000.

     Lakeland has insurance coverage under a Leaders’ Legal Liability Policy

that was issued to it by Old Republic, with effective dates of July 1, 2013 to

July 1, 2014 (“Policy”).    The Policy states that Old Republic “will pay on

                                     -3-
J-A15018-17


behalf of the INSURED[3] all sums . . . that the INSURED becomes legally

obligated to pay for LOSS as a result of a CLAIM against the INSURED by

reason of WRONGFUL ACT(S) to which this insurance applies.” Policy at 1

§ I. It defines the “INSURED” to include “All EMPLOYEES . . . while acting

within the scope of their duties for [Lakeland] and under its direction and

control[.]” Id. at 8-9 § IV ¶ 3. The parties do not dispute that Stevens was

employed by Lakeland, though they do dispute whether his actions relevant

to this case occurred “while acting with the scope of [his] duties” at

Lakeland.      A “LOSS” under the Policy is “any monetary damages for

judgments or settlements . . . for the recovery of sums that are covered

under this policy.”      Id. at 7 § III.       A “CLAIM” is a “written notification

received by any INSURED requesting money damages that qualify as a

LOSS,” including a civil litigation claim. Id. at 6 § III. “WRONGFUL ACT(S)”

means “any alleged or actual act, error, misstatement, misleading statement

or omission of an INSURED in the scope of its duties[.]” Id. at 8 § III.

        The Policy contains several exclusions, including the following:

        This Insurance does not apply to and WE shall not be obligated
        to make any payment of LOSS, defend any SUIT or pay
        SUPPLEMENTARY PAYMENTS in connection with any Claim for,
        arising out of, caused by, resulting from, in consequence of, in
        connection with or in any way involving any of the following:

              ...

        2.   Any WRONGFUL ACT that is committed                    with    an
        improper purpose or intended to cause LOSS;

____________________________________________
3   Fully capitalized words are defined terms in the Policy.

                                           -4-
J-A15018-17


            ....

      4.    For any CLAIM other than an EMPLOYMENT CLAIM, bodily
      injury, sickness, disease, death, disability, shock, humiliation,
      embarrassment, mental injury, mental anguish, emotional
      distress; oral or written publication, in any manner of material
      that slanders or libels a natural person or organization or
      disparages a person’s or organization’s goods, products or
      services; or for damage to or destruction of any property,
      tangible or intangible, including diminution of value or loss of
      use.     This exclusion applies whether any of the
      aforementioned injury or damage is caused by the
      INSURED or by any other natural person, organization, or
      legal entity, or such injury or damage arises out of or is
      caused by intentional, reckless, or negligent acts, errors
      or omissions and regardless of the legal theory pled
      (including civil rights violations);

      For any EMPLOYMENT CLAIM, . . . .

      5.    False arrest, detention or imprisonment; malicious
      prosecution; wrongful eviction from, wrongful entry into or
      invasion of the right of private occupancy of a room, dwelling or
      premises that a natural person occupies, committed by or on
      behalf of its owner, landlord or lessor; oral or written publication,
      in any manner, or material that violates a person’s right to
      privacy; assault; battery; false or improper service of process;
      trespass; nuisance; or violation of any natural person’s right to
      person’s or organization’s intellectual property rights. . . .

Policy at 2-3 § II ¶¶ 2, 4-5.

      Upon being notified of the Kobrick Suit, Old Republic agreed to provide

a defense to Stevens, Lakeland, Billings-Jones, and Kameroski, subject to a

full reservation of rights under the Policy. Old Republic appointed counsel to

represent Lakeland, Billings-Jones, and Kameroski, and separate counsel to

represent Stevens.

      On June 16, 2014, Stevens pled guilty to one count of corruption of

minors in connection with his misconduct regarding Appellant.                 Upon

                                      -5-
J-A15018-17


learning of the guilty plea, Old Republic sent an updated reservation of rights

letter to Stevens that advised that Old Republic would not defend or

indemnify him in connection with Appellant’s lawsuit.      Then, on April 16,

2015, Old Republic filed this declaratory judgment action, naming as

defendants Stevens, Lakeland, Billings-Jones, Kameroski, and Appellant.

The action sought a declaration that Old Republic had no obligation to

defend or indemnify Stevens in connection with the Kobrick Suit and that it

should be allowed to withdraw its defense of Stevens in that action.

Lakeland, Billings-Jones, and Kameroski were dismissed from the instant

action pursuant to joint stipulations. Appellant filed an answer contending

that Old Republic had a duty under the Policy to defend or indemnify

Stevens, because Stevens’ actions were committed within the scope of his

duties and were not barred by any exclusion. Stevens did not respond to

the complaint.

      Because Stevens filed no response, Old Republic filed a praecipe to

enter a default judgment against him. A default judgment was entered on

September 21, 2015, and Old Republic then moved for the trial court to

enter a final order declaring that Old Republic had no duty to defend or

indemnify Stevens in connection with Appellant’s suit.      Appellant opposed

that motion. After receiving written submissions and hearing oral argument,

the trial court granted Old Republic’s motion on October 19, 2016.

      In reaching its decision, the trial court first reviewed Pennsylvania case

law holding that sexual abuse of children is irrebuttably presumed to be an

                                     -6-
J-A15018-17


intentional act. Trial Ct. Op. at 6-7 (citing Erie Ins. Exch. v. Claypoole,

673 A.2d 348, 356 (Pa. Super. 1996); Aetna Cas. & Sur. Co. v. Roe, 650

A.2d 94, 102 (Pa. Super. 1994)). The trial court then continued:

      Pursuant to the inferred intent rule laid out above, Stevens[’]
      alleged actions must be determined as intentional. Therefore,
      Defendant Stevens is barred from coverage based on the subject
      Policy’s clearly stated intentional wrongful acts exclusion, the
      bodily injury or emotional distress exclusion and the assault and
      battery exclusion.

      Moreover, any sexual assault or corruption of [Appellant] did not
      occur while Stevens was acting within the scope of his duty as
      Lakeland’s band director, which is required to be included as an
      insured under the Policy. In other words, no causal connection
      exists between teaching band students and the injuries suffered
      by [Appellant], who was sexually assaulted by Stevens while she
      was his student. None of the allegations raised in the Kobrick
      Suit pertain to injuries which are actually or potentially within
      the scope of the Policy[.] . . . Plainly stated, Old Republic never
      agreed to provide insurance coverage to Stevens for the injuries
      that resulted from the sexual assault of a minor. Thus, Stevens
      is not an insured with regard to the Policy.

Id. at 7-8.

      On November 18, 2016, Appellant appealed, and she now raises the

following issues:

      1.    Whether the trial court erred in terminating [Appellant]’s
      interest in the Declaratory Judgment Action based on the entry
      of default judgment against Matthew Stevens, a co-defendant in
      the declaratory judgment action.

      2.   Whether the trial court’s determination that [Appellee] Old
      Republic [] has no duty to indemnify and/or defend Defendant
      Matthew Stevens in [Appellant]’s underlying lawsuit filed against
      him and others was premature, as discovery on the issue of Old
      Republic’s   duty  to    defend    and   indemnify     Defendant
      Matthew Stevens was ongoing and not concluded.



                                     -7-
J-A15018-17


      3.     Whether the trial court erred in holding that [Appellee] Old
      Republic [] has no duty to indemnify and/or defend Defendant
      Matthew Stevens, where the provisions cited by Old Republic in
      its insurance policy are inapplicable, ambiguous, and/or illusory.

      4.   Whether the trial court erred in holding that [Appellee] Old
      Republic [] has no duty to indemnify and/or defend Defendant
      Matthew Stevens.

Appellant’s Brief at 4.

      “Our standard of review in a declaratory judgment action is limited to

determining whether the trial court clearly abused its discretion or

committed an error of law.” Peters v. Nat'l Interstate Ins. Co., 108 A.3d

38, 42 (Pa. Super. 2014) (citation omitted), appeal denied, 124 A.3d 309

(Pa. 2015).

                          Propriety of Default Judgment

      Appellant first contends that Old Republic’s motion for entry of a final

order for a default judgment against Stevens should have been denied

because she “is an interested party with standing to have her rights

declared regardless of Matthew Stevens[’] failure to respond to [Old

Republic]’s complaint.” Appellant’s Brief at 12 (emphasis added). Appellant

argues that Stevens’ “failure to respond to Old Republic’s Complaint cannot

bar [Appellant]’s right to defend.” Id. at 15. She continues:

      Old Republic fails to acknowledge that notwithstanding
      Mr. Stevens[’] failure to file a Response to its Declaratory
      Judgment Complaint, [Appellant,] as an injured party, has an
      interest in this litigation and her standing to litigate the issues
      raised in her answer to Old Republic’s Declaratory Judgment
      Complaint cannot be diminished by Mr. Stevens’ failure to
      respond to Old Republic’s Complaint. . . . The Pennsylvania
      Supreme Court in Allstate Insurance Company v. Stinger,

                                      -8-
J-A15018-17


      400 Pa. 533, 537, 163 A.2d 74 (1960)[,] held that an injured
      party is affected by a policy of insurance between an insurance
      company and its insured. . . . [Appellant] in this action is
      undeniably an interested party and is entitled to have her rights
      declared.

Id. at 13.

      Old Republic responds that “the trial court properly entered judgment

when it did.”    Old Republic’s Brief at 36.   It points out that, contrary to

Appellant’s assertion, it “has not challenged whether Appellant has standing

to present a case or defense.” Old Republic’s Brief at 40. “To the contrary,

Old Republic joined Appellant in this case, served Appellant with the Motion

for Judgment and afforded Appellant an opportunity to oppose that Motion,

which Appellant did — both by submitting her Response and Brief and

arguing against the Motion at the October 2016 hearing.” Id. at 40-41.

      The trial court said it relied upon Appellant’s written response to Old

Republic’s motion and the “oral argument between parties’ counsel on the

motion.”     Order, 10/19/16; see also Trial Ct. Op. at 2.    It added that it

thoroughly considered Appellant’s arguments about the proper interpretation

of the Policy and rejected them. See id. at 5-8.

      We conclude that Appellant is not entitled to relief on this issue.

Appellant had a complete opportunity to defend her interests in this matter.

She was named as a defendant in Old Republic’s complaint, filed an answer,

and opposed Old Republic’s motion for a default judgment.       She thus was

treated by the trial court as “an interested party with standing to have her

rights declared” regardless of Stevens’ inaction. Cf. Appellant’s Brief at 12.

                                     -9-
J-A15018-17


The trial court considered whether Stevens was covered by the policy and,

despite Appellant’s arguments, concluded that he was not covered and that

Old Republic was not obligated to defend or indemnify Stevens. However,

that does not mean that Appellant was deprived of her interest in this

litigation; she was heard.

       Appellant’s reliance on Allstate Ins. Co. v. Stinger, 163 A.2d 74, 76

(Pa. 1960), is misplaced. The claimants in that case complained that they

had not been allowed to intervene in a declaratory judgment action that

affected them, and the Supreme Court agreed that their intervention should

be allowed. Here, unlike the claimants in Stinger, Appellant was named as

a party in the declaratory judgment action from the outset. She responded

to the pleadings, and had over a year to conduct discovery (which she chose

not to do), before Old Republic filed its motion for a final order. 4 Appellant

has not explained how her ability to participate in this case has been

prejudiced. She therefore has not established an entitlement to relief.

                     Coverage of Stevens Under the Policy

       Appellant’s remaining issues all boil down to her contention that the

trial court should have held that Stevens is covered under the Old Republic

Policy or, at the least, should have deferred ruling on that question while

additional discovery was taken. We disagree.
____________________________________________
4  Nothing in the certified record or in Appellant’s brief indicates that
Appellant served discovery on Old Republic. Old Republic states that,
although it served discovery requests on Appellant, “[Appellant] did not
serve any discovery requests on Old Republic.” Old Republic’s Brief at 10-
11. Appellant did not file a reply brief contradicting this assertion.

                                          - 10 -
J-A15018-17


        It is well established that an insurer’s duty to defend and indemnify an

insured may be determined in a declaratory judgment action.                    See

Claypoole, 673 A.2d at 355.         In doing so, “the allegations raised in the

underlying complaint alone fix the insurer’s duty to defend. . . . The question

of whether a claim against an insured is potentially covered is answered by

comparing the four corners of the insurance contract to the four corners of

the complaint.” Penn-Am. Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 265

(Pa. Super.) (en banc) (citation and internal quotation marks omitted),

appeal denied, 34 A.3d 832 (Pa. 2011); see also State Farm Fire & Cas.

Co. v. DeCoster, 67 A.3d 40, 45 (Pa. Super. 2013) (same); Am. & Foreign

Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526, 541 (Pa. 2010) (“As long

as the complaint ‘might or might not’ fall within the policy’s coverage, the

insurance company is obliged to defend”).

        “Words of common usage in an insurance policy are to be construed in

their   natural,   plain   and   ordinary   sense,   and   we   may   inform   our

understanding of these terms by considering their dictionary meanings.”

Leggett v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 844 A.2d 575,

578 (Pa. Super. 2004), aff’d, 874 A.2d 1159 (Pa. 2005) (order).                 In

addition:

        When the language of the policy is clear and unambiguous, we
        must give effect to that language. However, when a provision in
        the policy is ambiguous, the policy is to be construed in favor of
        the insured to further the contract’s prime purpose of
        indemnification and against the insurer, as the insurer drafts the
        policy and controls coverage.


                                       - 11 -
J-A15018-17


Penn-Am., 27 A.3d at 265 (citations and internal brackets and quotation

marks omitted).

      Appellant contends that the provisions of the Policy on which Old

Republic relies to disclaim coverage “are inapplicable, ambiguous, and/or

illusory.”   Appellant’s Brief at 19; see also id. at 20 (citing Bd. of Pub.

Educ. of Sch. Dist. of Pittsburgh v. Nat’l Union Fire Ins. Co., 709 A.2d

910, 913 (Pa. Super.) (“An insurer who disclaims its duty to defend based on

a policy exclusion bears the burden of proving the applicability of the

exclusion”),   appeal    denied,   727   A.2d   126   (Pa.   1998)).   In   this

connection —

      A contract term or provision may properly be deemed ambiguous
      if reasonable minds can differ as to its meaning. While the court
      will not allow an overly-subtle or technical interpretation to
      defeat the reasonable expectations of the insured, it will not
      convolute the plain meaning of a writing merely to find an
      ambiguity.

O'Brien Energy Sys., Inc. v. Am. Employers’ Ins. Co., 629 A.2d 957,

960 (Pa. Super. 1993).

      Much of Appellant’s argument concerns whether Stevens was an

“INSURED” under the Policy, and, in particular, whether he was “acting

within the scope of [his] duties for [Lakeland] and under its direction and

control” when he abused Appellant.       Appellant contends that “Stevens . . .

committed a Wrongful Act towards [Appellant] ‘while acting within the scope

of his duties’ as a music teacher.” Appellant’s Brief at 25. She continues:

      [T]he [t]rial [c]ourt wrongly cited to an exclusion of coverage for
      intentional acts and applied that exclusion to the Insured

                                    - 12 -
J-A15018-17


      definition phrase “while acting within the scope of his duties” to
      hold that Mr. Stevens was not an Insured. . . . Had the [t]rial
      [c]ourt properly looked at the policy definition of “Insured,”
      without wrongly adding an intentional acts exclusion, the [t]rial
      [c]ourt could only hold that Mr. Stevens was an Insured
      Employee who committed a Wrongful Act of sexual activity
      “while acting within the scope of his duties” teaching [Appellant]
      music.

      Here, Old Republic’s insurance policy has no definition for what is
      meant by “while acting within the scope of (his) duties.” The
      [trial c]ourt may not add an exclusion for intentional acts to the
      phrases in the policy. If [Appellant]’s above interpretation of the
      phrase “while acting within the scope of his duties” given the
      underlying facts of abuse does not correctly define Mr. Stevens
      as an Insured Employee, then the phrase “while acting within
      the scope of his duties” is ambiguous, and must be construed in
      favor of coverage.

Appellant’s Brief at 25, 27-28 (emphasis in original). Appellant argues that

a “common definition of ‘scope of duties’ does not support the [t]rial

[c]ourt’s holding that Matthew Stevens is not an Insured,” because this

“common definition” “includes the range of duties that an employee is

expected to carry out in order to fulfill the requirements of the position.” Id.

at 10 (citing Black’s Law Dictionary, 2d Ed. online), 29.

      Old Republic answers that the trial court properly granted its motion

for declaratory judgment by correctly declaring that it has no duty to defend

or to indemnify Stevens. Old Republic’s Brief at 15. Old Republic continues

that “there are no material facts in dispute” and that “Stevens is not an

‘insured,’” as “his admitted actions occurred outside the scope of his

employment.” Id. at 17-18.




                                     - 13 -
J-A15018-17


      We begin by observing that the trial court correctly interpreted and

applied our insurance decisions regarding the intentional nature of sexual

assault.   In Aetna, we adopted the “inferred intent rule” previously

articulated by the Court of Appeals for the Third Circuit in Wiley v. State

Farm Fire & Cas. Co., 995 F.2d 457 (3d Cir. 1993). We summarized:

      [The Third Circuit] stated that in certain cases a court can infer
      an actor’s intent as a matter of law from the nature and
      character of his or her acts. In its thorough review of current
      Pennsylvania law on the question of intent as well as a survey of
      the analyses applied in other jurisdictions in child abuse cases,
      the Court in Wiley noted that the inferred intent to harm is an
      irrebuttable presumption. The criminalization of child abuse
      additionally serves to place the insured on notice of the societal
      understanding that the harm from such conduct is inseparable
      from its performance.       The court concluded that “harm to
      children in sexual molestation cases is inherent in the very act of
      sexual assault committed on a child, regardless of the motivation
      for or nature of such assault, and that the resulting injuries are,
      as a matter of law, intentional. . . .” We agree.

Aetna, 650 A.2d at 102 (citations omitted).        “[P]ursuant to the inferred

intent rule, injuries resulting from sexual assault committed on children in

cases of sexual molestation are intentional as a matter of law.” Claypoole,

673 A.2d at 356.

      As the trial court correctly determined, the inferred intent rule resolves

this case. Appellant accuses Stevens of sexually abusing her while she was

a child in the school band.     She asserts various claims against Stevens,

including constitutional claims, assault and battery, and intentional infliction

of emotional distress; but for each, the gravamen of the claim, as revealed




                                     - 14 -
J-A15018-17


by the four corners of the federal complaint, was Stevens’ sexual abuse of

Appellant. As a matter of law, that conduct was intentional.

      Under the clear terms of the Old Republic’s Policy, such intentional

conduct was excluded from coverage. The Policy unambiguously states:

      This Insurance does not apply to and WE shall not be obligated
      to make any payment of LOSS, defend any SUIT or pay
      SUPPLEMENTARY PAYMENTS in connection with any Claim for,
      arising out of, caused by, resulting from, in consequence of, in
      connection with or in any way involving any of the following:

            ...

      2.     Any WRONGFUL ACT that is committed with an improper
      purpose or intended to cause LOSS [a term defined in the Policy
      to include “any monetary damages”].

As we observed in Claypoole, insurance policies typically “exclude insurance

coverage for injuries resulting from intentional acts,” 673 A.2d at 356, and

the Old Republic policy is no exception.       We add that other Policy clauses

further confirm that Appellant’s claims against Stevens are not covered,

including the exclusions for “assault” and “battery” and for non-employment

claims   seeking   recovery   for   “bodily    injury,”   “mental   anguish,”   and

“emotional distress.”   The latter exclusion specifically applies although the

damage “arises out of or is caused by intentional . . . acts, errors or

omissions and regardless of the legal theory pled (including civil rights

violations).”

      The clear applicability of the exclusions makes it unnecessary to

explore questions about Stevens’ status as an “INSURED” who was “acting

within the scope of [his] duties” for Lakeland. Appellant’s argument tries to

                                      - 15 -
J-A15018-17


blend questions about the exclusions and Stevens’ scope of duties, accusing

the trial court of “wrongly cit[ing] to an exclusion of coverage for intentional

acts and appl[ying] that exclusion to the Insured definition phrase ‘while

acting within the scope of his duties’ to hold that Mr. Stevens was not an

Insured.”    Appellant’s Brief at 10.          That is not what the trial court did.

Rather, after holding that coverage was barred under the Policy’s exclusions,

the trial court separately added that “any sexual assault or corruption of

[Appellant] did not occur while Stevens was acting within the scope of his

duty as Lakeland’s band director,” as sexual assault is not a part of a band

director’s duties.     Trial Ct. Op. at 7.       We find no error in that separate

common-sense holding, 5 but even if we were to agree with Appellant that

Stevens sexually assaulted her while in the course of his duties as a band

director, it would not matter. The Policy still excludes intentional wrongful

acts, even if they are committed by a covered “INSURED.”

       Finally, because the dispositive terms of the Policy are clear and lack

of coverage may be determined as a matter of law, the trial court’s decision


____________________________________________
5 In various contexts, we have construed an employee’s scope of duties
similarly. See, e.g., Spitsin v. WGM Transp., Inc., 97 A.3d 774, 776 (Pa.
Super. 2014) (“If an assault is committed for personal reasons or in an
outrageous manner, it is not actuated by an intent of performing the
business of the employer and is not done within the scope of employment”
(citing Restatement (Second) of Agency § 228)); R.A. ex rel. N.A. v. First
Church of Christ, 748 A.2d 692, 699-700 (Pa. Super. 2000) (same); see
also Leggett, 844 A.2d at 577-78 (defining “duty” in insurance clause
relating to “acting within his duties” to mean “Obligatory tasks, conduct,
service or functions that arise from one’s position (as in life or in a group),”
quoting” Webster’s Ninth New Collegiate Dictionary (1990)).

                                          - 16 -
J-A15018-17


in this case was not premature. There was no need to await discovery or

further proceedings on the issue.

      In sum, after a thorough review of the record and based upon the case

law, we agree with the trial court that the Policy issued by Old Republic does

not cover Stevens for the acts alleged in Appellant’s complaint against him in

the Kobrick Suit. Consequently, Old Republic has no duty to indemnify or to

defend Stevens in the Kobrick Suit. As we conclude the trial court did not

abuse its discretion or err as a matter of law in entering a declaratory

judgment in favor of Old Republic, we affirm. See Peters, 108 A.3d at 42.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/14/2017




                                    - 17 -
