J-A03006-15


                                  2015 PA Super 100

BETTY L. ROURKE, GUARDIAN OF THE                  IN THE SUPERIOR COURT OF
ESTATE AND PERSON OF FREDERICK                          PENNSYLVANIA
RICKARD, III, AN INCAPACITATED
PERSON

                            Appellant

                       v.

PENNSYLVANIA NATIONAL MUTUAL
CASUALTY INSURANCE CO., A/K/A PENN
NATIONAL

                            Appellee                  No. 1028 MDA 2014


                  Appeal from the Order Entered May 21, 2014
                In the Court of Common Pleas of Franklin County
                        Civil Division at No(s): 2010-3694


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

OPINION BY MUNDY, J.:                                  FILED APRIL 28, 2015

        Appellant, Betty L. Rourke, appeals from the March 21, 2012 order

granting in part Appellee, Pennsylvania National Mutual Casualty Insurance

Company’s (Penn National), motion for judgment on the pleadings, and the

May 21, 2014 order granting Penn National’s motion for summary

judgment.1       After careful review, we reverse and remand for further

proceedings.

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  The trial court’s May 21, 2014 order granting Penn National’s motion for
summary judgment rendered the trial court’s March 21, 2012 order
(Footnote Continued Next Page)
J-A03006-15


      The trial court summarized the relevant factual history of this case as

follows.

                    This case involves a dispute over insurance
              coverage. On January 28, 2010, Frederick Rickard,
              III was severely injured in an auto accident while
              riding as a passenger in a vehicle driven by his friend
              Chad Odonel. Frederick, who was 19 years old at
              the time, had been a foster child of James C. Rourke
              and Betty L. Rourke. The Rourkes were insured by
              [Penn National]. Mr. and Ms. Rourke were named
              insureds under a [p]ersonal [a]uto [p]olicy. Mr.
              Rourke reported the accident to Strickler Insurance
              Company[and spoke to Miranda Lake] on or about
              February 4, 2010.        At that time, Mr. Rourke
              requested that Frederick be added as an “insured
              driver” under the policy. Subsequently, the Rourkes
              made a claim for UIM coverage and [f]irst [p]arty
              [b]enefits for Frederick. Penn National denied the
              claim, stating that Frederick was not an “insured”
              under the Rourke’s policy.

Trial Court Opinion, 8/5/14, at 1.

      On August 27, 2010, Appellant filed a complaint, seeking a declaratory

judgment.     Specifically, Appellant’s complaint sought coverage under the

subject policy because Frederick was a “family member” under the terms of

the policy.    Appellant’s Complaint, 8/27/10, at ¶¶ 51-67.       Appellant also

sought coverage on the theories that Frederick was an insured party on the

policy and that Appellant had a reasonable expectation of coverage for

                       _______________________
(Footnote Continued)

appealable. See Snizavich v. Rohm & Haas Co., 83 A.3d 191, 194 (Pa.
Super. 2013) (stating, “an appeal of a final order subsumes challenges to
previous interlocutory decisions[]”) (internal quotation marks and citation
omitted), appeal denied, 96 A.3d 1029 (Pa. 2014).



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J-A03006-15


Frederick. Id. at ¶¶ 67-81. On April 4, 2011, Penn National filed its answer,

along with a counterclaim for declaratory judgment.     Penn National filed a

motion for judgment on the pleadings on September 2, 2011.          Appellant

filed her response on September 15, 2011, along with a cross-motion for

judgment on the pleadings. On September 27, 2011, Penn National filed its

response to Appellant’s cross-motion. The trial court heard argument on the

motions on January 10, 2012. On March 21, 2012, the trial court entered an

order and opinion granting Penn National’s motion in part, denying it in part,

and denying Appellant’s cross-motion.        The trial court concluded that

Frederick was not a family member, nor was he an insured party on

Appellant’s policy.   However, the trial court denied Penn National’s motion

regarding Appellant’s reasonable expectation of coverage claim.

        On January 23, 2013, Penn National filed a motion for summary

judgment as to Appellant’s reasonable expectation claim. Appellant filed her

response on February 18, 2013.       According to the trial court, it took no

action on the motion “as neither party filed a [p]raecipe to [l]ist for

[a]rgument as required by local rule.”     Trial Court Opinion, 8/5/14, at 2.

Penn National filed a second motion for summary judgment on August 29,

2013.    Appellant filed a response on September 26, 2013.        On May 21,

2014, the trial court entered an order granting Penn National’s motion for




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J-A03006-15


summary judgment.          On June 18, 2014, Appellant filed a timely notice of

appeal.2

       On appeal, Appellant raises the following issues for our review.

              A.    Whether the trial court erred in granting [Penn
              National]’s motions for judgment on the pleadings
              and holding that [Frederick] was not a family
              member under the policy entitling him to first party
              and UIM benefits[?]

                     1.    Whether [Frederick] is entitled to first
                     party and UIM benefits as a “foster child” or
                     “ward” of the Rourkes, where [Penn National]
                     chose not to define these terms in the policy it
                     issued to the Rourkes and where the terms are
                     reasonably susceptible to more than one
                     meaning, rendering the policy language
                     ambiguous and requiring that the policy be
                     construed in favor of coverage?

                     2.    Whether [Frederick] is a “foster child” of
                     the Rourkes entitling him to first party and UIM
                     benefits under the terms of the policy?

                     3.      Whether [Frederick] is a “ward” of the
                     Rourkes, entitling him to first party and UIM
                     benefits under the terms of the policy where
                     [Frederick]’s mother is deceased and he had
                     little interaction with his biological father and
                     he lived with the Rourkes as a family member
                     both before and after his dependency was
                     terminated by Franklin County Children and
                     Youth Service?


____________________________________________
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Relevant to this appeal, we note the trial court’s
August 5, 2014 Rule 1925(a) opinion directs this Court to its March 21, 2012
opinion granting Penn National’s motion for judgment on the pleadings in
part. See Trial Court Opinion, 8/5/14, at 3.



                                           -4-
J-A03006-15


                    4.     Whether an individual can be a “foster
                    child” or “ward” without a court order?

                    5.    Whether a “foster child” or “ward” need
                    not be a minor?

           B.    Whether the trail [sic] court erred in granting
           [Penn National]’s motion for summary judgment and
           holding that the Rourkes did not have a reasonable
           expectation that [Frederick] would be covered under
           the policy for first party and UIM benefits?

                    1.     Whether the Rourkes’ expectation of first
                    party and UIM benefits for [Frederick] is
                    reasonable where the record shows that [Penn
                    National]’s agent offered to add [Frederick]
                    retroactively to the policy as of the date of the
                    collision and where the Rourkes paid a
                    substantial increase in premiums related to the
                    policy change?

Appellant’s Brief at 5-6 (some capitalization removed).

     We begin by noting our well-settled standard of review for judgment

on the pleadings.

                 Entry of judgment on the pleadings is
           permitted under Pennsylvania Rule of Civil Procedure
           1034, which provides that “after the pleadings are
           closed, but within such time as not to unreasonably
           delay trial, any party may move for judgment on the
           pleadings.”     Pa.R.C.P. 1034(a).     A motion for
           judgment on the pleadings is similar to a demurrer.
           It may be entered when there are no disputed issues
           of fact and the moving party is entitled to judgment
           as a matter of law.

                 Appellate review of an order granting a motion
           for judgment on the pleadings is plenary.       The
           appellate court will apply the same standard
           employed by the trial court. A trial court must
           confine its consideration to the pleadings and
           relevant documents. The court must accept as true

                                       -5-
J-A03006-15


            all well pleaded statements of fact, admissions, and
            any documents properly attached to the pleadings
            presented by the party against whom the motion is
            filed, considering only those facts which were
            specifically admitted.

                 We will affirm the grant of such a motion only
            when the moving party’s right to succeed is certain
            and the case is so free from doubt that the trial
            would clearly be a fruitless exercise.

Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185 (Pa. Super.

2013) (citation omitted), appeal denied, 96 A.3d 1029 (Pa. 2014).

Additionally, we note that interpretation of an insurance policy presents a

pure question of law, over which our standard of review is de novo. Peters

v. Nat’l Interstate Ins. Co., 108 A.3d 38, 42 (Pa. Super. 2014) (citation

omitted).

      We elect to first address the portion of Appellant’s argument

concerning Frederick’s status as a ward. It is undisputed in this case that

the plain text of the subject policy provides coverage for family members. It

is also not in dispute that under the explicit terms of the policy, the term

“‘[f]amily member’ means a person related to you by blood, marriage or

adoption who is a resident of your household. This includes a ward or foster

child.” Appellant’s Complaint, 8/27/10, Exhibit B, Form PP 00 01 06 98, at

1. The policy does not define the terms “foster child” or “ward.”

                  The goal in construing and applying the
            language of an insurance contract is to effectuate the
            intent of the parties as manifested by the language
            of the specific policy.   401 Fourth St. Inc. v.
            Investors Ins. Grp., 879 A.2d 166, 171 (Pa. 2005);

                                    -6-
J-A03006-15


            Lititz Mut. Ins. Co. v. Steely, 785 A.2d 975, 978
            (Pa. 2001). When the language of an insurance
            policy is plain and unambiguous, a court is bound by
            that language. 401 Fourth St. Inc., 879 A.2d at
            171. Alternatively, if an insurance policy contains an
            ambiguous term, “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.” Id. Contract language is ambiguous if it
            is reasonably susceptible to more than one
            construction and meaning. Lititz Mut. Ins., 785
            A.2d at 978. Finally, the language of the policy must
            be construed in its plain and ordinary sense, and the
            policy must be read in its entirety. Riccio v. Am.
            Republic Ins. Co., 705 A.2d 422, 426 (Pa. 1997).

Pa. Nat’l Mut. Cas. Ins. Co. v. St. John, 106 A.3d 1, 14 (Pa. 2014)

(parallel citations omitted).

      Appellant argues that Frederick was a “ward” of her family within the

meaning of the policy so as to provide for coverage. Appellant’s Brief at 34.

Specifically, Appellant argues that Frederick was a ward because she and her

husband “were, at the least, [Frederick]’s quasi-guardians at the time of the

collision, providing him with clothing, shelter, money, food, and emotional

support.” Id. Appellant relies heavily on this Court’s decision in Donegal

Mutual Insurance Co. v. Raymond, 899 A.2d 357 (Pa. Super. 2006), in

support of her argument.

      In Raymond, the plaintiff filed a declaratory judgment action seeking

insurance coverage for injuries sustained as a passenger in an automobile

accident, which occurred on September 28, 1998. Id. at 358. This Court

framed the issue as “whether [Raymond] was a ‘ward’ or ‘foster child’ such

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J-A03006-15


that the injuries sustained … are the obligation of [the insurance company]

to pay?”   Id.    This Court reviewed the terms of the subject policy, which

contained, verbatim, the same definition of “family member” as is found in

the policy subject to the instant appeal. Id. at 361.

      In deciding whether Raymond was a “ward” within the meaning of the

policy, this Court rejected the insurance company’s argument that becoming

a ward “require[s] formal action by a Court for legal recognition.” Id. This

Court looked to “the public policy of this Commonwealth” and noted that

Raymond fit within the Motor Vehicle Financial Responsibility Law’s (MVFRL)

definition of an insured as he was “residing in the household of the named

insured as a minor in the custody of the named insured when the accident

occurred[.]”     Id. at 364.   This Court also looked to the circumstances

surrounding Raymond’s living situation with the insureds, the Decker family.

                  Additionally,  the    record   discloses   that
            [Raymond] resided with and was cared for by the
            Deckers between August 28, 1997, and June 12,
            1998, which latter date he returned to live with his
            biological parent.   It was only when [Raymond]
            phoned the Deckers on September 28, 1998, and
            advised them of his [Mother being evicted from her
            home] that the former foster parents agreed to
            provide him with living arrangements.          These
            amenities included sleeping accommodations, a place
            to keep all of [Raymond]’s clothes, and a family
            physician to attend to the medical needs of the child
            while under the Deckers’ roof.         Deposition of
            [Raymond], 3/11/02, at 10, 13.          Furthermore,
            [Raymond] remained with the Deckers for almost ten
            (10) months after September 28, 1998, despite
            [Children and Youth Services of Lackawanna
            County’s] knowledge of his whereabouts.            To

                                     -8-
J-A03006-15


            interject into this family environment the lack of a
            parental consent agreement or a court order as the
            predicate to deny Appellee ward status on the day of
            accident is pure sophistry. See Deposition of Donald
            P. Nicastro, 11/11/02, at 22–23 ([Raymond]’s father
            signed a voluntary agreement on September 30,
            1998, and the court issued an order on October 9,
            1998, naming [Raymond] “a ward of the
            Deckers[.]”).

Id. Based on the above, the Raymond Court concluded that Raymond was

a ward of the Decker family.

                   Whether created by court order or not,
            [Raymond] was under the protection of the Deckers
            and had been for almost one year before the
            vehicular accident.      All of the elements of a
            relationship of protector and ward were present
            except for a formal designation of the relationship
            from a court of competent jurisdiction or a parental
            execution of a consent agreement. Nonetheless, the
            relationship that existed was created by a history of
            the Deckers providing [Raymond] with care and
            protection, and his integration into the Deckers’
            family continued as of the date of the accident on
            September 28, 1998, and beyond until reunited with
            his natural mother on June 10, 1999.

Id.   Therefore, this Court affirmed the judgment entered in favor of

Raymond and against the insurance company. Id. at 365.

      Turning to the case sub judice, we note, as the trial court did, that this

case is strikingly similar to Raymond.      Specifically, Appellant’s complaint

alleged as follows.

            24. [Frederick], was adjudicated dependent and
            placed in the custody of Franklin County Children
            and Youth on October 30, 2003.




                                     -9-
J-A03006-15


          25. To date, [Frederick], had continuously lived
          with and been dependent upon foster parents, Betty
          L. Rourke and James C. Rourke since his placement
          with the Rourkes in October 2003.

          26. During more than six years of dependency
          upon his foster parents, [Frederick] has maintained
          his own bedroom and kept his clothing and all other
          personal belongings at his foster parents’ home.

          27. The Rourkes have supported [Frederick], both
          financially and emotionally. They have provided all
          of his necessities and most importantly have loved
          and nurtured [Frederick] during the past six and a
          half years he has lived in their home.

          28. Other than having a different last name,
          [Frederick] had been and continues to be treated in
          all respects as the Rourkes’ natural child, and, for
          the past six and a half years, he has maintained a
          parent-son relationship with the Rourkes.

          29. The Rourkes refer to [Frederick] as their son
          and he often calls them “mom and dad”, [Frederick]
          calls his foster sisters “sis”, and the Rourke’s
          relatives treat [Frederick] the same as they treat the
          Rourke’s [sic] biological children.

          30. [Frederick]’s natural mother is deceased;
          [Frederick]’s natural father has minimal contact with
          his son. In fact, [Frederick]’s natural father has not
          called or visited his son since [Frederick] was
          released from the hospital following the collision.

          31. After turning eighteen years of age on
          September 14, 2008, [Frederick], remained in the
          custody of the Franklin County Children and Youth
          and remained dependent upon the Rourkes, in order
          to complete secondary education.

                                    …

          43. Upon withdrawing from Allegheny College,
          [Frederick] did not seek full-time employment, but

                                  - 10 -
J-A03006-15


           remained financially dependant [sic] on the Rourke’s
           [sic] while he pursued enrolling in Shippensburg
           University.

           44. Upon being terminated from Franklin County’s
           foster care program, [Frederick] continued to be the
           Rourke’s [sic] de facto foster child or ward.

           45. Despite no longer receiving a stipend from the
           County,    the   Rourkes    continued   to   support
           [Frederick] by providing food and shelter, paying his
           bills, and continued to love and nurture him as
           though he was their biological son.

           46. After [Frederick] was terminated from the
           foster care program, the Rourke’s [sic] continued
           [to] act as [Frederick]’s de facto foster parents or
           guardians as they provided financial and emotional
           support to [Frederick] despite not being legally
           obligated to do so.

           47. After [Frederick] was terminated from the
           foster care program, the Rourke’s [sic] continued to
           look upon [Frederick] as their natural son and
           intended to help provide for his college education.

Appellant’s Complaint, 8/27/10, at ¶¶ 24-31, 43-47.

     Instantly, the trial court acknowledged that, as a factual matter, the

facts pled by Appellant in her complaint were very similar to those of

Raymond.      Trial Court Opinion, 3/21/12, at 7.      Appellant’s complaint

alleged that Frederick lived with her family continuously since October 2003,

had his own bedroom, and all of his personal possessions were in her home.

Appellant’s Complaint, 8/27/10, at ¶ 26.    The complaint also alleged that

Appellant and her husband have financially supported Frederick since then.

Id. at ¶¶ 27, 43-47. Given our standard of review, accepting the allegations


                                   - 11 -
J-A03006-15


of fact set forth in the complaint as true,     we see no distinction between

Raymond and the case sub judice.              As in Raymond, the complaint

adequately pled that Frederick was a de facto ward and this relationship

“was created by a history of the [Rourkes] providing [Frederick] with care

and protection, and his integration into the [Rourkes]’ family[.]” Raymond,

supra.    Frederick benefited from a former adjudicated foster child

relationship with the Rourkes but enjoyed a current ward status.

     Despite this, Penn National argues, and the trial court concluded, that

Raymond is distinguishable from the instant case as Frederick was not a

minor at the time of the accident.     Penn National’s Brief at 9; Trial Court

Opinion, 3/21/12, at 8.    The complaint alleges that Frederick turned 18

years of age on September 14, 2008, his dependency was terminated on

January 19, 2010, and the collision occurred on January 28, 2010.

Appellant’s Complaint, 8/27/10, at ¶¶ 6-7, 31, 38-39.         Therefore, from

September 14, 2008 until January 19, 2010, Frederick was still dependent

and was not a minor. Penn National appears to acknowledge that Frederick

would be eligible for coverage had his dependency not been terminated.

See Penn National’s Brief at 8 (stating, in relevant part, that Frederick was

not a ward because “he was a competent, nineteen-year-old man who did

not qualify as a foster child and indeed had already been formally

adjudicated as no longer a ‘dependent child[]’”).     It therefore follows that

Frederick’s age does not factor into the calculus, as Frederick was covered


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J-A03006-15


under the policy, at a minimum, as a ward of the Rourkes past his 18th

birthday.

       Moreover, we reject Penn National’s assertion that a ward relationship

cannot be established without a court order, as that argument was rejected

by this Court in Raymond.            Raymond, supra at 364.       Raymond also

stands in part for the proposition that the term “ward” in an insurance

contract that contains no further definition is an ambiguous term, as it is

susceptible to more than one definition.3          See id. at 361-363; St. John,

supra. Indeed, the trial court cited Black’s Law Dictionary for the definition

of “ward” as “a person usu. a minor, who is under a guardian’s charge or

protection.” Black’s Law Dictionary 1614 (8th ed. 2004) (emphasis added);

Trial Court Opinion, 3/21/12, at 5.4 As it is not specifically defined, there is


____________________________________________
3
  In its opinion in this case, the trial court acknowledged that the terms
“foster child” and “ward” are susceptible to more than one dictionary
definition. See generally Trial Court Opinion, 3/21/12, at 3-5.
4
  Curiously, Penn National, in its brief in support of its motion for judgment
on the pleadings gives Wikipedia’s definition as “someone placed under the
protection of a legal guardian[.]” Penn National’s Brief in Support of Motion
for Judgment on the Pleadings, 9/19/11, at 8.

      Wikipedia describes itself as “a multilingual, web-based, free-content
encyclopedia project … [and] is written collaboratively by largely anonymous
volunteers who write without pay. Anyone with Internet access can write
and make changes to Wikipedia articles, except in limited cases where
editing is restricted to prevent disruption or vandalism.”          Wikipedia,
http://en.wikipedia.org/wiki/Wikipedia:About (last visited Feb. 12, 2015).
We note that some federal courts have disapproved of citation to Wikipedia.
See generally United States v. Lawson, 677 F.3d 629, 650 (4th Cir.
(Footnote Continued Next Page)


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J-A03006-15


an ambiguity as to whether the term “ward” requires that the person be a

minor.     Even accepting the trial court’s definition from Black’s Law

Dictionary, it only says that a ward is usually a minor.        See Black’s Law

Dictionary 1614 (8th ed. 2004). Therefore, even the trial court’s preferred

definition does not foreclose the conclusion that a person may be a “ward”

and not be a minor.

      Here, the insurance policy included the term “ward” within the broader

term “family member.” We recognize that the term “ward” may carry with it

potentially specialized legal meanings when defining legal duties among

parties. See generally In re Guardianship of Zorek, 475 A.2d 817, 818

(Pa. Super. 1984).          However, these contexts, not being defined in the

insurance policy, are not likely to be readily understood by the average

insured, especially as the term is included expansively as part of the more

familiar term “family member.”             Thus an insured, relying on a general

understanding of the relational nature of a ward, may not be alerted of a

need to take other legal action to extend coverage to a household member.

      As noted above, our cases unequivocally state that “if an insurance

policy contains an ambiguous term, the policy is to be construed in favor of

                       _______________________
(Footnote Continued)

2012), cert. denied sub nom., Gilbert v. United States, 133 S. Ct. 393
(2012); Li v. Holder, 400 F. App’x 854, 857-858 (5th Cir. 2010); Basada
v. Mukasey, 540 F.3d 909, 910-911 (8th Cir. 2008).          Although our
Supreme Court has not commented on the subject, we generally look at
arguments involving citations to Wikipedia with skepticism.



                                           - 14 -
J-A03006-15


the insured to further the contract’s prime purpose of indemnification and

against the insurer, as the insurer drafts the policy, and controls coverage.”

Pa. Nat’l Mut. Cas. Ins. Co., supra. Penn National, as the drafter of the

policy, elected not to include a definition of “ward” in the policy.   Nothing

prevents Penn National or any insurer from drafting its policies and

definitions more precisely or narrowly to avoid future litigation. However, it

did not do so in this case. This Court must examine and construe the policy

as it exists, not the way Penn National wishes it had drafted it with the

benefit of hindsight.       The law does not permit Penn National to give a

definition in its policy and then post hoc, after a loss is reported, add an

additional textual limitation onto the same term. Stated another way, Penn

National cannot add an age restriction onto the term “ward” that is not

contained within the policy at the time of its issuance.     Based on these

considerations, we hold that Appellant has sufficiently pled that Frederick

was a ward of the Rourkes at the time of the loss, within the meaning of the

policy.5   Accordingly, we conclude that the trial court erred in granting

judgment on the pleadings to Penn National based on its conclusion that

Frederick was not a ward of the Rourkes.




____________________________________________
5
 In light of our conclusion, we need not address Appellant’s argument as to
whether Frederick qualifies as a “foster child” within the meaning of the
policy. See Raymond, supra at 365 n.6.



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      We next address Appellant’s reasonable expectation of coverage issue,

which was the subject of the trial court’s May 21, 2014 order granting

summary judgment in favor of Penn National. Appellant argues that the trial

court erred when it granted summary judgment to Penn National on the

claim that she had a reasonable expectation of coverage for Frederick under

the subject policy.   Appellant’s Brief at 50.   We begin by noting our well-

settled standard of review.

            “[O]ur standard of review of an order granting
            summary judgment requires us to determine
            whether the trial court abused its discretion or
            committed an error of law[,] and our scope of review
            is plenary.” Petrina v. Allied Glove Corp., 46 A.3d
            795, 797–798 (Pa. Super. 2012) (citations omitted).
            “We view the record in the light most favorable to
            the nonmoving party, and all doubts as to the
            existence of a genuine issue of material fact must be
            resolved against the moving party.”        Barnes v.
            Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing
            Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736
            (Pa. Super. 2009) (citation omitted). “Only where
            there is no genuine issue as to any material fact and
            it is clear that the moving party is entitled to a
            judgment as a matter of law will summary judgment
            be entered.”    Id. The rule governing summary
            judgment has been codified at Pennsylvania Rule of
            Civil Procedure 1035.2, which states as follows.

                  Rule 1035.2. Motion

                  After the relevant pleadings are closed, but
                  within such time as not to unreasonably delay
                  trial, any party may move for summary
                  judgment in whole or in part as a matter of law

                        (1) whenever there is no genuine issue
                        of any material fact as to a necessary
                        element of the cause of action or defense

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J-A03006-15


                      which could be established by additional
                      discovery or expert report, or

                      (2) if, after the completion of discovery
                      relevant to the motion, including the
                      production of expert reports, an adverse
                      party who will bear the burden of proof
                      at trial has failed to produce evidence of
                      facts essential to the cause of action or
                      defense which in a jury trial would
                      require the issues to be submitted to a
                      jury.

           Pa.R.C.P. 1035.2.

                  “Where the non-moving 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.” Babb v. Ctr. Cmty. Hosp.,
           47 A.3d 1214, 1223 (Pa. Super. 2012) (citations
           omitted), appeal denied, 65 A.3d 412 (Pa. 2013).
           Further, “failure of a non-moving party to adduce
           sufficient evidence on an issue essential to his case
           and on which he bears the burden of proof
           establishes the entitlement of the moving party to
           judgment as a matter of law.” Id.

                      Thus, our responsibility as an appellate
                court is to determine whether the record either
                establishes that the material facts are
                undisputed or contains insufficient evidence of
                facts to make out a prima facie cause of
                action, such that there is no issue to be
                decided by the fact-finder. If there is evidence
                that would allow a fact-finder to render a
                verdict in favor of the non-moving party, then
                summary judgment should be denied.

           Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d
           896, 898 (Pa. Super. 2011), quoting Jones v.
           Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007)
           (internal citations omitted).

Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013).

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J-A03006-15


      This Court explained the reasonable expectation of coverage doctrine

in the following terms.

                  The reasonable expectation of the insured is
                  the focal point of the insurance transaction
                  involved here.       Beckham v. Travelers
                  Insurance Co., 225 A.2d 532, 537 ([Pa.]
                  1967).     Courts should be concerned with
                  assuring that the insurance purchasing public’s
                  reasonable expectations are fulfilled.   Thus,
                  regardless of the ambiguity, or lack thereof,
                  inherent in a given set of insurance documents
                  (whether they be applications, conditional
                  receipts, riders, policies, or whatever), the
                  public has a right to expect that they will
                  receive something of comparable value in
                  return for the premium paid …. Through the
                  use of lengthy, complex, and cumbersomely
                  written applications, conditional receipts,
                  riders, and policies, to name just a few, the
                  insurance industry forces the insurance
                  consumer to rely upon the oral representations
                  of the insurance agent ….         Courts must
                  examine the dynamics of the insurance
                  transaction to ascertain what are the
                  reasonable expectations of the consumer.
                  See, e.g., Rempel v. Nationwide Ins. Co.,
                  370 A.2d 366 ([Pa.] 1977).

            Tonkovic[ v. State Farm Mut. Auto Ins. Co., 521
            A.2d 920, 926 (Pa. 1987)].

                   “Consumers … view an insurance agent … as
            one possessing expertise in a complicated subject.”
            [Id. at 368.] “It is therefore not unreasonable for
            consumers to rely on the representations of the
            expert rather than on the contents of the insurance
            policy itself.” Id.[].

Pressley v. Travelers Prop. Cas. Corp., 817 A.2d 1131, 1140-1141 (Pa.

Super. 2003) (parallel citations and footnote omitted). Our Supreme Court


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has also instructed that the reasonable expectations doctrine exists in part

to protect non-commercial insureds from both deception and non-apparent

terms. Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100,

109 n.8 (Pa. 1999); Tonkovic, supra at 925-926; see also Pressley,

supra at 1140 n.3.

     In this case, Appellant argues that the totality of the circumstances

surrounding the reporting of the loss shows that her expectation that

Frederick would be covered as a “named insured” under the policy was

reasonable. Appellant’s Brief at 45. Specifically, Appellant avers that based

on her “affirmative allegations, Lake’s poor memory, and Strickler’s own

records, the only solid evidence suggests that the conversation occurred

according to [Appellant]’s version of events.” Id. at 49-50.

     Lake testified at her deposition that she had no memory of any phone

calls between her and Mr. Rourke. N.T., 4/25/13, at 22. Specifically, Lake

had no recollection of what she would have discussed with either of the

Rourkes regarding their policy.   Id. at 23.   Utilizing the notes in her file,

Lake testified that a phone call between her and Mr. Rourke took place on

February 3, 2010. Id. at 27. Lake noted that there was a policy change to

add Frederick as a listed driver to a 2001 Ford Windstar, a vehicle on the

Rourkes’ policy, retroactive to January 28, 2010. Id. 28, 29. Lake testified

this would have been at Mr. Rourke’s request. Id. at 33. However, when

asked “[i]f [the Rourkes] asked [her] if there’s any way that [she knew] of


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J-A03006-15


that [Frederick] could be covered for [a] crash from a week ago[,]” Lake

answered “[n]o, and that’s insurance fraud.”             Id. at 34.   Lake explained

that, according to the records in the file, Penn National retroactively added

Frederick as a listed driver to one of the Rourkes’ vehicles as of January 28,

2010. Id. at 36. However, Lake stressed being a listed driver on a covered

vehicle is different than being a named insured on the policy. Id. Lake did

not provide any explanation for why Penn National applied the change

retroactively.

       However, also contained within the record is the Rourkes’ auto policy

and a record of the premiums due before and after Frederick was added

retroactive to January 28, 2010.               It is clear that the Rourkes incurred

additional premiums as a result of this change in the policy.6 See generally

Appellant’s Response to Penn National’s Motion for Summary Judgment,

2/20/13, Exhibit A, at 2, 4, 8, 10.7 Yet, under Penn National’s position, no

benefit was derived by the Rourkes from the requested retroactive

application of the change. Viewing the “dynamic” of the instant transaction,

it is the retroactive application of the changes to the policy together with the

admitted conversation between Mr. Rourke and Lake that creates a genuine
____________________________________________
6
 The additional premium of $497.00, when parsed out, reflect only benefits
due an additional driver but that is only a factor to consider in evaluating the
Rourkes reasonable expectations.
7
  We note the exhibit does not contain pagination. Therefore, we have
assigned each page a corresponding number for ease of reference.



                                          - 20 -
J-A03006-15


material question of fact as to the reasonable expectation of coverage the

Rourkes may have had. See Pressley, supra.

         As noted above, Lake testified that she could not recall the content of

her conversation with Mr. Rourke. N.T., 4/25/13, at 22. Additionally, the

parties agree that it was Frederick’s loss that was the entire purpose of Mr.

Rourke’s conversation with Penn National. Finally, there is no explanation in

the record for why any changes would be made retroactively if no benefit

could be derived as a result.       Accordingly, the representations made by

Lake, the expectations held by the Rourkes, and the reasonableness of those

expectations become an issue for the jury. See Pressley, supra; Cadena,

supra.      Therefore, under the unique circumstances of this case, we agree

with Appellant that there is a genuine issue of material fact as to whether

she reasonably believed that Frederick would be covered. This is for a jury

to resolve as a matter of fact. See Cadena, supra.

         Based on the foregoing, we conclude the trial court erred when it

granted Penn National’s motion for judgment on the pleadings, to the extent

it held that Frederick was not a ward of the Rourkes. We further conclude

that the trial court abused its discretion in granting Penn National’s motion

for summary judgment on Appellant’s reasonable expectation of coverage

issue.     Accordingly, the trial court’s March 21, 2012 and May 21, 2014

orders are reversed, and the case is remanded for further proceedings,

consistent with this opinion.


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J-A03006-15


     Orders reversed. Case remanded. Jurisdiction relinquished.

     Judge Stabile joins the opinion.

     Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




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