J-A24028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DONALD C. PETRA                          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 PENNSYLVANIA NATIONAL MUTUAL             :   No. 505 MDA 2018
 CASUALTY INSURANCE COMPANY               :

               Appeal from the Order Entered March 13, 2018
  In the Court of Common Pleas of Franklin County Civil Division at No(s):
                                2016-02932


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED OCTOBER 31, 2019

      This case returns to us on remand from our Supreme Court for

reconsideration in light of its decision in Gallagher v. GEICO Indemnity Co.,

201 A.3d 131 (Pa. 2019). See Petra v. Pa. Nat’l Mut. Cas. Ins. Co., No.

194 MAL 2019 (Pa. September 4, 2019) (per curiam). Upon reconsideration

in light of Gallagher, we again affirm the order of the trial court denying

Donald C. Petra’s motion for summary judgment and granting Pennsylvania

National Mutual Casualty Insurance Company’s (“Penn National”) motion for

summary judgment.

      Petra was involved in an accident with an automobile while he was

operating his motorcycle and he “was ejected from the seat of his motorcycle

and hit the ground.” Trial Court Opinion (TCO), filed 3/13/13, at 3. Petra

suffered injuries in the accident both while he was on his motorcycle and after
J-A24028-18



he flew off of it. His motorcycle was insured through a policy underwritten by

Progressive Advanced Insurance Co. (“Motorcycle Policy”). Because he had

waived underinsured motorist (“UIM”) coverage under his Motorcycle Policy,

Petra sought such coverage under a separate policy for his minivan (“Minivan

Policy”). The Minivan Policy was issued by Penn National and it included a

“household exclusion” excluding UIM coverage for injuries sustained while

occupying, or being struck by, any vehicle not insured under the Minivan

Policy.

      Penn National denied coverage and in August 2016, Petra filed a

Complaint for a declaratory judgment. Both sides ultimately moved for

summary judgment. Petra argued that the household exclusion did not bar

him from UIM coverage “because he was not occupying or struck by a vehicle

when he suffered injuries from hitting the pavement.” TCO at 4 (citing Petra’s

Motion for Summary Judgment, ¶ 24). He did not argue that the household

exclusion violated any provision of the Motor Vehicle Financial Responsibility

Law (“MVFRL”). Penn National maintained that the language of the household

exclusion barred coverage. The trial court denied Petra’s motion for summary

judgment, and granted Penn National’s motion.

      Petra appealed to this Court. He again argued that the household

exclusion, by its terms, did not preclude coverage under the facts of this case

because he was not occupying or struck by a vehicle when he sustained the

injuries for which he sought coverage:




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J-A24028-18


     Is Plaintiff, Donald C. Petra, entitled to underinsured motorist
     benefits pursuant to an automobile insurance policy issued by
     Defendant, Pennsylvania National Insurance Company, because
     the “household exclusion” does not preclude coverage as Plaintiff
     was not “occupying” a non-insured motor vehicle when he was
     injured?

Petra’s Br. at 2. He did not argue that the household exclusion violated any

provision of the MVFRL. We affirmed. See Petra v. Pa. Nat’l Mut. Cas. Ins.

Co., No. 505 MDA 2018, 2019 WL 210671, at *3 (Pa.Super. filed Jan. 16,

2019) (unpublished memorandum).

     One week after we issued our decision in this case, the Supreme Court

decided Gallagher. There, Gallagher had two insurance policies from GEICO,

one for his motorcycle and another for his automobiles. Both policies included

stacked UIM coverage, and Gallagher had paid for such coverage. After he

sustained severe injuries when a truck struck his motorcycle, he sought

stacked UIM coverage under both policies. GEICO paid the UIM coverage

under the motorcycle policy, but denied coverage under the automobile policy,

citing that policy’s household exclusion. The Supreme Court held that the

household exclusion was unenforceable in such circumstances. It explained

that the exclusion acted as a de facto waiver of stacked UIM coverage, when

Gallagher had not signed the waiver of UIM stacking that Section 1738 of the

MVFRL requires. Gallagher, 201 A.3d at 138.

     Following the Supreme Court’s decision in Gallagher, Petra petitioned

the Pennsylvania Supreme Court for allowance of appeal. The Court granted




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the petition, vacated our decision, and remanded the case for reconsideration

in light of Gallagher.

        Gallagher does not affect our decision in this case. Because Petra did

not preserve any claim that the household exclusion violates the MVFRL, the

issue is waived. Petra’s argument all along has been that the household

exclusion does not apply here because he sustained his injuries after he hit

the pavement and therefore was not “occupying” his motorcycle when he was

injured. See Petra’s Br. at 16. He at no time argued in the trial court or in this

Court that the household exclusion violated Section 1738 of the MVFRL. We

reaffirm our rejection of arguments that Petra did preserve for the reasons set

forth in our Memorandum filed in this case on January 16, 2019.

        Order affirmed. Application for Clarification Following Remand denied as

moot.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/31/2019




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