J-A11043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIE INSURANCE EXCHANGE                             IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.


MATTHEW LUTZ, KIMBERLEY LUTZ,
DAKOTAH MILLER, AND ANDREW
SVRCEK


APPEAL OF: MATTHEW LUTZ, KIMBERLEY
LUTZ, AND DAKOTAH MILLER

                                                       No. 1838 MDA 2016


              Appeal from the Judgment Entered October 7, 2016
                In the Court of Common Pleas of Berks County
                       Civil Division at No(s): 15-16318


BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

CONCURRING STATEMENT BY MOULTON, J.:                     FILED JUNE 20, 2017

        I agree that the law requires to us to find waiver based on Appellants’

failure to comply with the dictates of Pennsylvania Rule of Appellate

Procedure 1925(b)(1). See Commonwealth v. Schofield, 888 A.2d 771,

774     (Pa. 2005) (holding that “failure      to    comply with the   minimal

requirements of Pa.R.A.P. 1925(b),” including that an appellant serve on the

trial judge a concise statement of matters complained of on appeal, “will

result in automatic waiver of the issues raised”). I write separately because
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A11043-17



I disagree with the majority’s alternative finding that Appellants waived their

issue due to the vagueness of their statement of errors.           In light of

Appellants’ 1925(b) statement as a whole, Appellants’ issue is clear:

Whether the trial court erred and/or abused its discretion in finding that

Appellee had no duty to defend Andrew Svrcek because Svrcek’s alleged

conduct was intentional and the insurance policy in question did not cover

such conduct.   See Concise Statement of Matters Complained of on App.

Also, I note that the trial court thoroughly discussed Appellants’ issue, with

which it was completely familiar in light of Appellee’s motion for summary

judgment and Appellants’ response thereto.      On the merits, I believe that

the trial court correctly concluded that, based on the facts pled in the

underlying complaint, the language of the insurance policy precluded

coverage. See Opinion, 12/7/17, at 3-4.




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