J.A05034/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


ERIE INSURANCE EXCHANGE,            :                IN THE SUPERIOR COURT OF
                                    :                     PENNSYLVANIA
                                    :
               v.                   :
                                    :
                                    :
L. GARY BRITCHER AND JANE BRITCHER, :
INDIVIDUALLY AND AS PARENTS AND     :
NATURAL GUARDIANS OF MICHAEL        :
BRITCHER, A MINOR AND L. GARY       :
BRITCHER MASONRY, INC.,             :
                                    :
                    Appellant       :
                                    :
               v.                   :
                                    :
BODY-BORNEMAN ASSOCIATES, INC.      :                No. 1540 EDA 2013


                   Appeal from the Judgment August 10, 2011
              In the Court of Common Pleas of Montgomery County
                         Civil Division No(s).: 05-09485

BEFORE: ALLEN, JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED OCTOBER 29, 2014

        Appellants, L. Gary Britcher and Jane Britcher, individually and as

parents and natural guardians of Michael Britcher, a minor,1 and L. Gary

Britcher    Masonry,   Inc.,   appeal   from   the   judgment   entered   in   the

Montgomery County Court of Common Pleas in favor of Appellee, Erie

Insurance Exchange (“Erie”).      Based upon an automobile insurance policy

*
    Former Justice specially assigned to the Superior Court.
1
    Michael is not presently a minor.
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obtained by Body-Borneman Associates, Inc. (“BBA”),2 Appellants contend

that Erie was obligated to provide insurance coverage to them. We affirm

based on waiver under Pa.R.A.P. 1925(b).

        We state the facts and procedural history as set forth by a prior panel

of this Court:

                 The facts regarding this case begin in 1985,
                 when Mr. Britcher hired BBA to act as his
                 insurance    expert    and   relied   on    BBA’s
                 professional opinion and expertise to tell him
                 what coverage he needed to insure his masonry
                 business, L. Gary Britcher doing business as L.
                 Gary Britcher Masonry. BBA is a business that
                 deals with prospective insureds, either corporate
                 or individual, in order to procure insurance for
                 them. BBA can secure coverage for prospective
                 insureds with Erie, or eight or nine other
                 insurance carriers.

                     Using BBA, Mr. Britcher submitted an
                 Application for Auto Coverage. Erie accepted
                 the application and issued a Commercial policy
                 to L. Gary Britcher doing business as L. Gary
                 Britcher Masonry for the term of August 27,
                 1985, through August 27, 1986. Initially the
                 policy provided full coverage for Mr. Britcher
                 and his relatives (namely his wife and two
                 sons), because as a sole proprietor, Mr. Britcher
                 was the individual named insured. Accordingly,
                 the policy provided first party benefits for Mr.
                 Britcher and his family while occupants in any
                 car, whether named in the policy or not, or as
                 pedestrians.   Thereafter, the policy renewed
                 annually.

                    In   1996,   Mr.   Britcher   incorporated   his

2
    We explain the status of BBA below.




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               business, changing the named insured from an
               ‘individual’ to a ‘corporation,’ Britcher Masonry,
               Inc. This change was set into motion by Mr.
               Britcher and Mr. Body, an agent of BBA. Mr.
               Body traveled to the insureds’ home and
               discussed how to maintain the same insurance
               coverage, despite the business’ corporate
               structure change. During that discussion, Mr.
               Britcher informed Mr. Body that he wanted to
               secure substantially similar coverage.

                    Contrary to Mr. Britcher’s request, when his
               company underwent a corporate change, his
               Commercial Auto policy changed as well. Since
               a corporation is not an individual and thus
               cannot have relatives, the insureds no longer
               had the same coverage as before and thus only
               had      first  party   benefits   coverage      and
               uninsured/underinsured motorist coverage while
               occupying only cars insured under the
               Commercial Auto Policy. No longer were the
               insureds covered as pedestrians or occupants in
               cars not covered under the policy. As a result,
               it is alleged that in procuring the policy at issue,
               BBA failed to take the actions necessary to add
               available endorsements to ensure that the same
               coverage existed as before, thus leaving a gap
               in coverage. At the time of the change, no
               conversations were ever held between Mr.
               Britcher and Erie, nor BBA and Erie’s
               Underwriting Department, regarding the policy
               change; BBA never told Mr. Britcher that it was
               an agent for Erie, and Mr. Britcher never
               believed that BBA was acting on Erie’s behalf.
               Further, Mr. Britcher testified that had he been
               informed of the additional endorsements
               available, he would have obtained it to secure
               substantially similar coverage.

                   The instant dispute arose on December 23,
               2004, when Michael Britcher sustained serious,
               nearly fatal, injuries, in a car accident while
               riding as a passenger in an automobile operated
               by a friend. When the insureds initiated a claim


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               for first party and underinsured motorist
               benefits, the claim was denied. Since the post-
               1996 policy covered the insureds only while
               occupying cars covered under the policy,
               Michael Britcher’s claim1 for coverage was
               denied.
               __________________
               1
                 Since Michael Britcher was a minor at the time
               of the accident, the claim was initiated by his
               parents, on his behalf, as his natural guardians.

       Erie filed a declaratory judgment action on March 24,
       2005, seeking a determination that it was not obligated to
       provide coverage to Appellants.

          On May 23, 2005, Appellants filed two pleadings. That
       morning, they filed a joinder complaint naming BBA as an
       additional defendant and raising a claim of negligence.
       That evening, Appellants filed an answer to Erie’s
       complaint with a new matter and raised a claim—which
       they labeled a “counterclaim”—of negligence against BBA.

           With respect to the declaratory judgment action, a
       bench trial was held on April 11, 2011. At trial, Appellants
       primarily presented two defenses to the claim that Erie
       was not obligated to provide insurance coverage. First,
       Appellants asserted that the insurance policy was
       ambiguous with respect to the coverage of the vehicles.
       Specifically, they maintained that because they leased—
       and did not own—the vehicles, there was no coverage
       under the policy. Appellants extrapolated that because
       they paid premiums for no coverage, the policy was
       illusory. Thus, Appellants concluded the ambiguous policy
       should be construed in favor of coverage.           Second,
       Appellants suggested that BBA was an agent of Erie. Erie,
       Appellants theorized, therefore had an affirmative
       obligation to inform them of any coverage gap.

          Initially, the court held that the policy was not
       ambiguous and therefore not illusory. Second, the court
       held that BBA was not an agent of Erie. Thus, the court
       opined, Erie did not have to provide insurance benefits to
       Appellants pursuant to the reasonable expectations
       doctrine, which examines whether the insured reasonably


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       expected coverage.

          Appellants filed a post-trial motion requesting an order
       compelling Erie to provide coverage. Erie opposed and, for
       the first time, alleged that Appellants settled their
       negligence claim against BBA:

               Interestingly, following the non-jury trial on the
               legal coverage issue, the jury trial of the
               negligence claims of Appellants against BBA,
               was to begin. Just as trial was to begin, the
               claims of Appellants against BBA, seeking
               recovery of damages, i.e. the first party benefits
               and UIM benefits, as a result of the failure of
               the broker to procure appropriate insurance
               coverage, was settled.       The terms of the
               settlement     were     apparently   confidential.
               However, the insurer for BBA, made as a
               condition of the settlement the requirement that
               Appellants file these Post-Trial Motions and
               continue to pursue the coverage claims against .
               . . Erie. Apparently, Appellants, who have been
               compensated for the loss, are pursuing this
               appeal only because the insurer for the broker
               required same as part of the settlement.

       Mem. of Law of Erie in Opp’n to Mot. for Post-Trial Relief,
       6/27/11, at 2 n.1. The docket and certified record reflects
       no discontinuance or other appropriate order disposing of
       Appellants’ outstanding claims against BBA.

           The court denied Appellants’ post-trial motion on July
       19, 2011.     The court explained that the reasonable
       expectations “doctrine is only applied in very limited
       circumstances to protect a non-commercial insured from
       policy terms not readily apparent and from insurer
       deception.”    Appellants, the court observed, are a
       commercial insured. Further, the court noted, BBA—and
       not Erie—made the representations regarding coverage.
       The court also held that the insurance policy was not
       illusory because it did provide coverage for the insured
       vehicles.     Finally, the court opined that BBA’s
       representations did not bind Erie because BBA was acting
       as an insurance broker and not as an agent of Erie.


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             Appellants filed a notice of appeal on July 25, 2011.
          Judgment was entered in favor of Erie and against
          Appellants on August 10, 2011.

Erie Ins. Exch. v. Britcher, 2002 EDA 2011, slip op. at 2-6 (Pa. Super.

Feb. 6, 2013) (“Erie I”) (footnote, alterations, and most citations omitted).

        The Erie I Court quashed Appellants’ appeal because the negligence

claims against BBA remained outstanding.      On March 8, 2013, Appellants

moved to discontinue the action against BBA, which the court granted on

May 17, 2013.3 Appellants timely appealed.

        On July 10, 2013, the court docketed an order instructing Appellants

to comply with Pa.R.A.P. 1925(b) within twenty-one days. The docket entry

complied with Pa.R.C.P. 236. The order notified Appellants “that issues shall

be deemed waived if not properly included in the Statement timely filed and

served pursuant to Pa.R.A.P. 1925(b).”     Order, 7/10/13.    The record and

docket do not reflect Appellants’ filing of a Rule 1925(b) statement, but the

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

        Recently, in In re Boyle, 77 A.3d 674 (Pa. Super. 2013), this Court

discussed the background of Rule 1925:

          In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306
          (1998), our Supreme Court held that in order to preserve
          claims for appellate review, an appellant must comply with
          a trial court order to file a Statement of Matters
          Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b).

3
    The order was dated and mailed on May 15, 2013.




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        Our Supreme Court recently reiterated the bright-line rule
        established in Lord, holding that “failure to comply with
        the minimal requirements of Pa.R.A.P. 1925(b) will
        result in automatic waiver of the issues raised [on
        appeal].” If an appellant does not comply with an order to
        file a Rule 1925(b) statement, all issues on appeal are
        waived—even if the Rule 1925(b) statement was served on
        the trial judge who subsequently addressed in an opinion
        the issues raised in the Rule 1925(b) statement. Although
        recognizing that such a strict application of the Rule may
        be harsh, our Supreme Court stressed that failure to file
        the Rule 1925(b) statement “results in the inability of the
        appellate courts to determine which issues were presented
        to the trial court, and thus preserved for appeal, and
        whether the trial court received the statement within the
        required time period.”

        However, as an en banc panel of this Court has recently
        held, strict application of the bright-line rule in Lord
        necessitates strict interpretation of the rules regarding
        notice of Rule 1925(b) orders. The Pennsylvania Rules of
        Civil Procedure require the prothonotary to give written
        notice of the entry of a court order to each party and to
        note on the docket that notice was given. [Pa.R.C.P. 236].

Boyle, 77 A.3d at 677 (some citations and punctuation omitted); accord

Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,

88 A.3d 222, 223 (Pa. Super. 2014) (stating appellants must comply

whenever trial court orders them to file Rule 1925 statement of errors

complained of on appeal).

     Instantly, the trial court’s July 10, 2013 order complied with Rule

1925(b), and the court gave written notice of the order to each party and

indicated on the docket that notice was given. See Boyle, 77 A.3d at 677.

To quote the Boyle Court, because we have found “no error in the trial

court’s order or the trial court docket, and no applicable exception which


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could prevent waiver, we are constrained to find all of Appellants’ issues

waived for failure to file a timely court-ordered 1925(b) statement.” See id.

at 678. Accordingly, we affirm the judgment because Appellants failed to file

a Rule 1925(b) statement. See id.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2014




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