Erie Insurance Exchange v. Lutz, M.

• Court: Superior Court of Pennsylvania
• Decided: June 20, 2017
• Docket: Erie Insurance Exchange v. Lutz, M. No. 1838 MDA 2016
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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