Sellers, K., II v. Erie Ins. Exch.

• Court: Superior Court of Pennsylvania
• Decided: November 5, 2024
• Docket: 1431 MDA 2023
• Status: Unpublished

Opinion

J-A19019-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KENNETH DALE SELLERS, II : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ERIE INSURANCE EXCHANGE D/B/A : No. 1431 MDA 2023 ERIE INSURANCE, THE BLESSING : INSURANCE AGENCY, INC. :

Appeal from the Orders Entered September 7, 2023 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2020-00928

BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.*

MEMORANDUM BY LANE, J.: FILED NOVEMBER 05, 2024

Kenneth Dale Sellers, II (“Sellers”) appeals from the orders granting the

motions for summary judgment filed by Erie Insurance Exchange d/b/a Erie

Insurance (“Erie”) and The Blessing Insurance Agency, Inc. (“Blessing”), and

denying the cross-motion for summary judgment filed by Sellers. We affirm.

Given our disposition, a detailed recitation of the factual and procedural

history is unnecessary. Briefly, Erie issued Sellers an automobile insurance

policy, No. Q12-2009364 (“the Erie Policy”), identifying Sellers as the named

insured, and providing bodily injury liability coverage in the amount of

$100,000 per person/$300,000 per accident. The Erie policy also provided

uninsured motorist coverage (“UM”) and underinsured motorist coverage

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* Former Justice specially assigned to the Superior Court. J-A19019-24

(“UIM”) limits in the amount of $25,000 per person/$50,000 per accident, as

Sellers had specifically requested.1 Based on his election to purchase lower

UM/UIM coverage limits, Sellers was charged a reduced premium for the Erie

policy.

Between 2009 and 2018, Sellers renewed the Erie policy annually by

paying the reduced renewal premium. Over the years, he added additional

automobiles and two trailers to the Erie policy, and opted for “stacking” of his

UM/UIM benefits. Sellers also owned a motorcycle; however, he insured it

through a different insurance company because Erie did not provide coverage

for motorcycles. In 2016, Sellers purchased a second motorcycle and was

advised by Blessing that Erie had started insuring motorcycles. Sellers then

added his second motorcycle to the Erie policy, which maintained the same

policy number, same bodily injury liability coverage limits, and same UM/UIM

limits. Sellers later added his first motorcycle to the Erie policy.

In 2018, Sellers was riding one of his motorcycles when he involved in

a motor vehicle accident in which he sustained injuries. The tortfeasor’s

liability insurance policy limits were insufficient to cover the extent of Sellers’

1 In the policy application, Sellers requested UM/UIM limits in the amount of

$25,000 per person/$50,000 per accident. In connection with the application, Sellers signed an “Important Notice” form which informed him of the availability of higher UM/UIM limits—up to the same amount as the bodily injury liability coverage limits of $100,000 per person/$300,000 per accident—if he wished to purchase them. Sellers also signed a “Request for Lower Limits” form specifically requesting lower UM/UIM policy limits in the amount of $25,000 per person/$50,000 per accident.

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damages. Consequently, he submitted a claim for UIM benefits under the Erie

policy. Erie accepted the UIM claim and provided the full, per person policy

limit of $25,000 UIM benefits, stacked over six vehicles, for a total claim

payment to Sellers of $150,000. Sellers challenged the limits of UIM coverage

provided by the Erie policy; however, Erie declined to provide further UIM

benefits. Sellers thereafter initiated the instant litigation in which he asserted

a claim for breach of contract against Erie and claims for breach of contract,

negligence, and breach of fiduciary duty against Blessing. Following

discovery, Erie and Blessing filed motions for summary judgment, and Sellers

filed a cross-motion for summary judgment. On September 7, 2022, the trial

court entered separate orders granting the motions filed by Erie and Blessing

and denying the cross-motion filed by Sellers.

Sellers filed a timely notice of appeal. On October 16, 2023, the trial

court ordered him to file of record and serve on the trial court judge a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

within twenty-one days, or by November 6, 2023. The trial court has indicated

that Sellers served the trial court judge with a concise statement on November

2, 2023; however, Sellers did not file any concise statement of record prior to

the expiration of the November 6, 2023 deadline. On November 9, 2023, the

trial court entered a statement in lieu of opinion.

Sellers raises the following issues for our review:

1. Whether the trial court erred in granting summary judgment where Erie’s agreement (through Blessing) to insure Seller’s

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[sic] motorcycle(s) and automobiles constituted creation of an entirely new insurance policy from the previous one that only insured automobiles, thus requiring new “sign-downs” of [UN/UIM] limits before such limits could be effectuated;

2. Whether the trial court erred in granting summary judgment where material facts remain in dispute, especially:

(a) whether a policy covering automobiles and motorcycles represents a different “type” of coverage than a policy covering only automobiles and is thus a “new” policy;

(b) whether failure to adequately explain the different types of coverage available when Sellers was solicited to include his motorcycles on a policy along with his automobiles and wanted coverage as “good” as he already had on an existing motorcycle policy constitutes a breach and violates fiduciary and industry standards; and

(c) whether Sellers’ expert’s opinion was improperly determined by the trial court “not convincing” when that is a question for the fact finder and not the court at summary judgment stage.

Sellers’ Brief at 5-6.

Before we may address the merits of Sellers’ issues, we must determine

whether he preserved them for our review, as required by Rule 1925(b). See

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that “from

this date forward . . . [a]ppellants must comply whenever the trial court orders

them to file a Statement of [Errors] Complained of on Appeal pursuant to Rule

1925 . . . [and a]ny issues not raised in a 1925(b) statement will be deemed

waived”); see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.

2005) (finding that appellant waived all his claims on appeal for untimely filing

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his Rule 1925(b) statement); Pa.R.A.P. 1925(b)(4)(vii) (providing that

“[i]ssues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived”).

Our Supreme Court intended the holding in Lord to operate as a bright-

line rule, such that “failure to comply with the minimal requirements of

Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.”

Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005) (emphasis

added). In this regard, Rule 1925(b) requires an appellant to both file of

record in the lower court and serve on the trial judge a concise statement of

the matters complained of on appeal. See Commonwealth v. Butler, 812

A.2d 631, 633-34 (Pa. 2002) (holding that “Rule 1925 is not satisfied when

an appellant merely mails his Rule 1925(b) statement to the presiding judge[;

r]ather, Rule 1925(b) requires appellants to ‘file of record in the lower court

and serve on the trial judge a concise statement of the matters complained of

on the appeal’”). Thus, 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. See Schofield,

888 A.2d at 774. Where no concise statement has been filed, “the lack of

filing results in the inability of the appellate courts to determine which issues

were presented to the trial court, and thus preserved for appeal.” Id.

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Here, the certified record reflects that the trial court entered a Rule

1925(b) order on October 16, 2023, directing Sellers to file of record and to

also serve upon the trial court judge a concise statement within twenty-one

days, or by November 6, 2023. See Order, 10/16/23, at 1.2 The trial court

indicates that, on November 2, 2023, Sellers “served” the court with a concise

statement. See Statement in Lieu of Opinion, 11/9/23, at unnumbered 1.

However, the docket reflects that Sellers did not file any concise statement of

record on that date or any time prior to the November 6, 2023 deadline.

Moreover, the statement that Sellers “served” on the trial court judge is not

included in the certified record. On November 9, 2023, the trial court entered

a statement in lieu of opinion in which it “summarized” the issues raised in

the statement that Sellers served on the trial court judge, and briefly

addressed them. See id. at unnumbered 1-4. On December 26, 2023, fifty

days after the filing deadline expired, Sellers filed of record an untimely

concise statement. Notably, the issues raised in the untimely concise

statement vary from the issues summarized by the trial court in its statement

in lieu of opinion.3

2In its opinion, the trial court incorrectly indicated that it entered its Rule 1925(b) order on October 20, 2023; however, the docket and the time stamp on the Rule 1925(b) order reflect that the court entered the order on October 16, 2023.

3 There is no evidence of record that Sellers ever requested, or received, an

extension of time from the trial court to file his untimely concise statement, let alone a different concise statement.

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Notwithstanding Sellers’ non-compliance with Rule 1925(b), there are

certain operative exceptions to Rule 1925(b) waiver with regard to timeliness.

In determining whether an appellant has waived his issues on appeal based

on non-compliance with Rule 1925, it is the trial court’s order that triggers an

appellant’s obligation; therefore, we look first to the language of that order to

ensure that it complied with the contents specified by Rule 1925(b). See In

re Estate of Boyle, 77 A.3d 674, 676 (Pa. Super. 2013); see also Pa.R.A.P.

1925(b) (1)-(3).

Instantly, the record reveals that, on October 16, 2023, the trial court

ordered Sellers to file a Rule 1925(b) statement. See Order, 10/16/2023, at

1. Specifically, the trial court directed Sellers to file of record and serve upon

the trial court judge (either in person or by mail) a concise statement of errors

complained of on appeal within twenty-one days of the date of the order. See

id. The order also explained that any issue not raised or addressed in the

statement shall be deemed waived. Id. Thus, the trial court’s order conforms

with Rule 1925(b)(1)-(3).

Additionally, a strict application of the bright-line rule in Lord

necessitates strict interpretation of the rules regarding notice of Rule 1925(b)

orders. See In re L.M., 923 A.2d 505, 509-10 (Pa. Super. 2007). Thus, a

failure by the prothonotary to give written notice of the entry of a court order

and to note on the docket that notice was given will prevent waiver for

timeliness pursuant to Rule 1925(b); see also Pa.R.A.P. 108(b) (providing

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that “[t]he date of entry of an order in a matter subject to the Pennsylvania

Rules of Civil Procedure shall be the day on which the clerk makes the notation

in the docket that notice of entry of the order has been given”).

In this case, a notation appears in the docket indicating that the

prothonotary provided notice of the trial court’s October 16, 2023 order to

“ALL PARTIES” on that same date. See Trial Court Docket No: CV 2020-

00928. Additionally, the notations on the trial court’s order confirm that notice

was given to all counsel, including Sellers’ counsel. See Order, 10/16/23, at

1. Accordingly, we conclude that the trial court’s order complies with the

notice requirements, and we consider the date of entry of the trial court’s

order to be October 16, 2023.

Having confirmed the validity of the trial court’s Rule 1925(b) order and

the fact that due notice was given to the parties, we are constrained to find

all of Sellers’ issues waived for failure to timely file of record his Rule 1925(b)

statement. See Schofield, 888 A.2d at 774; Butler, 812 A.2d 631, 633-34.

Because no concise statement was timely filed, this Court is unable to

determine which issues were presented to the trial court in the statement

served upon the trial court judge. See Schofield, 888 A.2d at 774.

Accordingly, as Sellers has waived all of his issues on appeal, we may not

address the merits of those issues.

Orders affirmed.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 11/05/2024

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