Sunoco (R&M) v. PA Nat'l Mutual Ins.

2024 Pa. Super. 169

• Court: Superior Court of Pennsylvania
• Decided: August 7, 2024
• Docket: 1403 EDA 2023
• Status: Published

Opinion

J-A08018-24 J-A08019-24 J-A08020-24 2024 PA Super 169

SUNOCO (R&M), LLC AND SUNOCO, : IN THE SUPERIOR COURT OF LLC : PENNSYLVANIA : Appellants : : : v. : : : No. 1403 EDA 2023 PENNSYLVANIA NATIONAL MUTUAL : CASUALTY INSURANCE COMPANY : AND GREYHOUND ARAMINGO : PETROLEUM COMPANY, INC. AND : SERGEY GORLOV :

Appeal from the Order Entered April 27, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 200600271

SUNOCO (R&M) LLC, AND SUNOCO, : IN THE SUPERIOR COURT OF LLC : PENNSYLVANIA : : v. : : : PENNSYLVANIA NATIONAL MUTUAL : CASUALTY INSURANCE COMPANY, : No. 1532 EDA 2023 GREYHOUND ARAMINGO : PETROLEUM CO., INC. AND SERGEY : GORLOV : : : APPEAL OF: GREYHOUND : ARAMINGO PETROLEUM CO., INC.

Appeal from the Order Entered April 27, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 200600271 J-A08018-24 J-A08019-24 J-A08020-24

SUNOCO (R&M), LLC AND SUNOCO, : IN THE SUPERIOR COURT OF LLC : PENNSYLVANIA : Appellants : : : v. : : : No. 1404 EDA 2023 PENNSYLVANIA NATIONAL MUTUAL : CASUALTY INSURANCE COMPANY : AND GREYHOUND ARAMINGO : PETROLEUM COMPANY, INC. AND : SERGEY GORLOV :

Appeal from the Order Entered April 27, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 200600271

BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.

OPINION BY OLSON, J.: FILED AUGUST 7, 2024

In these consolidated matters,1 Sunoco (R&M), LLC and Sunoco LLC

(collectively, “Sunoco”) and Greyhound Aramingo Petroleum Company, Inc.

(“Greyhound”), on cross-appeal, challenge certain aspects of an order entered

in the Court of Common Pleas of Philadelphia County on April 27, 2023, which

resolved competing motions for summary judgment. At Superior Court docket

1403 EDA 2023, Sunoco challenges that portion of the April 27, 2023 order

that denied its motion for summary judgment, dismissed its claims, and

____________________________________________

1 For ease of disposition, we consolidate sua sponte the appeals filed with this

Court at 1403 EDA 2023 and 1404 EDA 2023, as well as the cross-appeal filed with this Court at 1532 EDA 2023.

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granted summary judgment in favor of Sergey Gorlov (“Gorlov”). At Superior

Court docket 1404 EDA 2023, Sunoco appeals that aspect of the April 27,

2023 order that denied its motion for summary judgment, dismissed its

claims, and granted summary judgment in favor of Pennsylvania National

Mutual Casualty Insurance Company (“Penn National”). Lastly, at Superior

Court cross-appeal docket 1532 EDA 2023, Greyhound objects to the portion

of the April 27, 2023 order that granted Sunoco’s motion for summary

judgment and awarded indemnity to Sunoco, while denying Greyhound’s

motion for summary judgment that urged the trial court to dismiss Sunoco’s

claims. We affirm the April 27, 2023 order, in part, and reverse, in part. The

case is remanded for further proceedings in accordance with this opinion

The trial court summarized the factual and procedural history as follows:

This matter stems from an underlying [personal injury cause of] action that resolved in 2019 via a settlement agreement.[2] In 2019, [Sunoco] entered into a settlement agreement [to] resolve certain personal injury claims arising out of a motor vehicle accident that occurred on September 25, 2014, at a Sunoco-branded gas station (the "Aramingo Station") located in the City of Philadelphia[, Pennsylvania]. Sunoco supplies branded motor fuel to franchised gas stations across the [United States] in exchange for the ability to use the "Sunoco" name and other considerations. [Greyhound], owned by [Gorlov,] entered into a dealer franchise agreement in October 2013[,] with Sunoco where Sunoco [agreed to] supply the [Aramingo Station] with [Sunoco-]branded motor fuel. [To become] a Sunoco franchisee under the Franchise Agreement, Greyhound agreed to an

2 The settlement agreement was designated confidential. Therefore, the exact terms of the agreement are not part of the record in the case sub judice.

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indemnification provision. Section 3.14.1. of the Franchise Agreement provided that:

Greyhound shall fully protect, defend, reimburse, indemnify, and save harmless Sunoco, its parent, its subsidiaries, affiliates[,] and all of their employees from and against any and all claims, liabilities, losses, damages, demands, fines, [and] causes of action of every kind and character from any cause whatsoever, including injury to person and property (including death) of Greyhound, Greyhound's employees, agents, contractors, customers, invitees[,] and other persons caused by or resulting in any way from:

(1) Operation of [Greyhound’s] business, including but not limited to operation, condition[,] and use of the Aramingo Station . . .

(2) Performance or non-performance of [Greyhound’s] obligations under this [Franchise] Agreement

(3) Operation, use, condition, or state of repair of . . . motor fuel dispensing equipment and

(4) Loss, discharge[,] or spill of petroleum products on or from the [Aramingo Station] . . .

Moreover, in regard to the Greyhound [Franchise] Agreement, Gorlov executed a personal guarantee that states,

In order to induce Sunoco to extend additional credit to Greyhound concerning the purchase of products and services from Sunoco, the undersigned [(Gorlov)] hereby guarantees, jointly and severally, the full and prompt payment [to Sunoco] of any indebtedness and any other monetary liabilities and obligations of Greyhound to Sunoco in connection [therewith], together with all expenses of obtaining payment thereof or enforcing any collateral securities or this [Personal] Guarantee, including court costs and reasonable [attorneys’] fees.

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[Penn National] sold SG II [Group, LLC (“SG II”)] primary and umbrella liability policies[.3] The [Penn National] primary [insurance] policy provides liability insurance coverage, covering the costs incurred in defense, settlement, or as a result of judgment related to claims brought against SG II or any other insured entities up to the policy limits of [$1,000,000.00] per occurrence and [$1,000,000.00] in the aggregate. The Grantor of Franchise Endorsement provides as follows:

The following is added to Paragraph C. Who Is An Insured in Section II - Liability: The person or organization shown in the Schedule is also an insured, but only with respect to their liability as grantor of a franchise to you.

In the instant action, Sunoco [pursued] indemnification from Greyhound, Penn National, and Gorlov for the amount [] Sunoco [paid to settle] the 2019 underlying [personal injury cause of] action. Each entity filed a motion for summary judgment in this matter, as all parties agreed that the facts were undisputed and the only issues that remained were questions of law. On April 27, 2023, [the trial] court entered an order that resolved all six [] motions for summary judgment. The April 27, 2023 order granted Sunoco's motion for summary judgment against Greyhound. The order also denied Sunoco's motion for summary judgment against Gorlov and Sunoco's motion for summary judgment against Penn National. Further, [the trial] court[, in that same order,] granted [Gorlov's] motion for summary judgment and Penn National's motion for summary judgment.

3 We glean from the record that SG II provided administrative services to multiple, separate legal entities, such as Greyhound, that were owned, in part, by Gorlov and operated Sunoco-branded convenience store and gasoline stations throughout Pennsylvania. These administrative services included providing human resource, accounting, and payroll services, procuring insurance coverage, and arranging maintenance and environmental testing at the convenience stores and gasoline stations.

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Trial Court Opinion, 11/3/23, at 1-3 (original brackets, original footnotes, and

extraneous capitalization omitted). These appeals and cross-appeal followed.4

In the appeal docketed with this Court at 1403 EDA 2023, Sunoco raises

the following issues for our review:

1. Whether the trial court erred in finding that the Guarantee Agreement’s terms “in connection” with the “purchase of products and services” did not encompass liability for the [underlying personal injury cause of action] where the [underlying personal injury cause of action] arose from the use of Sunoco’s products and services at the Aramingo Station[?]

2. Whether the trial court erred in finding that the terms “any indebtedness and any other liabilities and obligations of Greyhound to Sunoco” did not encompass liability for the [underlying personal injury cause of action?]

Sunoco Brief (1403 EDA 2023) at 6 (original brackets omitted).

In the appeal docketed with this Court at 1404 EDA 2023, Sunoco raises

1. Whether the trial court erred in finding that Penn National did not have a duty to defend Sunoco under the [insurance] policy’s Grantor of Franchise Endorsement, where the underlying [personal injury cause of action] alleged that named insured SG II operated as a franchise of Sunoco and where Sunoco was liable as a consequence of those alleged operations[?]

2. Whether trial court erred in finding that Penn National did not have a duty to insure Sunoco under the Grantor of Franchise Endorsement where undisputed evidence in the ____________________________________________

4 Sunoco, Greyhound (in its cross-appeal), and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

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record established SG II acted as a franchisee at the Aramingo Station[?]

Sunoco Brief (1404 EDA 2023) at 7.

In the cross-appeal docketed with this Court at 1532 EDA 2023,

Greyhound raises the following issue for our review:

Whether the trial court erred in granting Sunoco's motion for summary judgment and denying Greyhound's motion for summary judgment[?]

Greyhound Brief (1532 EDA 2023) at 4.

In toto, the issues raised on appeal and cross-appeal challenge the trial

court’s resolution of the parties’ competing summary judgment motions. The

principles that govern our review of an order granting, or denying, summary

judgment are well-settled.

In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. [See] Pa.R.C[iv].P. 1035.2. [Rule 1035.2] states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered.

Murphy v. Duquesne Univ. of The Holy Ghost, 777 A.2d 418, 429 (Pa.

2001) (case citations, ellipses, and quotation marks omitted); see also

Swords v. Harleysville Ins. Co., 883 A.2d 562, 566 (Pa. 2005) (stating, “a

[trial] court shall enter judgment whenever there is no genuine issue of any

material fact as to a necessary element of the cause of action or defense that

could be established by additional discovery” (citation omitted)).

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A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the [trial] court may grant summary judgment only when the right to such a judgment is clear and free from doubt. An appellate court may reverse the granting of a motion for summary judgment if there has been an error of law or an abuse of discretion.

Swords, 883 A.2d at 566-567 (citations omitted). “When reviewing whether

there are genuine issues of material fact, this Court's standard of review is de

novo; we need not defer to determinations made by [trial] courts; and our

scope of review is plenary.” State Farm Fire & Cas. Co. v. Peco, 54 A.3d

921, 925 (Pa. Super. 2012), citing Gleason v. Borough of Moosic, 15 A.3d

479, 484 (Pa. 2011).

1403 EDA 2023

In the appeal filed with this Court at 1403 EDA 2023, Sunoco asserts

that “the Guarantee Agreement requires [Gorlov] to personally guarantee the

debts of Greyhound” and the language of the Guarantee Agreement should be

interpreted broadly to include indemnification for a third-party litigation

settlement. Sunoco Brief (1403 EDA 2023) at 15-30. Sunoco asserts that

“the purpose of the Guarantee Agreement is to have [Gorlov] guarantee any

liabilities or indebtedness Greyhound owes Sunoco as a result of its business

relationship with Greyhound pursuant to the Franchise Agreement.” Id. at

25. Sunoco contends the trial court erred in narrowly interpreting the terms

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“in connection with” and “products and services” in “contravention of the plain

language of the Guarantee Agreement.”5 Id. at 16-17, 20. Sunoco argues

that “[h]ad the parties intended to limit the scope of [Gorlov’s] indemnification

obligation to reimbursement of invoices for products purchased, as the trial

court seems to have understood the Guarantee Agreement, the parties would

have said as much” in the Guarantee Agreement. Id. at 18-19. Sunoco avers

that, instead, “the Guarantee Agreement’s use of the phrase ‘in connection

with’ should be understood to encompass not just [the] extension of

[purchasing] credit provided by Sunoco but also the other terms and liabilities

incurred by Greyhound in connection with the products and services that

formed the business relationship between Greyhound and Sunoco[.]” Id. at

22. Sunoco contends that the term “products and services” refers to the

motor fuel Sunoco provided to Greyhound pursuant to the Franchise

Agreement and that the harm suffered by the third-party in the underlying

personal injury cause of action was “in connection with” or the “result of”

Sunoco providing its “products and services” to Greyhound. Id. at 17 (stating,

“had Sunoco not provided ‘products and services’ to [Greyhound], Sunoco

would have faced no liability in connection with the [third-party litigation] and

5 We note that in its appellate brief, counsel for Sunoco repeatedly refers to

the Guarantee Agreement as containing the phrase “in connection with.” See Sunoco Brief (1403 EDA 2023) at 20-22, 24, 26. A review of the Guarantee Agreement reveals that the phrase contained therein is actually “in connection therewith.” See Guarantee Agreement, 10/9/23.

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Greyhound (and in turn, Gorlov) would be under no obligation to reimburse

Sunoco”); see also id. at 25-27. Because the third-party’s “injuries and

subsequent [law]suit were clearly in connection with the products and services

referenced in the Guarantee Agreement[,]” Sunoco asserts that Gorlov is

obligated, as a matter of law, to reimburse Sunoco, as a guarantee for

Greyhound’s debt. Id. at 26. Sunoco further contends that the Guarantee

Agreement’s phrase “any indebtedness and any other liability” must be

interpreted broadly to encompass the settlement paid by Sunoco in the

underlying personal injury cause of action. Id. at 27-28. As such, Sunoco

maintains that the trial court erred in granting summary judgment in favor of

Gorlov and, instead, should have granted summary judgment in favor of

Sunoco and against Gorlov. Id. at 30.

The Guarantee Agreement executed by Gorlov on October 9, 2013, in

favor of Sunoco, states, in pertinent part, as follows:

In order to induce [Sunoco] to extend additional credit to [Greyhound], concerning the purchase of products and services from [Sunoco, Gorlov] hereby guarantee[s], jointly and severally, the full and prompt payment to [Sunoco] of any indebtedness and any other monetary liabilities and obligations of [Greyhound] to [Sunoco] in connection therewith, together with all expenses of obtaining payment thereof or enforcing any collateral security or this Guarantee [Agreement], including court costs and reasonable [attorneys’] fees (said indebtedness, liabilities, obligations[,] and expenses being referred to herein as “Such Obligations”).

Guarantee Agreement, 10/9/13, at 1 (emphasis added). Although the October

2013 instrument entered into by Gorlov, and in favor of Sunoco, was captioned

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as a “Guarantee Agreement,” the instrument is a surety agreement.6 See id.

at 2 (stating, “[a]lthough referred to as a Guarantee [Agreement], this

instrument is intended to be a contract of suretyship upon which [Gorlov]

intends to be legally bound”); see also 8 P.S. § 1 (stating, “Every written

agreement hereafter made by one person to answer for the default of another

shall subject such person to the liabilities of suretyship, and shall confer upon

him[, or her,] the rights incident thereto, unless such agreement shall contain

in substance the words: ‘This is not intended to be a contract of suretyship,’

or unless each portion of such agreement intended to modify the rights and

liabilities of suretyship shall contain in substance the words: ‘This portion of

the agreement is not intended to impose the liability of suretyship.’”).

“[A] suretyship arrangement arises when a creditor refuses to extend

credit to a debtor unless a third party (the surety) agrees to provide additional

security for repayment of the debt by undertaking the debtor's obligation to

the creditor if the debtor fails to perform.” Continental Bank v. Axler, 510

A.2d 726, 729 (Pa. Super. 1986) (stating, “[i]n general terms, a suretyship

represents a three-party association wherein a creditor is entitled to

performance of a contractual duty by the principal debtor or alternatively, if ____________________________________________

6 “[B]oth guaranty and surety agreements are agreements to be liable for the

debt of another[. T]he principal difference is that the creditor may look to the surety for immediate payment upon the debtor's default, without first attempting to collect the debt from the debtor, whereas the creditor must first seek payment from the debtor before going after a guarantor.” McIntyre Square Assoc. v. Evans, 827 A.2d 446, 451 n.7 (Pa. Super. 2003).

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the debtor defaults, by the debtor's surety”). In simplest terms, “a surety

agreement is a contract[.]” Beckwith Machinery Co. v. Nat’l Union Fire

Ins. Co. of Pittsburgh, 890 A.2d 403, 406 (Pa. Super. 2005); see also

Continental Bank, 510 A.2d at 729 (stating, “[t]he existence of the

suretyship is evidenced by a contract”).

The rules for interpreting the meaning of a contract are well-established.

The fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties. The intent of the parties to a written agreement is to be regarded as being embodied in the writing itself. The whole instrument must be taken together in arriving at contractual intent. Courts do not assume that a contract's language was chosen carelessly, nor do they assume that the parties were ignorant of the meaning of the language they employed. When a writing is clear and unequivocal, its meaning must be determined by its contents alone.

Only where a contract's language is ambiguous may extrinsic or parol evidence be considered to determine the intent of the parties. A contract contains an ambiguity if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. This question, however, is not resolved in a vacuum. Instead, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. In the absence of an ambiguity, the plain meaning of the agreement will be enforced. The meaning of an unambiguous written instrument presents a question of law for resolution by the court.

Murphy, 777 A.2d at 429 (citations and quotation marks omitted).

In granting summary judgment in favor of Gorlov and against Sunoco,

the trial court explained,

In the present matter, the plain language of the Guarantee Agreement demonstrates Gorlov’s responsibility is limited to only

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those liabilities "in connection" with the "purchase of products and services.” . . .

The underlying action in this matter involved a car accident at [Greyhound’s Aramingo Station]. Thus, the claims for indemnification based upon suits seeking damages for bodily injury arising out of an accident are inherently not concerning the purchase of products and services. Under the relevant jurisprudence[,] as well as the complete record in this matter, [the trial court concludes that Sunoco’s complaint does not seek payment from Gorlov for an indebtedness or obligation originally incurred by Greyhound that arose out of] the purchase of [Sunoco’s] products and services[,] and Gorlov was not required to extend any additional payment to Sunoco.

Trial Court Opinion, 11/3/23, at 9.

Upon review, we concur with the trial court. The record supports the

conclusion that a genuine issue of material fact does not exist as to Gorlov’s

obligation to indemnify Sunoco; thus, Gorlov was entitled to summary

judgment as a matter of law. Pursuant to the Franchise Agreement, Sunoco

agreed to provide certain Sunoco-branded products and services to

Greyhound in exchange for Greyhound’s promise to resell Sunoco’s branded

products and services at its Aramingo Station. See Franchise Agreement,

10/1/13, at Part I – Summary Provisions (Opening Paragraph). Sunoco’s

products and services included “branded motor fuels under trademark, trade

names[,] and trade dress” (see id.), as well as, inter alia, a credit and debit

card program (see id. at § 1.04).7 To facilitate sales of branded products and ____________________________________________

7 Sunoco also offered its franchisees, inter alia, an on-call maintenance program, which Greyhound did not participate in, or agree to, as part of its Franchise Agreement with Sunoco.

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services to Greyhound, Sunoco extended Greyhound credit (see id. at § 3.03

(Terms of Payment); see also id. at § 4.01 (Financial Obligations))

conditioned upon Greyhound “depositing money or furnishing an irrevocable

Letter of Credit” with Sunoco (see id. at § 4.02 (Payment of Indebtedness)).

Thus, Sunoco extended credit to Greyhound in exchange for monetary

deposits or the issuance of irrevocable letters of credit.

As part of the Franchise Agreement, Gorlov provided a personal

guarantee (suretyship agreement) in order to “induce” Sunoco to provide

“additional credit” to Greyhound. See Guarantee Agreement, 10/9/13, at 1

(stating, “In order to induce [Sunoco] to extend additional credit to

[Greyhound], concerning the purchase of products and services from

[Sunoco]” (emphasis added)); see also Franchise Agreement, 10/1/13, at

§ 2.05 (Additional Documents Required) (requiring Gorlov to provide a

personal guarantee to protect Sunoco’s reimbursement rights pertaining to

“cash consideration” (as discussed infra)). The “additional credit” extended

by Sunoco arose from Section 2.02 of the Franchise Agreement whereby

Sunoco agreed to provide Greyhound, inter alia, “cash consideration” (i.e., a

case advance) to cover the expense of installing Sunoco-branded new image

components. See Franchise Agreement, 10/1/13, at § 2.02 (Upfront

Consideration). Section 2.03 of the Franchise Agreement set forth an

amortization schedule related to the cash consideration and stated that, if the

Franchise Agreement was “terminated or non-renewed, for any reason

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whatsoever, by either party prior to [Greyhound’s] purchase of the Total

Contractual Volume (referring to the total volume of Sunoco-branded motor

fuel Greyhound agreed to purchase over the life of the Franchise Agreement),”

Greyhound was required to reimburse Sunoco for the unamortized portion of

the cash consideration. Id. at § 2.03. As stated supra, Section 2.05 of the

Franchise Agreement required Gorlov to provide a personal guarantee in order

to protect Sunoco’s reimbursement rights against Greyhound under Section

2.03. Id. at § 2.05. Thus, the intent of the Personal Guarantee was to protect

Sunoco’s reimbursement rights to the unamortized portion of the cash

consideration (i.e., the “additional credit”) in the event the Franchise

Agreement was terminated or was not renewed. In other words, if the cash

consideration were not fully amortized prior to the termination or non-renewal

of the Franchise Agreement Sunoco had with Greyhound, Sunoco retained the

right to collect the portion of the unamortized cash contribution from

Greyhound or Gorlov.

In so providing the Personal Guarantee, Gorlov agreed to “guarantee,

jointly and severally, the full and prompt payment to [Sunoco] of any

indebtedness and other monetary liabilities and obligations of [Greyhound] to

[Sunoco] in connection therewith[.]” Guarantee Agreement, 10/9/13, at

1 (emphasis added). In examining the phrase “in connection therewith,” the

Cambridge Dictionary defines the term “therewith” as “with that; with

something that has been previously mentioned[.]” See

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https://dictionary.cambridge.org/us/dictionary/english/therewith (last visited

June 25, 2024). Therefore, in understanding which indebtedness of

Greyhound Gorlov personally guaranteed, the use of the phrase “in connection

therewith” refers back to the previously mentioned indebtedness created from

Sunoco’s extension of “additional credit” (i.e. the unamortized portion of the

cash consideration in the event of a termination or non-renewal of the

Franchise Agreement). Consequently, the plain language of the Guarantee

Agreement limits Gorlov’s suretyship obligations such that his suretyship

obligations do not include indemnification for third-party claims, such as the

underlying personal injury cause of action.

As such, we concur with the trial court, and the record supports, that

Gorlov was entitled to summary judgment as a matter of law. Therefore, we

discern no error of law or abuse of discretion in the portion of the trial court’s

order granting summary judgment in favor of Gorlov and against Sunoco and,

in turn, denying summary judgment in favor of Sunoco and against Gorlov.

1404 EDA 2023

In the appeal filed with this Court at 1404 EDA 2023, Sunoco challenges

the portion of the trial court’s April 27, 2023 order that granted summary

judgment in favor of Penn National and dismissed Sunoco’s claims against

Penn National seeking indemnity and recovery of defense costs incurred in

responding to the underlying personal injury actions. Sunoco asserts that it

is an “additional insured” under SG II’s insurance policy with Penn National

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because of the status Sunoco held as a “grantor of a franchise” to SG II, a

named-defendant in the underlying personal injury cause of action. Sunoco

Brief (1404 EDA 2023) at 21. Sunoco insists that SG II must be treated, for

insurance coverage purposes, as a franchisee of the Aramingo Station because

the complaint filed in the underlying personal injury case asserted that SG II

operated the Aramingo Station like a franchisee. Id. at 22-28. To support

the contention that the allegations in the underlying personal injury cause of

action are dispositive of Sunoco’s coverage claim because of the putative

franchisor-franchisee relationship Sunoco allegedly maintained with SG II,

Sunoco emphasizes that SG II’s Penn National policy, and in particular the

Grantor of Franchise Endorsement, is silent on how a franchisee-franchisor

relationship is established for purpose of triggering insurance coverage. Id.

at 24-25. In particular, Sunoco asserts that

Neither the Grantor of Franchise Endorsement, nor any other language in the [Penn National policy], requires the existence of a written franchise agreement [to establish a franchisor-franchisee relationship] or otherwise explains how Sunoco would become the “grantor of franchise” such that coverage would be triggered under the [Grantor of Franchise Endorsement].

Id. at 24. Sunoco argues that the complaint in the underlying personal injury

cause of action asserted a claim for negligence against “Greyhound” based

upon its ownership of, and operation of, the Aramingo Station and that the

complaint defined the defendant-party “Greyhound” collectively to include,

inter alia, SG II. Id. Therefore, based upon the allegations in the underlying

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complaint, Sunoco maintains SG II was an “owner/operator” of the Aramingo

Station and, as such, was a “franchisee” of the Sunoco-branded station. Id.

at 25. Because SG II was a “franchisee” of the Aramingo Station, according

to Sunoco, coverage under the terms of the Penn National policy extended to

Sunoco as a “grantor of a franchise,” and Penn National, therefore, maintained

duties to defend and to indemnify Sunoco. Id. at 25-28.

In addition to its position that the allegations of the underlying complaint

established a franchisee-franchisor relationship between Sunoco and SG II,

Sunoco asserts that, based upon “the undisputed testimony of SG II’s

controller,” SG II was a “de facto franchisee” of the Aramingo Station. Id. at

28-30. Sunoco argues that SG II’s actions of providing, inter alia,

administrative services in procuring insurance policies and handling all

maintenance requests on behalf of Greyhound resulted in “de facto franchisee”

status being conferred upon SG II. Id.

The interpretation of an insurance policy raises a question of law for

which our scope of review is de novo. Kvaerner Metals v. Com. Union Ins.,

908 A.2d 888, 897 (Pa. 2006). It is well-established that

Insurance policies are contracts, and the rules of contract interpretation provide that the mutual intention of the parties at the time they formed the contract governs its interpretation. Such intent is to be inferred from the written provisions of the contract. If doubt or ambiguity exists it should be resolved in [the] insured’s favor.

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Am. and Foreign Ins. Co. v. Jerry’s Sport Ctr., Inc., 2 A.3d 526, 540 (Pa.

2010) (citations omitted), relying on Standard Venetian Blind Co. v. Am.

Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983); see also Nationwide Mut.

Ins. Co. v. Nixon, 682 A.2d 1310, 1313 (Pa. Super. 1996) (stating, “the

proper construction of a policy of insurance is a matter of law which may

properly be resolved by a court pursuant to a motion for summary judgment”),

appeal denied, 693 A.2d 589 (Pa. 1997); Donegal Mut. Ins. Co. v.

Baumhammers, 938 A.2d 286, 290 (Pa. 2007) (stating, “the interpretation

of an insurance contract regarding the existence or non-existence of coverage

is generally performed by the court” (brackets and original quotation marks

omitted)).

A “duty to defend is separate from and broader than the duty to

indemnify” and, therefore, each duty is distinct from the other. Jerry’s Sport

Ctr., 2 A.3d at 540-541, 543-544; see also Erie Ins. Exch. v. Moore, 228

A.3d 258, 267 (Pa. 2020). “The law is clear that when an insured who has

been sued requests coverage under a policy of insurance, the insurer is

required to accept all of the allegations contained in the third party’s complaint

as true and provide a defense if there is a chance that the alleged injury could

potentially fall within the scope of the policy.” Selective Way Ins. Co. v.

Hosp. Grp. Servs. Inc., 119 A.3d 1035, 1046 (Pa. Super. 2015); see also

Jerry’s Sport Ctr., 2 A.3d at 541 (stating, “[a]s long as the complaint ‘might

or might not’ fall within the policy’s coverage, the insurance company is

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obliged to defend”); Moore, 228 A.3d at 268 (stating, “[t]he truth of the

complaint’s allegations is not at issue when determining whether there is a

duty to defend”). “The question of whether a claim against an insured is

potentially covered is answered by comparing the four corners of the

insurance contract to the four corners of the complaint.” Jerry’s Sport Ctr.,

2 A.3d at 541; see also Kvaerner Metals, 908 A.2d at 896-897 (instructing

courts to look at policy language to determine the scope of coverage and then

examine the underlying complaint to determine whether the allegations

constitute the type of instances that trigger coverage).

It is the insurer’s responsibility to compare the allegations contained in

the underlying complaint to the terms of the policy to determine the insurer’s

obligations. Jerry’s Sport Ctr., 2 A.3d at 541-542. “It is not the actual

details of the injury [as alleged in the underlying claim], but the nature of

the claim which determines whether the insurer is required to defend.”

Nationwide Mut. Ins. Co. v. Arnold, 214 A.3d 688, 695 (Pa. Super. 2019)

(emphasis added). “An insurer may not justifiably refuse to defend a claim

against its insured unless it is clear from an examination of the allegations in

the complaint and the language of the policy that the claim does not

potentially come within the coverage of the policy.” Jerry’s Sport Ctr., 2

A.3d at 541; see also Arnold, 214 A.3d at 695. “[T]he duty to defend is not

limited to meritorious actions; it even extends to actions that are groundless,

false, or fraudulent as long as there exists the possibility that the allegations

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implicate coverage.” Jerry’s Sport Ctr., 2 A.3d at 541 (citation and original

quotation marks omitted). “An insurer who refuses to defend its insured from

the outset does so at its peril, because the duty to defend remains with the

insurer until it is clear the claim has been narrowed to one beyond the terms

of the policy.” Arnold, 214 A.3d at 695 (citation omitted); see also Jerry’s

Sport Ctr., 2 A.3d at 543 (stating, “[t]he broad duty to defend . . .

encourages insurance companies to construe their insurance contract[s]

broadly and to defend all actions where there is any potential coverage”);

Moore, 228 A.3d at 265 (stating, “to the extent there are undetermined facts

that might impact on coverage, the insurer has a duty to defend until the claim

is narrowed to one patently outside the policy coverage, for example through

discovery” (citation and original quotation marks omitted)).

“Like the duty to defend, an insurance company's duty to indemnify an

insured in a third party’s action flows from a determination that the complaint

triggers coverage.” Hosp. Grp. Servs., 119 A.3d at 1046 (citation, original

quotation marks and brackets omitted); see also Gen. Accident Ins. Co. v.

Allen, 692 A.2d 1089, 1095 (Pa. 1997) (stating, “[a]lthough the duty to

defend is separate from and broader than the duty to indemnify, both duties

flow from a determination that the complaint triggers coverage”). “[A]

determination of the duty to indemnify, however, is not necessarily limited to

the factual allegations of the underlying complaint[ but, rather], there must

be a determination that the insurer’s policy actually covers a claimed

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incident.” State Farm Fire and Cas. Co. v. DeCoster, 67 A.3d 40, 46

(Pa. Super. 2013) (citation and original quotation marks omitted; emphasis in

original). Thus, “[t]he substantive duty of an insurance company to indemnify

its insured in a third party’s action, however, arises only when the insured is

determined to be liable for damages within the coverage of the policy.” Hosp.

Grp. Servs., 119 A.3d at 1046 (citation and original quotation marks

omitted). Stated another way, if a third party proves its entitlement to

damages in a cause of action against an insured and the damage recovery

triggers the insurer’s duty to indemnify under the terms of the insurance

contract, then the insurer is required to indemnify the insured for the damage

award.

With these principles in mind, we now turn to the case sub judice. In

granting summary judgment in favor of Penn National and against Sunoco,

In the present matter, Sunoco is not entitled to coverage as an additional insured under the “Grantor of Franchise” endorsement. It is evident when reviewing the documents in the record that Sunoco does not qualify as an additional insured under the “Designated Person or Organization” endorsement to Penn National’s [] policy due to the plain language of the policy. The Grantor of Franchise endorsement confines additional insured status to a franchisor that is sued for liability as the grantor of a franchise to one of Penn National’s named insured. Penn National did not insure [Greyhound, which was the] franchisee of the gas station involved in the underlying litigation[.] Greyhound was insured and defended in the underlying litigation by its insurer, Nationwide.

Furthermore, Sunoco was not sued in the underlying litigation for liability as the grantor of a franchise to Penn National[’]s named

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insured, SG II. Sunoco was involved in the underlying litigation as grantor of a franchise to Greyhound, as discussed at length [herein]. This fact is further highlighted in the record in Sunoco’s response to Penn National’s document requests where Sunoco admitted there was no franchise agreement between Sunoco and SG II on or before the accident date of September 25, 2014.

The record clearly demonstrates that no franchise agreement existed between Sunoco and SG II [] at the time of the underlying incident. As such, Penn National is not required to indemnify Sunoco.

Trial Court Opinion, 11/3/23, at 10-11 (footnotes omitted).

We first examine whether or not the trial court erred in granting

summary judgment in favor of Penn National, and against Sunoco, on the

claim that Penn National owed a duty to defend Sunoco in the underlying

personal injury cause of action. In determining whether or not Penn National

maintained a duty to defend Sunoco, we compare the four corners of the

complaint filed in the underlying personal injury case to the four corners of

the Penn National policy. Wilcha v. Nationwide Mut. Fire Ins. Co., 887

A.2d 1254, 1259 (Pa. Super. 2005) (stating, “to determine whether a claim

may potentially come within the coverage of the policy, we must first ascertain

the scope of the insurance coverage and then analyze the allegations in the

complaint” (citation omitted)); see also Jerry’s Sport Ctr., 2 A.3d at 541;

Kvaerner Metals, 908 A.2d at 896-897.

In the first complaint filed in the underlying personal injury case

(identified as Case Number 000960 in the Court of Common Pleas of

Philadelphia Country – February Term, 2016), the plaintiff brought a cause of

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action for, inter alia, negligence against “Defendant-Greyhound and

Defendant-Sunoco.” See Complaint (Underlying Action), 6/29/16, at

¶¶43-47. For purpose of this first underlying complaint,

“Defendant-Greyhound” was defined the same as in the case sub judice, that

is to say Greyhound Aramingo Petroleum Company, Inc. Id. at ¶4.

“Defendant-Sunoco” was defined collectively as including Sunoco, Inc. and

Energy Transfer Partners, L.P. Id. at ¶¶7, 10, 13. Thus, Greyhound and

Sunoco were named defendants in the first underlying complaint and SG II

was not a named defendant in the first complaint.

In the second complaint filed in the underlying personal injury case

(identified as Case Number 002544 in the Court of Common Pleas of

Philadelphia County – September Term, 2016), the plaintiff brought a cause

of action for, inter alia, negligence against “Defendant-Greyhound.” See

Amended Complaint (Underlying Action), 3/2/17, at ¶¶74-78. For purpose of

this second underlying complaint, “Defendant-Greyhound” was defined

collectively as including several named parties and, in pertinent part, included

Greyhound (as defined herein) and SG II (as defined herein).8 Id. at ¶ 9.

Thus Greyhound and SG II were named defendants in the second underlying

8 The plaintiff in the second complaint identified Greyhound (as defined herein)

as “Greyhound Aramingo, Inc.” with a business address matching the Aramingo Station. Therefore, we deem the named defendant “Greyhound Aramingo, Inc.” in the second underlying complaint to be Greyhound, as defined in the case sub judice.

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complaint and Sunoco was not a named defendant in the second underlying

complaint. For purpose of litigating the underlying causes of action, the trial

court consolidated the two cases.

Sunoco asserts that Penn National owed Sunoco a defense based upon

the coverage Penn National provided to SG II.9 SG II was a named party in

the second complaint filed in the underlying personal injury case. Therefore,

for purpose of determining whether or not Penn National owed a duty to

defend to Sunoco, we examine, and accept as true, the allegations contained

in the second complaint filed in the underlying personal injury case, as this is

the complaint in which SG II was a named party and upon which Sunoco

asserts Penn National owes a duty to defend based upon the Grantor of

Franchise Endorsement contained in the Penn National policy.

As discussed supra, in the second underlying complaint,

“Defendant-Greyhound” is defined as including both Greyhound and SG II.

Amended Complaint (Underlying Action), 3/2/17, at ¶9. Greyhound is defined

as having a place of business at 2750 Aramingo Avenue, Philadelphia,

Pennsylvania 19134. Id. at ¶3. SG II is defined as having a place of business ____________________________________________

9 As discussed supra, SG II was not a named defendant in the first underlying

complaint. Because SG II was not a named defendant in the first underlying complaint and the Penn National policy provided coverage only to SG II, and not Greyhound, the Penn National policy was not implicated by the first underlying complaint as providing a potential duty to defend and to indemnify. As such, any defense costs incurred by Sunoco in defending the first underlying complaint, as a named party, would not be recoverable under the Penn National Policy.

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at 2025 Greentree Road, Pittsburgh, Pennsylvania 15220. Id. at ¶8. In the

underlying personal injury cause of action against “Defendant-Greyhound,”

the plaintiff asserted that

[Defendant-Greyhound], as the owners, operators, lessors, lessees[,] or entity otherwise in control of the Sunoco station, owed a duty to business invitees to properly regulate and secure the premises, as well as to warn and advise the public, including business invitees such as [plaintiff], of dangerous conditions on the property.

Id. at ¶75. Plaintiff defined the “Sunoco station” as “the Sunoco station

located at 2750 Aramingo Avenue, Philadelphia, [Pennsylvania] 19134[.]” Id.

at ¶47. Plaintiff does not use the word “franchisee” to describe

Defendant-Greyhound’s relationship to the Aramingo Station. Rather, the

plaintiff describes that relationship as, inter alia, an “entity otherwise in control

of the Sunoco station,” which could potentially include a franchisee. An entity

that controls a Sunoco-branded gas station that is not, itself, Sunoco can

reasonably be inferred to be a franchisee. Thus, accepting plaintiff’s

allegations in the second underlying complaint as true, plaintiff has, for

purpose of the case sub judice, asserted that Defendant-Greyhound, which

included both Greyhound and SG II, may have been a franchisee of the Sunoco

Station.

We now compare the four corners of the Penn National policy to the

allegations in the second underlying complaint to determine whether or not

Sunoco was an additional insured under the Grantor of Franchise

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Endorsement.10 Pursuant to the Penn National policy (policy number BP9

0660870, effective January 11, 2014, to January 11, 2015), the named

insured included SG II and several other related entities, none of which were

Greyhound.11 See Policy Schedule of Names and Addresses (71 0026 0391)

at 1. The Penn National policy included a Grantor of Franchise Endorsement

(Endorsement Form 71 0309 0711) that modified Paragraph C – Who is an

Insured in Section II - Liability of the Businessowners Coverage Form. The

endorsement modification stated, “The person or organization shown in the

Schedule is also an insured, but only with respect to their liability as grantor

of a franchise to you.”12 Sunoco was listed as a grantor of a franchise in the

Schedule. See Policy Schedule of Names and Addresses (71 0026 0391) at

1. Thus, pursuant to the Grantor of Franchise Endorsement, Sunoco was “also

10 This question differs slightly from the typical inquiry in insurance coverage

litigation where a court is tasked with determining whether the nature of the claim leveled in the underlying complaint falls within the scope of coverage described under the relevant policy. Rather than focus on the scope of coverage, this case requires us to examine whether the claimant, Sunoco, comes within the class of insureds defined by the Penn National policy issued to SG II.

11 Specifically, the declaration page of the Penn National policy listed the named insureds as follows: SG II (SG II Group, LLC), SG II Pittsburgh, LLC, SG II Pittsburgh Suburban, LLC, SG II Centre, LLC, Greyhound Frankstown Petroleum, LLC, SG II Kraft, LLC, SG II Negley, LLC, and SG II Realty Washington, LLC.

12 The term “you” was defined as referring to the named insured shown in the

policy’s declaration page. Businessowners Coverage Form (BP 00 03 0106) at 1.

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an insured” under the Penn National policy “but only with respect to Sunoco’s

liability as a grantor of a franchise” to one of the named insureds covered

under the policy.

Thus, when comparing the four corners of the second underlying

complaint to the four corners of the insurance policy, and accepting the

allegations contained in the second underlying complaint as true, the

allegations potentially give rise to a franchisee-franchisor relationship between

SG II and Sunoco and, therefore, Sunoco may be an additional insured under

the Penn National policy. As such, we conclude that Penn National, by virtue

of its coverage of SG II, which potentially stood as a Sunoco franchisee, owed

a duty to defend Sunoco, as a potential franchisor, in the underlying personal

injury cause of action.

This duty to defend existed until such time as the claim was narrowed

to establish that a franchisee-franchisor relationship did not, in fact, exist

between SG II and Sunoco, thus ending the potential coverage of Sunoco as

an additional insured under the Penn National policy. In Sunoco’s amended

objections and responses to Penn National’s requests for production of

documents and admissions, which was dated March 22, 2021, Sunoco, in

response to a question pertaining to the existence of a franchise agreement

between Sunoco and SG II, responded,

Sunoco states that a reasonable search of its records did not reveal any franchise agreement between [Sunoco] and [SG II] on, or at any time prior to[,] September 25, 2014. Based upon this search[,] as well as [Greyhound’s and Gorlov’s] admission that no

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such agreement existed, Sunoco states that there is no such written franchise agreement dated on or before September 25, 2014.

Penn National Motion for Summary Judgment, 9/20/21, at Exhibit 5 (emphasis

added). Therefore, as of March 22, 2021, it was known by all parties that SG

II was not a franchisee of Sunoco and that Sunoco did not qualify as an

additional insured under the Penn National policy, thus ending Penn National’s

duty to defend Sunoco.

To the extent that the trial court considered whether or not a duty to

defend existed, we find the trial court erred as a matter of law in granting

summary judgment in favor of Penn National and against Sunoco on the duty

to defend claim. Rather, a duty to defend existed for a period of time until no

genuine issue of material fact existed and it was definitively established that

SG II was not a franchisee of Sunoco, that is to say until March 22, 2021.

Consequently, we reverse, in part, the portion of the April 27, 2023 order

granting summary judgment in favor of Penn National and against Sunoco on

the issue of a duty to defend. We remand the case so the trial court may

award Sunoco attorneys’ fees it incurred in defending the underlying personal

injury cause of action13 from the time Sunoco became engaged in the ____________________________________________

13 Based upon the existence of a duty to defend and Penn National’s failure to

fulfill that obligation, Sunoco is entitled to recover defense costs associated with the underlying personal injury cause of action, which were not already recovered as an additional insured from Nationwide by virtue of its coverage provided to Greyhound, from the time Sunoco became engaged in the underlying personal injury litigation until March 22, 2021.

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underlying litigation until March 22, 2021, when it became clear that a

franchisee-franchisor relationship between SG II and Sunoco did not exist and,

therefore, Sunoco was not an additional insured under the Penn National

policy.

We now turn to an examination of whether or not Penn National owed a

duty to indemnify Sunoco in the underlying personal injury cause of action. 14

As discussed supra, if the Penn National policy provided Sunoco coverage as

an additional insured, it did so only to the extent that Sunoco was the grantor

of a franchise to SG II. See, generally, Penn National Policy. Our task on

appeal, then, is to review the record to determine whether, or not, the trial

court erred in concluding that no franchisor-franchisee relationship existed

between Sunoco and SG II.

In its amended complaint, Sunoco alleged to have a “dealer supply

franchise agreement” with SG II dated 2004 that pertained to “a Sunoco

station in Pittsburgh[, Pennsylvania.]” Sunoco Amended Complaint, 7/15/20,

at ¶16; see also id. at Exhibit A1. The copy of the franchise agreement

attached to Sunoco’s amended complaint as Exhibit A1, however, reveals a

franchise agreement between Sunoco, as the franchisor, and SG II – Nagley ____________________________________________

14 We recognize that once it has been determined that Penn National no longer

has a duty to defend Sunoco, it cannot be found that Penn National had a duty to indemnify Sunoco. Nonetheless, we engage in the analysis infra because the trial court analyzed only Penn National’s duty to indemnify Sunoco. See Trial Court Opinion, 11/3/23, at 11 (stating, “Penn national is not required to indemnify Sunoco”).

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Ave. LLC, as franchisee. Id. at Exhibit A1. The Penn National policy shows

that this franchise agreement relates to a Sunoco-branded gas station and

convenience store located on Negley Avenue in Pittsburgh, Pennsylvania. The

second complaint filed in the underlying personal injury case identified SG II

as having a business location of 2025 Greentree Road, Pittsburgh,

Pennsylvania. That location, under the Penn National policy, was not identified

as a “convenience food and gasoline station” like the other named insureds

under the policy but, rather, was identified as an “accounting, auditing, or

bookkeeping firm.” See Penn National Policy. Therefore, SG II – Nagley Ave.

LLC was not the same entity identified as SG II herein. The franchise

agreement attached to Sunoco’s amended complaint did not demonstrate a

franchise agreement between Sunoco and SG II and, more importantly, did

not supply any reason to believe Sunoco was alleged to be liable in the

underlying personal injury cause of action because it entered into a

franchisor-franchisee agreement pertaining to another gasoline station.

Moreover, in its amended complaint, Sunoco alleged that the franchise

agreement that covered the Aramingo station was entered into with

Greyhound as the franchisee. Sunoco Amended Complaint, 7/15/20, at ¶17;

see also id. at Exhibit B1.

The record further reveals that the Philadelphia area division manager

for Sunoco testified in a deposition that she was the division manager during

the time period involving the underlying incident. N.T., 6/30/21, at 11.

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During her tenure as division manager, she was “responsible for all of the

franchise locations in and around the City of Philadelphia and the five

[surrounding] counties.” Id. When asked to identify the franchisee for the

Aramingo Station at the time of the incident, the division manager identified

Greyhound as the franchisee. Id. at 26. The division manager further

explained that Greyhound was the only entity who was obligated, as the

franchisee, to maintain insurance coverage on the Aramingo Station, pursuant

to the Franchise Agreement. Furthermore, the liability risk and claims

manager for Sunoco stated in her deposition that the franchisee for the

Aramingo Station was Greyhound. N.T., 7/21/21, at 8-9, 13. Finally, in

Sunoco’s response to Penn National’s request for the production of documents

and admissions, Sunoco admitted that

a reasonable search of [Sunoco’s] records did not reveal any franchise agreement between [Sunoco] and [SG II] on, or at any time prior to[,] September 25, 2014. Based on this search [,] as well as [Greyhound’s and Gorlov’s] admission that no such agreement existed, Sunoco states that there is no such written franchise agreement dated on or before September 25, 2014.

Penn National’s Motion for Summary Judgment, 9/20/21, at Exhibit 5.

We concur with the trial court that, based upon the admission of Sunoco

and the certified record before us, Penn National is entitled to summary

judgment on the claim of indemnification. Thus, we discern no abuse of

discretion or error of law in the trial court order granting summary judgment

in favor of Penn National and dismissing Sunoco’s claim for indemnification.

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1532 EDA 2023

In the cross-appeal, Greyhound challenges the portion of the trial court’s

April 27, 2023 order that granted summary judgment in favor of Sunoco and

against Greyhound. Greyhound Brief (1532 EDA 2023) at 21-58. Greyhound

asserts that the indemnification clause contained in the Franchise Agreement

“does not meet the requirements of the Perry-Ruzzi rule” in that the

indemnification clause “is void of any provision explicitly stating that

Greyhound was required to indemnify Sunoco for Sunoco’s own negligent

conduct.”15 Id. at 21, 24. According to Greyhound, the language that states

Greyhound is not required to indemnify Sunoco for claims caused solely by

the negligence of Sunoco does not evidence “express language to support a

finding that the parties intended for Greyhound to indemnify Sunoco for its

own negligence” as required by the Perry-Ruzzi rule. Id. at 24-25.

Alternatively, Greyhound asserts that if the indemnification clause

satisfies the Perry-Ruzzi rule then Sunoco was required to prove Greyhound

was negligent in the underlying personal injury cause of action to establish

Sunoco’s right to indemnification because the underlying personal injury case

settled before a jury determined which parties, if any, were liable, and to what ____________________________________________

15 The Perry-Ruzzi Rule, as discussed in greater detail infra, requires that “if

parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee's own negligence, they must do so in clear and unequivocal language.” Ruzzi v. Butler Petroleum Co., 588 A.2d 1, 4 (Pa. 1991); see also Perry v. Payne, 66 A 553, 557 (Pa. 1907).

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extent. Id. at 34-37. Greyhound argues that because the underlying

litigation was resolved via settlement, Sunoco, in moving for summary

judgment in the case sub judice, assumed the role of the plaintiff in the

underlying personal injury cause of action and, therefore, was required to

prove Greyhound’s negligence in bringing about the plaintiff’s personal injury.

Id. at 37-38. Greyhound contends that the underlying personal injury cause

of action “alleged that both Greyhound and Sunoco were jointly and severally

liable because [] the pumping mechanisms at the Aramingo Station were not

safely designed, and that [the pumping mechanisms] failed to adhere to safety

standards set in place by the highly regulated industry of delivering flammable

fuel to consumers, or that such standards were insufficient.” Id. at 38-39.

Greyhound argues that because the negligence claims in the underlying

personal injury case “go far beyond the general knowledge of a layperson[,]”

Sunoco was required to submit expert reports to support its motion for

summary judgment. Id. at 39-40. Because Sunoco failed to present expert

evidence establishing Greyhound’s negligence in the underlying personal

injury case, Greyhound concludes that the trial court erred in granting

summary judgment in favor of Sunoco. Id. at 40-47.

Finally, Greyhound asserts that a 2019 Distribution Agreement between

Sunoco and United Energy Distributors LLC (“United Energy”) “became the

operative binding agreement of the parties as it relates to the purchase and

resale of Sunoco-branded motor fuel by Greyhound.” Id. at 48. Upon

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entering into the Distribution Agreement in 2019, Sunoco, according to

Greyhound, “unequivocally cancelled the prior [] Franchise Agreement

[between Sunoco and Greyhound] and released any claims related thereto.”

Id. Because the Franchise Agreement was cancelled by the Distribution

Agreement, Greyhound asserts that the indemnification clause in the

Franchise Agreement was no longer appliable and Sunoco was not entitled to

summary judgment in its favor. Id. at 48-58.

We begin by addressing Greyhound’s argument that the 2019

Distribution Agreement “cancelled” the Franchise Agreement between

Greyhound and Sunoco, thereby making the indemnification clause

inoperable. The Distribution Agreement, executed September 3, 2019, was

an agreement between Sunoco and United Energy under which Sunoco would

sell and United Energy would purchase Sunoco-branded motor fuel. See

Distribution Agreement, 9/3/19. The purpose of the Distribution Agreement

was, inter alia, to permit United Energy to purchase Sunoco-branded motor

fuel from Sunoco and resell that fuel to, inter alia, Sunoco retailers. Id.

(stating, “[United Energy’s] purchase and resale of [Sunoco’s m]otor [f]uel to

Distributor’s and Retailer’s locations is the essence of this [Distribution]

Agreement”). Greyhound was not a party to the Distribution Agreement.

Rather, Greyhound was identified as a “retailer location” to which United

Energy was permitted to resell Sunoco-branded motor fuel under the

Distribution Agreement. Id.

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Under the terms of the Franchise Agreement between Sunoco and

Greyhound, Sunoco agreed, inter alia, to “make available for sale [to

Greyhound, Sunoco-]branded motor fuels” that Greyhound would, in turn,

resell to its customers. See Franchise Agreement, 10/1/13 (stating, “[t]he

essence of this [Franchise] Agreement is [Greyhound’s] purchase and resale

of [Sunoco-]branded motor fuel to [Greyhound’s] customers”). The Franchise

Agreement stated that the agreement could not be modified unless the

modification was in writing and signed by Sunoco’s authorized representative.

Id.

Upon review, we find Greyhound’s reliance on the Distribution

Agreement as a contract cancellation mechanism to be misplaced. Foremost,

the Distribution Agreement is an agreement between Sunoco and United

Energy for the distribution and resale of Sunoco-branded motor fuel to

retailers, i.e., franchisees, such as Greyhound. In other words, the

Distribution Agreement was a means by which Sunoco “moved” its branded

motor fuel product into the hands of its franchisee retailers. Greyhound was

not a party to the Distribution Agreement. As such, the Distribution

Agreement did not cancel or modify the Franchise Agreement that was in place

between Sunoco and Greyhound at the time of the incident. Therefore, we

discern no error of law or abuse of discretion in the trial court’s determination

that “the plain language of the United Energy [Distribution] Agreement

demonstrates that the Franchise Agreement between Sunoco and Greyhound

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was not cancelled or modified.” Trial Court Opinion, 11/3/23, at 7 (footnote

omitted).

Turning to Greyhound’s argument that the trial court erred in granting

summary judgment in favor of Sunoco as to its right to indemnification, “[a]n

agreement to indemnify is an obligation resting upon one person to make good

a loss which another has incurred or may incur by acting at the request of the

former, or for the former's benefit.” Burlington Coat Factory of

Pennsylvania, LLC v. Grace Constr. Mgmt. Co., LLC, 126 A.3d 1010, 1022

(Pa. Super. 2015) (en banc) (citation and original quotation marks omitted).

Indemnity agreements are to be narrowly interpreted in light of the parties’ intentions as evidenced by the entire contract. In interpreting the scope of an indemnity clause, the court must consider the four corners of the document and its surrounding circumstances.

Id. (citations and quotation marks omitted).

“The law has been well[-]settled in this Commonwealth for [117] years

that if parties intend to include within the scope of their indemnity agreement

a provision that covers losses due to the indemnitee’s own negligence, they

must do so in clear and unequivocal language. No inference from words of

general import can establish such indemnification.” Ruzzi, 588 A.2d at 4,

relying on Perry, 66 A at 557; see also Greer v. City of Philadelphia, 795

A.2d 376, 379 (Pa. 2002); Bernotas v. Super Fresh Food Mkts., Inc., 863

A.2d 478, 482-483 (Pa. 2004). Pursuant to this rule of law, commonly

referred to as the Perry-Ruzzi Rule, “a contract of indemnity against personal

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injuries [will] not be construed to indemnify against the negligence of the

indemnitee, unless it is so expressed in unequivocal terms.” Ruzzi, 588 A.2d

at 4. The Perry-Ruzzi Rule is applicable “only in those situations where a

party seeks indemnification for its own negligence.” Mace v. Atl. Refin.

Mktg. Corp., 785 A.2d 491, 496 (Pa. 2001).

To establish a right to indemnification, the indemnitee must establish

(1) the scope of the indemnification agreement, (2) the nature of the

underlying claim, (3) that the underlying claim fell within the scope of the

indemnification agreement, (4) that the attorneys’ fees, incurred by the

indemnitee in defending against the underlying claim, were reasonable, and

(5) where the underlying cause of action is settled rather than resolved by

payment of judgment, the underlying claim was valid against the indemnitee

and the settlement was reasonable. Burlington, 126 A.3d at 1022; see also

McClure v. Deerland Corp., 585 A.2d 19, 23 (Pa. Super. 1991); Martinique

Shoes, Inc. v. New York Progressive Wood Heel Co., 217 A.2d 781,

782-784 (Pa. 1966).

In the case sub judice, the indemnification clause in the Franchise

Agreement states, in pertinent part, as follows:

3.14.1 INDEMNIFICATION

A. [Greyhound] shall fully protect, defend, reimburse, indemnify[,] and save harmless [Sunoco], its parent, its subsidiaries, affiliates[,] and all of their employees from and against any and all claims, liabilities, losses, damages, demands, fines, [and] causes of action of every kind and character from any cause whatsoever, including injury to

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person and property (including death) of [Greyhound, Greyhound’s] employees, agents, contractors, customers, invitees[,] and other persons caused by or resulting in any way from:

(1) Operation of [Greyhound’s] business, including but not limited to operation, condition[,] and use of the [Aramingo Station] (e.g.[,] driveways, walkways[,] and signs)[,] and service and repair of motor vehicles by [Greyhound, Greyhound’s] employees, agents[,] and contractors;

(2) Performance or non-performance of [Greyhound’s] obligations under this [Franchise] Agreement.

(3) Operation, use, condition[,] or state of repair of the loaned equipment, the UST system, motor fuel dispensing equipment, oil/water separators, the building fixtures and improvements, and motor vehicles under [Greyhound’s] care, custody[,] or control;

(4) Loss, discharge[,] or spill of petroleum products on or from the [Aramingo Station] (excluding loss, discharge[,] or spill caused by [Sunoco] or its carriers while delivering motor fuels to the [Aramingo Station]);

(5) Contamination, mixing[,] and dispensing of products by [Greyhound, Greyhound’s] personnel, customers[,] and suppliers (excluding [Sunoco] and its contractors);

(6) Claims and demands of [Greyhound’s] employees, agents, and contractors for compensation, wages, benefits[,] and other remuneration, including fines, interest, and penalties assessed by appropriate governmental authorities, in any way associated with payment or nonpayment of such remuneration;

(7) Claims and demands of governmental taxing authorities, including taxes, fines, interest[,] and penalties associated with payment, nonpayment, reporting[,] or non-reporting of taxes and

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assessments owed by [Greyhound] or [Greyhound’s] business;

(8) Acts and omissions of [Greyhound, Greyhound’s] personnel, contractors[,] and customers whereby [Sunoco’s] licenses or permits are, or could be, cancelled by governmental authority.

B. [Greyhound] shall further indemnify and reimburse [Sunoco] for:

(1) Costs, expenses[,] and fees (including court costs and reasonable attorney[s’] fees) incurred by [Sunoco] relating to litigation undertaken successfully by [Sunoco] against [Greyhound] to enforce, terminate or non-renew this [Franchise] Agreement, or to collect money or recover equipment and property due [Sunoco] by [Greyhound].

(2) Costs, expenses, fees (including court costs, attorney[s’] fees, and costs of litigation), taxes, fines, penalties[,] and judgments incurred or paid by [Sunoco] by reason of violation of law or regulations by [Greyhound].

C. The parties hereto agree that, in consideration of [Sunoco’s] execution of this [Franchise] Agreement, any claim of any kind by [Greyhound] based on or arising out of this [Franchise] Agreement or otherwise shall be barred unless asserted by [Greyhound] by commencement of an action within [12] months after delivery of the products or other event, action[,] or inaction to which the claim relates. This provision shall survive termination of this [Franchise] Agreement.

D. All amounts due [Sunoco] by [Greyhound] by reason of indemnities and obligations imposed upon [Greyhound] by this [Franchise] Agreement shall become due and payable by [Greyhound] to [Sunoco] upon demand, as part of [Greyhound’s] account to [Sunoco].

E. Notwithstanding the provisions elsewhere set forth above, [Greyhound] shall not be liable to [Sunoco], and does not protect, indemnify[,] or save harmless [Sunoco] for claims,

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losses[,] or damages caused solely by the negligence of [Sunoco], its employees, contractors[,] and agents.

Franchise Agreement, 10/1/13, at § 3.14.1 (extraneous capitalization

omitted; emphasis added).

In granting summary judgment in favor of Sunoco and against

Greyhound, the trial court stated:

[The trial] court finds that Sunoco [] established as a matter of law that the Franchise Agreement requires Greyhound to indemnify Sunoco for the [underlying personal injury cause of action. The] plain language of the Franchise Agreement [indemnification] clause provides that “Greyhound shall not be liable to Sunoco . . . for claims, losses[,] or damages, caused solely by the negligence of Sunoco . . . [.]” It is undisputed that the injuries that gave rise to this matter were the result of a car accident caused by non-party business invitees to Greyhound's [Aramingo Station]. As these facts are undisputed it is evident that Sunoco could not have been the sole cause of the negligence as a third non-party's actions were at a minimum partially responsible. As such, Sunoco is entitled to summary judgment as a matter of law.

Trial Court Order, 4/27/23, at ¶1 n.1 (extraneous capitalization and original

brackets omitted); see also Trial Court Opinion, 11/3/23, at 5-6. The trial

court further explained that the “Franchise Agreement [indemnification]

clause specifically uses the terminology as denoted in Woodburn [v.

Consolidation Coal Co., 590 A.2d 1273 (Pa. Super. 1991), appeal denied,

600 A.2d 955 (Pa. 1991), overruled on other grounds by Leonard v.

Commonwealth of Pennsylvania, Dept. of Transp., 771 A.2d 1238, 1241

n.2 (Pa. 2001)] that Greyhound is not liable only when Sunoco is solely

negligent. As such, Woodburn[, supra,] clearly dictates that Greyhound

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must indemnify Sunoco as they were not solely negligent in this matter.” Trial

Court Opinion, 11/3/23, at 6 (footnote omitted).

In Woodburn, supra, Woodburn sustained serious and permanent

injuries when he fell to the ground in a construction-related accident while

working at a facility owned by Consolidation Coal Company (“Consol”).

Woodburn, 590 A.2d at 1274. As part of the construction project, Consol

hired Industrial Resources, Inc. (“Industrial”) as the general contractor, who

in turn hired Mohawk Construction and Supply Company (“Mohawk”) as a

subcontractor. Id. Mohawk then subcontracted some of its duties to

Woodburn’s employer. Id. A jury awarded Woodburn $8,000,000.00 in

damages and found, inter alia, that Industrial was 45% responsible and

Mohawk was 35% responsible for Woodburn’s injuries under a negligence

theory of recovery.16 Id. Post-trial, the trial court found that Mohawk was

contractually obligated to indemnify Industrial pursuant to the indemnification

clause contained in the contractor-subcontractor agreement between

Industrial and Mohawk. Id. at 1274-1275. The indemnification clause

contained in the contractor-subcontractor agreement read, in pertinent part,

as follows:

[Mohawk] shall assume all risks of the premises and shall indemnify and hold harmless Consol and Industrial, their ____________________________________________

16 The remaining 20% of liability was assigned to the manufacturer of the stirrups that, due to a defect, permitted scaffolding to fall thereby resulting in Woodburn’s injuries. Woodburn, 590 A.2d at 1274.

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directors, officers[,] and employees, from and against any and all claims and/or demands including all costs and expenses, including attorney[s’] fees, for injury or alleged injury or death to persons, or damage to property, caused by, arising from, incidental to, connected with[,] or growing out of the work to be performed under this construction agreement, including, but not limited to, any work to be performed by [Mohawk] or [an] agent of [Mohawk]; provided, however, that such indemnification and hold harmless shall not apply to claims for injury or alleged injury or death to persons, or damage to property (other than loss of, damage to, or loss of use of [Mohawk’s] property) caused by the sole negligence of Consol or [Industrial.]

Id. at 1275 (emphasis added). On appeal, this Court, in finding that the

indemnification clause satisfied the Perry-Ruzzi Rule, stated

we find that Industrial and Mohawk expressly agreed, by the terms of their contract, and intended, that Mohawk would indemnify Industrial against any and all claims arising from the work to be conducted under the contract, except for any injuries caused by the “sole negligence” of Industrial. Since a jury found Industrial to be less than 100% negligent, Mohawk is contractually bound to indemnify Industrial.

Id. at 1276. In so holding, this Court agreed that the negative inference to

be drawn from the indemnification clause provision - “caused by the sole

negligence of [Industrial]” - was “that any injuries occurring by less than the

sole fault of Industrial fall within the scope of the indemnification clause” and

that use of this provision in the indemnification clause satisfied the

Perry-Ruzzi Rule. Id. at 1275-1276.

In examining whether the indemnification clause contained in the

Franchise Agreement in the case sub judice satisfies the Perry-Ruzzi Rule,

we concur with the trial court, and the record supports, that the use of the

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provision “caused solely by the negligence of [Sunoco]” specifically and

expressly denotes Greyhound’s intent to indemnify Sunoco for damages

except when the damages were caused solely by Sunoco’s negligence. In

other words, Greyhound intended to indemnify Sunoco for damages resulting

from causes other than the sole negligence of Sunoco. See id.

As discussed supra, in order to demonstrate a right to indemnification

and, in turn, entitlement to summary judgment, Sunoco was required to

establish that the underlying claim fell within the scope of the Franchise

Agreement’s indemnification clause, that its attorneys’ fees were reasonable,

and, because the underlying claim was settled, that the claim against Sunoco

was valid and the settlement was reasonable. See Burlington, 126 A.3d at

1022. It is undisputed that, pursuant to the Franchise Agreement, Greyhound

agreed to indemnify Sunoco for personal injury to Greyhound’s invitees (i.e.,

the plaintiff in the underlying litigation) that was caused by, inter alia, the

operation and use of the Aramingo Station and the operation, use, and

condition of, inter alia, the gasoline pumps at the Aramingo Station. See

Franchise Agreement, 10/1/13, at § 3.14.1(A)(1) and (3). It is further

undisputed that the plaintiff in the underlying case suffered injuries when a

third-party vehicle drove into the plaintiff’s vehicle and the gasoline pumps,

thereby igniting a fire at the gasoline pump the plaintiff was using while at the

Aramingo Station. See Greyhound Motion for Summary Judgment, 9/20/21,

at ¶¶7, 35. Therefore, we concur with the trial court, and the record supports,

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that the underlying negligence claim against, inter alia, Sunoco falls within the

scope of the Franchise Agreement’s indemnification cause. In order words,

the plaintiff’s claim that she was injured while pumping Sunoco-branded motor

fuel into her vehicle at the Aramingo Station falls within the scope of the

indemnification clause.

In granting summary judgment in favor of Sunoco, and against

Greyhound, the trial court found that Sunoco was not solely responsible for

the underlying plaintiff’s injuries but, rather, at a minimum, the driver of the

vehicle was also partially responsible for those injuries. Trial Court Order,

4/27/23, at ¶1 n.1 (stating, “it is evident that Sunoco could not have been the

sole cause of the negligence as a third non-party’s actions were at a minimum

partially responsible”). Thus, the trial court considered the validity of the

underlying claim against Sunoco and attributed a portion of the liability to

Sunoco’s negligence. As such, we concur with the trial court, and the record

supports, that no genuine issue of material fact existed as to Sunoco’s

entitlement to indemnification of a reasonable settlement amount and

reimbursement of reasonable attorneys’ fees. See Burlington, 126 A.3d at

1022; see also Trial Court Order, 4/27/23, at ¶1 and n.1; Trial Court Opinion,

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11/3/23, 5-7. Consequently, we affirm the portion of the April 27, 2023 order

granting summary judgment in favor of Sunoco and against Greyhound.17

Conclusion

In sum, regarding the appeal filed with this Court at 1403 EDA 2023,

we affirm the portion of the April 27, 2023 order granting summary judgement

in favor of Gorlov and against Sunoco. At the appeal filed with this Court at

1404 EDA 2023, we reverse the portion of the April 27, 2023 order granting

summary judgment in favor of Penn National and denying Sunoco’s motion

for summary judgment on Sunoco’s claim of a duty to defend. On remand,

the trial court shall award Sunoco attorneys’ fees in accordance with this ____________________________________________

17 In granting summary judgment in favor of Sunoco and against Greyhound,

the trial court did not determine the amount of indemnification Sunoco was entitled to receive but, rather, determined only that Sunoco was entitled to receive indemnification of a reasonable settlement amount and reasonable attorneys’ fees.

After granting summary judgment in favor of Sunoco and against Greyhound, and upon Sunoco subsequently filing a motion to assess damages, the trial court conducted a hearing and, ultimately, entered judgment against Greyhound in the amount of $2,288,802.76. See Trial Court Order, 5/18/23.

In Greyhound’s cross-appeal, we are asked only to review the trial court’s order granting summary judgment in favor of Sunoco and against Greyhound. In other words, we are tasked with reviewing whether, or not, Sunoco was entitled to indemnification of a reasonable settlement amount and reasonable attorneys’ fees.

Because Greyhound did not appeal the May 18, 2023 judgment, our disposition of Greyhound’s cross-appeal does not include a review of the trial court’s determination of what constituted a reasonable settlement amount and reasonable attorneys’ fees.

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opinion. At that same appeal, we affirm the portion of the April 27, 2023

order granting summary judgment in favor of Penn National and against

Sunoco on Sunoco’s claim of indemnification. Finally, at the cross-appeal filed

with this Court at 1532 EDA 2023, we affirm the portion of the April 27, 2023

order granting summary judgment in favor of Sunoco and against Greyhound.

Order affirmed, in part, and reversed, in part. Case remanded.

Jurisdiction relinquished.

Date: 8/07/2024

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