J-A11043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIE INSURANCE EXCHANGE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW LUTZ, KIMBERLEY LUTZ,
DAKOTAH MILLER, AND ANDREW
SVRCEK
APPEAL OF: MATTHEW LUTZ, KIMBERLEY
LUTZ, AND DAKOTAH MILLER
No. 1838 MDA 2016
Appeal from the Judgment Entered October 7, 2016
In the Court of Common Pleas of Berks County
Civil Division at No(s): 15-16318
BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*
CONCURRING STATEMENT BY MOULTON, J.: FILED JUNE 20, 2017
I agree that the law requires to us to find waiver based on Appellants’
failure to comply with the dictates of Pennsylvania Rule of Appellate
Procedure 1925(b)(1). See Commonwealth v. Schofield, 888 A.2d 771,
774 (Pa. 2005) (holding that “failure to comply with the minimal
requirements of Pa.R.A.P. 1925(b),” including that an appellant serve on the
trial judge a concise statement of matters complained of on appeal, “will
result in automatic waiver of the issues raised”). I write separately because
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A11043-17
I disagree with the majority’s alternative finding that Appellants waived their
issue due to the vagueness of their statement of errors. In light of
Appellants’ 1925(b) statement as a whole, Appellants’ issue is clear:
Whether the trial court erred and/or abused its discretion in finding that
Appellee had no duty to defend Andrew Svrcek because Svrcek’s alleged
conduct was intentional and the insurance policy in question did not cover
such conduct. See Concise Statement of Matters Complained of on App.
Also, I note that the trial court thoroughly discussed Appellants’ issue, with
which it was completely familiar in light of Appellee’s motion for summary
judgment and Appellants’ response thereto. On the merits, I believe that
the trial court correctly concluded that, based on the facts pled in the
underlying complaint, the language of the insurance policy precluded
coverage. See Opinion, 12/7/17, at 3-4.
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