J-A25026-17
2018 PA Super 153
DANIEL BERG, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF
AS THE EXECUTOR OF THE ESTATE : PENNSYLVANIA
OF SHARON BERG A/K/A SHERYL :
BERG :
:
:
v. :
:
: No. 713 MDA 2015
NATIONWIDE MUTUAL INSURANCE :
COMPANY, INC. :
:
Appellant :
Appeal from the Judgment Entered April 21, 2015
In the Court of Common Pleas of Berks County Civil Division at No(s):
98-813
BEFORE: OTT, J., STABILE, J., and STEVENS*, P.J.E.
DISSENTING OPINION BY STEVENS, P.J.E.: FILED JUNE 05, 2018
Our standard of review requires affirming the trial court as the finder of
fact if there is sufficient evidence in the record to support its findings. Here,
the trial court provides citation to ample evidence from the certified record to
support its verdict and damage award in favor of the Bergs.
Because it is not this Court’s role to usurp the fact-finding power of the
trial court by its own interpretation of the factual and testimonial evidence, I
respectfully dissent from the Majority’s decision to remand this matter for
judgment notwithstanding the verdict.1
____________________________________________
1The trial judge's reasoning applied to the issues Appellant properly has raised
on appeal is sound. However, it is noted with displeasure his tangential
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A25026-17
The Pennsylvania Supreme Court recently adopted the two-part test
articulated by this Court in Terletsky v. Prudential Property & Cas. Ins.
Co., 649 A.2d 680 (Pa.Super. 1994), which provides that to succeed on a bad
faith claim, a plaintiff must present clear and convincing evidence that the
insurer lacked a reasonable basis for denying benefits under the policy and
that the insurer knew or recklessly disregarded its lack of a reasonable basis.
The Supreme Court also held self-interest or ill will “is not a prerequisite to
prevailing in a bad faith claim under Section 8371.” Rancosky v.
Washington Nat'l Ins. Co., ___ Pa. ____, 170 A.3d 364, 365 (2017).
The trial court herein found that on September 10, 1996, Joffred2
initially opined the Bergs’ vehicle was a total loss, and there is ample evidence
in the record to support this finding. Such evidence includes, as the Majority
acknowledges, an entry in the claims log dated September 10, 1996, despite
Witmer’s3 testimony that there was a suggestion that “maybe” the car was
not a total loss and his understanding that Joffred believed the Jeep could be
a total loss. See Trial Court Opinion and Verdict, 6/21/14, at 3, 5, 10-11, 13-
14; See Berg v. Nationwide Mut.Ins.Co., Inc., 713 MDA 2015 at *14-15.
____________________________________________
discourse concerning insurance companies, most concentrated on pages
twenty-one through thirty–three of his July 23, 2015, Opinion, as well as
peppered throughout his June 23, 2014, and July 23, 2015, Opinions, is
irrelevant, unnecessary to the disposition of the issues, and should have been
excluded.
2 Douglass Joffred, Lindgren Chrysler-Plymouth’s body shop manager,
provided the initial appraisal of the Jeep.
3 Doug Witmer, a claims adjustor for Nationwide, handled the Bergs’ claim.
-2-
J-A25026-17
In fact, Nationwide’s Claim Log contains the following, three entries
which support the trial court’s finding. An entry dated September 10, 1996,
at 1:49 p.m. states: “LOSS assigned to COLL on Daniel G. & Sharon E