CSAA Affinity Insurance v. Dagit, C.

J-A10004-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CSAA AFFINITY INSURANCE : IN THE SUPERIOR COURT OF
COMPANY : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1937 EDA 2020
CHARLES DAGIT, MA ROSARIO :
HILDAWA, AND CHRISTOPHER :
CASEY

Appeal from the Order Entered September 15, 2020
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): No. 2020-06445

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 22, 2021

CSAA Affinity Insurance Company (“CSAA”) appeals from the trial

court’s September 15, 2020 order denying its petition for judgment on the

pleadings, in which CSAA sought the court’s declaration that CSAA had no

duty to defend or indemnify its insured, Charles Dagit, in an underlying action

filed against him. CSAA also appeals from the trial court’s October 6, 2020

order denying CSAA’s motion for reconsideration of the September 15, 2020

order and motion to amend the September 15, 2020 order for purposes of

taking an interlocutory appeal. Dagit argues, as a threshold matter, that this

Court does not have jurisdiction over this appeal because the September 15,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A10004-21

2020 order is interlocutory and not appealable. We disagree and instead,

conclude that we have jurisdiction over this appeal. However, we also conclude

that the trial court did not err in denying CSAA’s petition for judgment on the

pleadings. We do so on the basis of the trial court’s opinion, adopting its well-

reasoned analysis as our own, and we therefore affirm.

CSAA issued a homeowner’s policy to Dagit for the home he owns in

Gladwyne, Pennsylvania. Christopher Casey and Ma Rosario Hildawa filed a

personal injury complaint against Dagit seeking damages for injuries they

sustained during a dispute with Dagit over the removal of firewood from his

property. Specifically, Casey and Hildawa alleged that on January 12, 2019,

they were driving by Dagit’s property when they saw what they thought to be

free firewood at the end of Dagit’s driveway. As they were loading the firewood

into their car, Dagit approached them and, according to the complaint,

appeared to be under the influence of alcohol. An argument ensued, and Dagit

punched both Casey and Hildawa. In their complaint, Casey and Hildawa

asserted that Dagit had acted willfully, recklessly or negligently by punching

Casey and Hildawa. The complaint further averred that Dagit had pleaded

guilty to simple assault as a result of the incident. Following the filing of their

complaint against Dagit, Dagit sought coverage from CSAA to defend and

indemnify him in the lawsuit.

CSAA denied Dagit’s request, claiming that Dagit’s homeowner’s policy

did not cover the incident on January 12, 2019, because Dagit’s actions were

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intentional and therefore did not constitute an “occurrence” as required for

the policy to cover personal liability claims. As such, CSAA determined that it

had no duty to defend or to indemnify Dagit in the matter filed by Casey and

Hildawa. CSAA then filed a complaint for declaratory relief under 42 Pa.C.S.A.

§ 7532, seeking a declaration from the trial court that CSAA had no duty to

defend or indemnify Dagit in the personal injury suit filed against him. Both

Dagit and Casey and Hildawa filed an answer with new matter, and CSAA filed

a reply. Following the close of pleadings, CSAA filed a motion for judgment on

the pleadings. In its motion, CSAA once again sought the court’s declaration

that it had no duty to defend or to indemnify Dagit in the personal injury

lawsuit.

On September 15, 2020, the trial court entered an order denying CSAA’s

petition. It also ordered CSAA to defend Dagit in the personal injury lawsuit.

CSAA filed a motion for reconsideration and, in the alternative, a motion for

the court to amend the September 15, 2020 order to allow for an interlocutory

appeal by permission pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S.A. § 702(b)

(“Section 702(b)”).

The trial court denied the motion on October 6, 2020. CSAA filed a timely

notice of appeal, seeking to appeal both the September 15, 2020 order and

the October 6, 2020 order. The trial court directed CSAA to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. CSAA filed a

statement, essentially alleging two issues. The first, which spanned three

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pages and had four subsections and three sub-subsections, alleged that the

trial court had improperly denied CSAA’s petition for judgment on the

pleadings. See Statement of Matters Complained of on Appeal, 10/22/2020,

at 1-3. The second issue alleged that the trial court had abused its discretion

when it “failed to certify its September 15, 2020 Order for immediate appeal

to” this Court. Id. at 4.

In response, the trial court issued a Pa.R.A.P. 1925(a) opinion. The court

first found that it had not erred by concluding that CSAA had a duty to defend

Dagit, emphasizing that a duty to defend arises “whenever an underlying

complaint may potentially come within the insurance coverage of the policy.”

Trial Court Opinion, 12/7/20, at 5 (citing Erie Ins. Exch. v. Claypoole, 673

A.2d 348, 355 (Pa. Super. 1996)). The trial court found, in essence, that

because the complaint alleged that Dagit acted negligently and recklessly in

addition to its allegation that Dagit acted intentionally, Casey and Hildawa’s

claims may potentially come within the coverage of Dagit’s homeowner’s

policy. As such, the court concluded that CSAA had a duty to defend Dagit

against those claims. The court also concluded that it had not abused its

discretion by declining to certify the September 15, 2020 order for immediate

appeal pursuant to Section 702(b).

In its initial brief to this Court, CSAA’s argument section is dedicated to

challenging the court’s denial of its petition for judgment on the pleadings.

Before we can reach this substantive claim, however, we must first determine

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whether the court’s September 15, 2020 order is appealable as that implicates

our jurisdiction. See Schmitt v. State Farm Mut. Auto. Ins. Co., 245 A.3d

678, 681 (Pa. Super. 2021). Although CSAA has abandoned its claim that the

trial court erred by failing to certify the September 15, 2020 order for appeal

pursuant to Section 702(b),1 CSAA now summarily asserts in its brief’s

statement of jurisdiction section that this Court has jurisdiction over this

appeal because the September 15, 2020 order was actually a final order and

therefore appealable. CSAA maintains that the finality of the order stems from

Pa.R.A.P. 341(b)(1), which provides that an order that disposes of all claims

or parties is a final order, and Section 7532 of the Declaratory Judgments Act,

which provides:

Courts of record, within their respective jurisdictions, shall have
power to declare rights, status, and other legal relations whether
or not further relief is or could be claimed … The declaration may
be either affirmative or negative in form and effect, and such
declarations shall have the force and effect of a final judgment or
decree.

42 Pa.C.S.A. § 7532.

Dagit counters in the statement of jurisdiction section in his brief that

this Court does not have jurisdiction pursuant to Pa.R.A.P. 341(b)(1) because

CSAA’s declaratory judgment action sought a declaration on two issues: that

____________________________________________

1CSAA asserts that it only argued in its motion below that the trial court should
certify the order for immediate appeal pursuant to Section 702(b) “in
anticipation of the trial court or opposing counsel challenging this Court’s
jurisdiction” and out of an “abundance of caution.” Appellant’s Brief at 1, 8.

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CSAA did not have a duty to defend and that it did not owe Dagit

indemnification. Dagit maintains that because the court only ruled on CSAA’s

duty to defend, and did not rule on its duty to indemnify Dagit, the September

15, 2020 order did not dispose of all of the claims and therefore was an

interlocutory appeal.

In its reply brief, CSAA responds in its argument section that under our

case law, “an order entered in an action filed for declaratory relief is a final,

appealable order, if, as in this case, it addresses all claims and effectively

declares the rights and duties of the parties.” Appellant’s Reply Brief at 7. To

that end, CSAA argues that the claims raised in its petition for judgment on

the pleadings sought nothing more than declaratory relief, and because the

trial court ruled on that, the court’s September 15, 2020 order is a “final order

thereby entitling CSAA to immediately appeal that decision.” See id. at 7-8.

We agree.

As a general rule, this Court only has jurisdiction over appeals taken

from a final order. See Schmitt, 245 A.3d at 681. A final order is one that

disposes of all the parties and all the claims or is entered as a final order

pursuant to the trial court’s determination under Pa.R.A.P. 341(c). See id.;

Pa.R.A.P. 341(b)(1),(3). However, an appeal may also be taken from

interlocutory orders by permission pursuant to Pa.R.A.P. 1311 and Section

702(b) as well as from certain interlocutory orders as of right, including “an

order that is made final or appealable by statute or general rule, even though

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the order does not dispose of all claims and all parties.” Pa.R.A.P. 311(a)(8);

see also 42 Pa.C.S.A. § 702(a).

CSAA points to several cases to support its assertion that the September

15, 2020 order is final and appealable, leading with our Supreme Court’s

decision in Nationwide Mut. Ins. Co. v. Wickett. 763 A.2d 813 (Pa. 2000).

There, a trial court order declared the rights of the plaintiffs relative to some,

but not all, of the defendants. Even though claims against some of the

defendants remained outstanding, this Court held that the order was final and

appealable pursuant to Pa.R.A.P. 341(b)(2) (rescinded), which was the

predecessor to Pa.R.A.P. 311(a)(8).2 In so holding, the Supreme Court

explained that under Section 7532, “an order in a declaratory judgment action

that either affirmatively or negatively declares the rights and duties of the

parties constitutes a final order.” Id. at 818.

Our Supreme Court also examined the appealability of an order issued

in a declaratory judgment action in General Acc. Ins. Co. of America v.

Allen, 692 A.2d 1089 (Pa. 1997), which had circumstances similar to those

before us now. In Allen, the grandchildren of Eugene Allen filed personal

injury claims against him for sexual abuse that occurred in his home. Allen

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2 Rule 311(a)(8) replaced former Rule 341(b)(2) effective April 1, 2016.
However, as the Supreme Court has stated, “the rules are functionally
equivalent in that they both explain that an order is final if it is defined as final
by statute.” Pennsylvania Manufacturers’ Ass’n. Ins. Co. v. Johnson
Matthey, Inc., 188 A.3d 396, 399 n.4 (Pa. 2018).

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had a homeowner’s policy with General Accident, and General Accident

eventually sought a declaration that it had no duty to defend or indemnify

Allen in the lawsuit because Allen’s actions were intentional and therefore not

covered by his policy. However, the court noted that the lawsuit had also

raised negligence allegations against Allen, and ruled that General Accident

had a duty to defend Allen with respect to the negligence allegations.

General Accident appealed, and the Supreme Court granted allocatur,

limited to the question of “whether a trial court’s determination of an insurer’s

duty to defend is appealable, particularly where the trial court had not yet

determined the insurer’s duty of indemnification.” Id. at 1092 (footnote

omitted). In finding that the order was appealable, the Court explained:

If [a] complaint against [an] insured avers facts that would
support a recovery covered by the policy then coverage is
triggered and the insurer has a duty to defend until such time that
the claim is confined to a recovery that the policy does not cover.
The duty to defend also carries with it a conditional obligation to
indemnify in the event the insured is held liable for a claim covered
by the policy. Although 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.

In the present case, the trial court’s order declared that
General Accident had a duty to defend [Allen] in the underlying
lawsuit. Pursuant to 42 Pa. C.S. §7532, this affirmative declaration
of General Accident’s duty has the force and effect of a final
judgment. 42 Pa. C.S. § 7532; see also Redevelopment
Authority [of Cambria County v. Int’l Ins. Co., 685 A.2d 581
(Pa. Super. 1996) (holding that the trial court’s order resolving an
insurer’s duty to defend but not its duty to indemnify was a final
order)]. Because the trial court’s order is expressly defined as final
by 42 Pa. C.S. §7532, General Accident may appeal the order as
of right pursuant to Pa.R.A.P. 341(b)(2) [the predecessor to

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Pa.R.A.P. 311(a)(8)], which permits an appeal as of right from
any order that is expressly defined as a final order by statute.

Additionally, the trial court’s order is final pursuant to
Pa.R.A.P. 341(b)(1) because it resolves all claims in the
declaratory judgment action. …[T]he trial court determined that
the underlying complaint against [Allen] triggered coverage. In
reaching this conclusion, the trial court necessarily determined
also that General Accident had a duty to defend [Allen] and a duty
to indemnify [Allen] in the event [he was] held liable for the claims
covered by the policy. Thus, the trial court’s determination that
the underlying complaint triggered coverage disposed of all
remaining claims in the declaratory judgment action, making the
order final and appealable pursuant to Pa.R.A.P. 341(b)(1).

Allen, 692 A.2d at 1095-1096 (citations omitted).

Applying Allen to the instant case, the order issued by the trial court

declaring that CSAA had a duty to defend Dagit is final and appealable

pursuant to Pa.R.A.P. 341(b)(1) as well as Pa.R.A.P. 341(b)(2)’s replacement

found at Pa.R.A.P. 311(a)(8). Dagit’s claim that the September 15, 2020 order

remained interlocutory and unappealable because it only resolved CSAA’s duty

to defend and did not specifically resolve CSAA’s duty to indemnify is plainly

without merit under Allen.

We recognize that both our Supreme Court and this Court have limited

the breadth of when an order declaring an insured’s duties will be deemed

final, most notably in Pennsylvania Bankers v. Pa. Dep’t of Banking, 948

A.2d 790 (Pa. 2008) and Bolmgren v. State Farm Fire and Cas. Co., 758

A.2d 689 (Pa. Super. 2000). Neither of these decisions, however, alters our

conclusion that the trial court’s order here is final and appealable.

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In Pennsylvania Bankers, certain banks filed a complaint against the

Pennsylvania Department of Banking asserting different theories for

declaratory relief, including several constitutional claims. The Commonwealth

Court sustained the Department’s preliminary objections in the nature of a

demurrer as to some, but not all, of the banks’ constitutional claims. In

concluding that this order was not an appealable final order, our Supreme

Court stated that the Commonwealth Court’s order merely narrowed the scope

of the banks’ declaratory judgment action, which raised alternative theories

of relief, and did not definitively dispose of all the claims in the declaratory

action. See id. at 796, 798, 799. As such, the order did not “represent an

affirmative or negative declaration of the parties’ rights within the meaning of

42 Pa.C.S. § 7532 because alternative avenues of relief can still be pursued

against the same parties in the courts below.” Id. at 800.

The circumstances in Pennsylvania Bankers are notably different than

those here, where the court’s order did not merely narrow the scope of the

dispute but effectively disposed of all the claims in the declaratory judgment

action. See also Pennsylvania Manufacturers’ Ass’n. Ins. Co., 188 A.3d

at 400 (holding that an order denying the insurer’s motion for summary relief

arguing that it had no duty to defend or indemnify the insured was

interlocutory as the court did not resolve the counterclaims filed by the

insured, which included the insured’s own declaratory judgment claims related

to the scope of the insurer’s duty to defend and indemnify).

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Similarly, in Bolmgren v. State Farm Fire and Cas. Co., 758 A.2d

689, 691 (Pa. Super. 2000), this Court held that an order declaring a party’s

duties was not appealable because the order left other non-declaratory

judgment claims outstanding. Specifically, Bolmgren brought an action

against State Farm seeking relief in the form of declaratory judgment as well

as damages. See id. at 690. The trial court granted summary judgment

regarding the declaratory judgment claims but did not rule as to the damages

claim. See id. At 691. This Court held that “the order [was] not final since it

[did] not dispose of the claim of damages raised in the complaint, in addition

to the request for declaratory judgment.” Id. at 691 n.1. The Bolmgren court

specifically differentiated that case from our opinion in Redevelopment

Authority of Cambria by explaining:

In [Redevelopment Authority of Cambria] the complaint
sought relief in the form of declaratory judgment that [the insurer]
owed a duty to defend and to indemnify [the insured] in an action
filed by a third party. In that case, the order was final because the
trial court’s determination that [the insurer] had a duty to defend
the third party claim effectively ended the litigation. Here, in
addition to the declaration of rights, the trial court was asked to
award damages under the policy. … [As the trial court did not
address this request], the order is not final.

Bolmgren, 758 A.2d at 691 n.1.

As CSAA points out, the only claims at issue in its petition for judgment

on the pleadings were for declaratory relief. There were no other claims

regarding damages or other non-declaratory judgment claims left outstanding

when the trial court issued its September 15, 2020 order denying the petition

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and ordering CSAA to defend Dagit in the underlying action. That order is final

and appealable, and we therefore turn to the substantive claim raised by

CSAA.

CSAA argues the trial court erred by denying its petition for judgment

on the pleadings and finding that it had a duty to defend Dagit. Specifically,

CSAA continues to argue that Dagit’s punching of Casey and Hildawa was

intentional, and therefore not an “occurrence,” i.e. an accident, as required

for the homeowner’s policy to cover personal liability claims. CSAA also argues

that Dagit’s actions were not covered by the policy because the policy excludes

coverage for bodily injury caused by an insured’s intentional acts. Further,

CSAA complains that in reaching its conclusion that CSAA had a duty to defend

Dagit, the trial court erred by relying on the underlying complaint’s legal

conclusions, rather than factual allegations, and also erred by relying on the

complaint’s allegation that Dagit appeared intoxicated at the time of the

incident. CSAA also maintains that because Dagit pleaded guilty to simple

assault for the incident, he has waived any right to allege self-defense.

In rejecting these claims in its Pa.R.A.P. 1925 (a) opinion, the trial court

first outlined the relevant law regarding judgment on the pleadings. See Trial

Court Opinion, 12/7/20, at 4-5. The court then outlined the law regarding an

insurer’s duty to defend under an insurance policy, reiterating that such an

obligation is to be determined solely by the factual allegations of the complaint

and those allegations must be liberally construed with all doubts regarding

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coverage to be resolved in favor of the insured. See id. at 5. The court

stressed that an insurer’s duty to defend arises whenever those factual

allegations may potentially bring the complaint within the coverage of the

policy. See id. at 5.

The trial court then addressed each one of the sections and subsections

raised by CSAA in its Pa.R.A.P. 1925(b) statement. See id. at 6-12. In general

terms, the trial court found that where an underlying complaint, such as the

one in the instant case, pleads both intentional and unintentional torts, the

plaintiffs’ claims may potentially come within the coverage of an insurance

policy that covers occurrences. See id. at 6. The trial court found that the

underlying complaint here sufficiently averred facts and claims for negligence,

which left “the possibility that a jury could find [Dagit’s] conduct to be

unintentional and thus within the ambit of the definition of ‘occurrence’ as

defined under the policy.” Id. at 6. The trial court then distinguished a number

of the cases cited by CSAA in support of its assertion that it had no duty to

defend Dagit. See id. at 7.

The trial court then addressed and rejected CSAA’s claim that the court

had erroneously relied upon legal conclusions rather than factual averments

in finding that Casey and Hildawa’s claims may potentially come within the

coverage of the policy and its definition of occurrence. See id. at 8-9. The

court also dismissed CSAA’s claim that the court improperly considered Dagit’s

answer and new matter and his arguments relating to self-defense as a reason

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for denying the motion for judgment on the pleadings, saying that “the [c]ourt

was well aware of the controlling law requiring that it look solely to the

allegations in the [u]nderlying [c]omplaint, and the court did just that.” Id. at

9. The trial court also explained in detail why Dagit’s guilty plea to simple

assault did not preclude Dagit from raising a claim of self-defense, see id. at

9-12, and why he had not waived his ability to assert a self-defense claim,

see id. at 12.

After reviewing the court’s opinion, as well as the parties’ briefs, we

can discern no error or abuse of discretion in the trial court’s denial of CSAA’s

petition for judgment on the pleadings and its concomitant declaration that

CSAA had a duty to defend Dagit in the underlying action filed against him.

See Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa. Super. 2012)

(stating that when reviewing a trial court’s denial of a motion for judgment on

the pleadings for alleged error, this Court applies the same standard employed

by the trial court when ruling on such a motion: a trial court may enter a

judgment on the pleadings when there are no disputed issues of fact and a

party is entitled to judgment as a matter of law); National Cas. Co. v.

Kinney, 90 A.3d 747, 753 (Pa. Super. 2014) (stating that this Court’s

standard of review in a declaratory judgment action is limited to determining

whether the trial court clearly abused its discretion or committed an error of

law). We affirm on the basis of the court’s opinion, and attach a copy of that

opinion for ease of reference.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2021

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 Circulated 11/30/2021 10:39 AM

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
PENNSYLVANIA
CIVIL DIVISION

CSAA AFFINITY INSURANCE COMPANY LOWER COURT DOCKET:
• No. 2020-06445
Plaintiff
V.

CHARLES DAGIT; MA ROSARIO 1937 EDA 2020
HILDAWA; AND CHRISTOPHER CASEY

Defendants

OPINION

Page, J. December 7, 2020

Plaintiff appeals from this Court's Order dated September 15, 2020 denying Plaintiff's

Motion for Judgment on the Pleadings and this Court's Order of October 6, 2020 denying

Plaintiff's "Motion for Reconsideration and Motion to Amend the Court's September 15, 2020

Order for Purpose of Taking an Interlocutory Appeal." For the reasons set forth below, Plaintiff's

appeal is without merit. Therefore, any claim of error on the part of this Court should be dismissed,

and the Orders should be affirmed.

FACTS AND PROCEDURAL HISTORY

This case arises out of an insurance coverage dispute regardnig whether Plaintiff CSAA

Affinity Insurance Company has an obligation to defend and/or indemnify Defendant Charles

Dagit for injuries sustained by Christopher Casey and Ma Rosario Hildawa (the "Underlying

Plaintiffs') in Rosario Hildawa and Christopher Casey v Charles Dagit, C.C.P. Mont. County,

Docket No. 2020-03174 (the "Underlying Action'). The Underlying Complaint alleges that on

January 12, 2019, the Underlying Plaintiffs sustained personal injuries when Defendant Charles

Dagit ("Defendant') struck them during a dispute involving Underlying Plaintiffs' removal of

1

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firewood from Defendant's property. See PL's Motion for Judgment on the Pleadings ("PL's
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Specifically, the Underlying Complaint alleges the following:
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firewood and began loadnig some of the subject firewood nito the
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12. All the while, Defendant Dagit acted enraged and appeared to
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68. Defendant Dagit's above acts against her were outrageous in that
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with reckless indifference to Ms. Hildawa's rights or interests,
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74. Defendant Dagit's above acts against her were outrageous in that
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they were malicious, wanton, willful or oppressive, and/or were
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• G 77. At all times material to this Complaint, Defendant Dagit owed a
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78. On the above date and approximate time and at the above
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ri of Ms. Hildawa by negligently putting Ms. Hildawa in reasonable
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and immediate fear of harmful or offensive contact with her body.
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The Court notes that same averments as those appearing in 1[119, 12, 68, 74, 77-78 of the
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indifference" to Mr. Casey's rights or interests as falling under the counts of assault and battery
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as well as at ¶98-99 (alleging that Defendant acted in "careless disregard" for Mr. Casey's safety
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by "negligently" putting him in fear of harmful or offensive contact with his body). Nowhere in

Y j the Underlying Complaint is it specifically alleged that Defendant intended to harm the Underlying
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 Plaintiff initiated adeclaratory judgment action when it filed aComplaint on May 27, 2020.

See Docket Entry 0. Underlying Plaintiffs—also Defendants in the instant action—filed their

Answer with New Matter on June 16, 2020. See Docket Entry 7. Plaintiff filed aReply to said

Answer with New Matter on July 8, 2020. See Docket Entry 8. Defendant Charles Dagit filed an

Answer with New Matter on July 8, 2020, to which Plaintiff filed aReply on July 27, 2020. See

Docket Entry 11. Following the close of pleadings, Plaintiff Bled amotion for judgment on the

pleadings, to which Defendant Charles Dagit and the Underlying Plaintiffs filed responses, See

Docket Entries 15-17. In an Order dated September 15, 2020, the Court denied Plaintiff's

Judgment on the Pleadings. See Docket Entry 21. Plaintiff filed a"Motion to Reconsider or

Alternatively, to Amend the Court's September 15, 2020 Order," which the Court denied in an

Order dated October 6, 2020. See Docket Entries 22; 24.

Plaintiff filed atimely Notice of Appeal on October 8, 2020. See Docket Entry 25.

ISSUES

Plaintiff's Concise Statement is reproduced verbatim below:

1. Respectfully, the Trial Court committed an error of law and/or abused its discretion when it
denied CSAA's Motion for Judgment on the Pleadings in regards to its application of the clear
and unambiguous language of Charles Dagit's insurance Policy to the factual allegations
contained in the Liability Complaint filed in the Litigation Ma fRosariol Hildawa and
Christopher Case v. Charles Daizit, Mont Cty, Feb term 2020, No: 20-3174 and ordered CSAA
to defend Defendant Dagit, to wit:
a. The Trial Court misapplied the law to the insurance policy and the factual allegations
pled in Liability Complaint when it ruled that CSAA owed aduty to defend Defendant
Dagit, implicitly holding that the factual allegations constituted an "occurrence" when
there was nothing accidental or fortuitous about Defendant Dagit striking Defendants
Casey and Hildawa with aclosed fist in what Defendants Casey and Hildawa described
as an attack that occurred "suddenly and without warning or provocation."
b. The Trial Court misapplied the law to the insurance policy and the factual allegations
pled in the Liability Complaint when it ruled that CSAA owed a4ilty; to defend
Defendant Dagit in contravention of the Policy's IntentionalAct Exclusion. To wit, the
104 paragraphs comprising the Liability Complaint, which pleading inpprporated the
investigation by police and criminal charges against Defendant Dagit, detgil conduct
that is no different from those that Pennsylvania's appellate decisions under

3
 substantially similar circumstances and policy language fmdmg no coverage under the
Intentional Acts Exclusion.
c. The Trial Court misapplied the law to the extent that it accepted the conclusions of law
pled in paragraphs 68, 74, 77-78, 89, 95 and 98-99 over the factual allegations
contained in the Liability Complaint.
d. The Trial Court was not permitted as amatter of law to consider Mr. Dagit's Answer
in the Liability Litigation or his Answer and New Matter in the Declaratory Judgment
action that he acted in self-defense as part of its coverage analysis as under
Pennsylvania law an insurer's obligation to defend is fixed solely by the allegations in
the underlying complaint. Kvaerner Metals Div ofKvaener U.S v. Com. Union Ins.
Co., 908 A.2d 888 (Pa. 2006); Aetna Cas. & Sur. Co. v. Roe, 650 A.2d 94, 98 (Pa.
Super. 1994).
i. Even if the court confined its analysis to the Liability Complaint, the factual
allegations pled not only do not suggest that Defendant Dagit acted in self-
defense, but he also could not raise the defense based on his guilty plea to the
criminal charges. Since one defense to a criminal charge of assault is self
defense (Commonwealth v Perez, 2016 Phila.Ct.Cm.PI. LEXIS 590 (Nov. 7,
2016), when he pled guilty to simple assault, he gave up his right to claim that
his actions were taken in self-defense (see e.g., Commonwealth v Moyer, 497
Pa. 643, 444 A.2d 101 (1982)) thereby prohibiting coverage under the Policy's
exception to the intentional act exclusion.
ii. The facts alleged in the Liability Complaint show that Defendant Dagit was the
aggressor and, as such, the exception to the Policy's Intentional Act Exclusion
was not triggered such that CSAA would owe aduty to defend Defendant Dagit.
iii. Defendant Dagit cannot, as amatter of law, claim that CSAA waived and/or is
estopped from asserting any coverage defenses in this litigation since Defendant
Dagit did not plead that defense in his New Matter as required under
Pa.R.Civ.P. Section 1032; see also March v Paradise Mut Ins. Co., 646 A.2d
1254, 1255-56 (Pa.Super. 1994).
2. The Trial Court respectfully committed an error o[f] law and/or abused its discretion when it
failed to Certify its September 15, 2020 Order for immediate appeal to the Pennsylvania
Superior Court.

LEGAL STANDARD

"After the relevant pleadings are closed, but within such time as not to unreasonably delay

the trial, any party may move for judgment on the pleadings." Pa.R.C.P.1034(a). Judgment on the

pleadings may be entered "when there are no disputed issues of fact and the moving party is

entitled to judgment as amatter of law." Consolidation Coal Co. v. White, 875 A.2d 318,325 (Pa.

Super. 2005) (citation omitted). "In determining if there is adispute as to facts, the court must

confine its consideration to the pleadings and relevant documents." Id. In reviewing an order

4
 granting judgment on the pleadings, "the standard of review of agrant of amotion for judgmentt

on the pleadings is limited_" In re Weidner, 938 A.2d 354, 358 (Pa. 2007) (citations omitted). "A

motion for judgment on the pleadings will be granted where, on the facts averred, the law says

with certainty that no recovery is possible." Lindstrom v City of Corry, 763 A.2d 394, 396 (Pa.

2000). Where an appeal presents aquestion of law, as is the case in the instant appeal, the scope

of review is plenary. Id.

ANALYSIS

I. "Occurrence" v Intentional Act —Issues 1(a)-(c)

"It is well established that an insurer's duties under an insurance policy are triggered by

the language of the complaint against the insured." Kvaerner Metals Div. ofKvaerner U.S., Inc.

v. Commercial Union Ins. Co., 908 A.2d 888, 896 (Pa. 2006). "[7]he rule everywhere is that the

obligation of acasualty insurance company to defend an action brought against the insured is to

be determined solely by the allegations of the complaint in the action[.]" Id. (quoting Wilson v.

Maryland Casualty Co., 105 A.2d 304, 307 (Pa. 1954)). "In making this determination, the factual

allegations of the complaint are taken to be true and the complaint is to be liberally construed

with all doubts as to whether the claims may fall within the coverage of the policy to be resolved

in favor of the insured.
"Biborosch v Transamerica Ins. Co., 603 A.2d 1050, 1052 (Pa. 1992)

(citing Cadwallader, 152 A.2d at 509) (emphasis added).

An insurer's duty to defend an insured in litigation is broader than the duty to indemnify,

with the duty to defend arising "whenever an underlying complaint may potentially come within

the insurance coverage of the policy." See Erie Ins. Exch_ v Claypoole, 673 A_2d 348, 355 (Pa.

Super. 1996) (emphasis added). "If the complaint filed against the insured avers facts which would

support arecovery that is covered by the policy, it is the duty of the insurer to defend until such

5
a
m

m

time as the claim is confined to arecovery that the policy does not cover." Erie Ins. Exch. v
o
ya Transamerica Ins. Co., 533 A.
2d 1363 ,1368 (
Pa. 1987)(
citing Cadwallader v New Amsterdam
U (
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o Casualty Co., 152 A.2d 484 (
Pa. 1959)). Under Pennsylvania law, where acomplaint pleads both
2M
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J- -S: intentional and unintentional torts, aplaintiff's claims "may potentially come within the coverage"
o
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ti a of an insurance policy that covers accidents:
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[P laintiIli's complaint alleges alternative theories of recovery.
[Plaintiff] alleges that his injuries were either the result of an
y "accident," or intentional or negligent acts of the insured Eagle Bar

8
Q` and/ or its employees. We find that because [Plaintiffj's claims may
a potentially come within the coverage of the Britamco policy,
Britamco owed its insured aduty to defend.

w•
ma See Bmamco Underwriters, Inc. v. Weiner, 636 A.2d 649,652 (Pa. Super.1994) (emphasis added).
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o Issue (
1)(a) of Plaintiff's concise statement alleges that the Court err
ed in finding that the
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o factual allegations of Defendant's conduct in the Underlying Complaint potentially constitute an

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a "occurrence," i.e., an "accident," contending that Defendant '
sstriking of Underlying Plaintiffs
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could not be anything but intentional.Looking strictly within the four-comers of the document as

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required underKvaerner Metals, the Underlying Complaint sufficiently avers facts and claims for

N h negligence—leaving the possibility that ajury could find Defendant's conduct to be unintentional
n •

a and thus within the ambit of the definition of "occurrence" as defined under the policy.
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0 Specifically,the Underlying Plaintiffs aver that Defendant acted with "reckless indifference" and
o•
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r causes ofact i
on.See Pl. '
s Mot. at Ex. A,

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¶¶ 9, 12, 68,74, 77-
78, 89,95, 98-
99. Clearly,the instant case presents asituation similar to that
0
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c

1i 13 which are based on allegations ofnegligent acts l
acking an i
ntention requi
rement and thus bringing

Y; Defendant's conduct within the scope of "occurrence" as defined in the insurance policy.
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 In its motion for judgment on the pleadings, Plaintiff cites anumber of cases that are

factually inapposite to the instant case, involving facts in which the underlying complaint only

pled intentional torts. For example, in the Gene's Restaurant case cited by Plaintiff, the

Pennsylvania Supreme Court found in favor of the insurer, though this ruling was based on the

fact that the underlying complaint only pled "willful and malicious assault and beating," not claims

of negligence as in the instant case. See Genes Restaurant Inc. v Nationwide Insurance Co., 548

A.2d 246,246 (Pa. 1988). Similarly, the Westfield case cited by Plaintiff is inapposite because the

underlying complaint in that action alleges neither negligent or accidental conduct, unlike the

instant Underlying Complaint, which alleges negligent, reckless, and careless conduct on the part

of Defendant. See Westfield Ins. Co. v Granese, 2011 U.S. Dist. LEXIS 11118 (E.D. Pa. Feb. 4,

2011).

Significantly, the Court will note that the cases cited by Plaintiff can also be distinguished

from the instant matter by virtue of Underlying Plaintiffs in this case alleging that Defendant was

"under the influence of alcohol[.]" See id. at ¶ 12. This allegation of Defendant's intoxication

alone creates the potential for finding Defendant could not form the requisite intent required to bar

his conduct from qualifying as an "occurrence" covered by the policy. This is particularly so given

that the Court must "liberally construe" the Underlying Complaint to resolve all doubts of cover

"in favor of the insured," as the Supreme Court directs for insurance coverage cases such as this

one. Biborosch, 603 A.2d at 1052.

Next, issue (l)(b) of the concise statement alleges that the Court erred in determining that

Defendant's conduct could still be characterized as an "occurrence" under the policy in spite of

the police investigation and criminal charges against Defendant. Essentially, Plaintiff suggests that

the criminal changes against Defendant place his conduct in direct contravention of the policy's

7
 intentional act exclusion, with Defendant's actions unable to be characterized as anything but

intentional under the facts pled and Defendant's guilty plea for simple assault. Because this issue

substantially overlaps with the analysis required for issues (l)(d)(i)-(ii), the Court will address this

issue in detail in Section II infra. As to Plaintiff's allegation here that the Court's ruling is contrary

to the intentional acts pled in the 104 paragraphs of the Complaint, this contention is duplicative

of the issue already addressed in relation to issue (l)(a) supra.

To the extent that issue (1)(c) alleges the Court erred in considering the averments at

paragraphs 68, 74, 77-78, 89, 95 and 98-99 of the Underlying Complaint, said concern is

misplaced. As discussed supra, numerous Pennsylvania law cases hold that complaints containing

counts for unintentional torts and allegations of negligent, careless, reckless, or wanton conduct

necessitate finding that claims could potentially come within the coverage of apolicy that bars

coverage for intentional acts. See, e.g., Britamco, 636 A.2d 649; Nationwide Mut. Fire Ins. Co. v

McNulty, No. CIV. A. 96-7304,1997 WL 805165, at *2-3 (E.D. Pa. Dec. 30, 1997) (holding that

there is acompelling case for thedutyto defend so long as acomplaint alleges negligent or reckless

conduct that "plausibly support anumber of scenarios not involving intentional torts"); see also

Millers Mut. Ins. Co. v. Euler, 39 Pa. D. & CAth 44, 49-50 (Corn. PL 1997) (holding that an

insurer must defend insured where the underlying plaintiff "alleged that her injuries resulted from

[defendant's] negligence... irrespective of her allegation that [Defendant] intended to injury'). I

Even if the Superior Court is swayed by Plaintiff's argument that said paragraphs are not

"factual allegations" and should be ignored, Plaintiff cannot deny that the Underlying Complaint

includes factual averments of Defendant's alleged intoxicated state at the time of the incident. As

1 The Court notes thatMcNultyandEulerare both non-precedentialdecisions, as district court and trial Vourt

opinions respectively.The Court merely cites these as otherexamplesofPennsylvania Courts coming to similar
conclusions as the Court in Britamco, abindnig,precedentialcase.

8
 discussed supra, the factual allegation of Defendant's intoxication alone is enough to suggest the

possibility of non-intentional conduct on the part of Defendant—enough so that the "underlying

complaint may potentially come within the insurance coverage of the policy" and its definition of

"occurrence." See Claypoole, 673 A.2d at 355.

U. Answer and New Matter:Self-
Defense -Issues d(HiK)

Issue (1)(d) of Plaintiff's Concise Statement contends that the Court erred by considering

Defendant's Answer and New Matter in the Underlying Action, improperly using his arguments

relating to self-defense as the reason for denying Plaintiff's motion for judgment on the pleadings.

This claim of error is factually untrue. As discussed at length supra, Pennsylvania law is clear in

its requirement that a court is bound to determine an insurer's obligation to defend by looking

"solely" to "the language of the complaint against the insured." See Kvaerner, 908 A.2d at 896.

Here, the Court was well aware of the controlling law requiring that it look solely to the allegations

in the Underlying Complaint, and the Court did just that in deciding Plaintiff's motion for

judgment on the pleadings. Contrary to Plaintiff's assertions, there is sufficient language within

the four-comers of the Underlying Complaint to establish that the Underlying Plaintiffs' injuries

could have fallen within the policy's definition of "occurrence," from the inclusion of theories of

recovery under which Defendant could be found guilty of "negligent" or "reckless" conduct to the

inclusion of allegations of intoxication potentially mitigating intent, as discussed supra. Therefore,

the Court need not have—and did not—look to Defendant's Answer, New Matter, and

Counterclaims to justify denying Plaintiff's motion for judgment on the pleadings.

In issues (l)(dxi) and (1)(d)(ii), Plaintiff contends that even if the trial court properly

confined its analysis to the allegations in the Underlying Complaint, the factual allegations pled

could not possibly trigger an exception to the policy's intentional act exclusion in Ut of his guilty

9
 plea for simple assault. This contention is without merit. In support of its argument that

Defendant's guilty plea to simple assault precludes Defendant from claiming self-defense at trial,

Plaintiff cites to Com. v Moyer, apparently for the proposition that "[n]ormally, aplea of guilty

constitutes awaiver of all defects and defenses except those concerning the jurisdiction of the

court, the legality of the sentence and the validity of the plea." 444 A.2d 101, 102 (Pa. 1982).

While it is true that "it is well settled that aguilty plea constitutes an admission to all of the facts

averred in the indictment" and that acriminal conviction "may be used to establish the operative

facts in asubsequent civil case based on those same facts," Defendant's guilty plea in the instant

case would not bar ajury from potentially finding his actions to be unintentional. See Commw,

Dept of Transp. v Mitchell, 535 A.2d 581, 585 (Pa. 1987) (citing Commonw. ex rel. Walls V.

Rundle, 198 A.2d 528 (Pa. 1964)). Preliminarily, Mitchell can be distinguished from the present

case in that here, unlike in Mitchell, there was neither an indictment nor a"guilty plea hearing [at

which] all of the facts alleged in the indictment were" admitted as true. Id. at 584-85. Instead of a

guilty plea hearing, there is only apolice officer's affidavit of probable cause. See PL's Mot. at

Ex. A.

Further, "where the criminal proceedings [do] not establish the extent, if any, of [an

insured's] conscious awareness of his action or the substantial likelihood of the results, [a guilty

plea] cannot conclusively establish abar to recovery under [an insureds] homeowner's policy."

Stidham v Millvale Sportsmen's Club, 618 A.2d 945, 956 (Pa. Super. 1992) (emphasis added).

Similarly, the Court in State Farm Fire c& Cas. v Dunlavey found that where "intentional conduct

was not anecessary element" for the crimes adefendant was convicted of given that "[e]ach may

be predicated on reckless conduct as alleged by plaintiff," a court would have "no way ... to

determine whether the criminal verdict was based on afinding of intentional conduct, which falls

10
 within the insurance policy exclusion and is abar to recovery in this action, or reckless conduct,

which is covered by the policy under prevailing Pennsylvania case law." State Farm Fire & Cas.

v. Dunlavey, 197 F. Supp. 2d 183, 188 (E.D. Pa. 2001)?

In the present case, Defendant entered into aguilty plea for simple assault, but Plaintiff is

incorrect in asserting that said guilty plea proves Defendant's conduct was intentional and thus

precluded from qualifying as an "occurrence" covered under the policy. Specifically, Defendant's

guilty plea was for simple assault, defined as follows:

(a) Offense defined.—Except as provided under section 2702
(relating to aggravated assault), aperson is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly
causes bodily injury to another,
(2) negligently causes bodily injury to another with a deadly
weapon;
(3) attempts by physical menace to put another in fear of imminent
serious bodily injury; [
... I

See 18 Pa. C.S.A. §2701.

By the plain language of §2701, the Court has no way of determining whether Defendant's

guilty plea to simple assault was predicated on intentional conduct as anecessary element, or

whether his plea was predicated on recklessness or negligence. The statute plainly includes

language offering non-intentional conduct as one basis for fording assault, thus by its very

definition, the assault to which Defendant pled guilty potentially falls within the definition of

"occurrence" or accidental conduct as contemplated for coverage by the insurance policy_ Just as

discussed in Stidham, this is acase where the criminal proceedings do "not establish the extent, if

2 "While we recognize that federal district court cases are not binding on this court, Pennsylvania appellate courts
may utilize the analysis in those cases to the extent we find them persuasive." Braun v. Wal—Mart Stores, Inc., 24
A.3d 875,954 (Pa. Super. 2011)(quoting Stephensu Paris Cleaners, Inc., 885 A.2d 59,68 (Pa. Super. 2005)). The
Court notesthatwhile this caseis notcitable forbinding precedential value asa Third Circuit case,this case's
ana lysis is instructive and consistent with the reasoning found in Stidham v. Millvale Sportsmen's Club, 018 A.2d
945, 956 (Pa. Super. 1992), wherein aprior guilty plea did not barrecovery under an insurance policy due to
ambiguity in the intent requirement underlying said guilty plea.

11
a
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any, of [an insured's] conscious awareness of his action or the substantial likelihood of the
o•

ya results," thus the Court properly concluded that Defendant should not be barred from recovery
U (
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under the insurance policy where the guilty plea itself supports finding that Defendant may have
a€
w lacked the requisite intent to bar coverage for an "occurrence."
o
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ti a Last, issue (d)(iii) addresses Defendant's argument of waiver and/or estoppel of coverage
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defenses raised in his response in opposition to Plaintiff's motion for mazy argument
,argui
w= ng
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3 that Defendant cannot now assert said defenses after having not pled them in his New Matter. The
.
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c
allegations in the Underlying Complaint when rendering its ruling on Plaintiff's motion for
U
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wa judgment on the pleadings. Thus, to the extent that Defendant raised arguments of waiver and/or
ro
estoppel in either his answer to the complaint or his response to Plaintiff's motion for judgment
•o
on the pleadings, the Court did not consider these arguments, and the allegation of error in issue
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(d)(iii) must be dismissed.
N •
M. Certification
a 73
Finally, in its last allegation of error, Plaintiff alleges that the Court erred in not certifying

a
N •

C
U its September 15, 2020 Order for immediate appeal to the Pennsylvania Superior Court.

a An appeal may be taken by permission from an interlocutory order.
w•
(1) certified under 42 Pa.C.S. §702(b) or for which certification pursuant to 42 Pa.C.S. §
w49
oQ 702(b) was denied; see Pa.R.A.P. 312 ;
OF
Q (2) for which certification pursuant to Pa.R.A.P. 341(c) was denied; or
(3) that detemdned that adefendant's motion to dismiss on the basis of double jeopardy is
frivolous.
•a

' See Pa.R.A.P. 13 11.
N

The following standard applies for determining whether to permit an appeal from an
Y j

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 When acourt or other government unit, in making an interlocutory
order in a matter in which its final order would be within the
jurisdiction of an appellate court, shall be of the opinion that such
order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the matter, it shall so state in such order. The
appellate court may thereupon, in its discretion, permit an appeal to
be taken from such interlocutory order.

See 42 Pa. C.S. §702 (emphasis added).

Here, the issue presented does not involve acontrolling question of law. As discussed

supra, the law pertaining to whether Plaintiff must provide a defense to Defendant in the

Underlying Litigation is not complex, directing simply that the Court look "solely" to "the

language of the complaint against the insured." See Kvaerner, 908 A.2d at 896. In its motion for

reconsideration, Plaintiff attempts to argue that the Court has implicated a"a controlling question

of law as to which there is substantial ground for difference of opinion" by potentially relying on

language in Defendant's Answer, New Matter, and Counterclaims—outside the language of the

complaint—in ruling on Plaintiff's motion for judgment on the pleadings. As detailed in Sections

Iand 11 supra, the Court confined its analysis to the allegations pled in the Underlying Complaint,

finding sufficient language in the Underlying Complaint to conclude that Underlying Plaintiffs'

claims "may potentially come within the coverage" of Plaintiff in the instant action. Not only did

the Underlying Plaintiffs' plead that their injuries could have resulted from Defendant's

"negligent" or "reckless" conduct, but they also included factual averments alleging Defendant's

intoxication during the incident in question. Under these facts found in the Underlying Complaint,

ajury could reasonably find the Underlying Plaintiffs' injuries to potentially fall within the

policy's definition of "occurrence." Thus, the Court properly found that the Underlying Complaint

could "potentially come within the insurance coverage of the policy" and did not improperly look

13
a
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A.2d at 355. Further, there is nothing to suggest the existence of any other "substantial ground for
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difference of opinion" as to any other issue.
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o
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w= delay in terminating the caseparticularly where granting judgment on the pleadnigs would have
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been premature in light of the possibility that ajury could find ultimately Defendant's actions were

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ti for immediate appeal to the Pennsylvania Superior Court, and Plaintiffs second issue must be
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CONCLUSION
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