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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIE INSURANCE EXCHANGE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KEITH R. WILTON, JOHN P. BRANDT, : No. 325 MDA 2021
O.D., KAREN BRANDT, MASTER :
FORCE CONSTRUCTION CORP., :
ROBERT DEHARDER, WE DO METAL :
ROOFS.COM, WE DO METAL ROOFS, :
AND FOX HOME IMPROVEMENT :
NETWORK CORP. :
Appeal from the Order Entered February 9, 2021
In the Court of Common Pleas of Clinton County Civil Division at No(s):
2018-01273
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 9, 2022
Appellant, Erie Insurance Exchange, appeals from the February 9, 2021
order granting summary judgment in favor of John P. Brandt, O.D. and Karen
Brandt (collectively “Brandt") in the amount of $417,807.35 and denying
Appellant’s motion for summary judgment.1 We vacate the order, deny
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1 An order granting summary judgment that disposes of all claims and all
parties is a final and appealable order. Mae v. Janczak, 245 A.3d 1134, 1135
n.1 (Pa. Super. 2021); see also Pa.R.A.P. 341(b)(1) (defining a final order as
an order that, inter alia, “disposes of all claims and of all parties”). Here,
because the February 9, 2021 order granting summary judgment in favor of
Brandt disposes of all claims and all parties, this appeal properly lies from said
order. Mae, 245 A.3d at 1135 n.1.
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Brandt’s motion to dismiss or quash the appeal, and remand this case with
instruction in accordance with this memorandum.2
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2 On August 19, 2021, Brandt filed a motion with this Court seeking to dismiss
or quash the instant appeal pursuant to Pa.R.A.P. 1972(a) . Brandt asserts
that “[t]he instant appeal should be dismissed because Appellant waived its
right to appeal by willfully failing to appear for oral argument [on its motion
for summary judgment and Brandt’s counter-motion for summary judgment.]”
Moton to Dismiss or Quash, 8/19/21, at ¶22. Brandt argues that “Appellant’s
failure to appear and answer the trial court’s questions deprived the trial court
of the opportunity to avoid the alleged errors of which Appellant now
complains.” Id. at ¶24. Brandt further asserts that the instant appeal should
be dismissed or quashed because Appellant failed to preserve the issue of the
trial court proceeding with oral argument in Appellant’s absence in its Rule
1925(b) concise statement. Id. at ¶26.
Appellant filed a response to Brandt’s motion to dismiss or quash the instant
appeal with this Court on September 2, 2021. In its response, Appellant
asserts, inter alia, that it never received notice of the hearing, that its absence
from the hearing was inadvertent, that it provided memorandums in advance
of the hearing that set forth its argument in support of its motion for summary
judgment and in opposition to Brant’s counter-motion for summary judgment,
and that the trial court was able to dispose of the motions for summary
judgment on the merits. Appellant’s Answer in Opposition, 9/2/21, at ¶11-12;
see also Appellant’s Brief in Opposition, 9/2/21, at 6-17.
A review of the record demonstrates that on December 15, 2020, the trial
court issued an order scheduling oral argument on the competing motions for
summary judgment for February 2, 2021. See Trial Court Order, 12/15/20.
Oral argument was held via advanced communication technology due to the
COVID-19 global pandemic. The notes of testimony demonstrate that counsel
for Appellant failed to appear at the hearing, and the trial court was unable to
contact counsel using the information previously provided. N.T., 2/2/21, at
2-3. At the hearing, counsel for Brandt did not object to the absence of
Appellant’s counsel, nor did Brandt’s counsel orally move for summary
judgment on the ground Appellant’s counsel failed to attend the hearing. See
id. at 1-10. Instead, despite counsel’s failure to appear, the trial court
proceeded with the hearing and, ultimately, granted summary judgment on
the merits in favor of Brandt and denied, on the merits, Appellant’s motion for
summary judgment.
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We find that Brandt failed to raise the issue of Appellant’s failure to attend the
hearing on the competing motions for summary judgment before the trial
court and, therefore, cannot raise this issue on appeal. See Pa.R.A.P. 302(a)
(stating, “[i]ssues not raised in the trial court are waived and cannot be raised
for the first time on appeal”). Moreover, as a general rule, the trial court has
the discretion to dispose of a motion for summary judgment based upon its
review of the record, and the trial court is not required to conduct oral
argument before disposing of said motion. GMAC Mortgage Corp. of PA v.
Buchanan, 929 A.2d 1164, 1169 (Pa. Super. 2007). While the Pennsylvania
Rules of Civil Procedure governing motions for summary judgment require the
non-moving party to file a response, see Pa.R.Civ.P. 1035.3(a), we find no
such rule which mandates that the non-moving party attend argument on the
motion, if the trial court elects to hold such a proceeding. See, generally,
Pa.R.Civ.P. 1035.1 to 1035.5. Although we do not condone a party’s decision
to forgo attendance at a judicial proceeding when the trial court, in its
discretion, believes such a proceeding is necessary, we find that a party
satisfies the requirements governing summary judgment if the party files a
response to the motion for summary judgment. In the case sub judice, rather
than find that Appellant waived its own request for summary judgment and
grant summary judgment in favor of Brandt solely on the basis of Appellant’s
failure to attend the oral argument, the trial court disposed of the competing
motions for summary judgment on the merits. Therefore, it may be inferred
that the trial court decided that the competing motions could be disposed of
based, in part, upon a review of the record and without oral argument by
Appellant.
Finally, a review of the trial court docket demonstrates a breakdown in court
operations. Pennsylvania Rule of Civil Procedure 236 requires a prothonotary
to give written notice to each party of the entry of any trial court order or
judgment. See Pa.R.Civ.P. 236(a). Rule 236(b) required a prothonotary to
“note in the docket the giving of the notice[.]” See Pa.R.Civ.P. 236(b). A
review of the trial court docket entry pertaining to the December 15, 2020
scheduling order demonstrates that the prothonotary reproduced the
complete text of the scheduling order, including the trial court’s notation that
carbon copies of the scheduling order were sent to counsel for all parties, as
well as the court administrator, in the trial court docket entry. See Trial Court
Docket Entry, 12/15/20; see also Fischer v. UPMC Northwest, 34 A.3d
115, 121 (Pa. Super. 2011) (holding that, a prothonotary must specifically
note on the docket the date that Rule 236 notice was given to the appropriate
parties (emphasis added)). Conspicuously absent from the trial court docket
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The trial court summarized the factual history as follows:
[Appellant] issued a policy of insurance to [Keith R.] Wilton
[(“Wilton”)] known as a FiveStar Contractors Policy (“the policy”).
[Appellant] claims that the policy [] does not provide insurance
coverage on behalf of [] Wilton on the claims and ultimate
[judgment] that [] Brandt obtained in the [underlying] civil action
[against, inter alia, Wilton.] In the underlying action, [] Brandt[,
as the plaintiff-homeowner,] alleged that [] Wilton [] violated the
Pennsylvania Home Improvement Consumer Protection Act
[(“HICPA”), 73 P.S. §§ 517.1 to 517.19,] and the Unfair Trade
Practices [] and Consumer Protection Law [(“UTPCPL”), 73 P.S.
§§ 201-1 to 201-10.] Brandt also brought claims of breach of
contract, breach of expressed warranty, breach of implied
warranty of fitness, and [] negligence[. The trial c]ourt in the
underlying action entered a [non-jury] verdict[, and ultimately a
judgment was entered,] in favor of [] Brandt and against[, inter
alia,] Wilton, to all five [] counts[. The trial court awarded] treble
damages in the amount of [$222,648.15] and attorney’s fees in
the amount of [$195,159.20. Thus, the final judgment entered
against, inter alia, Wilton was $417,807.35.]
Trial Court Opinion, 2/9/21, at 2-3. This Court affirmed the judgment in the
underlying action on April 21, 2020. See Brandt v. Master Force Constr.
Corp., 236 A.3d 1114 (Pa. Super. Filed April 21, 2020) (unpublished
memorandum). The judgment became final on May 21, 2020, upon expiration
of the time in which to file a petition for allowance of appeal with our Supreme
Court. See Pa.R.A.P. 1113(a) (stating, “a petition for allowance of appeal
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entry in the case sub judice is a notation on the docket that Rule 236 notice
of the trial court’s scheduling order was provided to Appellant’s counsel and
the date said notice was provided. Anything short of such a notation
constitutes a failure by the prothonotary to comply with the notification
mandate and procedural requirement of Rule 236 and is a breakdown in court
operations. Therefore, even if Brandt had not waived this issue for failure to
raise it at the oral argument before the trial court, we would decline to dismiss
the appeal on this basis due to the breakdown in court operations.
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shall be filed with the Prothonotary of [our] Supreme Court within 30 days
after the entry of the order of [this Court] sought to be reviewed”).
On October 8, 2018, and prior to the resolution of the underlying action,
Appellant filed a complaint for declaratory judgment asserting that the policy
did not provide coverage for Wilton in the underlying action because, inter
alia, the claims against Wilton were the result of faulty workmanship. Faulty
workmanship, according to Appellant, did not constitute an “occurrence,” as
defined by the policy, which triggered coverage under the policy. Appellant
asserted that, because Wilton’s actions, and the resulting claims, were not
covered by the policy, Appellant was not obligated to defend or indemnify
Wilton in the underlying action. See Appellant’s Complaint, 10/8/18.
Ultimately, upon filing of a praecipe for entry of a default judgment, a default
judgment was entered against Wilton on May 14, 2020.
On October 12, 2020, Appellant filed a motion for summary judgment
arguing that, because Wilton’s action in the underlying action constituted
faulty workmanship and was not an occurrence for which the policy provided
coverage, Appellant had no duty to indemnify Wilton in the underlying action.
Appellant’s Motion for Summary Judgment, 10/12/20. On November 9, 2020,
Brandt, as a defending party in Appellant’s action for declaratory judgment,
filed a response in opposition to Appellant’s motion for summary judgment
and a counter-motion for summary judgment asserting, inter alia, that
Appellant was obligated to pay the judgment in the underlying action because
the judgment was the result of an “occurrence,” thereby requiring coverage,
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and the policy did not exclude coverage for violations of HICPA and the
UTPCPL. Brandt Counter-Motion for Summary Judgment, 11/9/20, at
¶¶14-15.
On February 2, 2021, the trial court entertained argument on, inter alia,
Brandt’s counter-motion for summary judgment.3 On February 9, 2021, the
trial court concluded that,
damages to [] Brandt’s property were caused by an occurrence
insured under the policy [], that the policy [] does not exclude
coverage for any damages due to violations of [the] UTPCPL or
HICPA, that [the trial] court’s verdict in the underlying action was
entered to various counts not just the breach of contract claim,
and that the public policy of the Commonwealth of Pennsylvania
prohibits [Appellant] from avoiding coverage after issuing a policy
of insurance to [] Wilton [in order that he could] obtain a license
under HICPA.
Trial Court Opinion, 2/9/21, at 17 (extraneous capitalization). Ultimately, the
trial court denied Appellant’s motion for summary judgment, granted Brandt’s
counter-motion for summary judgment, and directed that judgment be
entered in favor of Brandt and against Appellant. Trial Court Order, 2/9/21.
This appeal followed.4
Appellant raises the following issues for our review:
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3 As discussed more fully supra, counsel for Appellant did not participate in
the oral argument. See N.T., 2/2/21, at 2-3.
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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1. Did the trial court erroneously rule that Wilton’s faulty
workmanship and intentional consumer fraud constituted an
“occurrence” as defined by the [] policy?
2. Do the [] policy’s exclusions eliminate coverage for Wilton’s
faulty workmanship and intentional consumer fraud?
3. Did the trial court erroneously create Pennsylvania public
policy that requires [Appellant] to indemnify Wilton for the
[Brandts’] claims?
Appellant’s Brief at 7.
Appellant’s issues, in toto, challenge the trial court’s order denying
Appellant summary judgment and, conversely, granting Brandt summary
judgment, for which our standard and scope of review are well-settled.
A reviewing court may disturb the order of the trial court only
where it is established that the [trial] court committed an error of
law or abused its discretion. As with all questions of law, our
review is plenary.
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. Where the non-moving
party bears the burden of proof on an issue, he may not merely
rely on his pleadings or answers in order to survive summary
judgment. Failure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which it bears
the burden of proof establishes the entitlement of the moving
party to judgment as a matter of law. Lastly, we will view 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.
Murphy v. Duquesne Univ. of The Holy Ghost, 777 A.2d 418, 429 (Pa.
2001) (case citations, ellipses, and quotation marks omitted).
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All three of Appellant’s issues relate to perceived errors in the trial
court’s finding that Appellant was required to indemnify Wilton for the
judgment entered in favor of Brandt in the underlying cause of action.5 In its
first and second issues, Appellant contends the trial court erred in its
interpretation of the policy and, specifically, in finding that Wilton’s installation
of the roof on Brandt’s house constituted an “occurrence,” thereby triggering
coverage under the policy. Appellant’s Brief at 33-53. Even if Wilton’s
installation met the definition of an “occurrence” under the policy, Appellant
contends the trial court erred in determining that the policy’s exclusion
provisions did not preclude coverage. Id. at 53-59.
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.
Penn-America Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 264 (Pa. Super.
2011) (citation omitted) (en banc), appeal denied, 34 A.3d 832 (Pa. 2011).
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5 Appellant does not place at issue in the instant appeal whether it had a duty
to defend Wilton in the underlying action because, as Appellant states, “[t]he
[underlying] action has since ended, and [Appellant] provided a defense to
Wilton to its conclusion.” Appellant’s Brief at 32 (stating, “[b]ased on these
developments, only the duty to indemnify is at issue on appeal”). Therefore,
we will not consider, herein, whether Appellant had a duty to defend Wilton in
the underlying action. See Kvaerner Metals Div. of Kvaerner U.S., Inc. v.
Commercial Union Ins. Co., 908 A.2d 888, 896 n.7 (Pa. 2006) (stating, “the
duty to defend is separate from and broader than the duty to indemnify”).
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“[C]ontractual terms are ambiguous if they are subject to more than one
reasonable interpretation when applied to a particular set of facts.” Wagner
v. Erie Ins. Co., 801 A.2d 1226, 1231 (Pa. Super. 2002) (citation omitted),
aff’d, 847 A.2d 1274 (Pa. 2004).
Here, the policy provided to Wilton, as the insured, by Appellant, as the
insurer, states that Appellant “will pay those sums that the insured becomes
legally obligated to pay as damages because of ‘bodily injury’ or ‘property
damage’ to which this insurance applies.” Policy at § I(1)(a). In order for the
policy to provide coverage, the bodily injury or property damage must have,
inter alia, resulted from an “occurrence.” Id. at § I(1)(b)(1) (stating, the
policy “applies to ‘bodily injury’ and ‘property damage’ only if [the] ‘bodily
injury’ or ‘property damage’ is caused by an ‘occurrence’”). The policy defines
“occurrence” as follows:
“Occurrence” means an accident, including continuous or repeated
exposure to substantially the same general harmful conditions.
“Property damage” to “your work” will constitute an “occurrence”
if all of the following conditions are met:
The “property damage” to “your work” is included in the
“products-completed operations hazard”;
The damaged work or the work out of which the damage
arises was performed on your behalf by a subcontractor;
and
The “property damage” is not expected or intended by you
or anyone for whom you are legally responsible.
Id. at Amendment of Occurrence Definition for Subcontracted Work.
“Property damage” is defined as, inter alia, “[p]hysical injury to tangible
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property, including all resulting loss of use of that property.” Id. at
§ V(17)(a). The policy’s definition of “property damage” includes the following
statement of exclusion:
“Property damage” does not include any loss, cost[,] or expense
to correct any defective, faulty[,] or incorrect work performed by
you or by any contractors or subcontractors working directly or
indirectly on your behalf.
Id. at Amendment of Occurrence Definition for Subcontracted Work.
The policy excludes coverage for, inter alia, “bodily injury” or “property
damage” that is “expected or intended from the standpoint of the insured.”
Id. at § I(2)(a). The policy also excludes “property damage” to “[t]hat
particular part of any property that must be restored, repaired[,] or replaced
because ‘your work’ was incorrectly performed on it.” Id. at § I(2)(j). “Your
work” is defined as “[w]ork or operations performed by you or on your behalf”
and “materials, parts[,] or equipment furnished in connection with such work
or operations.” Id. at § V(22)(a)(1) and (2). “Your work” also includes
“[w]arranties or representations made at any time with respect to the fitness,
quality, durability, performance[,] or use of ‘your work’[.]” Id. at
§ V(22)(b)(1).
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The policy, however, does not define the term “accident.” Nonetheless,
Courts have long-held that the term “accident,” within the context of an
insurance policy “occurrence,” is defined as follows:6
“accident” [is] “an unexpected and undesirable event,” or
“something that occurs unexpectedly or unintentionally.” The key
term in the ordinary definition of “accident” is “unexpected.” This
implies a degree of fortuity that is not present in a claim for faulty
workmanship.
Kvaerner, 908 A.2d at 898 (original brackets omitted) (emphasizing that,
“the fortuity implied by reference to accident or exposure is not what is
commonly meant by a failure of workmanship” (citation and original brackets
omitted)); see also Millers Capital Ins. Co. v. Gambone Brothers Dev.
Co. Inc., 941 A.2d 706, 713 (Pa. Super. 2007) (stating, “an insurance claim
under an occurrence based [] policy that defines the term ‘occurrence’ as an
accident cannot be premised on a claim of faulty workmanship”), appeal
denied, 963 A.2d 471 (Pa. 2008); Indalex, Inc. v. Nat’l Union Fire Ins. Co.
of Pittsburgh, 83 A.3d 418, 422 (Pa. Super. 2013) (stating, “the definition
of ‘accident’ required to establish an ‘occurrence’ under [an insurance policy]
cannot be satisfied by claims based upon faulty workmanship”), appeal
denied, 99 A.3d 926 (Pa. 2014). Thus, it is well-established that faulty
workmanship cannot constitute an “occurrence” thereby triggering coverage
under an occurrence-based insurance policy such as the policy in the case sub
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6 “Words of common usage in an insurance policy are construed according to
their natural, plain, and ordinary sense.” Kvaerner, 908 A.2d at 897.
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judice. See Pennsylvania Mfrs. Indem. Co. v. Pottstown Indus.
Complex LP, 215 A.3d 1010 (Pa. Super. 2019) (stating, “[f]aulty
workmanship itself does not constitute an ‘occurrence’”). Stated simply,
“[i]ntentional acts are not ‘occurrences.’” Sclabassi v. Nationwide Mut.
Fire Insur. Co., 789 A.2d 699, 703 (Pa. Super. 2001), appeal denied, 797
A.2d 915 (Pa. 2002).
Generally, a declaratory judgment action is filed by an insurer prior to,
or during the pendency of, the underlying litigation against an insured, to
determine the insurer’s duties to defend and to potentially indemnify the
insured. Within the procedural posture of a case involving a request for
declaratory judgment, the question of whether a claim against an insured is
potentially covered by the insurance policy and, thus, requiring the insurer to
defend and to potentially indemnify the insured “is answered by comparing
the four corners of the insurance contract to the four corners of the complaint”
filed in the underlying action. Peccadillos, 27 A.3d at 265. An insurer’s duty
to defend, and potentially to indemnify the insured, “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 implicate
coverage.” Id. (citation omitted).
This, however, is not the procedural posture of the case sub judice.
Here, the underlying action against Wilton has been resolved and resulted in
a judgment against, inter alia, Wilton. As such, rather than examine the
allegations of the complaint in the underlying action to determine the
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possibility that coverage is implicated, a trial court, such as in the case here,
must examine the factual determinations and legal conclusions that resulted
in a judgment against the insured to determine if, in fact, policy coverage has
been implicated. See Regis Insur. Co. v. All Am. Rathskeller, Inc., 976
A.2d 1157, 1161 (Pa. Super. 2009) (stating, “[u]nlike the duty to defend, the
duty to indemnify cannot be determined merely on the basis of whether the
factual allegations of the complaint potentially state a claim against the
insured” (citation and original quotation marks omitted)); see also State
Farm Fire and Cas. Co. v. DeCoster, 67 A.3d 40, 46 (Pa. Super. 2013)
(stating, “the duty to indemnify is not necessarily limited to the factual
allegations of the underlying complaint[, rather], there must be a
determination that the insurer's policy actually covers a claimed incident”
(original quotation marks omitted, emphasis in original)).
As previously noted by this Court in the underlying action, Brandt
brought statutory claims against, inter alia, Wilton for violation of HICPA and
the UTPCPL, as well as common law claims for breach of express warranty and
negligence. See Brandt, 236 A.3d 1114, at *2; see also, Appellant’s Motion
for Summary Judgment, 10/12/20, at Exhibit A. In reaching its verdict in the
underlying action, the trial court “did not assess any monetary damages
against any defendant – including Wilton - for conduct specifically related to
[Brandt’s] common law claims.” Brandt, 236 A.3d 1114, at *7; see also
Trial Court Order, 2/15/19; Trial Court Opinion, 2/15/19. The trial court in
the underlying action calculated Brandt’s monetary damages “exclusively
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within the statutory framework of [] HICPA and the UTPCPL” and “the
judgment in favor of [Brant] for damages arose solely from violations of []
HICPA and [the] UTPCPL.” Brandt, 236 A.3d 1114, at *7; see also Trial
Court Opinion, 2/15/19, at 12-14. Specifically, the trial court in the underlying
action awarded damages in accordance with Section 201-9.2 of the UTPCPL,7
which provides for the award of, inter alia, three times the actual damages
sustained, as well as attorney’s fees and costs of litigation. See 73 P.S.
§ 201-9.2; see also Trial Court Opinion, 2/15/19, at 12-14. Therefore, we
confine our examination of whether the policy requires Appellant to indemnify
Wilton for the damages awarded as a result of Wilton’s violation of HICPA and
the UTPCPL.
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7 Section 201-9.2 of the UTPCPL states,
Any person who purchases or leases goods or services primarily
for personal, family or household purposes and thereby suffers
any ascertainable loss of money or property, real or personal, as
a result of the use or employment by any person of a method, act
or practice declared unlawful by [73 P.S. § 201-3] of this act, may
bring a private action to recover actual damages or one hundred
dollars[,] whichever is greater. The [trial] court may, in its
discretion, award up to three times the actual damages sustained,
but not less than one hundred dollars[,] and may provide such
additional relief as it deems necessary or proper. The [trial] court
may award to the plaintiff, in addition to other relief provided in
this section, costs and reasonable attorney fees.
73 P.S. § 201-9.2.
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In the underlying action, the trial court found, by clear and convincing
evidence, that Wilton “was the subcontractor who installed the metal roof
furnished by [Master Force Construction Corp.8] at [Brandt’s] property.” Trial
Court Opinion, 2/15/19, at ¶15. The trial court further found that Wilton was
instructed by, inter alia, Master Force Construction Corp. “to conceal []
Wilton’s identity as a subcontractor and to allow [Brandt] to believe [] Wilton
was employed with [Master Force Construction Corp.]”9 Id. The trial court
credited the testimony of Brandt’s expert witness in the underlying action,
who stated that, “the roof was improperly installed and should have never
been installed on [Brandt’s house] due to the slope of the roof.” Id. at ¶29.
Specifically, the trial court found, based upon the expert’s testimony, that “the
roof utilized at [Brandt’s] residence was inappropriate, violated [the]
manufacturer’s recommendations, violated the requirements of the [b]uilding
[c]ode in effect, and resulted in damages to [Brandt].” Id. at 11. The trial
court further found that “Wilton admitted that [he] did not care and did not
even consider the manufacturer recommendation concerning [Brandt’s] roof.”
Id. The trial court in the underlying action stated, “Wilton performed inferior
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8 Master Force Construction Corp. d/b/a/ We Do Metal Roofs.com, through its
agent, entered into a contract with Brandt to replace the roof on Brandt’s
residence with a metal roof and to install a seamless gutter system. Trial
Court Opinion, 2/15/19, at 1, 4.
9 In order for a home improvement contract to be valid and enforceable,
Section 517.7(a)(10) of HICPA requires the names, addresses, and telephone
numbers of all subcontractors to be disclosed to the homeowner in the
contract. See 73 P.S. § 517.7(a)(10).
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work as evidenced by the [expert’s testimony]” and he “participated in the
charade regarding the true position of [] Wilton in this arrangement as the
subcontractor.” Id. at 11-12 (emphasis added). The trial court concluded
that Wilton violated the UTPCPL by constructing a roof that was “inferior to
the standard agreed to in the [contract.]” Id.; see also 73 P.S.
§ 201-2(4)(xvi) (stating that, within the context of the UTPCPL, an actor
engages in unfair and deceptive acts or practices when the actor makes
“repairs, improvements[,] or replacements on tangible, real or personal
property, of a nature or quality inferior to or below the standard of that agreed
to in writing”). In sum, the trial court in the underlying action found that
Wilton intentionally participated in a charade to mislead Brandt by “purposely
conceal[ing]” his identify as the subcontractor responsible for installing the
metal roof. The trial court further found that Wilton’s construction of the roof
amounted to inferior work product, i.e., faulty workmanship. The trial court
held that, as a result of Wilton’s faulty workmanship and intentionally
deceptive acts, Brandt suffered actual damages in the amount of $74,216.05.
Specifically, the trial court in the underlying action awarded the following
damages:
1. $481.00 for the repair of damages caused by a leak in Brandt’s
kitchen when, during construction, Wilton failed to properly cover
the roof area and it rained.
2. $2,000.00 to refund a separate, duplicate payment Brandt made
for the installation of seamless gutters and gutter covers when the
installation of the same was already included in the original price
of the roof contract.
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3. $2,782.00 to replace a ridge vent on the new roof that was
improperly installed by Wilton.
4. $5,000.00 for monies Brandt paid to a consultant who assessed
the necessary repairs and replacement of the improperly installed
roof and designed a new roof.
5. $19,483.05 for monies Brandt paid for the demolition of the
improperly installed roof, including the replacement of the roof
sheathing.
6. $42,450.00 as a full refund of the monies Brandt paid, pursuant
to the installation contract, for the improperly installed roof.
7. $2,020.00 for the replacement of wood blocking necessary for the
installation of a new roof.
See, generally, Trial Court Opinion, 2/15/19, at 1-14. Pursuant to Section
201-9.2 of the UTPCPL, the trial court in the underlying action awarded treble
damages in the amount of $222,648.15, or three times the actual damages,
and, ultimately, awarded attorney’s fees in the amount of $195,159.20.
The trial court in the instant matter found that the $481.00 and the
$2,020.00 awarded for “damages caused by the leaks due to []Wilton’s faulty
workmanship [was] an occurrence and covered by the policy[.]” Trial Court
Opinion, 2/9/21, at 7. Regarding the remainder of the damage awards, which
the trial court viewed as associated collectively with the “replacement of the
roof,” the trial court stated that “a non-breach of contract claim seeking
[recovery for] damage[s] to property other than the insured’s property is
covered under a contractor’s liability policy.” Id. at 8-9 (relying on this Court’s
disposition in Indalex, supra). Applying the principle set forth in Indalex,
supra,10 the trial court reasoned that Brandt was entitled to complete
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10 As stated supra, this Court explained in Indalex, supra, that
occurrence-based insurance policies exclude faulty workmanship from the
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indemnification by Appellant for Wilton’s actions because Brandt alleged
damage to property as a result of Wilton’s faulty workmanship aside from
Wilton’s work product. Trial Court Opinion, 2/9/21, at 8-9.
To reiterate, the trial court in the underlying action found that Wilton’s
actions in installing the roof amounted to faulty workmanship. The trial court
in the underlying action also determined that Wilton purposefully concealed
his identify from Brandt as a subcontractor and delivered a product, i.e., the
metal roof, that was inferior to the standard required by the installation
contract. These actions by Wilton - the improper installation of the metal roof,
the concealment of his identify, and the delivery of an inferior
product – constituted intentional acts, faulty workmanship, and deceptive
trade conduct. As a result of Wilton’s faulty workmanship and intentional
unfair trade practices of concealing his identity and delivering an inferior
product, Brandt suffered damages in the form of interior damage, duplicate
payment for a gutter system, and having to first repair a portion of the faulty
roof and then ultimately replace the entire metal roof. These conclusions and
determinations reached by the trial court in the underlying action cannot be
relitigated in the case sub judice. Moreover, as Brandt’s claims in the
underlying cause of action were premised on Wilton’s faulty workmanship and
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definition of an “accident” that may serve as an “occurrence” that triggers
policy coverage. Indalex, 83 A.3d at 422.
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intentional acts, he cannot now claim in the case sub judice that Wilton’s
actions were something other than faulty workmanship and intentional acts.
Wilton’s faulty workmanship, including his admitted intentional
disregard for the manufacturer’s recommendations on installation of the metal
roof, his intentional deception of Brandt, and his delivery of a product that he
knew was inferior, do not constitute “occurrences” under the policy because
these acts were by Wilton’s own design, rather than by fortuity, and, thus, did
not occur by accident. Stated another way, the damages sustained by Brandt
regarding the roof installation did not result from an occurrence or accident
but, rather, were the result of intentional acts. We cannot concur with the
trial court that Brandt’s damages were to property other than the completed
work itself, i.e., the installation of a metal roof, and that the damages were
the result of an occurrence as defined by the policy. Therefore, the trial court
erred in granting summary judgment in favor of Brandt.
Ab initio, Wilton’s actions were intentional acts that resulted in damage
to Brandt. As determined by the trial court in the underlying action, Wilton
purposely concealed his identity as a subcontractor. Then, during construction
of the new roof, Wilton failed to cover the roof. A rainstorm ensued and as a
result of this faulty workmanship during construction – the failure to cover the
roof - Brandt sustained interior damage ($481.00) in his kitchen that required
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repair.11 When installation of the roof was completed, additional leaks
developed and Brandt paid to replace a ridge vent because it was not properly
installed. Again, Wilton’s faulty workmanship led to damages sustained by
Brandt ($2,782.00). Continuing to experience leaks in the roof, Brandt paid
to have the roof assessed and, upon determining that the roof needed to be
replaced, to have a new roof designed for his house ($5,000.00). Brandt paid
to have the existing roof removed ($19,483.05) and a new roof installed.12
The damages awarded in the underlying action were the result of Wilton’s
faulty workmanship and intentional deception. Therefore, Wilton’s installation
of the metal roof is not an occurrence, as defined by the policy, that triggered
coverage of the resulting damages because his acts lacked the necessary
fortuity and were not accidental. As such, we find the trial court erred in
denying Appellant’s motion for summary judgment because, as demonstrated
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11We cannot concur with the trial court’s analysis that the rain constituted an
occurrence, thus triggering coverage for the interior damage. See Gambone,
941 A.2d at 714 (stating that, “damage caused by rainfall that seeps through
faulty home exterior work [(such as the failure to cover the roof during
construction)] to damage the interior of a home is not a fortuitous event that
would trigger coverage”).
12 The trial court in the underlying action found that the replacement roof was
of a different style than the roof that was improperly installed by Wilton. Thus,
the trial court limited Brandt’s recovery to the cost of the improperly installed
roof ($42,450.00). Trial Court Opinion, 2/15/19, at 13. The trial court further
awarded Brandt $2,000.00 for the duplicate payment of a gutter system that
was already included in the original contract price. Id.
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by the record, no genuine issue of material fact existed as to whether
Appellant was required, pursuant to the policy, to indemnify Wilton.13
For these reasons, we vacate the February 9, 2021 order granting
summary judgment in favor of Brandt and denying Appellant’s motion for
summary judgment. We remand the case so the trial court can, in accordance
with this decision, enter an order granting summary judgment in favor of
Appellant and denying Brandt’s counter-motion for summary judgment.
Order vacated. Motion to dismiss or quash appeal denied. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/09/2022
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13 In light of our disposition on Appellant’s first issue, we do not address its
second and third issues. We note, however, that when a case involves a
question of contract interpretation, such as in the case sub judice, public policy
is irrelevant. See Wagner v. Erie Insur. Co., 801 A.2d 1226, 1231
(Pa. Super. 2002), aff’d, 847 A.2d 1274 (Pa. 2004).
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