Koerner, J. v. Geico Casualty Co. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JUDITH KOERNER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GEICO CASUALTY COMPANY, : No. 30 EDA 2017
:
Appellant :
Appeal from the Order Entered November 14, 2016,
in the Court of Common Pleas of Pike County
Civil Division at No. 810-2016
BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 19, 2017
Geico Casualty Company (“Geico”) appeals from the order of
November 14, 2016, overruling its preliminary objections.1 We dismiss the
appeal as moot and remand to the trial court with directions to dismiss the
complaint filed by plaintiff/appellee, Judith Koerner (“Koerner”), with
prejudice.
The trial court has summarized the history of this case as follows:
On May 19, 2016, [Koerner] initiated a lawsuit
(“First Lawsuit”) by filing a Complaint against GEICO
[], her car insurance company. See Docket No. 746-
2016 Civil. The Complaint alleged that [Koerner]
was injured when objects from an unknown and
uninsured motorist forced [Koerner]’s car into a
guardrail causing injuries to [Koerner]. The
1 Order overruling preliminary objections which assert lis pendens is
appealable as a collateral order. Richner v. McCance, 13 A.3d 950(Pa.Super. 2011).
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Complaint further alleges that [Koerner] is entitled to
compensation under her insurance policy pursuant to
the Pennsylvania Motor Vehicle Financial
Responsibility Law (PMVFRL), 75 Pa.C.S. § 1701,
which requires insurance companies to provide policy
holders with the option to purchase uninsured
motorists [sic] coverage.
[Koerner] initiated the instant case (“Second
Lawsuit”) [] on June 2, 2016 by filing a Writ of
Summons. She then filed a Complaint in the matter
on July 27, 2016. The Complaint alleged that
[Geico] failed to [comply] with several of [Koerner]’s
discovery demands, including a failure to produce a
representative for deposition, a failure to produce
relevant documentation, and a failure to produce a
recording of a phone call between [Koerner]’s
counsel and a representative of [Geico]. The
Complaint asked for Declaratory Judgment against
[Geico] for its failure to comply with Pennsylvania
law.
On August 12, 2016, [Geico] filed a Preliminary
Objection in the form of a Motion to Strike based
upon lis pendens. [Koerner] filed an Answer to the
Preliminary Objection on September 30, 2016.
Following a hearing on October 17, 2016, this Court
issued an Order on November 14, 2016, denying and
dismissing [Geico]’s Preliminary Objection.
On December 14, 2016, [Geico] filed a Notice
of Appeal as to this Court’s Order of November 14,
2016. On December 16, 2016, this Court ordered
that [Geico] file a Concise Statement of Matters
Complained of on Appeal [pursuant to
Pa.R.A.P. 1925(b)] within twenty-one (21) days from
the date of the Order. [Geico] filed a Concise
Statement of Matters Complained of on Appeal on
January 6, 2017.
Trial court opinion, 2/10/17 at 1-2.
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Subsequently, the First Lawsuit was removed to federal court. On
June 20, 2017, Geico filed an application for leave to file a post-briefing
communication, consisting of the Honorable Richard P. Conaboy’s June 14,
2017 memorandum and order ruling on Geico’s motion to dismiss in that
case. Judge Conaboy dismissed Counts I and II of the Second Amended
Complaint for breach of contract and common law bad faith on the basis that
Geico had tendered the limits of Koerner’s uninsured motorist (“UM”)
coverage ($15,000). This was the full amount that Koerner could recover on
a first-party UM claim. Although Koerner argued that a potential excess
verdict would be recoverable as consequential damages, Judge Conaboy
determined that the rationale for an insurer’s excess verdict liability does not
apply in a first-party UM case. Koerner v. Geico, 3:17-cv-455 (MD.Pa.
June 14, 2017), unpublished memorandum at 22. Judge Conaboy allowed
Koerner to proceed on Count III, statutory bad faith under 42 Pa.C.S.A.
§ 8371, with the exception of compensatory and consequential damages
which are not permitted under the bad-faith statute. Id. at 23.
All of Koerner’s allegations in the Second Lawsuit relate to purported
discovery violations, i.e., that Geico failed to make its employee,
Paul Brunskole, available for deposition; that Geico failed to turn over
recordings of a May 17, 2016 phone call between Mr. Brunskole and
Koerner’s attorney; and that Geico failed to comply with Koerner’s document
demands. (See 6/27/16 Complaint, RR Vol. 2 at 61-65.) All of these
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purported discovery violations stem from the First Lawsuit, and it is
undisputed that Geico has since complied with Koerner’s discovery requests.
In Count II of the Complaint in the Second Lawsuit, which Koerner
titles “Declaratory Judgment,” Koerner seeks a declaration that, inter alia:
Geico acted in violation of Pennsylvania law; Geico must comply with all
applicable laws in Pennsylvania; Geico is prohibited and enjoined from
uttering false statements; Geico is prohibited and enjoined from fabricating
evidence; Geico is required to comply with the Pennsylvania Unfair
Insurance Practices Act; and Geico is required to comply with the
Pennsylvania Unfair Trade Practices and Consumer Protection Law. (Id. at
65-67.) Koerner alleged no facts in support of her request for declaratory
relief other than those relating to her discovery requests pertaining to the
First Lawsuit.
As a preliminary matter, we must address whether this appeal is moot
as Geico has averred. Our courts cannot “decide moot or abstract questions,
nor can we enter a judgment or decree to which effect cannot be given.”
Sayler v. Skutches, 40 A.3d 135, 143 (Pa.Super. 2012), appeal denied,
54 A.3d 349 (Pa. 2012) (citation omitted).
As our court has previously stated:
“The mootness doctrine requires that an actual case
or controversy must be extant at all stages of review
. . . .” Pap's A.M. v. City of Erie, 571 Pa. 375, 812
A.2d 591, 600 (2002) (quoting In Re Cain, 527 Pa.
260, 590 A.2d 291, 292 (1991)). “Where the issues
in a case are moot, any opinion issued would be
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merely advisory and, therefore, inappropriate.”
Stuckley v. Zoning Hearing Bd. of Newtown
Twp., 621 Pa. 509, 79 A.3d 510, 516 (2013). “An
issue before a court is moot when a determination is
sought on a matter which, when rendered, cannot
have any practical effect on the existing
controversy.” Printed Image of York, Inc. v.
Mifflin Press, Ltd., 133 A.3d 55, 59 (Pa.Super.
2016) (citation and internal quotation marks
omitted).
In re 2014 Allegheny County Investigating Grand Jury, 147 A.3d 922,
923-924 (Pa.Super. 2016), appeal granted in part, 2017 WL 2129839 (Pa.
May 16, 2017).
Only where there is a real controversy may a party
obtain a declaratory judgment. A declaratory
judgment must not be employed to determine rights
in anticipation of events which may never occur or
for consideration of moot cases or as a medium for
the rendition of an advisory opinion which may prove
to be purely academic.
Gulnac by Gulnac v. South Butler County Sch. Dist., 587 A.2d 699, 701
(Pa. 1991) (citations omitted).
Here, we agree with Geico that the matter is moot. Geico tendered
the UM policy limits of $15,000 and complied with Koerner’s discovery
requests. Judge Conaboy in federal court dismissed Counts I and II of
Koerner’s Second Amended Complaint in the First Lawsuit and allowed her to
proceed only on Count III, statutory bad faith. While Koerner sought a
declaratory judgment that Geico was in violation of Pennsylvania law, all of
the factual allegations related to Geico’s purported failure to comply with
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Koerner’s discovery requests in the underlying UM litigation.2 There is no
actual case or controversy. Accordingly, Koerner’s Complaint in the Second
Lawsuit is properly dismissed.
Geico’s application for leave to file post-briefing communication is
granted. Appeal dismissed. Case remanded with instructions to dismiss the
Complaint with prejudice. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
2 Geico points out that it is not aware of any case law allowing an insured to
seek declaratory judgment relief in the context of a discovery dispute.
(Geico’s brief at 18; Geico’s reply brief at 13.) This court is not aware of any
either, and we observe that Koerner could have simply filed a motion to
compel or a motion for sanctions in the underlying UM litigation in the First
Lawsuit.
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