J-A28002-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CM REGENT INSURANCE COMPANY 

A/S/O NAZARETH AREA SCHOOL 

DISTRICT 

Appellant

v.

INTEGRITY ROOFING, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1297 EDA 2022

Appeal from the Order Entered April 25, 2022

In the Court of Common Pleas of Northampton County 

Civil Division at No(s): C-0048-CV-2020-03548

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED MARCH 6, 2023

CM Regent Insurance Company, acting as subrogee of Nazareth Area 

School District (“NASD”), appeals from the order granting summary judgment 

to Integrity Roofing, Inc., on CM Regent’s claim that Integrity Roofing was 

negligent in failing to secure its worksite at NASD’s high school gym before a 

rainstorm. On appeal, CM Regent argues the trial court erred in concluding a 

waiver of subrogation clause in the contract between NASD and Integrity 

Roofing precluded relief on CM Regent’s negligence claim. We disagree and 

therefore affirm.

NASD hired Integrity Roofing to replace the roof of its high school. 

While Integrity Roofing was replacing the roof, a leak occurred, causing 

damage to the school’s wooden gym floor. CM Regent paid for the repairs 
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pursuant to NASD’s insurance policy with CM Regent. CM Regent subsequently 

initiated this action as a subrogee of NASD, asserting claims for breach of 

contract and negligence based on allegations that Integrity Roofing had 

negligently failed to properly secure the worksite before a rainstorm.

After Integrity Roofing filed preliminary objections to CM Regent’s 

complaint, CM Regent filed an amended complaint, asserting only a cause of 

action for negligence based on the same allegations. The parties proceeded to 

discovery. At the close of discovery, Integrity Roofing filed a motion for 

summary judgment asserting that CM Regent’s claims were barred by the 

waiver of subrogation clause in the contract between NASD and Integrity 

Roofing. Specifically, that clause provided that all parties to the contract 

waived any claims against other parties for damages to property that were 

covered by insurance policies:

[NASD] and [Integrity Roofing] waive all rights against (1) each 

other and any of their subcontractors, sub-subcontractors, agents 

and employees, each of the other ... for damages caused by fire 

or other causes of loss to the extent covered by property insurance 

obtained pursuant to Paragraph 5.04 or other property insurance 

applicable to the Work, except such rights as they have to 

proceeds of such insurance held by [NASD] as fiduciary. ... A 

waiver of subrogation shall be effective as to a person or entity 

even though that person or entity would otherwise have a duty of 

indemnification, contractual or otherwise, did not pay the 

insurance premium directly or indirectly, and whether or not the 

person or entity had an insurable interest in the property 

damaged.

Supplementary Conditions to Roof Replacement Contract, SC-5.06(I), 

attached as Exhibit F to Integrity Roofing’s Motion for Summary Judgment.
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The trial court agreed with Integrity Roofing and concluded CM Regent’s 

claims were barred by the waiver of subrogation clause. See Opinion of Court, 

4/25/22, at 5. CM Regent then filed this timely appeal. The trial court directed 

CM Regent to file a statement of errors on appeal pursuant to Pa.R.A.P. 1925, 

and CM Regent timely complied.

We review orders granting summary judgment for an error of law:

In reviewing an order granting summary judgment, our scope of 

review is plenary, and our standard of review is the same as that 

applied by the trial court. Our Supreme Court has stated the 

applicable standard of review as follows: An appellate court may 

reverse the entry of a summary judgment only where it finds that 

the lower court erred in concluding that the matter presented no 

genuine issue as to any material fact and that it is clear that the 

moving party was entitled to a judgment as a matter of law. In 

making this assessment, we view the record in the light most 

favorable to the nonmoving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. As our inquiry involves solely questions 

of law, our review is de novo.

Thus, our responsibility as an appellate court is to determine 

whether the record either establishes that the material facts are 

undisputed or contains insufficient evidence of facts to make out 

a prima facie cause of action, such that there is no issue to be 

decided by the fact-finder. If there is evidence that would allow a 

fact-finder to render a verdict in favor of the non-moving party, 

then summary judgment should be denied.

Gerber v. Piergrossi, 142 A.3d 854, 858 (Pa. Super. 2016) (citation and 

brackets omitted).

CM Regent first argues the trial court erred by failing to recognize the 

claim in its amended complaint was for negligence, not breach of contract. CM 

Regent contends waiver of subrogation clauses apply only to breach of 
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contract claims, not negligence claims. See Appellant’s Brief, at 15 (citing

Community Association Underwriters of America v. Rhodes 

Development Group, Inc., 488 Fed. Appx. 547 (3d Cir. 2012)).1 Contrary 

to CM Regent’s assertion, however, a waiver of subrogation clause “is 

enforceable whether or not such waiver relates to the contractor’s own 

negligence.” Universal Underwriters Ins. Co. v. A. Richard Kacin, Inc., 

916 A.2d 686, 692 (Pa. Super. 2007) (citation omitted).

CM Regent attempts to evade the applicability of Universal 

Underwriters by drawing a distinction between misfeasance and 

nonfeasance. First, we are not persuaded that the alleged failure to properly 

secure the worksite from a rainstorm is better classified as misfeasance as 

opposed to nonfeasance. But even if it is, we find no basis in Universal 

Underwriters to treat negligence claims based on allegations of misfeasance 

differently from negligence claims based on allegations of nonfeasance. 

Therefore, CM Regent’s first argument on appeal merits no relief.

Next, CM Regent argues the waiver of subrogation clause is not 

enforceable because it is contrary to public policy. CM Regent asserts that 

Integrity Roofing “should not be immunized [pursuant to the waiver of 

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1 “[A]bsent a United States Supreme Court pronouncement, the decisions of 

federal courts are not binding on Pennsylvania state courts ....” NASDAQ OMX 

PHLX, Inc. v. Pennmont Securities, 52 A.3d 296, 303 (Pa. Super. 2012). 

Further, Community Association is not a published decision of the Third 

Circuit. Therefore, it is not considered binding precedent even in that court. 

See U.S. v. Lofton, 393 Fed. Appx. 872, 874 n.4 (3d Cir. 2010).
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subrogation clause], since the contract at issue affects all taxpayers in the 

[NASD] and involves a public building which clearly is an interest of the 

[Commonwealth].” Appellant’s Brief, at 20. The trial court does not address 

this argument, because this argument was not fairly suggested by CM 

Regent’s Rule 1925(b) statement:

Specifically, [CM Regent] challenges the following 

rulings/findings:

(1) Whether the [c]ourt erred by not assessing the “Gist-of-theAction” doctrine pursuant to Bruno v. Erie [I]ns. Co., 106 

[A.3d] 48 (Pa. 2014), which analysis would have concluded 

that this case was the result of misfeasance and not nonfeasance. Such an analysis would lead to the conclusion that 

the contractual “waiver of subrogation” defense is not 

applicable to the negligence tort claim. This analysis was 

appreciated in Community Ass’n Underwriters of 

America v. Rhodes Dev. Group, Inc., 488 F. App’x 547 

([3d] Cir. 2012).

(2) Whether the [c]ourt’s decision was in error allowing a 

“Waiver of Subrogation” clause to dismiss a negligence 

claim, when the contractual waiver of subrogation clause at 

issue[] does not specifically delineate negligence as an item 

or circumstance to be waived.

Concise Statement of Errors Complained of on Appeal, 6/3/22. This issue is 

therefore waived. See Commonwealth v. Cooper, 277 A.3d 1190, 1195 (Pa. 

Super. 2022) (holding that issues not raised in a 1925(b) statement are 

waived).

As neither of CM Regent’s issues on appeal merit relief, we affirm the 

order granting summary judgment in favor of Integrity Roofing.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/2023