J

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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. : : : : : : : : : : : 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 a s subro gee 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 Integ rity
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 repairsJ

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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 c ause 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 cla use 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 Roofi ng] 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 P aragraph 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 en tity 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 Condition s to Roof Replacement Contract, SC

- 5.06(I) , attached as Exhibit F to Integrity Roofing’s Motion for Summary Judgment.J

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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 cou rt. 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 f acts 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 ofJ

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contract claims, not negligence claims. See Appellant’s Brief, at 15 ( citing
Community Ass ociation Underwriters of America v. Rhodes
Development Group, Inc. , 488 Fed. Appx. 547 (3d Cir. 2012)). 1 Contra ry 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) (cit ation 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 imm unized [pursuant to the waiver of

_________________ __________ ______ ____ _______

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. Penn m ont Securities , 52 A.3d 296, 303 (Pa. Super. 2012). Further, Community Association is not a published decision of t he 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).J

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subrogation clause], since the contract at issue a ffects 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 ad dress
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

- the

Action” 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 non

feasance. Such an anal ysis 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 ([3 d] 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 circu mstance 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. 3 d 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.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/6/2023