J-A09014-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STATE FARM MUTUAL AUTOMOBILE 

INSURANCE COMPANY

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

PAUL FULLER, MARK CZYZYK, MICHELE 

CZYZYK, AND ROSE NEALON

APPEAL OF: ROSE NEALON

No. 1488 MDA 2016

Appeal from the Order Entered August 5, 2016

In the Court of Common Pleas of Lackawanna County

Civil Division at No(s): 15-CV-999

BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED JUNE 26, 2017

Rose Nealon (Nealon) appeals from the order entered on August 5, 

2016, in the Court of Common Pleas of Lackawanna County, granting 

summary judgment in favor of State Farm Mutual Automobile Insurance 

Company (State Farm), in the declaratory judgment action filed by State 

Farm.

1

 State Farm sought declaratory relief based on its position that the 

insured vehicle, in which Nealon was a passenger at the time of the 

accident, was being operated by Paul Fuller (Fuller) without the permission 

____________________________________________

1

Prior to August 5, 2016, a default judgment had been entered against 

Fuller. See Order, 3/15/2016. Nealon, the plaintiff in the underlying tort 

action, is the sole appellant.
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of the insured owner, Michelle Czyzyk. In this timely appeal, Nealon claims 

the trial court erred in granting summary judgment: (1) while there still 

existed genuine issues of material dispute, (2) where the trial court lacked 

jurisdiction in that no controversy existed regarding the insurance policy, 

and (3) where the trial court did not apply consistently prior orders 

regarding the existence of genuine issues of material dispute. Following a 

thorough review of the submissions by the parties, relevant law, and the 

certified record, we affirm.

This declaratory judgment action arises from the underlying personal 

injury action, regarding an automobile accident, filed by Rose Nealon against 

Paul Fuller, Michele Czyzyk and her brother, Mark Czyzyk.2 The facts giving 

rise to these actions are more fully discussed below.

Our scope and standard of review for an order granting summary 

judgment is well settled.

A reviewing court may disturb the order of the trial court only 

where it is established that the 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. Pa.R.C.P. 1035.2. The rule 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 

____________________________________________

2 The trial court consolidated the personal injury action and the declaratory 

judgment action for pretrial purposes only. See Order, 4/4/2016.
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of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment. Failure of a 

nonmoving 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.

Byoung Suk An v. Victoria Fire and Cas. Co., 113 A.3d 1283, 1287-88 

(Pa. Super. 2015) (citation omitted).

Because Nealon’s second claim addresses an issue of jurisdiction, we 

will review it first. Nealon argues this declaratory judgment action seeks an 

advisory opinion in that there has been no determination of negligence, 

therefore it is speculation that the State Farm automobile insurance policy 

will be required to indemnify anyone. This argument is unavailing.

The long-standing rule has been that declaratory judgments are 

not obtainable as a matter of right. Whether the lower court 

should exercise jurisdiction over a declaratory judgment 

proceeding is a matter of sound judicial discretion. Clark, Inc. 

V. Township of Hamilton, 128 Pa.Commw. 31, 38, 562 A.2d 

965, 968-969 (1989), citing State Farm Mut. Ins. Co. v. 

Semple, 407 Pa. 572, 180 A.2d 925 (1962); Smith v. County 

of York, 37 Pa.Commw. 47, 388 A.2d 1149 (1978), cert. 

denied, 441 U.S. 908, 99 S.Ct. 1999, 60 L.Ed.2d 377 (1979); 

Presbyterian-University of Pennsylvania Medical Center v. 

Keystone Ins. Co., 251 Pa. Super. 71, 380 A.2d 381 (1977). 

See also, State Automobile Insurance Association v. 

Kuhfahl, 364 Pa. Super. 230, 233, 527 A.2d 1039, 1040 

(1987), appeal denied, 517 Pa. 618, 538 A.2d 500 (1988).

In Pennsylvania, declaratory relief is unavailable when it is 

sought merely in anticipation of an action at law by another 

party. Commonwealth, Department of General Services v. 

Frank Brisco, Co., 502 Pa. 449, 458-459, 466 A.2d 1336, 

1340-1341 (1983); Penox Technologies, Inc. v. Foster 
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Medical Corp., 376 Pa. Super. 450, 454, 546 A.2d 114, 115 

(1988). 

American Nuclear Insurers v. Metropolitan Edison Co., 582 A.2d 390, 

392 (Pa. Super. 1990) (footnote omitted) (italics added). 

Nealon has filed an action seeking indemnification from parties who 

are alleged insureds under the State Farm automobile insurance policy. Not 

only is indemnification at issue, but State Farm might also be required to 

provide a defense in the personal injury action. Clearly, this declaratory 

judgment action was not filed in mere anticipation of another action.

We are also informed by Justice Saylor’s explanation of the purpose of 

the Declaratory Judgment Act in his dissenting opinion in Nationwide 

Mutual Insurance Company v. Wickett, 763 A.2d 813 (Pa. 2000). 

“Moreover, the primary and direct purpose of the Declaratory Judgments 

Act, a version of the Uniform Declaratory Judgments Act, was to authorize 

courts to grant declaratory relief in the face of objections that such relief 

represented the giving of advisory opinions rather than the adjudication of 

controversies.” Wickett, 763 A.2d at 819 (Saylor, J. dissenting). 

Accordingly, we conclude that a situation as is instantly present, where an 

insurance company seeks a determination of the applicability of its policy to 

a matter in litigation, does not concern an advisory opinion. Accordingly, the 

trial court had jurisdiction to entertain this matter and to rule on State 

Farm’s motion for summary judgment. Nealon is not entitled to relief on this 

issue.
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Next, we address Nealon’s substantive claim that the trial court erred 

in granting summary judgment where there remained open genuine issues 

of material dispute. The general facts as related by the trial court in its 

Pa.R.A.P. 1925 (a) opinion are as follows:

Rose Nealon avers that on August 2, 2012, she was a passenger 

in a 2002 Kia Sportage owned by Michele and Mark Czyzyk, a 

brother and sister, and driven by Paul Fuller. Nealon says that 

Fuller was “under the influence of illegal narcotics, prescriptions 

[sic] drugs and/or alcohol,” and ultimately “lost control of the 

vehicle and struck a parked car.” She further alleges that the 

Czyzyks allowed Fuller access to the Kia Sportage when they 

knew or should have known that he was intoxicated. As a result 

of the accident, Nealon sustained injuries including left tibial and 

fibulal fractures, a right forearm injury, a head contusion, and 

left leg pain. On November 25, 2012, she filed a Complaint 

advancing claims of negligence against Fuller, negligent 

entrustment against Defendants Czyzyk, and breach of contract 

against the vehicle’s insurer, State Farm Mutual Automobile 

Insurance Company, with regard to uninsured and underinsured 

motorist insurance coverage.

On January 27, 2015, State Farm initiated a separate declaratory 

judgment action, originally docketed at 2015-CV-999, against 

Fuller, Mark Czyzyk, and Nealon. In that action, State Farm 

avers that “any and all claims that may be asserted against 

[Fuller and Mark Czyzyk] are excluded from coverage and/or are 

not entitled to coverage” under the provisions of the 

underinsurance policy between State Farm and its insured, 

Michele Czyzyk, because these Defendants are not “named 

insureds” under the policy, as required by its language. On 

Fullers motion, we consolidated both matters on April 4, 2016, 

for pretrial purposes only.

...

State Farm contends that Fuller, Mark Czyzyk, and Nealon are 

excluded from coverage and/or are not entitled to coverage 

under Michele Czyzyk’[s] State Farm insurance policy because 

neither Fuller nor Czyzyk are “named insureds under said policy 

of insurance and are not insureds by definition under the terms 
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and provisions of said policy of insurance...” Critical to this 

argument is the assertion that Fuller “did not have permission to 

be driving the subject vehicle at the time of the accident.”

Id. at 4. Trial Court Opinion, 8/4/2016, at 1-2, 4.

Also relevant to the disposition of this matter, the Kia, driven by 

Fuller, in which Nealon was a passenger, was owned by Michele Czyzyk. 

Deposition Nealon, 6/19/2014, at 69; Deposition Michele Czyzyk, 6/16/2014 

at 8; Deposition Mark Czyzyk, 6/19/2014, at 11-14; Mark Czyzyk Answer to 

Declaratory Judgment Complaint, 9/13/2015, at ¶¶ 5, 7; Nealon Answer to 

Declaratory Judgment Complaint, 4/28/2015 at ¶ 7. Michele Czyzyk is the 

named insured on the State Farm automobile insurance policy at issue. 

Mark Czyzyk Answer to Declaratory Judgment Complaint at ¶ 7; Nealon 

Answer to Declaratory Judgment Complaint at ¶ 7.3 Mark Czyzyk gave 

permission to Paul Fuller to drive the Kia prior to the accident.4 Deposition 

Nealon, at 43; Deposition Fuller, 2/18/2015, at 18.5 Michele Czyzyk gave 

her brother, Mark, permission to drive the Kia to run short errands. 

____________________________________________

3 Although the declarations page for the State Farm automobile insurance 

policy at issue is referenced in the certified record, the declarations page 

itself has not been made part of the certified record. We find no dispute to 

the fact that Michele Czyzyk is the named insured on that policy.

4 Mark Czyzyk denied giving Fuller permission to drive the Kia. However, 

because of the posture of this appeal, we view any disputed evidence in the 

light most favorable to Nealon, as the non-moving party.

5

Fuller testified Nealon told him that Mark Czyzyk had given him permission 

to drive the Kia. 
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Deposition Michele Czyzyk, at 20-23; Deposition Mark Czyzyk, at 13. There 

is no evidence of record indicating Michele Czyzyk gave her brother 

permission to allow any other person to drive the Kia. 

The central and dispositive issue in this matter is whether Fuller was a 

permissive driver of the Kia. If he was, then under the definitions provided 

in the insurance policy, he was an insured and State Farm would be required 

to defend Mark Czyzyk and Paul Fuller, and might be required to indemnify 

them regarding Nealon’s claimed injuries. See State Farm Policy, Liability 

Coverage, Additional Definitions, at 7, ¶ 3.

Relevant definitions from the State Farm automobile insurance policy 

are:

Your means the named insured or named insureds on the 

Declarations Page.

...

Insured means:

...

 3. any other person for his or her use of:

 a. your car

Such vehicle must be used within the scope of your consent.

State Farm automobile insurance policy at 6-7 (italics in original).

The law in Pennsylvania regarding permissive use is:

Whether a user of an automobile has the permission necessary 

to elevate that user to the status of an additional insured 

depends upon the facts and circumstances of each case in light 

of the underlying policy language. See e.g. Federal Kemper 

ins. Co. v. Neary, supra, 366 Pa.Super. at 139, 530 A.2d at 

931. The owner's permission to use an automobile may either be 

expressed or implied. Id. “Implied permission may arise from 

the relationship of the parties or by virtue of a course of conduct 
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in which the parties have mutually acquiesced.” Id. at 140-41, 

530 A.2d at 931 (citing Brower v. Employers’ Liability 

Assurance Co. Ltd., supra, 318 Pa. at 444, 177 A. at 828; 

Esmond v. Liscio, supra, 209 Pa. Super at 206, 224 A.2d at 

796). “However, ‘permission’ requires something more than 

mere sufferance or tolerance without taking steps to prevent the 

use of the automobile, and permission cannot be implied from 

possession and use of the automobile without the knowledge of 

the named insured.” St. Farm Mut. Ins. Co. v. Judge, supra, 

405 Pa. Super. at 381, 592 A.2d at 714; Federal Kemper Ins. 

Co. v. Neary, supra, 366 Pa. Super. at 140, 530 A.2d at 931 

(quoting Blashfield, Automobile Law and Practice, § 315.10 at 

608) (emphasis added).

Our focus, then, is not directed to the actions of the ultimate 

user of the auto, but rather, “whether the named insured said or 

did something that warranted the belief that the ensuing use 

was with his consent. There must be ‘a connection made’ with 

the named insured's own conduct; [mere] proof of ‘acts, 

circumstances, and facts, such as continued use of the car,’ will 

be insufficient ‘unless they attach themselves in some way to the 

acts' of the named insured.” Id.; Belas v. Melanovich, 247 Pa. 

Super. 313, 324, 372 A.2d 478, 484 (1977) (quoting Beatty v. 

Hoff, 382 Pa. 173, 177, 114 A.2d 173, 174 (1955)) (emphasis 

added).

Nationwide Mutual Insurance Company v. Cummings, 652 A.2d 1338, 

1344-45 (Pa. Super. 1994).

Accordingly, under the definitions found in the State Farm policy, as 

applied by Cummings, Fuller could be considered a permissive user if 

Michele Czyzyk, the owner of the car and the named insured on the policy, 

did something that warranted Fuller’s belief that she consented to his use of 

her car.

Viewing the evidence in the light most favorable to Nealon, we must 

accept that Mark Czyzyk gave Fuller permission to use the car. However, 
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the evidence also shows that Mark Czyzyk was not the owner/named insured 

of the Kia. Both the State Farm automobile insurance policy and case law 

require valid permission come from the named insured, either directly or by 

implication. Therefore, in order for Fuller to be considered a permissive user 

of the car, there must be additional evidence that Michele Czyzyk, the 

named insured, gave her brother permission to loan the car to other people. 

In light of the evidentiary record, there are no disputed facts to prevent the 

determination, as a matter of law, whether Michele Czyzyk gave her brother, 

Mark, permission to loan her car to any other person. While the record is 

clear that Michele granted her brother permission to use the car himself, the 

certified record is bereft of evidence that such permission included granting 

Mark the right to allow any other person to use the car. Accordingly, Fuller 

was not a permissive user of Michele Czyzyk’s Kia and he is not entitled to 

coverage under the State Farm automobile insurance policy.6

In her final claim, Nealon argues the trial court’s orders of July 22, 

2016, and August 5, 2016 inconsistently ruled on whether any genuine 

issues of material fact remained open. This argument misapprehends the 

scope and subject matter of the two orders. Therefore, this argument is 

without merit.

____________________________________________

6

It does not appear that Nealon argues that she is independently entitled to 

any coverage under the State Farm automobile insurance policy. Such a 

claim would also fail, as passengers in a car being operated without 

permission are also excluded from coverage. See Cummings, supra.
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On July 22, 2016, the trial court granted Michele Czyzyk’s motion for 

summary judgment in the underlying tort action filed by Nealon and denied 

Mark Czyzyk’s similar motion. Essentially, the order determined there were 

no facts of record that allowed a finding of negligence against Michele 

Czyzyk, but there was still an open factual question whether Mark Czyzyk 

had negligently allowed Fuller the use of the Kia. As noted above, in the 

declaratory judgment action, the only relevant question was that of Michele 

Czyzyk’s permission, not Mark’s. Accordingly, the open question of Mark 

Czyzyk’s negligence in the tort action does not conflict with any aspect of the 

trial court’s ruling in the declaratory judgment action. Therefore, Nealon is 

not entitled to relief on this claim.

Having found no abuse of discretion or error of law on the part of the 

trial court in granting State Farm declaratory relief, Nealon cannot prevail in 

this appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2017
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