J-S51032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TIM WILBUR MECHANICAL AND

TIM WILBUR

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

NORGUARD INSURANCE COMPANY

Appellee No. 364 MDA 2014

Appeal from the Order Entered January 24, 2014

In the Court of Common Pleas of Cumberland County

Civil Division at No(s): 06-6048

BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED FEBRUARY 18, 2015

Tim Wilbur Mechanical and Tim Wilbur (Wilbur) appeal from the order 

entered January 24, 2014, in the Court of Common Pleas of Cumberland 

County granting summary judgment in favor of defendant, NorGUARD 

Insurance Company (NorGUARD). The trial court determined that, as a 

matter of law, NorGUARD had effectively cancelled Wilbur’s workmen’s 

compensation insurance policy prior to the claimed accident and therefore, 

Wilbur had failed to state a cause of action upon which relief could be 

granted. Additionally, the trial court found Wilbur was collaterally estopped 

from challenging the effective cancellation of the worker’s compensation 

policy. Following a thorough review of the certified record and relevant law, 

we affirm.
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In this appeal, Wilbur raises two issues: (1) the trial court erred in 

determining the policy was effectively cancelled even though NorGUARD did 

not make a timely return of Wilbur’s unearned premium, and (2) the trial 

court erred in determining Wilbur was collaterally estopped from bringing the 

lawsuit.

Initially, we note the procedural problems found herein. This case 

arises from an accident suffered on October 16, 2002, in the course and 

scope of employment, by a Wilbur employee. Wilbur had purchased a 

worker’s compensation insurance policy from NorGUARD. However, Wilbur 

had failed to make the required June 9, 2002 premium payment.1 On June 

17, 2002, NorGUARD mailed notice of cancellation of the policy, effective 

July 7, 2002, unless the required premium payment was made. Payment 

was not tendered; the policy was cancelled. 

On October 16, 2006, Wilbur filed suit against NorGUARD claiming 

breach of contract, bad faith, and punitive damages. All of these claims are 

based upon the assertion that NorGUARD did not effectively cancel the 

worker’s compensation policy. On April 1, 2013, NorGUARD filed a motion 

for summary judgment arguing that it had effectively cancelled Wilbur’s 

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1 The record indicates Wilbur had failed to make two prior payments as well. 

Both of these failures led to cancellation notices being sent to Wilbur. 

However, in both prior instances, Wilbur made payment before the effective 

cancellation date and so the policy was reinstated both times.
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worker’s compensation insurance as of July 7, 2002. Therefore, it did not 

and could not breach the contract regarding the October 16, 2002 accident, 

because no contract existed at that time. Wilbur did not file a response to 

the motion, despite Pa.R.C.P. 1035.3 requiring the adverse party to file a 

response within 30 days of service of the motion for summary judgment.2 

In the January 24, 2014 order granting NorGUARD’s motion for summary 

judgment, the trial court commented that it had considered Wilbur’s brief in 

opposition to NorGUARD’s motion. That brief is not part of the certified 

record.

Although “response” is not defined, it does not appear to include 

simply a brief. Rule 1035.3(e)(1) allows a trial court to rule on summary 

judgment “without written responses or briefs” as long as no party is 

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2 Rule 1035.3 states, in relevant part:

Except as provided in subdivision (e) [allowing the court to 

decide a motion without written responses or briefs if no party is 

prejudiced] , the adverse party may not rest upon the mere 

allegations of denials of the pleading but must file a response 

within thirty days after service of the motion identifying

(1) one or more issues of fact arising from evidence in the 

record controverting the evidence cited in support of the 

motion or from a challenge to the credibility of one or 

more witnesses testifying in support of the motion, or

(2) evidence in the record establishing the facts essential 

to the cause of action or defense which the motion cites as 

not having been produced.

Pa.R.C.P. 1035.3(a)(1)-(2) (emphasis added).
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prejudiced. This Rule indicates that a brief is not the same as a written 

response. Further, case law indicates the trial court has the discretion to 

require a brief and/or oral argument. See Thomas v. Elash, 781 A.2d 170 

(Pa. Super 2001); Smitley v. Holiday Rambler Corp., 707 A.2d 520 (Pa. 

Super. 1998). Rule 1035.3 clearly states that a response must be filed. 

Therefore, a brief, which is supplied at the discretion of the court, is not 

contemplated to replace the required filed response. Finally, Scopel v. 

Donegal Mutual Ins. Co., 698 A.2d 602 (Pa. Super. 1997), in commenting 

on Rule 1035.3, notes that “litigant’s briefs are not part of the official 

record.”3 Id. at 606. This comment also indicates that a brief does not 

equate to a mandatory filed response.

While the failure to respond to a motion can result in a finding of 

waiver, here, the trial court scheduled argument on the motion. Said 

argument was apparently held on November 8, 2013.4 Subsequently, the 

trial court ruled on the motion, having considered both the brief and the 

argument. See Order, 1/24/2014. Because the trial court ruled on the 

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3

This fact is demonstrated by the instant certified record, which does not 

contain Wilbur’s brief in opposition to NorGUARD’s motion. 

4 The certified record contains an order scheduling argument for that date. 

However, the official docket has no entries for that date and there are no 

stenographer’s notes from that date.
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merits as if Wilbur had properly responded to NorGUARD’s motion, we will 

address the issues as framed by the trial court.5

We note our applicable scope and standard of review:

Our scope of review of an order granting summary judgment is 

plenary. [W]e apply the same standard as the trial court, 

reviewing all the evidence of record to determine whether there 

exists a genuine issue of material fact. We 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. Only where there is no 

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

moving party is entitled to a judgment as a matter of law will 

summary judgment be entered.

Motions for summary judgment necessarily and directly implicate 

the plaintiff's proof of the elements of his cause of action.... 

Thus, a record that supports summary judgment will either (1) 

show the material facts are undisputed or (2) contain insufficient 

evidence of facts to make out a prima facie cause of action or 

defense and, therefore, there is no issue to be submitted to the 

[fact-finder]. Upon appellate review, we are not bound by the 

trial court's conclusions of law, but may reach our own 

conclusions. The appellate Court may disturb the trial court's 

order only upon an error of law or an abuse of discretion.

Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014) (citation 

omitted).

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5 Because we have no direct record of Wilbur’s arguments before the trial 

court, we cannot rely upon either Wilbur’s Pa.R.A.P. 1925(b) statement or 

his Appellant’s Brief. “Issues not raised below cannot be advanced for the 

first time in a 1925(b) statement or on appeal.” Irwin Union National 

Bank and Trust Co. v. Famous, 4 A.3d 1099, 1104 (Pa. Super. 2010) 

citing Diamond Reo Truck Company v. Mid-Pacific Industries, Inc., 

806 A.2d 423, 430 (Pa. Super. 2002). Accordingly, we must rely on the trial 

court’s recitation.
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Here, the trial court reviewed the specific language of the policy and 

determined that the contractual requirements for cancellation of the policy 

were contained in Part Six, Section D. In relevant part, the policy states:

2. We may cancel this policy. We must mail or deliver to you 

not less than ten days advance written notice stating when 

the cancelation is to take effect. Mailing that notice to you at 

your mailing address shown in Item 1 of the Information Page 

will be sufficient to prove notice.

3. The policy period will end on the day and hour stated in the 

cancelation notice.

4. Any of these provisions that conflict with a law that controls 

the cancelation of the insurance in this policy is changed by 

this statement to comply with the law.

NorGUARD Policy, Part Six, ¶ D, (2)-(4), at 5.

The evidence of record, produced by NorGUARD, demonstrates that 

NorGUARD complied with the contractual requirements. Notice was mailed 

to Wilbur, at the proper address, on June 17, 2002, effective July 7, 2002 at 

12:01 A.M. Therefore, the notice provided more than the ten days’ advance 

written notice required by paragraph 2.6 

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6 Although not mentioned by either the trial court or Wilbur, we note the 

relevant Pennsylvania statute, 40 P.S. § 3403(3)(ii), requires a minimum 15 

days’ advance notice when an insurance policy is terminated for reasons of 

non-payment of premiums. However, NorGUARD provided 20 days’ advance 

notice, so the statutory requirement for timely notice was met. Additionally, 

40 P.S. § 3407(b) exempts workmen’s compensation policies that are 

subject to the “Healthcare Services Malpractice Act” from the cancellation 

requirements of Section 3403. The “Healthcare Services Malpractice Act” 

was repealed and there is no indication in the certified record that the 

NorGUARD policy is or ever was subject to that law.
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The trial court noted that Wilbur claimed that NorGUARD failed to 

return the unearned premium to Wilbur within the ten days required by the 

policy. Wilbur’s argument is based upon language found in an endorsement 

to the policy.7 

The endorsement addresses three issues: nonrenewal, notice of 

increase of premium, and return of unearned premium. In relevant part, the 

endorsement reads:

1. If this policy is canceled and there is unearned premium due 

you:

a. If the company cancels, the unearned premium will be 

returned to you within 10 business days after the 

effective date of cancellation.

b. If you cancel, the unearned premium will be returned 

within 30 days after the effective date of cancellation.

2. Because this policy was written on the basis of an estimated 

premium as is subject to a premium audit, the unearned 

premium specified in 1a. and 1b. above, if any, shall be 

returned on an estimated basis. Upon our completion of 

computation of the exact premium, an additional return 

premium or charge will be made to you within 15 days of the 

final computation.

Policy Endorsement, WC 37 06 03A.

Based upon the language of this endorsement, Wilbur claimed that the 

cancellation was not effective on July 7, 2002, because NorGUARD did not 

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7 The endorsement language was required by 40 P.S. § 3404. 
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return the unearned premium within the ten days required by the policy in 

paragraph 1a.8

The trial court analyzed this language and determined that, contrary to 

Wilbur’s assertion, the return of any unearned premium was not a 

prerequisite to the cancellation of the policy. The paragraphs addressing 

unearned premium were not contained within Part Six, ¶ D (regarding 

cancellations) of the policy. Part Six, ¶ D does not refer to the return of 

unearned premiums as a condition or requirement of cancellation of the 

policy.9 Further, the relevant language of the endorsement indicates that 

the return of any unearned premium is an action contemplated as occurring 

subsequent to the cancellation of the policy, not as a prerequisite to effective 

cancellation. Therefore, effective cancellation of the policy cannot be 

conditioned upon an action taken only after cancellation. Stated another 

way, there is no language in the policy to support an argument that the 

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8 The policy was subject to estimated premiums, see Complaint, 

10/16/2006, at ¶ 8; Answer, 12/7/2006, at ¶ 8. Therefore, it appears that 

the return of any unearned premium was subject to the terms of paragraph 

2, not paragraph 1a.

9 We note there is nothing in the statutory language cited by Wilbur 

indicating effective cancellation of a policy is conditioned upon timely return 

of any unearned premium.
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return of any unearned premium, within the time allotted in the 

endorsement, is required to ratify an otherwise effective cancellation.10

The trial court noted that Wilbur argued Gosch v. Fireman’s 

Insurance Company, 33 Pa. Super. 496 (1906), made the return of any 

unearned premium a requirement to the effective cancellation of the policy. 

The trial court correctly noted that Gosch is easily distinguishable from the 

instant matter. We note that Gosch predates statutory insurance 

regulation. The contract in Gosch contained language linking the return of 

unearned premium to the cancellation of the policy.11 As demonstrated 

above, such language does not exist in the NorGUARD policy. 

Further, we note that subsequent case law effectively limits Gosch to 

the facts presented in that case. See Pomerantz v. Mutual Fire Ins. Co. 

of Chester County, 124 A. 139, 140 (Pa. 1924) (noting subsequent 

enactment of statutorily mandated policy forms: “Formerly, the unearned 

premium was required to be tendered when the policy was canceled, 

otherwise the latter would continue in effect.”); Turney v. Allstate Ins. 

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10 If we accept Wilbur’s interpretation that effective cancellation is 

conditioned upon the subsequent timely return of any unearned premium, 

then pursuant to the endorsement at ¶ 1b., if a customer sought to cancel 

the policy, but the unearned premium was not returned within 30 days, then 

the cancellation would be defeated.

11 Another factual difference is that Gosch actually made timely payment to 

his insurance agent. It was the agent who failed to make payment to the 

insurer.
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Co., 74 A.2d 730, 731 (Pa. Super. 1950) (noting Pomerantz had effectively 

ruled return of unearned premium was no longer a condition precedent to 

effective cancellation of a policy).

Because the evidence of record supports the trial court’s determination 

that NorGUARD complied with all of the contractual and statutory 

requirements to effectively cancel Wilbur’s policy for non-payment of 

premiums, and correctly determined as a matter of law the return of any 

unearned premium is not a condition precedent to effective cancellation of a 

policy nor is it required to ratify cancellation, Wilbur cannot prevail. As 

noted above, all of Wilbur’s claims were dependent upon a finding that the 

policy was not properly cancelled. Therefore, summary judgment as to all 

claims was properly granted.

Because the trial court correctly determined the policy had been 

effectively cancelled, we need not address Wilbur’s second claim regarding 

collateral estoppel.

Order granting summary judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/18/2015