J-A22023-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PENNSYLVANIA INTEGRATED RISK 

MANAGEMENT ASSOCIATION

v.

STEVEN HOMANKO, BOROUGH OF 

NESQUEHONING, SEAN SMITH AND 

MICHAEL SAUERS, INDIVIDUALLY 

AND AS ADMINISTRATOR OF THE 

ESTATE OF CAROLA R. SAUERS

APPEAL OF: STEVEN HOMANKO

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IN THE SUPERIOR COURT

OF PENNSYLVANIA

No. 337 EDA 2019

Appeal from the Order Entered December 31, 2018

in the Court of Common Pleas of Carbon County 

Civil Division at No(s): 17-2151

BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 15, 2019

Steven Homanko appeals from the order entered December 31, 2018,

which granted judgment on the pleadings in favor of Pennsylvania Integrated 

Risk Management Association (PIRMA), concluding PIRMA had no duty to 

defend or indemnify Homanko in an underlying civil action in which Homanko 

is a defendant. We affirm.

The trial court provided the relevant factual and procedural history of 

this matter. 

In the underlying action, Michael Sauers, individually and as 

the administrator of the Estate of Carola R. Sauers, brought suit 

against [] Homanko, Sean Smith, and the Borough of 

Nesquehoning [(the Borough)] [in the United States District Court 

for the Middle District of Pennsylvania.] That action arises out of 

a motor vehicle collision wherein [] Homanko, while acting within 
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the scope of his employment as a police officer for the Borough 

[], was traveling in excess of one hundred (100) miles per hour in 

pursuit of a vehicle which [] Homanko had observed committing a 

summary traffic offense. [] Homanko’s collision with the 

Sauers[es’] vehicle resulted in the death of Carola Sauers and 

multiple personal injuries to Michael Sauers. Based upon his 

actions which resulted in the collision, [] Homanko was charged 

criminally and subsequently pleaded guilty to homicide by vehicle, 

recklessly endangering another person [(REAP)], failure to keep 

right, and careless driving.

Prior to the collision, the Borough [] entered into a “Legal 

Defense and Claim Payment Agreement” with [PIRMA]. This 

agreement provide[d] that [PIRMA] [would] defend and indemnify 

the Borough, including employees acting within the scope of their 

employment, against any suit seeking damages, unless an act is 

not covered by the agreement. The agreement explicitly excludes 

criminal acts, which are defined as injury arising out of any 

criminal act or violation of a penal statute. This exclusion does 

not apply until it has been judicially determined that the employee 

did commit such criminal act or violation.

Trial Court Opinion, 3/27/2019, at 2-3 (capitalization altered, citations 

omitted).

On September 21, 2017, PIRMA filed the instant action against, inter 

alia, Homanko, asserting it was entitled to declaratory judgment pursuant to 

42 Pa.C.S. §§ 7531-41 (Declaratory Judgments Act). According to PIRMA, the 

claims set forth in the underlying action are not covered under the agreement 

between PIRMA and the Borough. Thus, PIRMA requested a declaration that 

it owed no duty to defend or indemnify Homanko in the underlying action.

After the close of pleadings, on January 8, 2018, PIRMA filed a motion 

for judgment on the pleadings. Argument was held on April 26, 2018, and on 

December 31, 2018, the trial court granted judgment on the pleadings in favor 
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of PIRMA and against Homanko. Homanko timely filed a notice of appeal, and 

both Homanko and the trial court complied with Pa.R.A.P. 1925.

On appeal, Homanko sets forth two issues for our review.

I. Whether the trial judge erred in granting [PIRMA’s] motion for 

judgment on the pleadings where the policy itself states that the 

exclusion shall not apply until it has been judicially determined 

that the member did commit such criminal act or violation, the 

words “judicially determined” are not defined in the policy, and 

the policy does not define if the exclusion applies to a plea 

agreement or whether the member must be adjudicated as 

guilty[.]

II. Whether the trial judge erred in granting [PIRMA’s] motion for 

judgment on the pleadings where the facts alleged in the 

underlying complaint, that the acts to be committed by [] 

Homanko sound in negligence and not any criminal act, as defined 

under the policy, would trigger an exclusion[.]

Homanko’s Brief at 4 (capitalization altered).

“Our scope and standard of review of the granting of a motion for 

judgment on the pleadings is well-settled.” Rubin v. CBS Broad. Inc., 170 

A.3d 560, 564 (Pa. Super. 2017).

Our scope of review on an appeal from the grant of 

judgment on the pleadings is plenary. Entry of judgment on the 

pleadings is permitted under Pennsylvania Rule of Civil Procedure 

1034, which provides that “after the pleadings are closed, but 

within such time as not to unreasonably delay trial, any party may 

move for judgment on the pleadings.” Pa.R.C.P. 1034(a). A 

motion for judgment on the pleadings is similar to a demurrer. It 

may be entered when there are no disputed issues of fact and the 

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

determining if there is a dispute as to facts, the court must confine 

its consideration to the pleadings and relevant documents. On 

appeal, we accept as true all well-pleaded allegations in the 

complaint.
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On appeal, our task is to determine whether the trial court’s 

ruling was based on a clear error of law or whether there were 

facts disclosed by the pleadings which should properly be tried 

before a jury or by a judge sitting without a jury.

Neither party can be deemed to have admitted either 

conclusions of law or unjustified inferences. Moreover, in 

conducting its inquiry, the court should confine itself to the 

pleadings themselves and any documents or exhibits properly 

attached to them. It may not consider inadmissible evidence in 

determining a motion for judgment on the pleadings. Only when 

the moving party’s case is clear and free from doubt such that a 

trial would prove fruitless will an appellate court affirm a motion 

for judgment on the pleadings.

Id. (internal citations omitted).

Following a review of the record and the briefs for the parties, we 

conclude that the opinion of the Honorable Steven R. Serfass thoroughly 

addresses Homanko’s issues. Specifically, we adopt the portions of the trial 

court opinion setting forth the rule of law regarding contract interpretation, 

see Trial Court Opinion, 3/27/2019, at 6-7, and the two issues set forth by 

Homanko, see id. at 12 (concluding that judicially determined criminal acts 

apply to both jury convictions and guilty pleas), and id. at 15-16 (concluding 

that the criminal acts exclusion applies even where the underlying action 

asserts a negligence claim). We discern no error of law on those issues. Nor 

do we conclude that there are facts disclosed by the pleadings which should 

be tried by a judge or jury. Therefore, we adopt the aforementioned portions 
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of the trial court’s opinion of March 27, 2019, as our own, and affirm the order 

of the trial court.1

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/19

____________________________________________

1 The parties shall attach a copy of the trial court’s March 27, 2019 opinion to 

this memorandum in the event of further proceedings.
Circulated 10/08/2019 10:24 AM

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA 

CIVIL DIVISION 

PENNSYLVANIA INTEGRATED RISK 

MANAGEMENT ASSOCIATION, 

Plaintiff 

v. 

STEVEN HOMANKO, BOROUGH OF 

NESQUEHONING, SEAN SMITH, and 

MICHAEL SAUERS, Individually 

and as the Administrator of 

the ESTATE OF CAROLA R. 

SAUERS, 

Defendants 

Brian J. Madden, Esquire 

Donald G. Karpowich, Esquire 

Michael B. ·Kaspszyk, Esquire 

.... , 

·,::�. 

No. 17-2151 

Counsel for Plaintiff 

Counsel for Steven Homanko 

Counsel for Michael Sauers, 

Individually and as the 

Administrator of the Estate 

of Carola R. Sauers 

MEMORANDUM OPINION 

Serfass, J. - March 27, 2019 

Steven Homanko (hereinafter "Homanko") and Michael Sauers 

(hereinafter "Sauers") have taken this appeal from our order of 

December 31, 2018, granting Pennsylvania Integrated Risk 

Management Association (hereinafter "Plaintiff") a Declaration 

that it has no duty to defend or indenmify Homanko in the 

underlying matter of Michael Sauers & the Estate of Carola R. 

Sauers v. Steven Homanko, et al., United States District Court for 

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the Middle District of Pennsylvania; Docket No. 3:16-CV-00811. We 

file the following memorandum opinion pursuant to Pennsylvania 

Rule of Appellate Procedure 192S(a) and recommend that the 

aforesaid order be affirmed for the reasons set forth hereinafter. 

FACTUAL AND PROCEDURAL HISTORY 

On September 21, 2017, Plaintiff, Pennsylvania Integrated 

Risk Management Association, filed a complaint against Defendants, 

Steven Homanko, the Borough of Nesquehoning, Nesquehoning Chief of 

Police Sean Smith, and Michael Sauers, individually and as the 

administrator of the Estate of Carola R. Sauers, seeking a 

declaratory judgment that Plaintiff need not defend or indemnify 

Officer Homanko in the underlying action before the United States 

District Court for the Middle District of Pennsylvania. 

In the underlying action, Michael Sauers, individually and as 

the administrator of the Estate of Carola R. Sauers, brought suit 

against st even Homanko, Sean Smith, and the Borough of 

Nesquehoning. That action arises out of a motor vehicle collision 

wherein Officer Homanko, while acting within the scope of his 

employment as a police officer for the Borough of Nesquehoning, 

was traveling in excess of one hundred {100) miles per hour in 

pursuit of a vehicle which Officer Homanko had observed committing 

a summary traffic offense. Officer Homanko's collision with the 

Sauers vehicle resulted in the death of Carola Sauers and multiple 

personal injuries to Michael Sauers. Based upon his actions which 

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resulted in the collision, Officer Homanko was charged criminally 

and subsequently pleaded guilty to Homicide by Vehicle, 75 Pa. 

c.s.A. § 3732, Recklessly Endangering Another Person, 18 Pa. C.S.A. 

§ 2705, Failure to Keep Right, 75 Pa. C.S.A. § 3301, and Careless 

Driving, 75 Pa. C.S.A. § 3714. 

Prior to the collision, the Borough of Nesquehoning entered 

into a "Legal Defense and Claim Payment Agreement" with Plaintiff. 

This agreement provides that Plaintiff will defend and indemnify 

the Borough, including employees acting within the scope of their 

employment, against any suit seeking damages, unless an act is not 

covered by the agreement. The agreement explicitly excludes 

criminal acts, which are defined as injury arising out of any 

criminal act or violation of a penal statute. This exclusion does 

not apply until it has been judicially determined that the employee 

did commit such criminal act or violation. 

On January 8, 2018, Plaintiff filed a motion for judgment on 

the pleadings arguing that Plaintiff has no duty to defend or 

indemnify Homanko under the agreement because Pennsylvania courts 

have consistently upheld criminal act exclusion clauses, the 

criminal acts need not be intentional for the exclusion to apply, 

and it would be against well-established public policy to require 

Plaintiff to defend Homanko for what has been deemed criminal 

conduct. 

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on February 12, 2018, counsel for Defendants Sauers and 

Homanko filed briefs in response to Plaintiff's motion. Mr. Sauers 

argued that Officer Homanko did not intentionally commit the 

criminal acts, that the criminal acts exclusion is overly broad 

such that it renders the agreement illusory, that the agreement is 

ambiguous because the term "criminal acts" is not specifically 

defined, and that the exclusion is against public policy. Officer 

Homanko argued that the underlying litigation complaint sounds in 

negligence and that the language "judicial determination" is 

ambiguous. On March 19, 2018, Plaintiff filed replies to 

Defendants' briefs. Thereafter, this Court heard argument on 

Plaintiff's motion for judgment on the pleadings. 

On December 31, 2018, this court granted Plaintiff's motion 

! 

for judgment on the pleadings and entered a judgment that Plaintiff 

has no duty to defend or indemnify Homanko in the underlying 

litigation before the United States District Court for the Middle 

District of Pennsylvania. 

On January 21, 2019, Sauers filed a notice of appeal to the 

Superior Court. On January 22, 2019, this Court entered an order 

directing Sauers to file of record, within twenty-one (21) days, 

a concise statement of the matters complained of on appeal pursuant 

to Pennsylvania Rule of Appellate Procedure 1925(b). On January 

28, 2019, Homanko also filed a notice of appeal to the Superior 

Court. That same date, this Court entered an order directing 

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Homanko to file of record, within twenty-one (21) days, a concise 

statement of the matters complained of on appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b). Sauers and 

Homanko each filed a concise statement in accordance with our 

orders on February 4, 2019, and February 14, 2019, respectively. 

DISCUSSION 

Sauers' concise statement is general as he avers that the 

basis for our decision cannot be readily discerned. Sauers appears 

to raise the following issues for review: (1) whether criminal 

acts must be intentional to be excluded under the insurance policy; 

(2) whether the criminal acts exclusion is ambiguous and overly 

broad such that it renders the insurance policy illusory; {3) 

whether the criminal acts exclusion is contrary to public policy; 

and {4) whether the criminal acts exclusion is a violation of the 

Pennsylvania Motor Vehicle Financial Responsibility Law. 

Homanko raises the following issues for review: (1) whether 

the phrase "judicially determined" is sufficiently clear on its 

face without explicit definition in the contract; and (2) whether 

the underlying negligence complaint triggers the criminal acts 

exclusion in the contract. We will address each issue below. 

First, we note the standard upon which this Court decided 

Plaintiff's motion. Defendants challenge this Court

1

s order 

granting a motion for judgment on the pleadings. A motion for 

judgment on the pleadings is proper where the pleadings evidence 

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that there are no material facts in dispute such that a trial would 

be unnecessary. Pennsylvania Financial Responsibility Assigned 

Claims Plan v. English, 664 A.2d 84, 86 (Pa. 1995). In reviewing 

such a motion, the trial court looks only to the pleadings and any 

documents properly attached thereto. Id. 

The task of interpreting a contract is generally 

performed by a court rather than by a jury. The goal of 

that task is, of course, to ascertain the intent of the 

parties as manifested by the language of the written 

instrument. Where a provision of a policy is ambiguous, 

the policy provision is to be construed in favor of the 

insured and against the insurer, the drafter of the 

agreement. Where, however, the language of the contract 

is clear and unambiguous, a court is required to give 

effect to that language. 

Standard Venetian Blind Co. v. American Empire Insurance Co., 469 

A.2d 563, 566 (Pa. 1983) (internal citations omitted). "When an 

insurer seeks to deny coverage based upon an exclusion in the 

policy, it is the insurer's burden to demonstrate that the 

exclusion applies." Allstate Ins. Co. v. Brown, 834 F. Supp. 854, 

857 (E.D. Pa. 1993). "The burden is on the insured, not the 

insurer, to introduce evidence to show that the exclusion which 

appears to be triggered does not apply after all. 

11 Air Prod. & 

Chemicals, Inc. v. Hartford Acc. & Indern. Co., 25 F.3d 177, 180 

(3d Cir. 1994). In determining whether an insurer has a duty to 

defend, the complaint claiming damages must be compared to the 

policy and a determination made as to whether the insurer would be 

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required to pay the resulting judgment if the allegations are 

sustained. Gene

1

s Restaurant, Inc. v. Nationwide Insurance Co., 

548 A.2d 246, 246 (Pa. 1988). The particular cause of action that 

a complainant pleads against an insured is not determinative of 

whether the insurer's duties to defend and to indemnify have been 

triggered, but rather it is necessary to look at the factual 

allegations contained in the complaint. Mutual Benefit Insurance 

Co. v. Haver, 725 A.2d 743, 745 (Pa. 1999). 

This Court found that Plaintiff demonstrated that the 

exclusion applies and that Plaintiff has no duty to defend Homanko 

in the underlying litigation. Having failed the more lenient dutyto-defend test, Defendants cannot prove Plaintiff has a duty to 

indemnify Officer Homanko. See Erie Insurance Exchange v. 

Claypoole, 158, 673 A.2d 348, 356 n.3 (Pa.Super. 1996) ("As the 

duty to defend is broader than the duty to indemnify, [plaintiff) 

could not be required to indemnify [defendant] without also being 

obligated to defend him."). 

Further, after Plaintiff demonstrated that the criminal acts 

exclusion contained in the insurance policy applies to Homanko, 

the burden shifted to Defendants to introduce evidence to show 

that the exclusion which appears to be triggered does not apply 

after all. This Court found that Defendants failed to prove that 

the exclusion is inapplicable. The commission of the criminal acts 

to which Homanko pleaded guilty precludes coverage under the 

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criminal acts exclusion of the policy regardless of whether he 

acted negligently or intentionally. Moreover, there is no dispute 

as to any material fact regarding whether Officer Homanko's acts 

were negligent or intentional because that fact is immaterial based 

on the terms of the exclusion itself. Thus, we were constrained to 

grant the Plaintiff's motion and find that Plaintiff has no duty 

to defend or indemnify Homanko in the underlying litigation now 

pending in federal court. 

I. The insurance policy does not require that criminal acts 

be intentional to be excluded from coverage 

Sauers argues that criminal acts committed by Homanko must be 

intentional to be excluded from coverage under the insurance 

policy. The insurance policy specifically provides that criminal 

acts will be excluded from coverage and defines criminal acts as 

follows: 

D. CRIMINAL ACTS meaning injury arising out of any 

criminal act or violation of a penal statute or ordinance 

committed by the member or with the member's consent or 

knowledge. The exclusion shall not apply until it has 

been judicially determined that the member did commit 

such criminal act or violation. 

There is no indication within the language of the policy that the 

criminal acts must be intentional. The language "criminal act" is 

sufficiently clear on its face. See Nationwide Property & Casualty 

Insurance Co. v. Schlick, No. 1909 WDA 2013, 2014 WL 10750738, at 

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*4 (Pa. Super. Dec. 18, 2 o 14) (" [W] e discern no support in the 

language of the exclusion or the Policy for Appellant's contention 

that an 'act ... which is criminal in nature' should be limited to 

acts intending to cause harm. The phrase 'an act which is 

criminal in nature' is sufficiently clear on its face."). Further, 

Pennsylvania courts have upheld criminal acts exclusions without 

"intentional", "purposeful", or "willful" requirements. See 

Allstate Ins. Co. v. Williams, No. CIV.A. 13-3048, 2014 WL 4682022 

(E.D. Pa. Sept. 22, 2014). 

In this case, Homanko pleaded guilty to the criminal offenses 

of Homicide by Vehicle 75 Pa. C.S.A. § 3732, Recklessly Endangering 

Another Person 18 Pa. C.S.A. § 2705, Failure to Keep Right 75 Pa. 

C.S.A. § 3301, and Careless Driving 75 Pa. C.S.A. § 3714. His 

criminal actions resulted in the death of Mrs. Sauers and the 

injuries sustained by Mr. Sauers. "Tautological as it sounds, acts 

that violate the Commonwealth's Criminal Code are by definition 

criminal acts." Id. at *4 (internal citations omitted). 

Therefore, criminal acts need not be intentional to be 

excluded from coverage under the insurance policy. 

II. The criminal acts exclusion is not overly broad or 

ambiguous 

Next, Sauers argues that the criminal acts exclusion is overly 

broad and ambiguous such that it renders the insurance policy 

illusory. We disagree. 

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Sauers' argument that "criminal acts" is not defined within 

the definition section of the insurance policy is without merit as 

the policy clearly and conspicuously defines "criminal acts" as 

provided above. 

Sauers argues that the criminal acts exclusion is overly broad 

such that any criminal conduct, no matter how minor, would trigger 

the exclusion. In support of his position, Sauers cites Board of 

Public Education v. National Union Fire Insurance Co. of 

Pittsburgh, 709 A.2d 910 (Pa.Super. 1998), where the Superior Court 

found that a criminal acts exclusion was overly broad. However, 

Sauers fails to note that the insurance company in that case was 

seeking to exclude coverage not for the criminal actor, who was a 

volunteer not covered by the insurance policy, but for the school 

district and supervising employees. That is not the case here. 

Plaintiff does not dispute its duty to defend and indemnify the 

Borough of Nesquehoning and Chief Sean Smith. Plaintiff only seeks 

to exclude the employee who committed the criminal act which 

resulted in the injuries to Mr. and Mrs. Sauers as provided in the 

agreement. Further, the language of the criminal acts exclusion in 

this case is far less broad. Compare id. at 912 ("This policy does 

not apply . to any claim involving allegations of . . . criminal 

acts") . 

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Sauers also argues that the policy covers injuries for acts 

that are criminal in nature while also excluding coverage for those 

same criminal acts resulting in an internally inconsistent and 

illusory policy. The policy defines "injury" as follows: 

Injury means: 

A. harm, including sickness or disease, to the 

physical health of any person, including resulting 

death; 

B. harm arising out of libel, slander, defamation of 

character, mental injury, anguish, shock or humiliation, 

including sexual abuse, harassment, molestation, 

corporal punishment or an invasion of an individual's 

right of privacy or control over their physical or mental 

properties. 

C. harm arising out of assault and battery, improper 

detention, false arrest, false imprisonment, malicious 

prosecution, false or improper service of process; 

D. harm arising out of wrongful entry, eviction or 

other invasion of the right of privacy or public 

occupancy; 

E. violation of rights as protected by civil rights 

statutes; 

F. unauthorized use of any advertising idea, material 

slogan, style, or title of others in your advertising; 

or 

G. property damage. 

While "injury" does include coverage for numerous acts which 

are criminal in nature, the "criminal acts" exclusion only applies 

when an insured has been convicted of a crime and that crime 

resulted in the injury for which a third party is seeking damages. 

Thus, coverage would not be excluded if there were merely an 

allegation of one of the crimes listed under the injury definition, 

if an insured had been found not guilty, or if the crime was 

unrelated to the injury. 

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Finally, Homanko argues that the phrase "judicially 

determined" within the "criminal acts" definition is not defined 

and, thus, makes it unclear whether the exclusion includes guilty 

pleas or just guilty verdicts. Under Pennsylvania law, a conviction 

from a guilty plea is equivalent to a conviction from a trial-byjury because a guilty plea constitutes an admission to all facts 

alleged in the indictment. M.B. ex rel. T.B. v. City of 

Philadelphia, 128 F. App•x 217, 225-26 (3d Cir. 2005) (citing 

Commonwealth, Department of Transportation v. Mitchell, 535 A.2d 

581, 585 (Pa. 1987)). Thus, the language "judicially determined" 

is sufficiently clear on its face and includes both guilty pleas 

and guilty verdicts. 

The criminal acts exclusion is neither overly broad nor 

ambiguous. It is not overly broad because it limits the exclusion 

to only those instances where the criminal act results in the 

injury for which the actor has been sued. Additionally, the plain 

meaning of the language "until it has been judicially determined 

that the member did commit such criminal act or violation" is that 

the actor must have been convicted of that criminal act in a court 

of law, which further limits the scope of the exclusion. As stated 

above, a plea of guilty and a verdict of guilty are both judicial 

determinations that a person has committed a crime. When read as 

a whole, the insurance policy is consistent, unambiguous, and 

neither illusory nor overly broad. 

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III. Criminal. acts excl.usions are in accordance with public 

policy 

Sauers also argues that the criminal acts exclusion in this 

insurance policy violates Pennsylvania public policy. We disagree. 

Criminal acts exclusions seek to prevent an insurer from defending 

a person for what has already been deemed criminal conduct in 

violation of Pennsylvania public policy. See Federal Insurance Co. 

v. Potamkin, 961 F. Supp. 109, 113 (E.D. Pa. 1997); Germantown 

Insurance Company v. Martin, 595 A.2d 1172, 1175 (Pa.Super. 1991) 

("The courts of Pennsylvania have refused to require an insurer to 

defend an insured for his own intentional torts and/or criminal 

acts."). Thus, it would be against Pennsylvania public policy to 

require Plaintiff to defend Homanko for what has already been 

deemed criminal conduct by virtue of his guilty plea. 

IV. The criminal acts exclusion is not in violation of the 

Pennsylvania Motor Vehicl.e Financial. Responsibil.ity Law 

Finally, Sauers argues that the criminal acts exclusion 

violates the Motor Vehicle Financial Responsibility Law ("MVFRL"). 

75 Pa. C.S.A. § 1701 et seq. 

Under the MVFRL, the vehicle's owner is responsible for 

maintaining financial responsibility for the vehicle. 75 Pa. 

C. S .A. § 1786. "It is the vehicle that is covered by the automobile 

policy, while an individual is covered only by nature of his 

function as the driver of that vehicle." Lebanon Coach Co. v. 

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Carolina Cas. Ins. Co., 675 A.2d 279, 284 (Pa.Super. 1996). The 

MVFRL does not provide that an insurer must defend and indemnify 

a driver even if that driver commits a crime while driving. An 

insurer's duty to defend is a distinct obligation, different from 

and broader than its duty to provide coverage. Id. at 286. Indeed, 

the MVFRL itself excludes benefits for any insured who is injured 

during the commission of a felony. 75 Pa. C.S.A. § 1718(a) (2). 

Sauers argues that the criminal acts exclusion violates 

public policy and the purpose of the MVFRL as stated in Donegal 

Mutual Insurance Company v. Long, 

The purpose of the Motor Vehicle Responsibility Law is 

to require owners of registered vehicles to be 

financially responsible . .. Victims of accidents with 

rental vehicles might [as a result of the coverage 

exclusion] find themselves without recourse to 

compensation for their injuries, or perhaps only to the 

extent of their own uninsured motorist coverage, absent 

the fortuity that the driver of the rental vehicle is 

covered by other insurance or possesses sufficient 

assets for compensation. The public policy enunciated by 

the Motor Vehicle Financial Responsibility Law, pursuant 

to its 1985 provisions, is to foster financial 

responsibility for damages caused to individuals on the 

roadways, not to promote uninsurance. 

564 A.2d 937, 943-44 (Pa.Super. 1989). 

Here, there is no risk that the subject insurance agreement 

will leave an injured third party without recourse. The insured is 

the Borough of Nesquehoning, and it maintains financial 

responsibility for its vehicles through the subject insurance 

policy in compliance with the MVFRL. Nesquehoning itself cannot be 

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excluded from coverage under the criminal acts exclusion as a 

municipality cannot be convicted of a crime. 

Therefore, the criminal acts exclusion does not violate the 

purpose or the text of the MVFRL. 

v. Though the underlying complaint lies in negligence, it has 

been judicially determined that Homanko' s actions were 

cri.mina1 acts as defined in the insurance policy contract 

Homanko argues that, because the underlying action sounds in 

negligence, the criminal acts exclusion would not trigger. 

However, as stated above, the particular cause of action that 

a complainant pleads against an insured is not determinative of 

whether the insurer's duties to defend and to indemnify have been 

triggered, but rather it is necessary to look at the factual 

allegations contained in the complaint. Mutual Benefit Insurance 

Co. v. Haver, 725 A.2d at 745. The complaint provides that Homanko 

pleaded guilty to the criminal offenses of Homicide by Vehicle 75 

Pa. C.S.A. § 3732, Recklessly Endangering Another Person 18 Pa. 

C.S.A. s 2705, Failure to Keep Right 75 Pa. C.S.A. § 3301, and 

Careless Driving 75 Pa. c.s.A. § 3714. Those criminal actions 

resulted in the injury to Mr. and Mrs. Sauers, including the death 

of Mrs. Sauers, for which the underlying complaint was brought. 

Therefore, the criminal acts exclusion as provided in the insurance 

policy applies, and Plaintiff need not defend or indenmify Homanko 

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in the action before the United States District Court for the 

Middle District of Pennsylvania. 

CONCLUSION 

For the reasons set forth hereinabove, we respectfully 

recommend that the instant appeal be denied and that our order of 

December 31, 2018, be affirmed accordingly. 

BY THE COURT: 

Steven R. Serfass, J. 

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