J-A22023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOOLITTLE INVESTMENTS, LLC IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MOTORISTS MUTUAL INSURANCE 

COMPANY

No. 235 MDA 2016

Appeal from the Order Entered December 31, 2015

In the Court of Common Pleas of Lancaster County

Civil Division at No(s): CI-08-01714

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 16, 2016

Appellant, Doolittle Investments, LLC (“DI”), appeals from the order 

granting summary judgment to its insurer, Motorists Mutual Insurance 

Company (“Motorists”) on DI’s claims for declaratory judgment and 

insurance bad faith. DI argues that the trial court erred in concluding, as a 

matter of law, that its loss was not covered under the insurance contract as 

no “collapse” had occurred. We conclude that DI provided sufficient evidence 

to create a triable issue of fact, and therefore reverse.

This case centers on the application of the term “collapse,” as utilized 

in an insurance policy issued by Motorists, to essentially undisputed facts. 

The insurance policy provided coverage for damage “caused by collapse of a 

building or any part of a building ... if the collapse is caused by ... (2) Hidden 
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decay [or] ... (6) Use of defective material or methods in construction, 

remodeling, or renovation if the collapse occurs during the course of the 

renovation.” The policy explicitly excludes coverage for any loss caused by 

“[s]eizure or destruction of property by order of governmental authority.”

DI owned a historic property (“the property”) in Columbia Borough, 

Lancaster County, and desired to remodel the interior to allow for multiple 

commercial uses. Pursuant to this goal, DI hired Beaver Creek Construction, 

LLC (“Beaver Creek”) to investigate the basement of the property to 

determine whether it could be remodeled to suit commercial use.

As part of its investigation, Beaver Creek excavated inside the 

foundation walls to determine the structure of the foundation. Several weeks 

later, David Doolittle, principal owner of DI, contacted Jeffrey Helm, a 

municipal officer for Columbia. Helm held several positions for Columbia: 

zoning officer, planning officer, manager of code compliance, health officer, 

emergency management coordinator, and the historic district liaison to the 

Historic Architectural Review Board. Doolittle asked Helm to come look at 

the property due to the discovery of several large cracks in the outside 

walls.

Helm arrived at the property on a Saturday morning. After walking 

through the building, Helm was concerned with the instability he observed. 

Doolittle asked Helm about the likelihood of an emergency demolition of the 
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property. Helm responded, “I don’t have the authority to do that. You need 

to get a structural engineer ... here to make a professional determination.”

Doolittle contacted a structural engineer, Christian H. McKee, Jr. 

McKee inspected the property that same morning and immediately informed 

Doolittle that the building was collapsing. He further opined that the building 

could be saved, but not without risks to the contractors and neighbors. 

Doolittle informed McKee that he did not want to risk anyone’s life and 

preferred demolishing the structure. To that end, he requested that McKee 

immediately prepare a written report documenting his findings and 

conclusions.

McKee prepared and sent his report to Doolittle that same day. In his 

report, McKee opined that he “found several indications of instability that will 

endanger the health, safety, property, and public welfare.” He indicated that 

the chimney, on the north wall of the second floor, had “dropped 21⁄2 

[inches] from this morning and is still moving.” He noted a significant 

sloping of the first floor towards the north exterior wall. In the basement, he 

observed a “considerable bow to the overhead floor system. The stone is 

currently separating from the wall.” Additionally, the excavation in the 

basement had left the foundation wall “with virtually no support.” As a 

result, the written report recommended “the demolition start as soon as 

possible due to the rapid[] deterioration of the north wall.”
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After receiving this report, Helm issued an emergency demolition 

permit for the property. The property was demolished shortly thereafter. DI 

demanded coverage under the policy, and Motorists denied the claim.

DI subsequently instituted this action against Beaver Creek and 

Motorists. On January 8, 2013, DI signed a joint tortfeasor release with 

Beaver Creek, releasing and discharging Beaver Creek’s liability for all claims 

arising out of the destruction of the property. The release indicates that it 

discharged liability on behalf of DI and, among others, its insurers, in 

exchange for the sum of $250,000.

Ultimately, Motorists filed a motion for summary judgment. In this 

motion, it raised three issues. First, that no collapse had occurred under the 

policy. Second, that the loss was not covered due to the governmental 

action exclusion. Finally, that DI had waived its claims when it released 

Beaver Creek, as the release destroyed Motorists’ subrogation rights.

On December 31, 2015, the trial court granted summary judgment to 

Motorists on the first and second grounds, and thus did not reach Motorists’ 

third argument. On February 1, 2016, Doolittle electronically filed a notice of 

appeal and request for transcripts.1 The Prothonotary rejected the filing due 

to the lack of specificity in the request for transcripts. However, the 

____________________________________________

1 The thirtieth day after December 31, 2015, was January 30, 2016. 

However, that date fell on a Saturday. Thus, the appeal period ran until 

(Footnote Continued Next Page)
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[f]ailure of an appellant to take any step other than the timely 

filing of a notice of appeal does not affect the validity of the 

appeal, but is subject to such action as the appellate court 

deems appropriate, which may include, but is not limited to, 

remand of the matter to the lower court so that the omitted 

procedural step may be taken.

Pa.R.A.P. 902. “A timely notice of appeal triggers the jurisdiction of the 

appellate court, notwithstanding whether the notice of appeal is otherwise 

defective.” Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014). 

Thus, the defect in the request for transcript did not act to nullify our 

jurisdiction. Any errors in the notice of appeal or request for transcript have 

been corrected, and we may turn to the merits of this appeal.

On appeal, DI challenges the trial court’s grant of summary judgment 

to Motorists. We review a decision granting summary judgment according to 

the following standard.

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 

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 

(Footnote Continued) _______________________

Monday, February 1, 2016. See 1 Pa.C.S.A. § 1908 (providing for 

computation of time).
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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.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa. 

Super. 2013) (citation omitted).

In granting summary judgment, the trial court held that DI had not 

established that it was entitled to coverage under the policy and that 

coverage was explicitly excluded under the policy. “The interpretation of an 

insurance policy is a question of law for the court.” Continental Casualty 

Co. v. Pro Machine, 916 A.2d 1111, 1118 (Pa. Super. 2007) (citation 

omitted). Our goal in interpreting the language of an insurance policy is to 

“ascertain the intent of the parties as manifested by the language of the 

written instrument.” Kane v. State Farm Fire and Casualty Co., 841 A.2d 

1038, 1042 (Pa. Super. 2003). (citation omitted). “The polestar of our 

inquiry is the language of the insurance policy.” Continental Casualty Co.,

916 A.2d at 1118 (citation omitted). This Court’s function in analyzing an 

insurance policy is to construe words of common usage in their natural, 

plain, and ordinary sense. See id.

“In an action arising under an insurance policy, our courts have 

established a general rule that it is a necessary prerequisite ... for the 

insured to show a claim within the coverage provided by the policy.” 

McEwing v. Lititz Mutual Insurance Co., 77 A.3d 639, 646 (Pa. Super. 
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2013) (citation and internal quotation marks omitted). In contrast, where 

denial of coverage under the policy is based upon the application of a policy 

exclusion, “the insurer has asserted an affirmative defense, and accordingly, 

bears the burden of proving such defense.” Id. (citation omitted).

The trial court based its grant of summary judgment on two grounds. 

First, that DI had not established that its loss was a covered loss under the 

policy. DI bore the burden of proof on this issue. We therefore we review

whether the trial court committed an error of law in determining whether DI 

had adduced sufficient evidence to create an issue of material fact. 

The trial court rightfully focused its analysis on the policy language 

that provided coverage for losses “caused by collapse of a building or any 

part of a building.” The trial court also correctly observes that Pennsylvania 

case law has long held that the term “collapse” is not ambiguous, and that it 

requires a “sudden falling together of a structure.” 401 Fourth Street, Inc. 

v. Investors Insurance Group, 879 A.2d 166, 172 n.2 (Pa. 2005). 

However, it is important to note that the Supreme Court has noted that the 

argument that the term “collapse” is ambiguous carries “some force,” id., at 

172. Furthermore, at least one justice (now Chief Justice), explicitly 

endorsed the expansion of the term to include an imminent collapse where 

there has been no actual falling down of the structure, see id., at 176 

(Saylor, J., dissenting), while the Majority suggested, in dicta, that 

“collapse” can “reasonably be interpreted” to include both immediate 
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collapse and “settling, cracking or bulging” that “result[s]” in collapse, id., at 

174-175 n. 3.

Here, as in 401 Fourth Street Inc., there is no need to reconsider 

the precise meaning of “collapse,” as we conclude that DI adduced sufficient 

evidence to support a finding that a collapse was in progress. In his opinion 

letter dated February 24, 2007, professional engineer Charles McKee 

provided his own personal observations of the property. He noted that “[t]he 

chimney, on the north wall, on second floor, has dropped 2 1⁄2 [inches] from 

this morning and is still moving. The floor is pulled away from North exterior 

brick wall 2 [inches] and the ceiling from the same wall 1⁄2 [inch].” (emphasis 

supplied). Furthermore, he noted that the first story floor system sloped 

considerably towards the north wall. In the basement, there was a vertical 

crack in the foundation of the north wall, and “considerable bow” to the 

overhead first story floor system. From the exterior, he observed that the 

north wall was bowed and cracked.

In addition, DI submitted the November 2, 2012, expert report of 

professional engineer David Aufiero. Aufiero provided that, in his 

professional opinion, “[a]t the time the partial collapse was discovered it was 

not feasible or prudent to attempt to stabilize the building as an extremely 

unsafe and hazardous work environment existed ... and the exterior masonry 

walls of the structure had already experienced significant settlement 

damages.” (emphasis supplied).
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Viewed in a light most favorable to DI, these reports establish that the 

property’s chimney was sinking at a rate of greater than 21⁄2 inches per day. 

Furthermore, they establish that the north wall of the property was bowing 

outwards, creating a separation from interior floor systems and causing a 

significant slope down towards the north wall. Both engineers opined that 

the collapse could accelerate at any moment and thus it would endanger the 

lives of workers to attempt to fix the property. These findings would support 

a conclusion that the property was in the process of collapsing on February 

24, 2007. At the very least, the finding that the chimney was falling at a rate 

of over 21⁄2 inches per day is sufficient to support a conclusion that a part of 

the property had collapsed. We therefore conclude that the trial court erred 

when it concluded that DI had failed to adduce sufficient evidence to 

establish that its loss was covered under the policy.

In its alternative conclusion, the trial court held that the governmental 

action exclusion in the policy applied to exclude coverage of DI’s loss. Under 

“Exclusions,” the policy provides that Motorists “will not pay for loss or 

damage caused directly or indirectly by ... [s]eizure or destruction of 

property by order of governmental authority.” As a policy exclusion, 

Motorists bore the burden the establishing its application. See McEwing, 

supra. Thus, in order to justify a grant of summary judgment on this 

ground, Motorists was required to demonstrate the absence of any dispute of 

material fact regarding its application.
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The trial court held that Motorists had established that the property 

was destroyed pursuant to the order of Helm. Helm testified that he was the 

“zoning and planning officer ... manager of the code compliance department, 

... health officer for the Columbia board of health, emergency management 

coordinator for the borough, and the historic district liaison to the [Historic 

Architecture Review Board].” N.T., Deposition, 12/13/11, at 7. He was 

primarily involved with DI and the property in his role as liaison to the 

Historic Architecture Review Board. See id., at 13; 15. 

On February 24, 2007, Doolittle contacted Helm and asked him to 

come to the property and “help him determine what exactly he should do.” 

Id., at 16. After a tour of the property, Doolittle asked Helm about “the 

likelihood of doing an emergency demolition due to the instability.” Id., at 

21. Helm responded, “I don’t have the authority to do that. You need to get 

a structural engineer ... here to make a professional determination.” Id. 

When questioned by counsel for DI, Helm answered affirmatively to 

the question “you had the ultimate call as to whether or not the building 

could be demolished, is that correct?” Id., at 26 (emphasis supplied). 

However, later in the deposition, while being questioned by counsel for 

Motorists, the following exchange took place.

Q. ... Did you mean you needed a structural engineer’s 

opinion before you had authority to make a decision on 

demolition?

A. That’s correct.
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Q. And once the structural engineer, you had 

discussions with him, you had the decision to make to demolish 

the building?

A. That’s correct.

Q. And in doing so, you did so in your official capacity 

as an official of Columbia Borough?

A. Yes, sir.

Id., at 39.

There is no other evidence regarding the scope of Helm’s authority or 

under what authority he was acting when he approved the demolition of the 

property. The record does not contain any reference to the powers or 

authority granted to Helm by Columbia.

Based on this evidence, several different conclusions could be reached. 

First, it is possible that Helm ordered the demolition of the property under 

his authority as a health officer or as the emergency management 

coordinator. However, it is equally possible, under this evidence, to conclude 

that Helm approved Doolittle’s request to demolish the building under his 

authority as Historic Architecture Review Board liaison. If a fact-finder were 

to come to the first conclusion, Motorists would be entitled to a defense 

verdict on this policy exclusion. In contrast, if a fact-finder were to reach the 

second conclusion, Motorists would not be entitled to a defense verdict 

pursuant to this policy exclusion. As the moving party seeking summary 

judgment on an issue upon which it bore the burden of proof, Motorists was 

required to adduce evidence capable of conclusively resolving this issue in its 
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favor. As either finding would be supported by the evidence in the certified 

record, Motorists has not met this burden, and the trial court erred in 

granting summary judgment on this ground.

Motorists argues that we can affirm the grant of summary judgment 

based upon the fact DI has destroyed Motorists subrogation rights against 

Beaver Creek. The trial court did not reach this issue, but Motorists did 

assert it as a ground for summary judgment in its motion. Thus, contrary to 

DI’s arguments, this issue is preserved for our analysis. See

Commonwealth v. Burns, 988 A.2d 684, 690 n.6 (Pa. Super. 2009).

In its brief argument in support of this issue, Motorists contends that 

pursuant to Zourelias v. Erie Insurance Group, 691 A.2d 963 (Pa. Super. 

1997), DI’s rights to sue it were extinguished when DI released Beaver 

Creek on behalf of itself and its insurers. Perhaps tellingly, Motorists does 

not cite to the provision of the policy that grants it subrogation rights. Our 

review has located a provision under the conditions section of the policy that 

provides “If any person or organization to or for whom we make payment 

under this coverage form has rights to recover damages from another, those 

rights are transferred to us to the extent of our payment.” (emphasis 

supplied). As Motorists has concededly not made any payments to DI, those 

rights were never transferred to Motorists.

This distinguishes the present case from Zourelias. See 691 A.2d at 

965 (reviewing and applying a clause that obligated the insured to do 
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“whatever was proper to secure the insurer’s subrogation rights” and “do 

nothing to harm these rights”). Furthermore, Zourelias and the cases cited 

therein arose in the context of uninsured and underinsured motorists claims. 

See id. Thus, the statutory rights to subrogation found therein arise from 

the Financial Responsibility Law (“FRL”), which is a comprehensive statutory 

framework intended to address the issue of automobile insurance. See 

Melendez v. Pennsylvania Assigned Claims Plan, 557 A.2d 767, 768 

(Pa. Super. 1989). While Motorists references a statutory right to 

subrogation in its short argument on appeal, it does not cite to or otherwise 

identify this authority. Clearly, the FRL does not apply in this case, and 

Motorists has not identified any other statutory basis for its argument. We 

therefore conclude that Motorists has failed to establish that it is entitled to 

summary judgment on this ground.

Any concerns that DI might receive a double recovery, or that 

Motorists would suffer a loss through the release with Beaver Creek can be 

addressed through a molded verdict, if necessary. As we can find no basis 

upon which Motorists was entitled to summary judgment, we reverse the 

order and remand for further proceedings.

Order reversed. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2016