Argued January 15, 2014.
Appeal from the Order of the Court of Common Pleas, Montgomery County, Civil Division, No. 10-09710. Before DELRICCI, J.
Keith M. McWhirk, Skippack, for appellant.
Steven N. Cherry, Philadelphia, for American National Property and Casualty Companies, appellee.
John L. Lachall, West Chester, for Thomas Hearn, appellee.
BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,[*] JJ. OPINION BY FORD ELLIOTT, P.J.E.
FORD ELLIOTT, P.J.E.:
Clayton Russell and Stacey Marshall appeal the order of February 7, 2013, granting summary judgment in favor of American National Property and Casualty Companies. We affirm.
On the evening of September 15, 2006, Clayton Russell, Brandon Thomas Hearn, and a number of Clayton's friends were " hanging out" in Clayton's finished basement. Clayton was playing a game called " Dance, Dance Revolution." According to the complaint, this video game includes a floor pad which connects to the television. While playing songs, the " dancer" is given instructions as to where to step on the pad and scores points for speed and accuracy. While playing this game, Clayton was struck in the groin from behind by Brandon Hearn. Clayton felt immediate pain which intensified during the night. The following day, Clayton's mother, Stacey Marshall, took Clayton to the emergency room due to severe pain and swelling in Clayton's groin area. Clayton was diagnosed with torsion of the left testicle and underwent emergency surgery. Diagnostic tests revealed that Clayton may be permanently infertile as a result of having been struck in the groin.
The trial court has summarized the procedural history of this matter as follows:
In 2008, Clayton Russell and Stacey Marshall, Clayton Russell's mother, filed a civil complaint against Brandon Hearn seeking damages for negligence, battery, assault, negligent infliction of emotional distress, intentional infliction of emotional distress, infertility, loss of consortium, and, punitive damages (" the Underlying Complaint" ). Clayton Russell raised all of the above-listed claims, with the exception of Stacey Marshall's loss of consortium claim, in the Underlying Complaint. Stacey Marshall also raised claims of negligent infliction of emotional distress, intentional infliction of emotional distress in her own right, and, joined in the punitive damage claim with her son. Clayton Russell and Stacey
Marshall are the " Underlying Plaintiffs" or " Plaintiffs."
In the present action, American National Property and Casualty Companies (" ANPAC" ) filed a declaratory judgment complaint (" the Declaratory Judgment Action" ) naming Thomas W. Hearn, Lynn A. Hearn, Brandon Thomas Hearn, Clayton Russell, and Stacey Marshall, as defendants. ANPAC issued a homeowner's policy to Thomas W. Hearn and Lynn A. Hearn that was in effect at the time of the events described in the Underlying Complaint (" the Policy" ). Thomas W. Hearn and Lynn A. Hearn are the parents of Brandon Hearn (" the Insureds" ). Brandon Hearn (" Hearn" or " Underlying Defendant Hearn" ), is the defendant named in the Underlying Complaint. In this Declaratory Judgment Action, ANPAC averred that any damages claimed by Plaintiffs in the Underlying Complaint are based upon intentional acts and are therefore not covered under the Policy, as discussed in Part IV below.
Subsequently, ANPAC filed a motion for summary judgment in the Declaratory Judgment Action (" the Motion" ). After reviewing the filings, including the Declaratory Judgment Action and all pleadings related thereto, the Motion, the answers in opposition to the Motion, the briefs of the parties, and having argument, the Court granted the Motion and found the Policy did not apply to the claims raised in the Underlying Complaint (" the Order" ). Underlying Plaintiffs Clayton Russell and Stacey Marshall (" the Appellants" or " the Russell Appellant" ) filed a timely appeal of the Order (" the Appeal" ). Neither Underlying Defendant Hearn, nor his parents, appealed the Order. The Court ordered the Appellants to file a concise statement in accordance with Pa.R.A.P. 1925(b) ...