Erie Insurance Ex. v. United Services Auto, Aplt.

[J-23-2025] [MO: Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

ERIE INSURANCE EXCHANGE A/S/O : No. 19 WAP 2024

BATES COLLISION, INC. JAMES MYERS, :

ANITA MORGAN, LOSSIE AUTO : Appeal from the Order of the

SERVICE, AND BENEDICTINE SISTERS : Superior Court entered December

OF ERIE, INC., : 21, 2023, at No. 1482 WDA 2021,

: Reversing the Judgment of the

Appellee : Court of Common Plea of Erie

: County entered November 12, 2021,

: at No. 12888-18.

v. :

: ARGUED: April 9, 2025

:

UNITED SERVICES AUTOMOBILE :

ASSOCIATION, :

:

Appellant :

:

:

v. :

:

:

BATES COLLISION, INC., :

:

Appellee :

CONCURRING AND DISSENTING OPINION

JUSTICE BROBSON DECIDED: JANUARY 21, 2026

This Court granted review in this matter to consider two issues: whether the

Superior Court’s decision below is inconsistent with either this Court’s decision in

Pyeritz v. Commonwealth, 32 A.3d 687 (Pa. 2011), or Pennsylvania law on subrogation.

The Majority disposes of this case on the second issue and does not reach the first.

I believe, however, that the second issue is less clear than the Majority suggests.

Notwithstanding, I believe that the claim pleaded by Erie Insurance Exchange (Erie) fails

as a matter of law pursuant to this Court’s opinion in Pyeritz. Accordingly, I concur in the

result of the Majority insofar as it reinstates the trial court’s order.

As the Majority notes, Erie has referred to itself as subrogee of its insureds at each

stage of the proceedings. United Services Automobile Association (USAA), in turn, filed

a cross-motion for summary judgment, arguing that Erie lacked standing to bring the

disputed promissory estoppel claim against USAA due to its self-designation as subrogee

of its insureds. The Majority appears to agree with USAA that “[t]here is no doubt that

Erie’s claim is solely one for subrogation.” (USAA Brief at 37.) In my view, however,

there is evidence to support Erie’s position that it referred to itself as subrogee of its

insureds in “an effort to identify how Erie’s interest in the action came to be and the

reasons Erie was aggrieved.” (Erie’s Brief at 59 (emphasis added).) In fact, Erie raised

this position in a memorandum before the trial court. (Erie’s Consolidated

Mem., 8/13/2021, at 14 (“[I]t cannot be reasonably disputed that when Erie hired counsel

and experts to investigate the circumstances of the fire, it was doing so as their insured’s

subrogee. As such, it was while acting in that capacity that Erie received the promise that

USAA breached.”).) A review of Erie’s Complaint also reveals that Erie has consistently

maintained that USAA made a promise to Erie, during its pursuit of a subrogation claim

against BMW of North America (BMW), and that Erie suffered from USAA’s breach.

To my knowledge, the Majority’s ruling constitutes a new pronouncement of law,

which I believe to be overly strict. Pennsylvania Rule of Civil Procedure 126(a) requires

that our rules be construed liberally and provides the courts discretion to “disregard any

error or defect of procedure which does not affect the substantive rights of the parties.”

Pa.R.Civ.P. 126(a). Furthermore, when reviewing a grant of summary judgment,

Pennsylvania law requires that “we view the record in the light most favorable to . . . the

non-moving part[y].” Pyeritz, 32 A.3d at 689 (citing Liss & Marion, P.C. v. Recordex

[J-23-2025] [MO: Donohue, J.] - 2

Acquisition Corp., 983 A.2d 652, 657 (Pa. 2009)). While there might be a dearth of case

law applying these principles to the present circumstances, the principles remain

foundational. Consequently, while Erie’s self-designation might appear inarticulate or

misleading to some, I do not believe that this should be necessarily fatal to its case.

Based upon the pleadings, it is apparent that Erie has pleaded a promissory estoppel

claim against USAA. It also seems apparent that USAA was at all times aware that the

claim being litigated was between itself and Erie—not Erie’s insureds. In the absence of

settled law requiring us to deny Erie its day in court based solely on a technicality that

caused no prejudice, I would not deny relief on that basis.

Irrespective of the foregoing, however, I would conclude that Erie’s promissory

estoppel claim1 fails as a matter of law for the reasons this Court provided in Pyeritz.

Therein, this Court explained that, “as a matter of public policy,” Pennsylvania does not

“allow the imposition of liability where, due to the absence of the evidence, it is impossible

to say whether the underlying litigation would have been successful.” Id. at 693. In so

stating, this Court made clear “that no cause of action for negligent spoliation . . . exists.

The Court did not hold that no tort action for such spoliation . . . exists. Nothing in the

Pyeritz opinion suggests that mere changing of the label on the claim to promissory

estoppel would alter the result.” Erie Insurance Exch. v. United Servs. Auto. Ass’n,

307 A.3d 1221, 1228 (Pa. Super. 2023) (Olson, J., dissenting) (second emphasis in

original). Here, Erie only sought damages contingent upon its theoretical success in a

claim against BMW.2 Due, however, to the destruction of the evidence—i.e., the vehicle—

1 To the extent USAA argues that Erie’s promissory estoppel claim is a veiled negligent

spoliation claim, I disagree. Erie’s pleadings clearly reflect a cause of action for

promissory estoppel, and I find no reason to designate it as anything else.

2 As Erie did not plead any other damages, I do not provide an opinion on the availability

of recovery for other reliance-based damages.

[J-23-2025] [MO: Donohue, J.] - 3

it is impossible to say whether Erie’s claim against BMW would have been successful.3

Consequently, the same reasoning that precluded the negligent spoliation claim in Pyeritz

applies to the claim Erie asserts against USAA. Accordingly, I would reverse the

judgment of the Superior Court and reinstate the trial court’s order granting summary

judgment to USAA and denying summary judgment to Erie.

3 Thus, the speculative nature of these damages is not the “precise amount” of damages

but, rather, whether Erie suffered any damages at all. Cf. Pugh v. Holmes, 405 A.2d 897

(Pa. 1979) (“[M]ere uncertainty as to the amount of damages will not bar recovery where

it is clear that damages were the certain result of the defendant’s conduct.” (emphasis

added) (citing Academy Spires, Inc. v. Brown, 268 A.2d 556, 561-62 (N.J. Dist.

Ct. 1970))).

[J-23-2025] [MO: Donohue, J.] - 4