Winner v. Progressive Advanced Ins. Co., 2025 Pa. Super. LEXIS 442 (September 24, 2025) Panella, P.J.E.
Judges: BEFORE: PANELLA, P.J.E., NICHOLS, J., and FORD ELLIOTT, P.J.E.* OPINION BY PANELLA, P.J.E.
Robert Mark Winner appeals from the order entered by the Philadelphia County Court of Common Pleas on August 14, 2024, sustaining preliminary objections filed by Progressive Advanced Insurance Company, dismissing Count II of Winner’s underlying complaint, and transferring the claims against Progressive to the Court of Common Pleas of Chester County. After careful review, we vacate in part and remand to the Chester County Court of Common Pleas for further proceedings.
The forum selection clause in the insurance policy at issue states: Any action brought against us pursuant to coverage under Part III—Uninsured/Underinsured Motorist Coverage must be brought in the county in which the person seeking benefits resides, or in the United States District Court serving that county. Progressive Pennsylvania Auto Policy, Part VII General Provisions, at 30.
The trial court relied on this Court’s holding in Van Divner v. Sweger, 2021 PA Super 129, 257 A.3d 1254 (Pa. Super. 2021), in which a panel of this Court considered the exact language of the policy at issue here. There, the Court found the use of the present tense “must be brought” matched the present tense “in the county in which the person seeking benefits resides.” Accordingly, the Van Divner Court determined the language
was clear, unambiguous, and enforceable as written because “the forum selection clause clearly ties the relevant time of residency to the time one brings the action, as it provides simply and plainly that an action must be brought in the county where one resides.” We are bound by this holding.
In his second issue, Winner again challenges the trial court’s enforcement of the forum selection clause. However, he argues alternatively that the trial court erred in transferring venue of all of his claims when his complaint includes extracontractual claims of bad faith and violation of the UTPCPL that are not bound to the terms of the forum selection clause, which is only applicable to UM/UIM claims.
The forum selection clause in the insurance policy at issue provides that “[a]ny action brought against us pursuant to coverage under Part III—Uninsured/Underinsured Motorist Coverage must be brought in the county in which the person seeking benefits resides ….” Progressive Pennsylvania Auto Policy, Part VII General Provisions, at 30. Winner’s contract and tort actions in the complaint fall within this provision, because they hinge on the fact that Winner should be covered under Part III of the insurance policy, and that Progressive, through its adjusters, actively worked to not cover him pursuant to Part III. Given the direct relationship between Winner’s UIM claim and tort claims, he should litigate his tort claims in the same forum and same proceeding as his UIM claim.
Accordingly, we conclude the trial court did not err in sustaining Progressive’s preliminary objection as to transfer of venue on all claims. In his third issue, Winner argues the trial court erred in sustaining Progressive’s preliminary objections and dismissing Winner’s UTPCPL claims. Winner provides three reasons to support his argument: (1) the UTPCPL claim is legally and factually sufficient, (2) the trial court violated the law of the case doctrine by disregarding prior orders regarding the UTPCPL claims, and (3) the trial court erred in dismissing his substantive UTPCPL claims while simultaneously transferring venue to another county due to lack of jurisdiction.
Based on the above persuasive reasoning, we find the trial court erred in considering the merits of Progressive’s non-venue related preliminary objections. We are not persuaded by Progressive’s argument that even though the trial court’s rulings were in the same order, the ruling on the non-venue related objections was somehow proper because the sentence ruling on the UTPCPL claim came before the sentence ruling on venue. The format of the order simply does not affect the jurisdictional issue here, where the court was ruling that it lacked jurisdiction over the matter before it.
Accordingly, we vacate the trial court’s order of August 14, 2024, to the extent it ruled on any non-venue related preliminary objections. We remand to the Chester County Court of Common Pleas for further proceedings, including consideration of any non-venue related preliminary objections.
Order vacated in part. Case remanded. Jurisdiction relinquished.
