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Despite previously vacating and remanding a state Superior Court ruling in light of the justices' landmark 2019 Gallagher v. Geico Indemnity decision, the Pennsylvania Supreme Court has declined to review the follow-up ruling by the lower court, which found that Gallagher had no bearing on its decision to affirm the denial of underinsured motorist coverage for a plaintiff who was injured when his motorcycle collided with a car.

In Petra v. Pennsylvania National Mutual Casualty Insurance, according to court documents, plaintiff Donald Petra was riding his motorcycle when he collided with an automobile owned and operated by Jason Nalewak. Petra was ejected from the seat of his motorcycle and hit the ground.

Petra's motorcycle was insured by Harley-Davidson Insurance Services, under a policy underwritten by Progressive Advanced Insurance Co., but he had rejected UM and UIM coverage under that policy, according to court documents. However, Petra also owned a minivan that was insured by defendant Pennsylvania National Mutual Casualty Insurance Co., and so he sought UIM benefits under that policy.

Penn National moved for summary judgment, arguing that Petra was excluded from coverage under the policy's "household exclusion" provision because he was "occupying" a vehicle that was not covered by the policy—his motorcycle—at the time of the accident. Petra, however, argued that some of his injuries were sustained after he had been thrown from the motorcycle and therefore could no longer be said to be "occupying" it, according to court documents.

A Franklin County trial judge granted summary judgment in Penn National's favor and Petra appealed.

But in an unpublished Jan. 16, 2019, decision, the Superior Court sided with Penn National as well, pointing to its own 2011 ruling in Allstate Fire and Casualty Insurance v. Hymes, in which the court ruled under similar circumstances that a finding that the plaintiff was not occupying his motorcycle when he struck the windshield of the vehicle he collided with would create an absurd result.

The Superior Court further rejected Petra's attempt to rely on its 2013 ruling in Swarner v. Mutual Benefit Group, in which it held that a man who was ejected from his motorcycle was not occupying the motorcycle when he was subsequently struck by an underinsured motorist while lying in the roadway.

"Here, Petra's attempt to distinguish injuries suffered upon impact with Nalewak's vehicle from those incurred after he was thrown from his motorcycle is not persuasive," Judge Maria McLaughlin wrote for a three-judge panel that also included Judges Paula Francisco Ott and Kate Ford Elliott. "Indeed, we rejected such a distinction explicitly in Hymes, where we concluded—under nearly identical facts and household exclusion—that recognizing coverage 'would create an absurd result.' Moreover, Petra's reliance on Swarner is misplaced. In that case, we recognized two, distinct accidents had occurred. In contrast, here, Petra stipulated that a single accident occurred and that there was no intervening or superseding accident."

But after the Supreme Court ruled in Gallagher to invalidate the use of the "household vehicle exclusion" to bar stacked uninsured and underinsured motorist benefits because it violated the Motor Vehicle Financial Responsibility Law, the justices vacated and remanded the Petra decision in September 2019.

On remand, however, the same three-judge Superior Court panel said in an unpublished Oct. 31, 2019, decision that Petra failed to preserve a challenge under Gallagher and therefore waived it.

"Petra's argument all along has been that the household exclusion does not apply here because he sustained his injuries after he hit the pavement and therefore was not 'occupying' his motorcycle when he was injured," McLaughlin said. "He at no time argued in the trial court or in this court that the household exclusion violated Section 1738 of the MVFRL. We reaffirm our rejection of arguments that Petra did preserve for the reasons set forth in our memorandum filed in this case on January 16, 2019."

Petra appealed again but, in a one-sentence order issued March 24, the justices denied allocatur.

Counsel for Petra, Jerrold Sulcove of B&D Law Group in Chambersburg, could not be reached for comment. Counsel for Pennsylvania National Mutual Casualty Insurance, Peter Speaker of Thomas, Thomas & Hafer in Harrisburg, also could not be reached.