NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P DAVID FIELDHOUSE, v. Appellant METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY t/a METLIFE AUTO & HOME, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA No EDA 2013 Appeal from the Order Entered April 1, 2013, In the Court of Common Pleas of Philadelphia County, Civil Division, at No , October Term, BEFORE BENDER, P.J., SHOGAN and FITZGERALD*, JJ. MEMORANDUM BY SHOGAN, J. FILED APRIL 09, 2014 Appellant David Fieldhouse ( Fieldhouse ) appeals from the order sustaining the preliminary objections of Metropolitan Property and Casualty Insurance Company t/a Metlife Auto & Home ( Metlife ) and dismissing Fieldhouse s bad faith complaint with prejudice. We vacate and remand. Fieldhouse commenced an action against Metlife by writ of summons on October 16, Metlife issued a rule to file a complaint upon Fieldhouse on January 3, Fieldhouse complied on January 24, 2013, averring that (1) he was involved in a motor vehicle-pedestrian accident on June 9, 2008; (2) pending its investigation of the accident, the police department had Fieldhouse s vehicle towed; (3) Fieldhouse filed a claim with *Former Justice specially assigned to the Superior Court.

2 his insurer, Metlife, for body damage to his vehicle; (4) Metlife assigned a claims investigator, who also cooperated with the police department s criminal investigation of the accident; (5) based on information received, in part, from the claims investigator, the police arrested Fieldhouse, and the district attorney filed charges on October 21, 2008; (6) the Metlife claims investigator testified at a preliminary hearing on January 5, 2009; (7) thereafter, the district attorney withdrew all of the charges; (8) throughout the criminal and insurance investigations, Metlife denied Fieldhouse property damage benefits; and (9) Metlife denied benefits in bad faith. Complaint, 1/24/13, at 5, 8, 10 14, 16 17, 20, Metlife filed preliminary objections on February 13, 2013, seeking dismissal of Fieldhouse s complaint for failure to conform to law or rule of court. Metlife also demurred, raising the affirmative defenses of statute of limitations and immunity. In response, Fieldhouse filed preliminary objections to Metlife s preliminary objections. Metlife then filed an answer. The trial court heard both sets of preliminary objections on April 1, 2013, and entered an order sustaining Metlife s demurrer and dismissing Fieldhouse s complaint with prejudice. The trial court did not expressly rule on Fieldhouse s preliminary objections; however, it considered them moot given its disposition of Metlife s preliminary objections. Trial Court Opinion, -2-

3 7/9/13, at 3. This appeal followed. Fieldhouse and the trial court have complied with Pa.R.A.P On appeal, Fieldhouse presents a single issue for our review Did the trial court commit an error of law by accepting, and thereafter addressing, the grounds or bases of [Metlife s] preliminary objections which bases represented affirmative defenses required to be pled as new Matter under Pa.R.C.P. 1030(a)? Fieldhouse s Brief at 4. We review a trial court order granting preliminary objections for an error of law and apply the same standard as the trial court. Estate of O Connell ex rel. O Connell v. Progressive Ins. Co., 79 A.3d 1134, 1137 (Pa. Super. 2013). A preliminary objection in the nature of a demurrer is properly [sustained] where the contested pleading is legally insufficient. Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true. In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. This Court will reverse the trial court s decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the [preliminary objections] will result in the denial of claim or a dismissal of suit, [the preliminary objections -3-

4 may be sustained] only where the case [is] free and clear of doubt. Hill v. Ofalt, A.3d, 2014 WL at *4 5 (Pa. Super. 2014) (quoting Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa. Super. 2009) (internal citations, quotations, and corrections omitted)). This matter concerns the relationship between preliminary objections and affirmative defenses. Pa.R.C.P governs preliminary objections and provides, in relevant part, as follows (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds (1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint; (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrer); (5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action; (6) pendency of a prior action or agreement for alternative dispute resolution; (7) failure to exercise or exhaust a statutory remedy, and (8) full, complete and adequate non-statutory remedy at law. -4-

5 (b) All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading. Pa.R.C.P. 1028(a), (b). as follows Rule 1030 governs affirmative defenses and provides, in relevant part, (a) Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading New Matter. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. Pa.R.A.P. 1030(a) (emphasis supplied). Subsection (a) of Rule 1030 is very broad and is designed for the purpose of putting plaintiffs on notice of what defenses to prepare for. Kituskie v. Corbman, 714 A.2d 1027, 1032 n.8 (Pa. 1998). The statute of limitations is a technical defense which could require extensive preparation by all parties. A defendant, thus, should put a plaintiff on notice of the defense by raising it as new matter. Relying on Pa.R.C.P. 1030(a), Fieldhouse argues that Metlife s affirmative defenses were improperly raised by preliminary objection. Fieldhouse s Brief at 7. In response, Metlife presents a two-fold argument. First, Metlife contends that its statute-based immunity defense was non- -5-

6 waivable and, therefore, could be asserted at any time in the litigation, including by preliminary objection. Metlife s Brief at 5. Second, Metlife claims that preliminary objections may be granted where it is apparent from the face of the record that the statute of limitations bars the action. Id. We agree with Fieldhouse that all affirmative defenses, including immunity from suit and statute of limitations, shall be pleaded in a responsive pleading under the heading New Matter. Pa.R.C.P. 1030(a) (emphasis supplied). The language of Rule 1030 is clear, unambiguous, and mandatory. See Soto v. Nabisco, Inc., 32 A.3d 787, 788 n.2 (Pa. Super. 2011) (observing that statutory immunity from suit is affirmative defense that should be raised in new matter); Prime Medica Associates v. Valley Forge Ins. Co., 970 A.2d 1149 (Pa. Super. 2009) (holding that affirmative defense of suit limitation clause in insurance policy is properly raised in new matter); Pa.R.C.P ( Note The defense of the bar of a... statute of limitations can be asserted only in a responsive pleading as new matter under Rule ); Reuben v. O Brien, 445 A.2d 801 (Pa. Super. 1982) (waivable statute of limitations is an affirmative defense which cannot be raised in preliminary objections in the nature of a demurrer); Evans v. D Iorio, 519 A.2d 983 (Pa. Super. 1987) (reversing order sustaining demurrer based on statute-of-limitations defense and admonishing trial court for acknowledging mandatory nature of Rule 1030, but disregarding it -6-

7 in interest of speedy resolution of dispute); and Bocchicchio v. General Public Utilities Corp., 689 A.2d 305, 308 (Pa. Super. 1997) ( Giving due consideration to the tendency to liberally construe the rules when the parties to an action will not suffer prejudice, we cannot overlook either the explicit language of or the intent behind Rules 1030 and (emphasis supplied)). Furthermore, this Court has explained that [w]hen an issue raised cannot be decided based on facts of record (i.e., the complaint), the preliminary objections must be endorsed with a notice to plead, which requires the plaintiff to admit or deny each allegation of fact supporting the preliminary objections. See Pa.R.C.P. 1026(a) and note to Pa.R.C.P. 1028(c)(2). Absent a notice to plead, no response is required and all of the averments in the preliminary objections are deemed denied. Id. and Pa.R.C.P. 1029(d). Cooper v. Church of St. Benedict, 954 A.2d 1216, 1221 (Pa. Super. 2008). Additionally, it is well settled in this Commonwealth that [w]here a party erroneously asserts substantive defenses in preliminary objections rather than to raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections. Preiser v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992) (citations omitted); Pa.R.C.P. 1032(a) (Waiver of Defenses); Soto, 32 A.3d 788 (observing that opposing party s failure to object to manner of pleading resulted in waiver of any procedural defect and allowed trial court to rule on preliminary objections that raised affirmative defense); Bloom v. Dubois -7-

8 Regional Medical Center, 597 A.2d 671 (Pa. Super. 1991) (stating that immunity is affirmative defense which must be pleaded in new matter, not in preliminary objections; but where defense is raised by preliminary objections and procedure is not objected to, question of immunity from suit may be decided). Here, Metlife improperly raised the affirmative defenses of immunity and statute of limitations in its preliminary objections to Fieldhouse s badfaith complaint. Pa.R.C.P. 1028, 1030(a). The trial court concluded that Metlife s preliminary objections were uncontested because Fieldhouse did not respond to them. Trial Court Opinion, 7/9/13, at 3. However, the record indicates that Metlife s preliminary objections were not endorsed with a notice to plead; therefore, all of the allegations in Metlife s preliminary objections are procedurally deemed denied by Fieldhouse. Cooper, 954 A.2d at Furthermore, Fieldhouse challenged the improper procedure by filing preliminary objections to Metlife s preliminary objections. Preiser, 614 A.2d at 305; Pa.R.C.P In light of the mandatory language of Rule 1030, the contested issues of fact on all of the points raised by Metlife in its attempt to invoke the affirmative defenses, and Fieldhouse s objection, we conclude that the trial court erred in sustaining Metlife s preliminary objections and dismissing Fieldhouse s complaint. Thus, we are constrained to vacate the order -8-

9 sustaining Metlife s preliminary objections and dismissing Fieldhouse s complaint. Our inquiry does not end here, however, as Metlife presents several counter-arguments which warrant discussion. First, we note that Metlife demurred to Fieldhouse s complaint on the ground that it was legally insufficient for two reasons the complaint was time-barred and Metlife was immune from suit. Metlife s Brief at 7 (citing Pa.R.C.P. 1028(a)(4)). Metlife s procedure blends the requirements of Rule 1028 (Preliminary Objections) and Rule 1030 (New Matter). However, a Rule 1028(a)(4) demurrer is not the same as an affirmative defense. The language and intent of the rules are distinct. Rule 1028 provides the grounds on which to challenge the defects and legal sufficiency of a complaint, without consideration of matters de hors the complaint s averments. Rule 1030 provides affirmative defenses that the proponent must raise in answer to the complaint as new matter and prove. Metlife s interpretation of Rule 1028(a)(4) as necessarily allowing a party to challenge the legal sufficiency of a complaint based on unproven affirmative defenses is an expansion of Rule 1028, which we do not condone. Next, Metlife relies on various Pennsylvania cases in which preliminary objections were used to raise affirmative defenses. Metlife s Brief at 10. Initially, we reiterate that decisions of our trial courts or sister appellate -9-

10 court are not binding on this Court. See Goddard v. Heintzelman, 875 A.2d 1119, 1121 (Pa. Super. 2005) (instructing that Superior Court is not bound by decisions of courts of common pleas and is free to reach contrary holdings); Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278, 285 n.9 (Pa. Super. 2010) (instructing that Superior Court is not bound to follow as controlling precedent decisions of Commonwealth Court). Moreover, Metlife s argument is unsupported by the case law that it cites. Historically, the Commonwealth Court has adhered to the rule that affirmative defenses must be raised in a new matter. See Pa.R.C.P. 1030, Notes of Decision 17 (Immunity); Jacobs v. Merrymead Farm, Inc., 799 A.2d 980 (Pa. Cmwlth. 2002) (holding that dismissal from suit was not warranted where health department raised immunity in preliminary objection, plaintiffs objected to procedural defect, and defense amounted to speaking demurrer); Paz v. Com., Dept. of Corrections, 580 A.2d 452, 135 (Pa. Cmwlth. 1990) (immunity and statutes of limitations may not be raised by demurrer in preliminary objections, but are affirmative defenses which must be pleaded under new matter in answer). However, we recognize a limited tolerance in the Commonwealth Court for the use of preliminary objections to raise affirmative defense. See for example Sweeney v. Merrymead Farm, Inc., 799 A.2d 972 (Pa. Cmwlth. 2002) (explaining that, for parties to be allowed to raise affirmative defense of -10-

11 immunity as preliminary objection, affirmative defense must be clearly applicable on face of complaint and opposing party must not object); Jacobs, 799 A.2d at 983 ( The affirmative defense, however, must be clearly applicable on the face of the complaint. Where the plaintiff does not object to the improper procedure, lower courts have ruled on the affirmative defense of immunity raised by preliminary objections. ). Here, Fieldhouse s objection to Metlife s improper procedure distinguishes this case from those relied upon by Metlife. See for example Milliner v. Enck, 709 A.3d 417 (Pa. Super. 1998) (addressing merits of preliminary objections that raised immunity defense without any discussion of improper procedure); Feingold v. Hill, 521 A.2d 33 (Pa. Super. 1987) (same); Durham v. McElynn, 772 A.2d 68 (Pa. 2001) (same); Zdaniewicz v. Sands, 432 A.2d 231 (Pa. Super. 1981) (same). Additionally, other cases relied upon by Metlife are inapposite. See Heckendorn v. Conrail, 439 A.2d 674 (Pa. Super. 1981) (reviewing a worker s compensation issue, not an affirmative defense issue); Brown v. Hahn, 213 A.2d 342 (Pa. 1965) (reviewing improperly raised statute of frauds defense because of confusion which has existed as to proper procedure for raising statute of frauds and in interest of judicial economy); Yorty v. PJM Interconnection, LLC, 79 A.3d 655 (Pa. Super. 2013) (reversing collateral order granting summary judgment based on FERC tariff immunity). -11-

12 Finally, we disapprove of the trial court s reliance on Malia v. Monchak, 543 A.2d 184 (Pa. Cmwlth. 1998), for the assertion that improperly filed preliminary objections raising statute of limitations may be sustained if it is apparent from the face of the record that the statute of limitations bars the instant action. Trial Court Opinion, 7/9/13, at 23. Our disapproval is two-fold. First, as stated above, we are not bound by a decision of the Commonwealth Court. Steffy & Son, Inc., 7 A.3d 278. Second, the trial court s interpretation of Malia is inaccurate. Addressing an immunity defense improperly raised in preliminary objections, the Malia court stated However, if the defense of immunity is apparent on the face of the challenged pleading, the defense of immunity will be considered on preliminary objection unless the opposing party challenges this procedure by filing preliminary objections to the preliminary objections. McCreary v. City of Philadelphia, 95 Pa.Commonwealth Ct. 285, 505 A.2d 385 (1986). Malia, 543 A.2d at 187 (emphasis supplied). According to Malia, even if Metlife s affirmative defenses are apparent on the face of the pleadings before us, they should not have been considered on preliminary objection because Fieldhouse challenged the procedure s propriety by filing preliminary objections to the preliminary objections. Thus, the reasoning of Malia favors Fieldhouse s position. -12-

13 For the foregoing reasons, we vacate the order sustaining Metlife s preliminary objections and dismissing Fieldhouse s complaint with prejudice. Accordingly, we remand for further proceedings. Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 4/9/