J-A35029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AMPCO-PITTSBURGH CORPORATION,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellant

                     v.

NEW HAMPSHIRE INSURANCE COMPANY
AND ARGONAUT INSURANCE COMPANY,

                          Appellees                    No. 304 WDA 2014


                   Appeal from the Order January 23, 2014
             In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 05-33193


BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.

MEMORANDUM BY ALLEN, J.:                            FILED JANUARY 13, 2015

      Ampco-Pittsburgh Corporation, (“Appellant”), appeals from the trial

court’s order entered on January 23, 2014, granting the motion for

judgment on the pleadings filed by Argonaut Insurance, (“Argonaut”),

regarding   Appellant’s   second      amended   complaint.   Appellant   further

challenges the trial court’s prior dismissal, with leave to amend, of

Appellant’s first amended complaint.        After careful consideration of the

record and applicable jurisprudence, we affirm.

      The trial court set forth the factual and procedural background of this

action as follows:

            New Hampshire Insurance Company issued standard
      comprehensive general liability policies to [Appellant] for the
      period from April 1, 1975 to March 31, 1977. Argonaut issued
      similar policies to [Appellant] for the period from April 1, 1977 to
      January 1, 1984.
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           Each of the policies includes a provision that the insurance
     company shall defend any suit against the insured seeking
     damages on account of property damage, even if any of the
     allegations of the suit are groundless, false, or fraudulent.

           [Appellant] owned property in Bensalem, Pennsylvania,
     from 1964 through 1987. On November 12, 1987, Hussey
     acquired the property from [Appellant]. On November 24, 1987,
     Hussey sold a portion of this property to Beak.

          In 1995, Hussey/Beak learned that the property was
     contaminated.

            On November 25, 1997, Hussey/Beak instituted an action
     against [Appellant] in this court at GD-97-019331 through the
     filing of a writ. Subsequently, on or about November 21, 2001,
     Hussey/Beak filed a Complaint in which its damage claim
     included over $460,000 in cleanup activities, together with legal
     fees relating to a contamination investigation and negotiations, a
     diminution in value of the property, and consequential damages
     in connection with an anticipated sale of the property.

          The Complaint contained two counts based on provisions of
     HSCA and a third count titled Contractual Indemnification.

           The contractual indemnification claim is based on
     provisions within the sales agreement between Hussey and
     [Appellant] (“Sales Agreement”) in which Hussey agreed to
     assume certain liabilities and obligations of [Appellant], and
     [Appellant] agreed to assume any liabilities not specifically
     assumed by the buyer.

           To resolve the claims set forth in Hussey/Beak's lawsuit
     against [Appellant], the parties agreed to participate in binding
     common law arbitration. With one exception described below,
     the arbitrator, through an August 15, 2003 Award, agreed with
     [Appellant] that under the Sales Agreement, Hussey/Beak's
     claims against [Appellant] covered property damage and other
     losses that Hussey had agreed to assume (i.e., these were
     retained liabilities).

          The one exception was the provision in the             Sales
     Agreement (Article 1.4(c)) that the seller shall retain:

        Any liabilities or obligations (or costs and expenses in
        connection therewith) to the extent that such liabilities or


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J-A35029-14


        obligations are covered by an insurer or insurance under a
        policy issued to, or for the benefit of, Seller.

           The arbitrator stated: "The issues raised by Article 1.4(c)
     would remain open for further hearings and the presentation of
     evidence as to the application of, and scope of any insurance
     coverage."

           In the present litigation, on December 22, 2005, the initial
     Complaint was filed. In this Complaint, Beak, Hussey, and
     [Appellant] were the plaintiffs; New Hampshire and Argonaut
     were the defendants.

             This Complaint included a single count in which Beak,
     Hussey, and [Appellant] sought a declaration as to whether or
     not defendants’ policies provided coverage to [Appellant] for the
     liabilities and obligations for the environmental conditions at the
     Bensalem facility which are the subject of claims made by
     Hussey. In this Complaint, Hussey alleged that the claims were
     covered by the New Hampshire and Argonaut policies.
     [Appellant] made no allegations as to whether or not there was
     coverage. [FN2: The apparent reason was that [Appellant] did
     not have a dog in this fight. If Hussey prevailed, the insurance
     companies would be liable.           If the insurance companies
     prevailed, the arbitrator would find that [Appellant] had no
     obligations to Hussey.]

          Subsequently, Beak and Hussey settled with New
     Hampshire and Argonaut so the only remaining plaintiff was
     [Appellant] which had not raised any allegation of coverage.

           On June 20, 2012, [Appellant] filed an Amended Complaint
     for declaratory judgment. In its Complaint, [Appellant] was the
     only plaintiff; the Complaint named New Hampshire, Argonaut,
     Beak, and Hussey as the defendants. The Amended Complaint
     addressed only defense costs and policy limits. The only relief
     sought was a declaration that New Hampshire and Argonaut are
     obligated to pay [Appellant] the costs, including attorney fees, it
     incurred in connection with the claims that Beak has asserted
     against [Appellant], and a declaration that New Hampshire's
     settlement payment to Beak does not erode the policy limits
     under the policies New Hampshire issued to [Appellant].

           [On December 6, 2012, in response to Argonaut’s
     preliminary objections to Appellant’s amended complaint, the
     trial court], dismissed both counts [of Appellant’s amended

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J-A35029-14


     complaint], with leave to amend Count I (defense costs),
     because (1) a declaratory judgment cannot be brought where
     the claim is nothing more than a breach of contract, and (2)
     there was, at this time, no case or controversy regarding policy
     limits.

           On January 1, 2013, [Appellant] filed its Second Amended
     Complaint which is the subject of the Motions for Judgment on
     the Pleadings [filed by Argonaut and New Hampshire][.] The
     Second Amended Complaint raises only a breach of contract
     claim against Argonaut and New Hampshire in which [Appellant]
     seeks defense costs incurred in the underlying action.

Trial Court Memorandum and Order, 1/23/14, at 1-4 (some footnotes

omitted).

     On January 23, 2014, the trial court granted Argonaut’s motion for

judgment on the pleadings. On February 4, 2014, Appellant filed a motion

for reconsideration of the trial court’s January 23, 2014 order. On February

12, 2014, the trial court denied Appellant’s motion for reconsideration. On

February 21, 2014, Appellant filed a praecipe to settle and discontinue the

action as to New Hampshire Insurance Company only.          On February 21,

2014, Appellant filed a notice of appeal.    The trial court did not order

Appellant compliance with Pa.R.A.P. 1925. On February 26, 2014, the trial

court entered an order indicating that “pursuant to Pa.R.A.P. No. 1925(a),

the reasons for my January 2[4], 2014 Order of Court are set forth in my

Memorandum accompanying the Order of Court.” Order, 2/26/14, at 1.

     Appellant presents two issues for our consideration:

     A. Whether the trial court erred in granting judgment on the
        pleadings to [Argonaut] based upon its conclusion that
        Appellant's claims against [Argonaut] did not relate back to


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J-A35029-14


         Appellant's original Complaint, and therefore were barred by
         the statute of limitations.

      B. Whether the trial court erred in sustaining preliminary
         objections in the nature of a demurrer based upon its
         conclusion that Appellant could not assert a claim for
         declaratory judgment regarding the existence of the duty to
         defend.

Appellant’s Brief at 7.

      The following standard of review guides our analysis:

            [A]ppellate review of a trial court's decision to grant or
      deny judgment on the pleadings is limited to determining
      whether the trial court committed an error of law or whether
      there were facts presented which warrant a jury trial.           In
      conducting this review, we look only to the pleadings and any
      documents properly attached thereto. Judgment on the
      pleadings is proper only where the pleadings evidence that there
      are no material facts in dispute such that a trial by jury would be
      unnecessary.

             In passing on a challenge to the sustaining of a motion for
      judgment on the pleadings, our standard of review is limited.
      We must accept as true all well pleaded statements of fact of the
      party against whom the motion is granted and consider against
      him only those facts that he specifically admits. We will affirm
      the grant of such a motion only when the moving party's right to
      succeed is certain and the case is so free from doubt that the
      trial would clearly be a fruitless exercise.

Erie Ins. Exchange v. Conley, 29 A.3d 389, 391-392 (Pa. Super. 2011)

(internal citation omitted).

      Appellant contends:

           In each of [Appellant’s] three Complaints in this Action,
      [Appellant] asserts the same cause of action.     Specifically,
      [Appellant] asserts that:

         [Appellant] maintained comprehensive general liability
         (CGL) policies with New Hampshire and Argonaut. Original


                                     -5-
J-A35029-14


        Complaint, ¶ 18; First Amended Complaint at ¶ 19; Second
        Amended Complaint at ¶ 5 (R. 13a; R. 207a; R. 497a);

        Argonaut issued CGL policies providing coverage to
        [Appellant] from 4/1/1977 to 1/1/1984, including the
        following.... Original Complaint, ¶ 20; First Amended
        Complaint at ¶ 21; Second Amended Complaint at ¶ 7 (R.
        14a; R. 208a; R. 497a);

        After receiving notice of Hussey Marine's claims as
        described above, on February 7, 1997, [Appellant] notified
        Argonaut and New Hampshire of Hussey Marine's claims.
        Original Complaint ¶ 22; First Amended Complaint at ¶ 23;
        Second Amended Complaint at ¶ 23 (R. 14a; R. 208a; R.
        499a);

        Argonaut did not respond to [Appellant’s] notice of Hussey
        Marine's claims in 1997. Original Complaint ¶ 23; First
        Amended Complaint at ¶ 24; Second Amended Complaint
        at ¶ 27 (R. 14a; R. 208a; R. 500a);

        On May 12, 2004, [Appellant] requested a coverage
        determination from Argonaut concerning the Bensalem
        facility.  Original Complaint IT 27; First Amended
        Complaint at ¶ 28; Second Amended Complaint at ¶ 28 (R.
        15a; R. 209a; R. 500a);

        By letter dated June 22, 2004, Argonaut confirmed the
        issuance of the above-referenced policies to [Appellant]
        and informed [Appellant] that "Argonaut must respectfully
        deny coverage...."     Original Complaint, ¶ 28; First
        Amended Complaint at ¶ 29; Second Amended Complaint
        at ¶ 29 (R. 15a; R. 209a, and R. 500a); and

        [Appellant] is seeking court adjudication of certain rights
        and obligations of Argonaut and [Appellant] under the
        Policies. Original Complaint at ¶ 33-34; First Amended
        Complaint at ¶¶ 47, 55; Second Amended Complaint at ¶¶
        46-47 (R. 16a; R. 211a-212a; R. 501a-502a).

     These facts establish the existence of the contracts between
     [Appellant] and Argonaut, the fact that [Appellant] sought to
     enforce its rights under the contracts, and the fact that Argonaut
     refused to perform its obligations under the contracts.
     Regardless of whether [Appellant’s] claim is styled as one for
     breach of contract or one for declaratory judgment, the facts and

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J-A35029-14


      thus the cause of action underpinning [Appellant’s] claim
      remained unchanged since originally pleaded in 2005.

Appellant’s Brief at 19-21.

      The trial court disagreed with Appellant’s contention that its pleadings

have remained unchanged since the inception of their action.      Specifically,

the trial court determined:

      I am granting Argonaut's Motion for Judgment on the Pleadings
      based on its statute of limitations defense.

      On June 22, 2004, Argonaut denied coverage. A breach of
      contract claim is governed by a four-year limitation period.
      [Appellant] never raised a claim in this proceeding that Argonaut
      breached any obligations owed to [Appellant] under the
      Argonaut policies until it filed its Amended Complaint on June 20,
      2012. This was almost eight years after Argonaut advised
      [Appellant] that it was denying coverage.

      Claims that the denial of coverage on June 22, 2004 constituted
      a breach of Argonaut's contractual obligations owed to
      [Appellant] were not raised in the initial Complaint. See ¶ 30 of
      the initial Complaint which reads as follows:

      30. Hussey Marine contends that the Insurance Policies provide
      coverage to [Appellant] for the liabilities and obligations for the
      environmental conditions at the Bensalem facility which are the
      subject of the claims made by Hussey Marine, and that Hussey
      Marine is entitled to the proceeds.

      Nowhere in the initial Complaint does [Appellant] claim that the
      New Hampshire and/or Argonaut insurance policies provide
      coverage to [Appellant] for the liabilities and obligations arising
      out of the environmental conditions at the Bensalem facility.

      If the [2012] Amended Complaint was, instead, the initial
      Complaint, the Complaint would be dismissed because the claims
      raised in this Complaint had to be filed within four years of the
      denial of coverage. The fact that the initial Complaint was filed
      within four years of the denial of coverage does not change the
      merits of the statute of limitations defense since the initial



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J-A35029-14


     Complaint did not raise any claims raised by [Appellant] that
     Argonaut breached contractual obligations owed to [Appellant].

     Furthermore, in the initial Complaint, the declaratory relief that
     was sought was a declaration as to whether the New Hampshire
     and Argonaut policies provided coverage to [Appellant] for the
     liabilities and obligations arising out of the environmental
     conditions at the Bensalem facility. In the Amended Complaint
     and Second Amended Complaint, [Appellant] did not seek a
     declaration regarding coverage but, instead, sought costs of
     defense from New Hampshire and Argonaut.

Trial Court Memorandum and Order, 1/23/14, at 4-5.

     We have explained:

           Amendments to pleadings are permitted at any time,
     including before, during and after trial. PA.R.C.P., Rule 1033, 42
     PA. Cons. Stat. Ann.; Winterhalter v. West Penn Power Co., 355
     Pa.Super. 17, 512 A.2d 1187, 1189 (1986). In discussing Rule
     1033, this Court has stated:

        Although no absolute right to amend exists, the courts of
        this Commonwealth have liberally construed the principle
        embodied in this rule. Consequently, courts have allowed
        amendments of pleadings at any time, as provided by the
        specific language of this statute.

     Id. at 1189 (emphasis in original). Leave to amend pleadings is
     to be liberally granted. Stalsitz v. Allentown Hospital, 814 A.2d
     766, 776 (Pa. Super. 2002), appeal denied, 578 Pa. 717, 854
     A.2d 968 (2004). A party is to be given leave to amend its
     pleadings when allowing the amendment will not unduly
     prejudice or surprise the adverse party.                 Somerset
     Community Hosp. v. Allan B. Mitchell & Associates, Inc., 454
     Pa.Super. 188, 685 A.2d 141, 147 (1996). Undue prejudice in
     this analysis has been defined as something more than a
     detriment to the other party, as any amendment would likely
     have the effect of harming the adverse party's interests. The
     policy underlying this rule of liberal leave to amend is to insure
     that parties get to have their cases decided on the substantive
     case presented, and not on legal formalities. Laursen v. General
     Hospital of Monroe County, 494 Pa. 238, 244, 431 A.2d 237, 240
     (1981); Gallo v. Yamaha Motor Corp., U.S.A., 335 Pa.Super.
     311, 484 A.2d 148, 150 (1984).

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J-A35029-14


              However, “[a]n amendment introducing a new cause
        of action will not be permitted after the Statute of
        Limitations has run in favor of a defendant.” Stalsitz, 814
        A.2d at 776 (citation omitted). Only if the proposed amendment
        merely amplifies, as opposed to altering, the cause of action
        already averred, will it be allowed if the statute of limitations has
        run. Id.

                                       ***

           A new cause of action does arise, however, if the
           amendment proposes a different theory or a different kind
           of negligence than the one previously raised or if the
           operative facts supporting the claim are changed. 2B
           Anderson Pennsylvania Civil Practice, §§ 1033.28 and
           1033.31.

           [Reynolds v. Thomas Jefferson University Hospital,], 676
           A.2d [1205,] 1210 [Pa. Super. 1996] (quotation omitted)
           (emphasis in original).

Chaney v. Meadville Medical Center, 912 A.2d 300, 303-304 (Pa. Super.

2006) (emphasis supplied).

        “Amendments adding new causes of action after the statutes of

limitations have run are prejudicial to defendants because they subject them

to claims without permitting them to raise the statute of limitations defense,

which     would   otherwise    be   available    to   them.”    Department       of

Transportation        v.   Pennsylvania         Insdustries    for   Blind      and

Handicapped, 886 A.2d 706, 715 n.14 (Pa.Cmwlth. 2005) (allowing an

amendment after the expiration of the statute of limitations where plaintiff

“has pursued the same legal theory since inception of this litigation” and the

“amendment did not introduce a new legal theory”) citing Hodgen v.

Summers, 555 A.2d 214, 216 (Pa. 1989).



                                        -9-
J-A35029-14



      In Hodgen, we observed:

      “In determining whether a wholly different cause of
      action is introduced by the amendment, technical
      considerations or ancient formulae are not controlling;
      nothing more is meant than that the defendant shall not
      be required to answer a wholly different legal liability or
      obligation from that originally stated. The test is not
      whether, under technical rules of pleading, a new cause of action
      is introduced, but rather, the test is whether an attempt is made
      to state facts which give rise to a wholly distinct and different
      legal obligation against the defendant.” 61A Am.Jur.2d Pleading
      § 322. “The tests to be applied when the question
      presented is whether an amended [complaint] presents a
      new and different cause of action are, would a judgment
      bar any further action on either, does the same measure
      of damages support both, is the same defense open in
      each, and is the same measure of proof required?”
      Sanchez v. City of Philadelphia, supra at 187, 448 A.2d at 589-
      590, quoting Saracina v. Cotoia, 417 Pa. 80, 85, 208 A.2d 764,
      767 (1965).

Hodgen, 555 A.2d at 215 (emphasis supplied).

      We find that Appellant’s second amended complaint introduced a new

cause of action. Obtaining a judgment in the declaratory action would not

have barred Appellant from pursuing a timely breach of contract action.

Indeed, the Declaratory Judgments Act specifically allows for a declaration to

be sought even before a contract has been breached. See 42 Pa.C.S.A. §

7533 (“Any person interested under a … written contract, or other writings

constituting a contract, or whose rights, status, or other legal relations are

affected by a … contract … may have determined any question of

construction or validity arising under the … contract, … and obtain a

declaration of rights, status, or other legal relations thereunder”); § 7534


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J-A35029-14



(“A contract may be construed either before or after there has been a breach

thereof.”).

      Moreover,    Appellant’s   second      amended   complaint   challenging

Argonaut’s failure to pay for Appellant’s defense costs incurred in the

underlying action implicated different elements, measure of damages and

proof, and defenses than the coverage issue raised in the original complaint.

See American and Foreign Ins. Co. v. Jerry’s Sport Center, Inc., 948

A.2d 834, 845 (Pa. Super. 2008) (“The duty to defend [an insured] is a

distinct obligation, separate and apart from the insurer's duty to provide

coverage … [and] [i]n order to determine whether a claim may potentially

come within the coverage of the policy, we must first ascertain the scope of

the insurance coverage and then analyze the allegations in the complaint.”);

see also Erie Ins. Exchange v. Claypoole, 673 A.2d 348, 355-356 (Pa.

Super. 1996) (en banc) (internal citations omitted) (“It is well established

that the duty to defend and pay the costs of defense is broader than the

duty to indemnify [an insured].      This duty to defend, however, is not

activated by every allegation raised against the insured. The nature of the

allegations themselves, not the details surrounding the injuries suffered, are

the basis upon which the insurer’s duty to defend the insured arises. Thus,

only allegations contained within the underlying complaint pertaining to

injuries which are either actually or potentially within the scope of the

insurance policy obligate the insurer to defend the insured.”).




                                    - 11 -
J-A35029-14



        Therefore, while Appellant contends that “as long as all material facts

upon which [Appellant] bases its Second Amended Complaint are also found

in the Original Complaint, the Second Amended Complaint will relate back to

the Original Complaint,” our established jurisprudence refutes Appellant’s

contention; undue prejudice or surprise resulting from an amendment

following an expired limitation, and the introduction of a new cause of action

where the amendment following the limitation period “proposes a different

theory … than the one previously” raised, will serve to bar an amendment.

Appellant’s Brief at 18; Chaney, 912 A.2d at 303-304.

        Here, accepting all of the factual allegations within Appellant’s second

amended complaint as true, and considering against Appellant only those

facts which Appellant admits, it is clear and free from doubt that Appellant’s

action is untimely, such that Argonaut is entitled to judgment. Appellant’s

breach of contract claim against Argonaut based on Argonaut’s denial of

coverage is governed by a four-year statute of limitations. See 42 Pa.C.S. §

5525.     We have explained that “[t]he purpose of [statute of] limitation

periods is to expedite litigation and thus discourage delay and the

presentation of stale claims which may greatly prejudice the defense of such

claims. In light of the important purpose served by limitations periods, this

Court has held that statutes of limitation are to be strictly construed.”

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 575 (Pa. Super. 2007)

(internal citation omitted). Argonaut denied coverage to Appellant on June

22, 2004. Accordingly, Appellant had until June 22, 2008 to initiate a breach

                                      - 12 -
J-A35029-14



of contract action against Argonaut.     Appellant’s 2013 second amended

complaint asserting a breach of the insurance contract is therefore time

barred.

      A fair reading of the original declaratory judgment action does not

reflect an assertion by Appellant of the cause of action Appellant raises

against Argonaut in its second amended complaint. We are not persuaded

that Appellant’s second amended complaint was merely amplifying, as

opposed to altering, the original action.    Rather, we find that Appellant’s

second amended complaint presented a new cause of action against

Argonaut.   We therefore find that the trial court did not err in granting

Argonaut’s motion for judgment on the pleadings.

      Appellant’s second issue challenges the trial court’s December 6, 2012

order sustaining the preliminary objections filed by Argonaut to Count I of

Appellant’s first amended complaint which sought defense costs Appellant

incurred in defending the underlying action. Appellant argues that the trial

court erred in holding “that a claim for declaratory judgment is not an

appropriate vehicle for adjudicating an insurer’s defense obligations”, and in

stating “[w]e don’t use declaratory judgments when there is — a contract

action will answer everything.” Appellant’s Brief at 24. We disagree.

      A declaratory judgment is not obtainable as a matter of right.
      Whether a trial court should exercise jurisdiction over a
      declaratory judgment action is a matter of sound judicial
      discretion. American Nuclear Insurers v. Metro. Edison Co., 399
      Pa. Super. 375, 582 A.2d 390, 393 (1990); see 42 Pa.C.S.A. §
      7537.


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J-A35029-14



Osram Sylvania Products, Inc. v. Comsup Commodities, Inc., 845 A.2d

846, 848 (Pa. Super. 2004). Discerning no abuse of discretion in the trial

court’s determination that Appellant’s action should be in assumpsit rather

than for declaratory relief, we find that Appellant’s second issue fails.

      Further, we are mindful that in reviewing a trial court’s order

sustaining preliminary objections, our standard of review “is to determine

whether the trial court committed an error of law.” Feingold v. Hendrzak,

et al., 15 A.3d 937, 941 (Pa. Super. 2011). We recognize:

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint.       When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.      Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      which it is clear and free of doubt that the pleader will be unable
      to prove facts legally sufficient to establish the right of relief. If
      any doubts exists as to whether a demurrer should be sustained,
      it should be resolved in favor of overruling the preliminary
      objections.

Id. citing Haun v Community Health Systems, Inc., 14 A.3d 120, 123

(Pa. Super. 2011).

      We have explained that “a cause of action for a declaratory judgment

does not arise or accrue until an ‘actual controversy’ exists[,] … [and that

an] ‘actual controversy’ surrounding the interpretation of [an] insurance

policy … did not arise until [the insurance company defendant] denied

appellant’s request for coverage.”     Zourelias v. Erie Insurance Group,

691 A.2d 963, 964 (Pa. Super. 1997).          We further expressed that “the


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J-A35029-14



statute of limitations for a declaratory judgment action is four years.” Id.

Here, Appellant’s 2012 first amended complaint, seeking for the first time

declaratory relief under Count I for defense costs Appellant incurred in the

underlying action, was untimely because it was not raised on or before June

22, 2008, four years after Argonaut denied coverage. Moreover, based on

our discussion supra, to the extent that Appellant’s claim for defense costs

was a claim that Argonaut breached its contractual obligation to pay for such

costs, Appellant’s first amended complaint was barred as untimely, such that

the trial court did not err in dismissing Appellant’s 2012 first amended

complaint. Appellant’s challenge to the trial court’s dismissal of Appellant’s

first amended complaint is unavailing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2015




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