J-S40030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID FIELDHOUSE                              IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY
T/A/ METLIFE AUTO & HOME

                         Appellee                  No. 3056 EDA 2015


                 Appeal from the Order September 1, 2015
           In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): October Term, 2012 No. 002205


BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                            FILED JUNE 21, 2016

      Appellant, David Fieldhouse, appeals from the September 1, 2015

order, granting the motion for summary judgment filed by Appellee,

Metropolitan Property and Casualty Insurance Company (MetLife).        After

careful review, we affirm.

      A prior panel of this Court summarized the relevant factual and

procedural history of this case as follows.

                  Fieldhouse commenced an action against
            MetLife by writ of summons on October 16, 2012.
            MetLife issued a rule to file a complaint upon
            Fieldhouse on January 3, 2013. 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 his
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              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.

                    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.

Fieldhouse v. Metro. Prop. & Cas. Ins. Co., 102 A.3d 526 (Pa. Super.

2014) (unpublished memorandum at 1-3) (internal citations omitted).1

       Fieldhouse filed a timely notice of appeal to this Court, and on April 9,

2014, this Court vacated the trial court’s order and remanded for further
____________________________________________
1
 For consistency, we have altered the designation of Appellee as “Metlife” to
“MetLife” throughout the quotation from our prior memorandum.



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J-S40030-16


proceedings. Without expressing an opinion on the merits, we held that the

trial court erred when it sustained MetLife’s preliminary objections on a

statute of limitations theory, when such defenses must be raised as new

matter. Id. at 5-12.

       On remand, MetLife filed an answer to the complaint on May 20, 2014,

including as new matter, relevant to this appeal, that Fieldhouse’s claims

were barred by the statute of limitations. On May 18, 2015, MetLife filed a

motion for summary judgment, to which Fieldhouse filed a response on June

17, 2015.     On June 19, 2015, MetLife filed its own reply to Fieldhouse’s

answer.     The trial court dismissed MetLife’s summary judgment motion

without prejudice on July 1, 2015, concluding that it was premature as

pleadings had not yet closed. On July 14, 2015, Fieldhouse filed his reply to

MetLife’s new matter, and that same day, MetLife filed a second motion for

summary judgment.            Fieldhouse filed his answer to MetLife’s second

summary judgment motion on August 14, 2015. On September 1, 2015, the

trial court entered an order granting MetLife’s motion for summary

judgment.      On September 18, 2015, Fieldhouse filed a timely notice of

appeal.2

       On appeal, Fieldhouse raises the following issue for our review.



____________________________________________
2
  Fieldhouse and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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            Did the trial court commit on [sic] error of law by
            summarily rendering judgment in favor of [MetLife]
            and against [Fieldhouse] based on the underlying
            claim of bad faith being time-barred despite
            [MetLife] involving itself in the prosecution of
            criminal charges against [Fieldhouse], the pursuit of
            which, [Fieldhouse] asserts, had tolled the running of
            the applicable statute?

Fieldhouse’s Brief at 4 (emphasis in original).

      We begin by noting our well-settled standard of review pertaining to

summary judgment motions.

            “[O]ur standard of review of an order granting
            summary judgment requires us to determine
            whether the trial court abused its discretion or
            committed an error of law[,] and our scope of review
            is plenary.” Petrina v. Allied Glove Corp., 46 A.3d
            795, 797–798 (Pa. Super. 2012) (citations omitted).
            “We view the record in the light most favorable to
            the nonmoving party, and all doubts as to the
            existence of a genuine issue of material fact must be
            resolved against the moving party.”        Barnes v.
            Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing
            Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736
            (Pa. Super. 2009) (citation omitted). “Only where
            there is no genuine issue as to any material fact and
            it is clear that the moving party is entitled to a
            judgment as a matter of law will summary judgment
            be entered.”    Id. The rule governing summary
            judgment has been codified at Pennsylvania Rule of
            Civil Procedure 1035.2, which states as follows.

                  Rule 1035.2. Motion

                  After the relevant pleadings are closed, but
                  within such time as not to unreasonably delay
                  trial, any party may move for summary
                  judgment in whole or in part as a matter of law

                        (1) whenever there is no genuine issue
                        of any material fact as to a necessary

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                     element of the cause of action or defense
                     which could be established by additional
                     discovery or expert report, or

                     (2) if, after the completion of discovery
                     relevant to the motion, including the
                     production of expert reports, an adverse
                     party who will bear the burden of proof
                     at trial has failed to produce evidence of
                     facts essential to the cause of action or
                     defense which in a jury trial would
                     require the issues to be submitted to a
                     jury.

          Pa.R.C.P. 1035.2.

                 “Where the non-moving party bears the
          burden of proof on an issue, he may not merely rely
          on his pleadings or answers in order to survive
          summary judgment.” Babb v. Ctr. Cmty. Hosp.,
          47 A.3d 1214, 1223 (Pa. Super. 2012) (citations
          omitted), appeal denied, 65 A.3d 412 (Pa. 2013).
          Further, “failure of a non-moving party to adduce
          sufficient evidence on an issue essential to his case
          and on which he bears the burden of proof
          establishes the entitlement of the moving party to
          judgment as a matter of law.” Id.

                     Thus, our responsibility as an appellate
               court is to determine whether the record either
               establishes that the material facts are
               undisputed or contains insufficient evidence of
               facts to make out a prima facie cause of
               action, such that there is no issue to be
               decided by the fact-finder. If there is evidence
               that would allow a fact-finder to render a
               verdict in favor of the non-moving party, then
               summary judgment should be denied.

          Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d
          896, 898 (Pa. Super. 2011), quoting Jones v.
          Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007)
          (internal citations omitted).


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J-S40030-16


Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013).

      Although the trial court’s order was silent as to the grounds upon

which it granted summary judgment, the trial court explained in its Rule

1925(a) opinion that it granted summary judgment on the basis that

Fieldhouse’s complaint was barred by the statute of limitations. Trial Court

Opinion, 12/1/15, at 8. We note that our Supreme Court has explained that

“the statute of limitations begins to run as soon as a right to institute and

maintain suit arises.” Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa.

2000) (citation omitted).    “Whether a complaint is timely filed within the

limitations period is a matter of law for the [trial] court to determine.” Id.

      In this case, the parties agree that Fieldhouse’s bad faith claim is

governed by a two-year statute of limitations.        Fieldhouse’s Brief at 9;

MetLife’s Brief at 6; see also generally 42 Pa.C.S.A. § 5524(7); Ash v.

Cont’l Ins. Co., 932 A.2d 877, 885 (Pa. 2007).           However, the parties

dispute when the statute of limitations began to run. It is undisputed that

Fieldhouse began this action on October 16, 2012, when he filed his writ of

summons.      In his complaint, Fieldhouse alleged that Andrew Keiser, an

agent for MetLife, testified at the January 5, 2009 preliminary hearing in his

criminal case which “resulted in [Fieldhouse] having to prepare a defense in

anticipation of a trial.”     Fieldhouse’s Complaint, 1/24/13, at ¶ 17.

Fieldhouse alleged that MetLife acted in bad faith when Keiser “obtained

information from [him] under the guise of acting as an agent on behalf of


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[MetLife] which information was thereafter shared with, and used by, the

police authorities[.]”   Id. at ¶ 23(b).    Therefore, the trial court reasoned

that, based on the complaint’s allegations, the latest date the statute of

limitations could have begun to run was January 5, 2009.            Trial Court

Opinion, 12/1/15, at 7. Therefore, as the statute of limitations would have

expired on January 5, 2011, the trial court concluded Fieldhouse’s October

16, 2012 writ of summons was untimely filed. Id. at 8.

      On appeal, MetLife argues that the trial court correctly concluded that

the statute of limitations began to run on January 5, 2009. MetLife’s Brief at

12; Trial Court Opinion, 12/1/15, at 7. However, Fieldhouse argues that the

statute of limitations was tolled until October 18, 2010, when the

Commonwealth nolle prossed the criminal charges against him, or on

January 5, 2014, when the statute of limitations expired for the criminal

charges.   Fieldhouse’s Brief at 9-10.     Fieldhouse relies exclusively on this

Court’s decision in Diamon v. Penn Mut. Fire Ins. Co., 372 A.2d 1218 (Pa.

Super. 1977). Fieldhouse’s Brief at 9-10. Conversely, MetLife argues that

this Court’s decision in Jones v. Harleysville Mut. Ins. Co., 900 A.2d 855

(Pa. Super. 2006), appeal denied, 918 A.2d 746 (Pa. 2007), is controlling.

      In Jones, this Court described Diamon and its holding as follows.

                  In Diamon, the appellants purchased a fire
            insurance policy covering their home and some
            personal property from the appellee, Penn Mutual
            (Penn Mutual). A fire later ensued, destroying the
            appellants’ home and furniture.         Penn Mutual
            rejected the appellants’ proof of loss and refused to

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J-S40030-16


            pay their claim. The same day, the district attorney
            filed a criminal complaint against the appellant-
            husband, charging him with filing a false proof of loss
            for claiming damage to furniture which had
            previously been removed from the home. The
            appellant-husband was found guilty of the criminal
            charge, but his conviction was later reversed and the
            matter nolle prossed after he secured a bulldozer
            and uncovered the furniture he claimed was missing
            from the rubble of his home. The appellants then
            filed a complaint against Penn Mutual which was
            untimely under the provisions of the applicable
            policy.    Nevertheless, this Court ruled that the
            appellants’ action was not barred by the applicable
            limitation clause. It was noted that the detective
            involved in the matter signed the criminal
            information “at the instigation” of Penn
            Mutual’s insurance adjuster. Id. at 1222. The
            limitation clause was found to be suspended when
            Penn Mutual “made its mistaken charge against” the
            appellant-husband.      Id. at 1223.       The panel
            remarked that the record established that the district
            attorney filed the criminal charges against the
            appellant-husband “as a result of being told by [Penn
            Mutual’s] adjuster that [the appellant-husband] had
            attempted to cheat the company.”

Id. at 857 (emphasis added).

      In Jones, the plaintiff owned property that suffered a fire on August 1,

1999, after which Jones notified the insurer of the loss. Subsequent to an

investigation, the insurance company informed Jones that her claim was

denied “based upon the defenses of arson, misrepresentation, fraud, certain

business owner policy conditions [the plaintiff’s lessee] failed to meet and its

failure to cooperate in the investigation of the claim.”    Id. at 856.   Soon

thereafter, the Pennsylvania State Police sent an Arson Immunity Reporting

Act request, to which the insurance company responded.          Id.; see also

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J-S40030-16


generally 40 P.S. § 1610.3(a).         As a result of the insurer’s cooperation,

criminal charges were instituted against Jones for arson among other

charges. Jones, supra at 856. Jones received a judgment of acquittal at

the close of the Commonwealth’s case. Id.

      After the criminal trial, Jones resubmitted her claim, which was denied,

and she initiated a complaint for breach of contract and bad faith. The trial

court held that Jones’ breach of contract claim was barred by the two-year

limitations clause in the policy.        Jones made a similar argument to

Fieldhouse’s   argument    in   this   case,   that   under   Diamon,    “because

Harleysville took some role in the filing of the criminal charges, the limitation

clause in the contract should be suspended.”            Id. at 857.     This Court

affirmed, rejecting Jones’ reliance on Diamon for the following reason.

                  While [Jones] liken[s] the Diamon case to the
            present factual situation, we agree with the trial
            court and find it factually distinguishable. In the
            present case [Jones] can point to no evidence of
            record that Harleysville had a role in the filing
            of the criminal charges, unlike the situation in
            Diamon where the insurer was found to have
            instigated the criminal action. The role of the
            insurer in the institution of the criminal charges in
            Diamon was recognized as a distinguishing fact in
            McElhiney v. Allstate Ins. Co., 33 F. Supp. 2d 405
            (E.D. Pa. 1999) wherein the court stated: “Even if it
            is the law in Pennsylvania, the bad faith conduct
            alleged in Diamon involved an insurer which,
            without any apparent basis, caused criminal charges
            to be brought against the insured.” Id. at 408.
            Here, the police investigation was an independent
            one and there is no evidence that Harleysville
            acted to initiate criminal charges.              The
            investigating trooper testified that he was not

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J-S40030-16


              contacted by any agent of Harleysville; rather, he
              initiated contacted [sic] with Harleysville and had the
              fire marshal from Harrisburg issue a letter and
              request for information to Harleysville through the
              Arson Reporting Immunity Act. The trooper was
              specifically questioned if “at any point in time, did
              anybody from Harleysville encourage you to bring
              these charges,” and he responded, “no.” Deposition
              testimony of Jacob E. Andolina Jr., 7/29/03, at 21.

Id. at 857-858 (emphases added).               This Court then applied the same

analysis to rejecting Jones’ claim of bad faith under the statute of limitations

at Section 5524(7).3 Id. at 858-859.

       Turning to this case, Fieldhouse argues that MetLife “had a direct and

vital role in the filing and prosecution of the criminal charges” when it

“offered to share … information with the police authorities.”       Fieldhouse’s

Brief at 10. Fieldhouse points this Court to an investigation report, in which

the investigating trooper stated he spoke to Detective Geliebter, whom

Keiser informed he had “information that [they] would find interesting.”

Fieldhouse’s Response to MetLife’s Second Motion for Summary Judgment,

8/14/15, Exhibit P-3, at 1.         Said report also stated that “based on [the]
____________________________________________
3
  The trial court rejected Jones’ bad faith claim on the basis that “the record
demonstrated that Harleysville conducted a reasonable investigation and had
a reasonable basis for denying the underlying claim.” Jones, supra at 858.
However, this Court rejected that rationale and affirmed on the alternative
ground that the two-year statute of limitations had expired. Id. at 858-859;
see also generally In re Estate of Strahsmeier, 54 A.3d 359, 364 n.17
(Pa. Super. 2012) (stating, “[a]s an appellate court, we may uphold a
decision of the trial court if there is any proper basis for the result reached;
thus we are not constrained to affirm on the grounds relied upon by the trial
court[]”), appeal denied, 69 A.3d 603 (Pa. 2013).



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J-S40030-16


information received from Keiser, [the trooper] applied for and received

approval for a search warrant at [Fieldhouse’s] property.” Id. Therefore, in

Fieldhouse’s view, the statute of limitations was tolled under Diamon.

Fieldhouse’s Brief at 9.

      The trial court rejected Fieldhouse’s argument as to Diamon based

upon the following.

            In [Diamon], the insured’s attorney advised them
            that, based upon the conduct of the insurer, to
            resubmit the claim would result in second
            prosecution; consequently, the Superior Court of
            Pennsylvania stated that if an “insurer, having
            knowledge of a loss, by an act throws the insured off
            his guard as to the necessity of performing some
            duty enjoined by the policy, the insurer should not
            be permitted to take advantage of the failure to act.”
            [Diamon, supra at 1219-1220.] In the instant
            case, the facts of Diamon are inapplicable as
            nothing in the record besides [Fieldhouse]’s
            conclusory arguments reflect any indication that he
            was induced not to sue by Appellee or that Appellee
            was the one who instigated the charges.            See
            Jones[, supra at 857]. Critically, the role of the
            insurer in bringing the charges is the fact that
            triggers the tolling of the statute. Here, the criminal
            charges were brought at the instigation of the
            Abington Township Police and the Pennsylvania State
            Police.

Trial Court Opinion, 12/1/15, at 7-8.

      After careful review of the certified record, we conclude Fieldhouse’s

argument does not warrant relief.       In its motion for summary judgment,

MetLife averred that “[a]s a result of [the] accident, the Abington Police

Department conducted a criminal investigation into the circumstances of the


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J-S40030-16


accident and towed and impounded [Fieldhouse]’s vehicle.”                      MetLife’s

Second Motion for Summary Judgment, 7/14/15, at ¶ 6.                    MetLife further

claimed that “[a]round that time, the Pennsylvania State Police began an

investigation into [Fieldhouse] and tampered VIN plates on the involved

vehicle.”   Id. at ¶ 7.     MetLife also stated that “[b]oth the Abington Police

Department and [the] Pennsylvania State Police solicited information

from [MetLife]’s agents, in particular, Andrew Keiser.” Id. at ¶ 9 (emphasis

added). In his answer to MetLife’s motion, Fieldhouse specifically responded

to these averments as “admitted.”                 Fieldhouse’s Response to MetLife’s

Second Motion for Summary Judgment, 8/14/15, at ¶¶ 6, 7, 9.4

       There    is   no   dispute    that      Keiser   shared   information   with   law

enforcement, which in turn aided them in their investigation.                  However,

Fieldhouse admitted to the trial court that law enforcement solicited that

information from MetLife, not the other way around.                   See id. at ¶ 9.

Fieldhouse has not forwarded any evidence that Keiser, or any other agent

of MetLife requested a criminal investigation or that charges be filed.

Therefore, no dispute of fact existed that MetLife did not initiate the police

investigation, which our cases hold “is the fact that triggers the tolling of the


____________________________________________
4
  Fieldhouse denied MetLife’s allegation in paragraph 7 to the extent that the
Pennsylvania State Police’s investigation “involved any VIN ‘plates.’”
Fieldhouse’s Response to MetLife’s Second Motion for Summary Judgment,
8/14/15, at ¶ 7. However, Fieldhouse “admitted that the Pennsylvania State
Police began an investigation[.]” Id.



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J-S40030-16


statute.” Trial Court Opinion, 12/1/15, at 8; see also Jones, supra at 857-

858. As a result, we conclude that Jones applies to this case, Diamon does

not, and the statute of limitations was not tolled. Therefore, looking at the

record in the light most favorable to Fieldhouse, the statute of limitations

began to run on January 5, 2009, and expired on January 5, 2011. Thus,

Fieldhouse’s October 16, 2012 writ of summons was untimely filed under the

two-year statute of limitations, and he is not entitled to relief on appeal.

See Crouse, supra.

      Based on the foregoing, we conclude the trial court properly granted

MetLife’s motion for summary judgment. See Cadena, supra. Accordingly,

the trial court’s September 1, 2015 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




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