J-A01010-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

FREDERICK MUTUAL INSURANCE 

COMPANY

v.

DN CONSTRUCTION, LLC, AND DN 

CONSTRUCTION COMPANY, LLC 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 869 EDA 2023

Appeal from the Order Entered April 2, 2018

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 170803465

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and COLINS, J.*

MEMORANDUM BY LAZARUS, P.J.: FILED APRIL 26, 2024

DN Construction, LLC, and DN Construction Company, LLC (collectively, 

“DN Construction”), appeal from the order, entered in the Court of Common 

Pleas of Philadelphia County, granting, in part, and denying, in part, the 

motion for judgment on the pleadings filed by Appellee Frederick Mutual 

Insurance Company (“Frederick Mutual”). Upon our review, we vacate and 

remand for further proceedings.

On January 21, 2015, Luis Armando Jimenez Matute (“Decedent”) was

working on a construction site in Philadelphia where he fell and subsequently 

died from his injuries. In March 2016, Decedent’s personal representative 

filed a wrongful death action against DN Construction, Reobote Construction, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Inc. (“Reobote”), and other defendants allegedly connected to the 

construction site. 

Prior to the incident in which Decedent sustained his injuries, DN 

Construction and Reobote had entered into a Contractor Agreement 

(“Agreement”) dated January 16, 2015, which mandated that Reobote 

maintain “such insurance as will protect [Reobote] and [DN Construction] from 

claims for loss or injury which might arise out of or result from [Reobote’s]

operations under this project, whether such operations be by [Reobote] or by 

a subcontractor or its subcontractors.” Contractor Agreement, 1/16/15, at 

Article 7. 

Frederick Mutual Insurance Company (“Frederick Mutual”) issued 

insurance policy APP 2131053 (“Policy”) to Reobote, providing certain liability 

coverage for claims caused by an “occurrence” and resulting in “bodily injury,” 

which includes death. Contractors Special Policy, undated, at 5 (Definitions), 

9 (Principal Coverages). The Policy also included two relevant endorsements. 

First, Endorsement AP 0337 10 05, regarding additional insured status, 

provided as follows:

ADDITIONAL INSURED—OWNERS, LESSEES, OR 

CONTRACTORS—AUTOMATIC STATUS

The Commercial Liability Coverage is amended as follows:

1. Under Definitions, the definition of “insured” is amended to 

include as an additional insured any person or organization for 

whom “you” are performing operations when “you” and that 

person or organization have agreed in a written contract or 

agreement that such person or organization be added to “your” 

policy as an additional insured.
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Such person or organization is an additional insured only with 

respect to such person’s or organization’s liability for “bodily 

injury”, “property damage”, “personal injury”, or “advertising 

injury” caused, in whole or in part, by:

a. “your” acts or omissions; or

b. the acts or omissions of those acting on “your” behalf;

in the performance of “your” ongoing work for the additional 

insured. 

Declaratory Judgment Complaint, 9/1/17, at ¶ 22. 

Second, Endorsement AP-FM 0010 PA, regarding excess insurance 

coverage for any person or organization named as an additional insured, 

provided as follows:

This endorsement modifies the insurance provided under the 

Commercial Liability Coverage Section of Contractors Special 

Policy AP-100 Ed. 2.0.

For any person or organization named as an additional insured by 

any endorsement, the following provision is added to Condition 2.

Insurance Under More than One Policy of the Commercial 

Liability Coverage Section:

e. This insurance is excess over any other insurance naming

the additional insured as an “insured” whether primary, excess,

contingent[,] or on any other basis unless a written contract or 

written agreement specifically requires that this insurance be 

either primary or primary and noncontributing. All provisions of 

d. above apply if the additional insured’s insurance is excess.

However, if “you” have specifically agreed in a written contract or 

written agreement to provide the additional insured coverage on 

a primary or primary and noncontributory basis, this policy shall 

be primary and “we” will not seek contribution from the additional 

insured’s insurance for any loss to which this insurance applies. 

All provisions of a. above apply if this insurance is primary and 

noncontributing.

Id. at ¶ 24 (emphasis in original).
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Finally, the Policy provides that, “[w]hen this insurance is excess over 

any other insurance: 1) ‘we’ will have no duty to defend any claim or suit that 

any other insurer has a duty to defend.” Contractors Special Policy, undated, 

at 20 (Conditions-Insurance Under More Than One Policy). 

On September 1, 2017, Frederick Mutual filed a declaratory judgment 

action seeking, inter alia, a declaration that “the Reobote Policy is excess for 

DN Construction over other insurance available to DN Construction” such that 

Frederick Mutual has no duty to defend or indemnify DN Construction “until 

all such other insurance available to DN Construction is exhausted[.]” 

Declaratory Judgment Complaint, 9/1/17, at 12. On November 2, 2017, DN 

Construction filed an answer with new matter and counterclaim for declaratory 

judgment. 

Following the close of pleadings, on March 1, 2018, Frederick Mutual 

filed a motion for judgment on the pleadings as to its declaratory judgment 

action, in which it averred that “[t]he DN Construction-Reobote Contract did 

not include any provision stating that the Reobote Policy would be primary or 

primary and noncontributing” and that, “the Reobote Policy would be excess 

to DN Construction’s own Commercial General Liability Insurance Policy.” 

Motion for Judgment on the Pleadings, 3/1/18, at ¶¶ 66, 67. 

On March 21, 2018, DN Construction filed a response in opposition to 

Frederick Mutual’s motion for judgment on the pleadings, averring that 

“[t]here is no evidence in this pleadings record of any other insurance that is 

available to DN [Construction].” Response in Opposition, 3/21/18, at ¶ 19. 
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DN Construction expanded upon this assertion in its brief in opposition to 

judgment on the pleadings, stating:

Frederick Mutual contends that its policy is excess over some other 

policy of insurance that is not part of the record. Frederick Mutual 

apparently deems it unnecessary to support its position on the 

relative priority of its policy by inviting the [c]ourt to make 

unwarranted assumptions about DN’s own insurance program. 

Indeed, if Frederick Mutual’s position is correct that its policy is 

excess, Frederick Mutual could only possibly prove that it does not 

owe a duty to defend by establishing that another policy is primary 

to the Frederick Mutual policy and required to respond to defend. 

Since the only policy that is part of the pleadings record is the 

Frederick Mutual policy, judgment on the pleadings is plainly 

inappropriate.

Even if the [c]ourt were to accept Frederick Mutual’s contention 

that its policy is excess, Frederick Mutual’s policy is not excess 

over any other policy because no other policies are part of the 

record. In other words, the [c]ourt can accept as true that the 

Frederick Mutual policy is excess but would be constrained on this 

record to conclude (1) that the Frederick Mutual [policy] occupies 

a primary position notwithstanding the excess policy endorsement 

because there is no other insurance and (2) the Frederick Mutual 

policy is still required to respond to defend because Frederick 

Mutual has not proven that any other policy is primary to the 

Frederick Mutual policy.

Memorandum of Law in Opposition, 3/21/18, at 31-32. 

On April 2, 2018, the trial court entered an order finding that “[a]ny 

coverage which may be owed by [Frederick Mutual] is excess coverage, and 

[Frederick Mutual] has no obligation to defend and/or indemnify [DN 

Construction] until all other available insurance is exhausted.” Trial Court 

Order, 4/2/18. In its opinion in support of its April 2, 2018 order, the court 

quoted the excess coverage endorsement to the Policy and reasoned:
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[U]nless Reobote and its additional insured[, i.e. DN 

Construction,] agreed in writing that coverage under the Reobote 

policy would be primary or primary and noncontributing, the 

additional insured will not be afforded defense or indemnification

from [Frederick Mutual] until the additional insured’s own 

insurance policy is exhausted.

Here, there was no such written agreement between DN 

[Construction] and Reobote that called for the Reobote policy to 

be primary or primary and noncontributory. Therefore, this court 

gave effect to the clear and unambiguous language of the Reobote 

[p]olicy’s “Other Insurance Endorsement for Additional Insured” 

provision and declared [Frederick Mutual] would only [be] 

obligated to provide coverage to DN [Construction] after all other 

policies available to DN [Construction] have been exhausted.

Trial Court Opinion, 5/18/18, at 3 (citation to record omitted).

DN Construction filed a motion for reconsideration, which the trial court 

denied. In 2018, and again in 2021, DN Construction filed appeals from the 

trial court’s April 2, 2018 order, both of which were quashed on the basis that 

the order was a non-reviewable interlocutory order. See Frederick Mut. Ins. 

Co. v. DN Construction, 1362 EDA 2018 (Pa. Super. filed Oct. 3, 2018) 

(judgment order); id., 394 EDA 2021 (Pa. Super. filed Jan. 5, 2022) (nonprecedential memorandum decision). Subsequently, on March 15, 2023, the 

trial court entered summary judgment on the issues that remained 

outstanding, rendering the April 2, 2018 order final. See Pa.R.A.P. 341 (final 

order is one which disposes of all claims and all parties). Thereafter, DN 

Construction filed this timely appeal, followed by a court-ordered Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. DN 

Construction raises the following claims for our review:
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1. Did the trial court err in declaring that any coverage owed by 

Frederick is excess coverage, because the record at the judgment 

on the pleadings stage included no other insurance policy such 

that the trial court could not properly decide the priority of 

coverage?

2. Did the trial court prematurely decide Frederick Mutual’s motion 

for judgment on the pleadings by declaring that coverage for DN 

[Construction] was excess, because DN [Construction] should 

have been afforded an opportunity to take discovery to support 

its position that it was entitled to primary insurance coverage from 

Frederick Mutual?

3. Did the trial court err in declaring the relative priority of the

Frederick Mutual policy in relation to unspecified policies of other

insurance before the parties had an opportunity to engage in 

discovery on that issue, including, without limitation, discovery 

related to the reasonable expectations of the insured?

Brief of Appellants, at 8 (renumbered for ease of disposition).

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 

1034[,] which provides for such judgment after the pleadings are 

closed, but within such time as not to delay trial. A motion for 

judgment on the pleadings is similar to a demurrer. It may be 

entered when there are no disputed issues of fact and the moving 

party is entitled to judgment as a matter of law. In determining 

if there is a dispute as to facts, the court must confine its 

consideration to the pleadings and relevant documents. 

. . .

Our scope and standard of review in appeals of a grant or denial 

of a motion for judgment on the pleadings is well-settled. This 

Court applies the same standard as the trial court and confines its 

consideration to the pleadings and documents properly attached 

thereto. We review to determine whether the trial court’s action 

respecting the motion for judgment on the pleadings was based 

on a clear error of law or whether there were facts disclosed by 

the pleadings which should properly go to the jury. We will affirm 

the grant of judgment on the pleadings only if the moving party’s 

right to succeed is certain and the case is so free from doubt that 

trial would clearly be a fruitless exercise.
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Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 100–01 (Pa. Super. 2016)

(citations omitted). Where a defendant has asserted a counterclaim, but the 

plaintiff moves for judgment on the pleadings only with respect to his own 

complaint, we may consider only the complaint, answer and new matter, and 

answer to new matter. See Bata v. Central-Penn. Nat’l Bank, 224 A.2d 

174, 179 (Pa. 1966). Finally, where a party moves for judgment on the 

pleadings, “the burden is on the moving party to prove the non-existence of 

any genuine issue of fact[,] and . . . all doubts as to the existence of a genuine 

issue of a material fact must be resolved against the moving party.” Lyman 

v. Boonin, 635 A.2d 1029, 1032 (Pa. 1993). 

Here, the underlying declaratory judgment action involves a priority of 

coverage dispute in which Frederick Mutual alleges that the Policy is excess to 

DN Construction’s “other insurance” pursuant to the “Other Insurance” 

endorsement to the Policy. Frederick Mutual further asserts that DN 

Construction’s failure to attach to its pleading a copy of its own policy, or even 

to set forth the terms of its own policy, were fatal to its case at the judgment 

on the pleadings stage. Frederick Mutual argues “DN Construction should 

have established the substance of the relevant writing at the pleadings stage, 

especially an insurance policy that named DN Construction as the insured.” 

Brief of Appellee, at 14. Because DN Construction did not do so, Frederick 

Mutual contends that the trial court properly entered judgment on the 

pleadings. 
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Conversely, DN Construction argues that, because Frederick Mutual was 

the moving party in the declaratory judgment action, it bore the burden of 

proving that the Policy occupied an excess position. DN Construction asserts 

that an “other insurance” analysis “necessarily requires that a court compare 

the terms of the two (or more) insurance policies to determine which one 

provides primary, or dollar-one coverage—including defense costs, and which 

one provides excess coverage.” Brief of Appellant, at 22. As such, in order 

to prevail at the judgment on the pleadings stage, Frederick Mutual was 

required to identify the policy under which DN Construction was allegedly 

primarily insured. Because it did not, the trial court erred in granting 

judgment on the pleadings. We agree.

“Other insurance” exists where there are two or more insurance 

policies covering the same subject matter, the same interest, and 

against the same risk.” Harstead[ v. Diamond State Ins. Co, 

723 A.2d 179,] 182 [(Pa. 1999)]. “Other insurance” clauses act 

to limit an insurer’s liability where there is another policy 

applicable to the claimed loss. Id. at 181. There are three general 

categories of “other insurance” clauses; these categories 

determine how liability is assigned in the case of concurrent 

coverage:

The first, a “pro-rata” clause, limits the liability of an insurer 

to a proportion of the total loss. The second, an “escape” 

clause, seeks to avoid all liability. The [t]hird, an “excess” 

clause[,] provides that the insurance will only be excess.

Hoffmaster[ v. Harleysville Ins. Co., 657 A.2d 1274,] 1276 

[(Pa. Super. 1995)] (quoting Carriers Ins. Co. v. American 

Policyholders’ Ins. Co., 404 A.2d 216, 218 (Me. 1979)). “Other 

insurance” clauses are deemed mutually repugnant when they are 

irreconcilable and mutually exclusive; that is, following the 

express terms of one policy would be in direct conflict with the 

express dictates of another policy. American Casualty Co. v. 

PHICO Ins. Co., [702 A.2d 1050,] 1053–54 [(Pa. 1997)]. Where 
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two policies each purport to be excess over the other, such clauses 

are mutually repugnant; both must be disregarded and the 

insurers must share in the loss. Id.; Hoffmaster, supra.

Nationwide Ins. Co. v. Horace Mann Ins. Co., 759 A.2d 9, 11–12 (Pa. 

Super. 2000).

Implicit in the foregoing is that one insurance policy cannot be deemed 

as excess without comparing its “other insurance” provision to the terms of 

any other policy that might apply. Here, Frederick Mutual did not identify,

state the relevant terms of, or attach to its complaint a copy of DN 

Construction’s “other insurance” policy. Because it did not do so, it failed to 

demonstrate that it was entitled to judgment as a matter of law. Similarly, 

the trial court, basing its decision solely on the pleadings and relevant 

documents attached thereto, see Davidson, supra, could not properly decide

whether the Policy was, in fact, excess. Indeed, the pleadings record does

not support a conclusion that another policy even exists. Accordingly, we are 

constrained to conclude that the trial court erred in entering judgment on the 

pleadings in favor of Frederick Mutual.

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.
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Date: 4/26/2024