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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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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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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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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 
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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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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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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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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). 
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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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(“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.”). 
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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 
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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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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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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