The Pennsylvania Superior Court has ruled that courts may not sustain preliminary objections that improperly raise affirmative defenses when the opposing party specifically challenges the procedural defect.
The court said that while the Commonwealth Court and other Superior Court panels have shown some leniency in sustaining preliminary objections that improperly raised affirmative defenses, none has done so in cases where the opposing party objected to the procedural error,
In an unpublished memorandum in Fieldhouse v. Metropolitan Property and Casualty Insurance, a three-judge panel unanimously vacated a Philadelphia trial judge’s ruling sustaining defendant Metlife Auto & Home’s preliminary objections and dismissing plaintiff David Fieldhouse’s complaint in a bad-faith case.
Judge Jacqueline O. Shogan wrote for the court that Pennsylvania Rule of Appellate Procedure 1030 clearly prohibits preliminary objections from raising affirmative defenses.
In addition, Shogan said, courts are not permitted to be lenient where a defendant commits this procedural error and the plaintiff specifically objects to the error.
“In light of the mandatory language of Rule 1030, the contested issues of fact on all of the points raised by Metlife in its attempt to invoke the affirmative defenses, and Fieldhouse’s objection, we conclude that the trial court erred in sustaining Metlife’s preliminary objections and dismissing Fieldhouse’s complaint,” Shogan said.
Shogan was joined by President Judge John T. Bender and Senior Judge James J. Fitzgerald III.
According to Shogan, Fieldhouse filed a complaint in January 2013 against Metlife, his automobile insurer, alleging it denied him benefits in bad faith for damage to his vehicle caused by an accident with a pedestrian.
Metlife responded in February 2013 by filing preliminary objections, seeking to dismiss the complaint for failure to conform to law or rule of court, according to Shogan.
Metlife also demurred and raised the affirmative defenses of statute of limitations and immunity, to which Fieldhouse responded by filing its own preliminary objections, Shogan said.
Following an April 2013 hearing on both sets of preliminary objections, Philadelphia Court of Common Pleas Judge Leon W. Tucker sustained Metlife’s demurrer and dismissed Fieldhouse’s complaint with prejudice, according to Shogan.
On appeal, according to Shogan, Fieldhouse argued that Metlife’s preliminary objections contained affirmative defenses, which is improper under Rule 1030, which states, “all affirmative defenses … shall be pleaded in a responsive pleading under the heading ‘New Matter.’”
Shogan agreed that Metlife had committed a procedural error, calling Rule 1030 “clear, unambiguous and mandatory.”
Shogan added that the Superior Court held in its 2008 ruling in Cooper v. Church of St. Benedict that preliminary objections raising issues that cannot be decided based on the complaint must be endorsed with a notice to plead requiring the plaintiff to admit or deny each allegation.
If no such notice is included, the Cooper court ruled, the plaintiff is not required to respond and all of the allegations raised by the preliminary objections are deemed denied, Shogan said.
Shogan also pointed to the Superior Court’s 1992 ruling in Preiser v. Rosenzweig, in which it held that when a party erroneously raises affirmative defenses in preliminary objections but the opposing party fails to challenge the procedural error, the defect is waived and the trial court may rule on the preliminary objections.
The record in Fieldhouse shows that Metlife’s preliminary objections were not endorsed with a notice to plead and that Fieldhouse challenged Metlife’s procedural defect, Shogan said.
Metlife cited several Pennsylvania trial and appellate court rulings allowing preliminary objections that improperly raised affirmative defenses to be sustained, according to Shogan.
But Shogan said none of the plaintiffs in those cases objected to the improper procedure.
In addition, Shogan said Tucker was wrong to rely on the Commonwealth Court’s 1998 ruling in Malia v. Monchak.
Shogan said Tucker inaccurately interpreted Malia as holding that improperly filed preliminary objections raising a statute of limitations challenge may still be sustained if the record shows the suit is in fact time-barred.
According to Shogan, the Malia court held that “‘if the defense of immunity is apparent on the face of the challenged pleading, the defense of immunity will be considered on preliminary objection unless the opposing party challenges this procedure by filing preliminary objections to the preliminary objections.’”
“According to Malia, even if Metlife’s affirmative defenses are apparent on the face of the pleadings before us, they should not have been considered on preliminary objection because Fieldhouse challenged the procedure’s propriety by filing preliminary objections to the preliminary objections,” Shogan said.
Metlife also argued that its preliminary objections properly challenged Fieldstone’s complaint under Rule 1028(a)(4), which allows for a demurrer, according to Shogan.
But Shogan said Rule 1028(a)(4) demurrers are different from affirmative defenses.
“Rule 1028 provides the grounds on which to challenge the defects and legal sufficiency of a complaint, without consideration of matters de hors the complaint’s averments,” Shogan said. “Rule 1030 provides affirmative defenses that the proponent must raise in answer to the complaint as new matter and prove. Metlife’s interpretation of Rule 1028(a)(4) as necessarily allowing a party to challenge the legal sufficiency of a complaint based on unproven affirmative defenses is an expansion of Rule 1028, which we do not condone.”
Counsel for Fieldhouse, James N. Gross of Philadelphia, said he was “gratified” by the ruling.
Counsel for Metlife, Andrew J. Spaulding of Fowler Hirtzel McNulty & Spaulding in Philadelphia, also could not be reached.
(Copies of the 13-page opinion in Fieldhouse v. Metropolitan Property and Casualty Insurance, PICS No. 14-0615, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •