from the Order Entered August 6, 2018, October 11, 2018 In
the Court of Common Pleas of Allegheny County Civil Division
at No(s): GD-17-2937
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
Nationwide Mutual Insurance Company ("Nationwide"),
appeals from the trial court's orders denying its motion
for summary judgment in this declaratory judgment action.
After careful review, we affirm in part and reverse in part
the October 11, 2018 order underlying the appeal at docket
number 1208 WDA 2018, and quash the appeal at docket number
1207 WDA 2018.
trial court summarized the underlying facts of this case as
Nationwide insured [Appellee, August W. Arnold, ] under its
Personal Umbrella Policy No. 54 73 PU 434125 [(hereinafter
"Umbrella Policy"), ] with an effective date of May
11, 2009. Nationwide seeks a determination of its
obligation to defend/indemnify Arnold in a separate lawsuit
brought by CMC Engineering, Inc. (hereinafter
"CMC") against Arnold, docketed at CMC
Engineering[, ] Inc. v. … Arnold and
Jon Pushinsky, Esquire, at GD-17-002106 (hereinafter
"CMC Action" …)[.]
The CMC Action [arose] following the unsuccessful prosecution
of a [q]ui [t]am [a]ction
on behalf of the United States by Arnold against CMC and
others. Arnold acted as the [relator] for the
[q]ui [t]am [a]ction that
concerned the use of federal highway funds passing through
PennDOT, Arnold's employer, to companies such as
In the CMC [A]ction, CMC filed suit against Arnold and
… [Jon] Pushinsky, Esquire…[, ] for violation
of the Dragonetti Act,  Abuse of Process, and Intentional
Interference of Contractual Relations.  Pushinsky
represented Arnold in the [q]ui
[t]am action against CMC … in the
United States District Court for the Western District of
Nationwide is now defending Arnold in the CMC Action subject
to a Reservation of Rights letter. It seeks relief from its
obligation to defend and indemnify Arnold in that CMC Action
pursuant to the "business pursuits" exclusion
contained in the policy issued to Arnold.
1925(a) Opinion ("Rule 1925(a) Op."), 12/12/2018,
obtain such relief, Nationwide filed a declaratory judgment
complaint on June 8, 2016, seeking a declaration that it has
no duty to defend and/or indemnify Arnold in the CMC Action.
Subsequently, on July 14, 2017, Nationwide filed a motion for
summary judgment, asserting that the 'business
pursuits' exclusion in Arnold's Umbrella Policy
excludes coverage for the lawsuit brought against Arnold by
CMC. Arnold and Pushinsky each filed responses, in which they
both requested that Nationwide's motion be denied.
23, 2018, the trial court entered a confusing, contradictory
order, in which it granted Nationwide's motion for
summary judgment but declared that Nationwide has a duty to
defend and/or indemnify Arnold based on the Umbrella
Policy. In other words, despite stating that it
granted Nationwide's motion, it actually denied
Nationwide the relief it requested. In an accompanying
memorandum, the trial court explained that the 'business
pursuits' exclusion did not apply and, as a result,
Nationwide continued to have a duty to defend Arnold in the
CMC Action. See Trial Court Memorandum
("TCM"), 7/23/2018, at 8. Further, it stated that,
because Nationwide has a duty to defend, Nationwide also has
a duty to indemnify. Id. Thereafter, on August 6,
2018, for reasons that are unclear to us, the trial court
entered an order identical to its July 23, 2018 order.
See Trial Court Order, 8/6/2018.
August 17, 2018, Nationwide filed separate, timely notices of
appeal from both of these orders. The trial court directed
Nationwide to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) on October 2,
2018. On October 11, 2018, apparently realizing the
contradiction in its earlier orders disposing of
Nationwide's motion for summary judgment, the trial court
entered an amended order. Therein, the trial court stated
that it was amending and correcting its July 23, 2018 order
to reflect that Nationwide's summary judgment motion was
denied, but reiterating its determination that Nationwide has
a duty to defend and/or indemnify Arnold in the CMC Action
under the Umbrella Policy. See Trial Court Amended
Order, 10/11/2018. On October 19, 2018, Nationwide filed its
Rule 1925(b) statement. The trial court then issued its Rule
Nationwide raises three issues for our review:
1. Did the trial court err by failing to grant
[Nationwide's] motion for summary judgment and by failing
to enter an order declaring that Nationwide had no duty to
further defend and/or indemnify [Arnold] pursuant to [the
2. Did the trial court err by incorrectly applying the
two-prong standard for application of the 'business
pursuits' exclusion as enunciated in White v.
Keystone [Ins. Co., 775 A.2d 812 (Pa. Super.
2001), ] by examining those prongs as to …
Arnold's status as a [q]ui
[t]am litigant, rather than analyzing the
prongs of the test [as] to … Arnold's employment
at PennDOT, a defined 'business' pursuant to the
terms of the Nationwide policy?
3. Did the trial court err by ordering that [Nationwide] had
the duty to indemnify [Arnold] in the underlying lawsuit when
ordering indemnification is legally premature?
Brief at 7-8 (unnecessary capitalization omitted).
outset - given that Nationwide appeals from an order denying
its motion for summary judgment and appears to be
interlocutory - we address, briefly, the basis for our
jurisdiction. See Good v. Frankie & Eddie's
Hanover Inn, LLP, 171 A.3d 792, 794 n.1 (Pa. Super.
2017) ("[A]n order denying summary judgment is
ordinarily a non-appealable interlocutory order.")
(citation omitted). Our Supreme Court has explained:
Generally speaking, appellate courts have jurisdiction to
entertain appeals from final orders entered at the trial
court level. Ordinarily, a final order disposes of all claims
and of all parties. Pa.R.A.P. 341(b)(1). However, Pa.R.A.P.
311(a)(8) states that an "appeal may be taken as of
right and without reference to Pa.R.A.P. 341(c) from ... [a]n
order that is made final or appealable by statute or general
rule, even though the order does not dispose of all claims
and of all parties." Importantly, Section 7532 of the
[Declaratory Judgment Act] provides that courts of record
have the power to declare the rights, status, and other legal
relations and that "such declarations shall have the
force and effect of a final judgment or decree." 42
Pa.C.S. § 7532.
Pa. Manufacturers' Assoc. Ins. Co. v. Johnson
Matthey, Inc., 188 A.3d 396, 399 (Pa. 2018) (some
internal citations omitted). Within the context of
declaratory judgment actions, the Court has "provided a
rather straightforward two-part test for appellate courts to
apply when considering whether an order declaring the rights
of parties is final and appealable: (1) what is the effect of
the lower court's decision on the scope of the
litigation; and (2) what practical effect does the
court's decision have on the ultimate outcome of the
case." Id. (citation omitted). That is to say,
"[i]f the order in question merely narrows the scope of
the litigation and does not resolve the entirety of the
parties' eligibility for declaratory relief, then the
order is interlocutory and not immediately appealable."
Id. at 400 (citation omitted).
Nationwide appealed from an order denying, in effect, its
claim for declaratory relief. The trial court's order
resolves the entirety of the parties' eligibility for
declaratory relief, as the trial court determined therein
that Nationwide has a duty to defend and/or indemnify Arnold
in the CMC Action. Thus, the order is appealable at this
time. We therefore proceed to the merits.
examining Nationwide's issues, we acknowledge our
standard of review for an order disposing of a motion for
Our scope of review … is plenary. [W]e apply the same
standard as the trial court, reviewing all the evidence of
record to determine whether there exists a genuine issue of
material fact. We view the record in the light most favorable
to the non-moving party, and all doubts as to the existence
of a genuine issue of material fact must be resolved against
the moving party. 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.
Motions for summary judgment necessarily and directly
implicate the plaintiff's proof of the elements of [its]
cause of action. Summary judgment is proper "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. Thus, a record
that supports summary judgment will either (1) show the
material facts are undisputed or (2) contain insufficient
evidence of facts to make out a prima facie cause of
action or defense and, therefore, there is no issue to be
submitted to the jury. Upon appellate review, we are not
bound by the trial court's conclusions of law, but may
reach our own conclusions. The appellate [c]ourt may disturb
the trial court's order only upon an error of law or an
abuse of discretion.
Nat'l Cas. Co. v. Kinney, 90 A.3d 747, 752-53
(Pa. Super. 2014) (some internal citations, quotation marks,
and original brackets omitted).
address Nationwide's first and second issues together.
Nationwide argues that the trial court erred in failing to
find that the 'business pursuits' exclusion in the
Umbrella Policy applied to preclude coverage for Arnold with
respect to the CMC Action. It advances that "this
[e]xclusion is triggered because the litigation and
[Arnold's] status as [a] [r]elator 'arises out
of' his employment with PennDOT, which was his business
pursuit." Nationwide's Brief at 48-49. As a result,
Nationwide says the trial court should have granted summary
judgment in its favor.
Court has previously stated that "the interpretation of
an insurance policy is a matter of law properly resolved in a
declaratory judgment action." Erie Ins. Exchange v.
Muff, 851 A.2d 919, 925 (Pa. Super. 2004). Further,
[a]n insurer's duty to defend is a distinct obligation,
different from and broader than its duty to indemnify. An
insured has purchased not only the insurer's duty to
indemnify successful claims which fall within the
policy's coverage, but also protection against those
groundless, false, or fraudulent claims regardless of the
insurer's ultimate liability to pay. Not ...