Motheral v. Burkhart

BECK, Judge,

concurring:

I join the majority’s holding that the orders appealed from are final and appealable insofar as they put appellant out of court on all claims for relief asserted against Deborah Lesko individually and against Kratzenberg, Shields and Lesko, P.C., Lesko’s law firm. I also join in the majority’s affirmance of the dismissal of appellant’s complaint against those defendants. As to the balance of the majority opinion, I concur in the result only. Although I agree with the majority’s determination that the orders appealed from are not final and appealable insofar as they dismiss some but not all of appellant’s claims for relief against the remaining defendant, Ann Burkhart, I reach that conclusion by a far different route.

The trial court dismissed only one of appellant’s counts naming Burkhart as a defendant. This was the count alleging intentional infliction of emotional distress. The remaining count against Burkhart, alleging malicious prosecution, was not dismissed. The majority concludes that the dismissal of the intentional infliction of emotional distress count is not a final appealable order because it did not dismiss a separate cause of action under Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). I, on the other hand, would not struggle to justify this result under Praisner, but would quash the appeal simply because the order appealed from did not put plaintiff out of court on all of his claims for relief against this defendant.

As I have more fully discussed in my dissenting opinion in Trackers Raceway, Inc. v. Comstock, 400 Pa.Super. 432, 583 A.2d 1193 (1990) (en banc), a companion to this case, the proper answer to the Praisner dilemma is to overrule Praisner and hold that an order dismissing some but not all of the claims for relief set forth in a complaint against a particular defendant is interlocutory. This solution will remove the element of uncertainty that has plagued both courts and litigants since Praisner was decided and will foster the policy of avoiding piecemeal appeals.

Although my opinion filed in the Trackers case constitutes a full statement of my position on this issue, several aspects of the majority’s opinion in this case require a further, although brief, response.

The majority enunciates a test for determining when a separate cause of action has been dismissed. The test appears to equate a cause of action with a claim for relief for a given loss.¹ As otherwise stated in the majority opinion, the test is whether the dismissed count(s) sought “different relief for a different harm”. Although the majority determines that this is the key to ascertaining whether a partial dismissal order is final, it concedes at the outset that the test will not work in every case, stating that in some cases additional factors must be considered. Unfortunately, the majority fails to specify what those factors are.² Rather, the majority indicates that in such cases the analysis will be similar to that undertaken in other cases where a consideration of numerous factors is required, such as cases involving review of equitable distribution orders, and adds that the analysis will be aided by reference to prior cases decided under Praisner.

I see a clear distinction between cases such as those involving a review of an equitable distribution order in light of the statutorily mandated factors and a case such as this, where we are asked to perform an analysis of appealability in light of “additional factors” which are not identified. I also do not view our prior decisions in Praisner cases as providing many clues as to what those relevant factors might be. As my dissent in Trackers demonstrates, there is great confusion and inconsistency among those cases. The majority itself demonstrates this fact when it turns to an analysis of this case. The majority begins by cataloging those cases where this court has previously dealt with the appealability of orders that dismissed only a portion of a complaint that included claims for intentional infliction of emotional distress or malicious prosecution. As the majority’s own survey reveals, these cases do not provide principles to guide our analysis in this case. Most of them do not even discuss the issue, but simply state their conclusion.

The majority’s attempt to fashion a reliable and clear Praisner method of analysis is laudable but not, in my view, successful. The question of whether a dismissed count sought recovery for a separate given loss is no more easily or consistently answered than is the original question posed by Praisner, i.e., did the dismissed count plead a separate cause of action. This is readily proven by comparing the majority’s analysis in this case to that found in the dissenting opinion to Schuetz v. Goldberg, 392 Pa.Super. 448, 573 A.2d 549 (1989) (Olszewski, J., dissenting), in which the same test for appealability is purportedly applied, yet the analysis is materially different.³

In this case, the majority concludes that the order dismissing the intentional infliction count did not dismiss a claim for a given loss that was separate or different from that asserted in the remaining malicious prosecution count. This conclusion is based on the majority’s perception that both the allegations of wrongdoing by defendant, i.e., the facts alleged, in each count and the harm to plaintiff alleged in each count are overlapping. Thus, plaintiff is found to have sought one form of relief for one alleged loss arising from one set of facts instead of different relief for different harms.

In the dissenting opinion in Schuetz, on the other hand, although the same test for Praisner appealability is stated, the analysis is different. In Schuetz, plaintiff had sued several defendants for medical malpractice and negligent infliction of emotional distress. Both counts arose out of the same facts—the single allegation of wrongdoing was inadequate medical treatment. The trial court dismissed the count pleading negligent infliction of emotional distress. This court quashed the appeal without opinion. In a published dissent, Judge Olszewski opined that the dismissal put plaintiff out of court on a claim for different relief for a different harm because the relief sought for medical malpractice was for physical injury and the relief sought for negligent infliction was for emotional distress. Judge Olszewski would have so held despite the fact that both types of alleged harm arose out of the selfsame acts by defendants. He specifically rejected the idea that whether a dismissed count sought “different relief for different harms” depended on whether the facts underlying each count were different.

A similar inconsistency in analysis can be found in a comparison of this case and the majority opinion in Trackers. In Trackers, all five counts of the complaint arose out of the selfsame allegations of wrongdoing by defendants. Plaintiff alleged improper placement of insurance giving rise to both common law and statutory theories of relief and resulting in loss of premiums paid and business losses. All losses were equally alleged in each count. Yet this court decided that the dismissal of the two counts based on statutory violations is a final order, despite the fact that the losses alleged, the harms suffered by plaintiff, are identical in every count of the complaint. The only difference between the statutory counts and the common law counts was that in one of the statutory counts, treble damages were sought. Thus, the relief was different, but the loss or harm alleged giving rise to that right to relief was the same. In contrast, here the majority holds that the order appealed from is interlocutory because the losses alleged, the harms suffered by plaintiff, namely, “humiliation, embarrassment, injury to reputation, and physical and emotional distress,” (at p. 1188), are the same in both the dismissed count for intentional infliction and the remaining count for malicious prosecution.

How is the determination of what is different relief for a different harm to be made? Are both different relief and a different harm required, or is it sufficient to seek materially different types of relief, despite the same allegations of wrongdoing resulting in one general loss? Moreover, how does one decide whether the relief sought in one count is cumulative to the relief sought in another? How, for example, did the dissent in Schuetz conclude that plaintiffs damages for negligent infliction of emotional distress were cumulative to her damages recoverable for professional negligence? Were not all the legally caused damages flowing to plaintiff from the defendant’s alleged professional negligence recoverable on that count, even without pleading and proof of negligent infliction of emotional distress? Could not the plaintiff have recovered for all of her suffering, i.e., emotional distress, that flowed from the malpractice in her professional negligence claim, which had not been dismissed? What precedent guides us on this issue? These are questions that should not be left open to be resolved in the same inconsistent manner in which we have handled the question of what is a separate cause of action in our prior Praisner decisions.

Thus, for the reasons stated here and in my dissenting opinion in Trackers, I would overrule Praisner and would quash the instant appeal.

1 . The majority takes this language from the decision of the Supreme Court in Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 533 A.2d 998 (1987), despite the fact that Sweener was not a case involving the dismissal of some but not all counts of a multi-count complaint and contains no comment by the Supreme Court on that issue.

2 . The majority opinion in Trackers suffers from the same defect. While stating that additional factors may be relevant to a determination of appealability under Praisner, those factors are not specified.

3 . Although I recognize that a dissent to a panel decision of this court has no binding precedential effect on this case, an en banc decision, nevertheless I discuss the dissent in Schuetz to illustrate that the test for Praisner appealability announced by the majority, which was also used in Schuetz, is subject to widely varying applications.