Trackers Raceway, Inc. v. Comstock Agency, Inc.

OLSZEWSKI, Judge:

In this case, we are asked to decide whether an order dismissing two out of five counts of a complaint is an immediately appealable final order. We must therefore also examine the doctrine of appealability announced in the seminal case of Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). Applying the Praisner standard, we conclude that the trial court’s order dismissing counts IV and V of appellant’s complaint is final and appealable.

The factual history of the case is as follows. In 1987 appellant, Trackers Raceway, Inc., filed a five-count complaint against appellees, Comstock Agency, Inc.; Allied Specialty Insurance, Inc.; American Columbus Insurance, Inc.; T.H.E. Insurance Company; Southwestern Fire and Casualty, Inc.; John Branish and Harold Churns. The complaint alleged a number of facts. Trackers is a go-cart track operator, regulated by the Pennsylvania Department of Agriculture. Departmental regulations mandated that insurance coverage of the track be written only by insurers authorized to do business in the Commonwealth of Pennsylvania.

Trackers sought to obtain insurance coverage in mid-1986. Appellant contacted appellee Branish, an insurance agent for the Comstock agency, in order to procure the necessary coverage. Coverage was eventually obtained through American Columbus Insurance, predecessor of appellee T.H.E. Appellant paid the premium of $21,250 for the coverage, but was advised, shortly thereafter, that American was not authorized to do business in Pennsylvania and that operation of the track without other coverage would subject appellant to heavy fines.

In response to the Department of Agriculture’s warning, appellant ceased its operations for approximately three weeks, during which it obtained coverage with another insurer which was duly licensed in Pennsylvania. Appellant alleges that the insurance policies issued by American were not in compliance with Department of Agriculture regulations, and did not conform to the representations of Branish and Comstock regarding the terms and conditions of coverage. Appellant proceeded to demand a refund of the full premium paid, but the demand was refused.

Trackers’ complaint contains five counts. All of the counts are against all defendants, consistent with the allegation that all defendants acted in concert and/or are the agents of one another. All counts incorporate by reference all of the factual allegations contained in the first 45 paragraphs of the complaint. Furthermore, all counts incorporate appellant’s general demand for relief whereby Trackers seeks recovery against the defendants, jointly and severally, for damages in excess of $20,000, including damages resulting from business interruption, insurance premiums, attorney’s fees, costs, and expenses.

In Count I, appellant alleges a breach of agreement to place insurance as mandated by Pennsylvania law, a breach of fiduciary duty, and misrepresentation based on the failure to place proper insurance and on deficiencies in the terms and conditions of the policies. The relief sought is for damages, costs, and fees.

Count II alleges misrepresentation; violation of Pennsylvania law, rules and regulations of the Pennsylvania Insurance Department; and wanton, willful, and reckless conduct. The relief sought is the same as in the first count.

Count III alleges misrepresentation, fraud, and deceit, specifically in misrepresentation of the terms and conditions of the American policies, and negligent and/or reckless conduct in failing to comply with Pennsylvania statutes and with the rules and regulations of the Pennsylvania Insurance Department, Department of Agriculture, and Corporations Bureau. Appellant also alleges that the foregoing conduct constituted a breach of agreement with and fiduciary duty to Trackers. Relief sought is for compensatory and punitive damages.

Counts IV and V are at issue in this appeal. In count IV, appellant alleges that the actions of defendants set forth in all of the preceding paragraphs of the complaint constitute unfair or deceptive practices under the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 Pa.Stat. Ann. § 202-1 (Supp.1990), and demands treble damages, fees, and delay damages. Count V alleges that the foregoing actions constitute violations of the Insurance Department Act of 1921, Pa.Stat.Ann. tit. 40, § 235 (Purdon 1971), and demands damages.

All defendants filed preliminary objections in the nature of a motion to strike, and the trial court dismissed counts four and five. Appellant then filed this appeal to the Superior Court of Pennsylvania, which granted en banc consideration in order to focus on whether the order appealed from is final and appealable.

Generally, an appeal will lie only from a final order unless otherwise permitted by statute or rule of court. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544 (1978). An order is interlocutory and not final unless it puts a litigant out of court. Allesandro v. State Farm Mutual Auto Ins. Co., 487 Pa. 274, 281, 409 A.2d 347, 351 (1979); Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). Pa.Rules Civ.Proc., Rules 1020(a), 1044(a); Pa.Rules App.Proc., Rule 1972, 42 Pa.C.S.A.

This Court reviewed the applicable law in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). The standard of Praisner is as follows:

As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Gordon v. Gordon, 293 Pa.Super. 491, 499, 439 A.2d 683, 686-687 (1981); Stengena v. Madden, 291 Pa.Super. 364, 366, 435 A.2d 1269, 1270 (1981); Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 353, 430 A.2d 321, 322 (1981); Bagshaw v. Vickers, 286 Pa.Super. 246, 249, 428 A.2d 664, 666 (1981); Giannini v. Foy, supra 279 Pa.Super. at 556, 421 A.2d at 339. An examination of the cases so holding discloses that the basis upon which this general rule is founded is that in most instances when one count of a multi-count complaint has been dismissed, the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action. In these cases, the courts have adhered to a policy which seeks to avoid piecemeal litigation. Following the general rule, this Court has ... held that an appeal will not lie from an order granting partial summary judgment.

Id., 313 Pa.Superior Ct. at 337-338, 459 A.2d at 1258.

It has long been recognized that in ascertaining whether an order is final, we must look beyond the technical effect of the adjudication to its practical ramifications. Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). In fact, Praisner stands for that very proposition. Under Praisner, “Certain orders which have not put a litigant literally out of court or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from asserting the cause of action alleged.” 313 Pa.Super. 332, 459 A.2d at 1258-1259.

In Praisner, itself, appellant had alleged separate causes of action for false arrest, assault and battery, and malicious abuse of process. The trial court entered summary judgment in favor of appellant on the separate counts of the complaint which alleged causes of action for false arrest and malicious abuse of process. Appellant appealed the entry of these summary , judgments to the Pennsylvania Superior Court, which held the appeal to be proper. While the appeal was pending, but before it had been decided, the cause of action for assault and battery was litigated to final judgment.

Fundamental to Praisner is the definition of a cause of action. A cause of action has been defined as “the fact or facts which give a person a right to judicial relief; the legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle a party to sustain action and give him the right to seek a judicial remedy in his behalf.” Black’s Law Dictionary, 5th Ed. (1979). In many cases, a separate cause of action can be distinguished from an alternate theory of recovery by looking at the relief requested. Alternate theories of recovery are different means for obtaining the same relief for the same harm caused by the same party. A plaintiff cannot recover on all the alternate theories, as this would constitute a duplicative recovery. Garofolo v. Shah, 400 Pa.Super. 456, 583 A.2d 1205 (1990) (en banc, Olszewski, J., concurring).

On the contrary, a separate cause of action requests different relief for different harms. A party may potentially recover complete relief on each of the separate causes of action. In close cases, additional factors must be considered in determining whether a party has alleged separate causes of action or multiple theories of recovery for a single cause of action.

Admittedly, in the case at bar, we have an inartfully drafted complaint which may make it more difficult to apply the Praisner standard. There is considerable overlap among the first three counts; e.g., misrepresentation, fraud and deceit, and breach of fiduciary duty.¹ We must not be misled, however, by the labels used by litigants in drafting their complaints. Capanna v. Travelers Insurance Co., 355 Pa.Super. 219, 513 A.2d 397 (1986). Labels may often be confusing and we must, therefore, look beyond them.

It is clear, however, that under Praisner, the trial court order dismissing counts four and five of the instant complaint was final and appealable because both counts state separate and distinct causes of action which are based on two different statutes. Count IV of appellant’s complaint alleges liability based on violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq., by all of the defendants. Appellant argues that the statute provides for a private cause of action to recover damages sustained as a result of the practices declared unlawful by the Act, and authorizes treble damages for such violation. Section 9.2 applies to the Insurance industry. Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987); Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986).

Section 9.2(a) states the following:

Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as the result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this Act, may bring a private action to recover actual damages or one hundred dollars, whichever is greater. The Court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars, and may provide such additional relief as it deems necessary or proper.

73 P.S. § 201-9.2(a) (emphasis added).

Appellant did not purchase the policy “primarily for personal, family or household purposes.” The insurance policy at issue was purchased for commercial purposes only. Appellant seeks damages arising from the interruption of its business operations due to the misrepresentations of defendants. Therefore, Trackers has failed to state a cause of action under the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Count V of the complaint alleges that the conduct of all of the defendants constituted a violation of the Insurance Department Act of 1921, 40 P.S. § 235. Section 235 provides in pertinent part:

An insurance agent shall be personally liable on all contracts of insurance ... unlawfully made by or through him, directly or indirectly, for or in behalf of any company ... not authorized to do business. in this Commonwealth. Any person soliciting risks, forwarding premiums, or counter-signing or delivering policies, shall be deemed to be the agent of the company ... within the meaning of this section.

40 P.S. § 235.

Here, appellant has not made any allegations of loss “on the contract,” claims made, or judgments unsatisfied within the scope of coverage of the policies issued by defendants so as to impose personal liability “on the contract,” pursuant to 40 P.S. § 235. Thus, no cause of action has been stated under Section 235 of the Insurance Act.

To use the words of Praisner, appellant has been put “out of court” on two separate and distinct causes of action. The statutory bases for counts four and five are not mere alternate theories of recovery for the same cause of action as the other three counts.

We hold the order dismissing counts four and five to be final and appealable.

Order affirmed.

WIEAND and BECK, JX, dissent. FORD ELLIOTT, X, did not participate.

1 . For example, count III, paragraph 57 alleges, in pertinent part, misrepresentation, fraud, and deceit; i.e., failure to comply with “all applicable statutes of the Commonwealth of Pennsylvania and rules and regulations of the Pennsylvania Insurance Department, Pennsylvania Department of Agriculture and the Corporation Bureau." Plaintiff then proceeds, in counts IV and V, with two specific, statutorily-based allegations, including one for violations of the Insurance Department Act.